In Greek mythology, a tragedy is a tale of human suffering designed to provoke a cathartic response from the audience. One of the most common forms of tragedy is miscalculation, where the noble protagonist makes a serious error of judgment with catastrophic results. It is therefore hardly surprising that senior U.S. military officials have used the word “tragedy” to refer to two recent revelations of civilian harm – the 2019 airstrikes in Baghuz, Syria, that reportedly resulted in mass civilian casualties and the Aug. 29 drone strike in Kabul that killed ten civilians, including seven children. Framing these incidents as tragic mistakes offers us, and those inside the Pentagon, a feeling of catharsis and a way to move on.
We should resist that oversimplification. Mistakes were made, but the mistakes were not limited to the people involved or the execution of those particular strikes. The problems with civilian harm in U.S. military operations are systemic, the result of implementing flawed legal, policy, and operational frameworks that do not adequately protect individuals. A pronounced lack of accountability and of institutional learning has exacerbated this problem, producing a military culture where officials perceive their actions to be “righteous,” no matter how misguided. The real tragedy of the Baghuz and Kabul strikes is that this culture persists, and tinkering with the rules will not sufficiently reduce the instances in which civilians will be needlessly killed.
Lawful but Awful?
The U.S. military has a catchphrase for this “tragic strike” phenomenon: “lawful but awful.” That was clearly the verdict in the investigation into the Aug. 29 Kabul strike, which concluded that the entire operation was an “honest mistake” due to confirmation bias – not criminal negligence, not a violation of the laws of war, and certainly not a moral stain on America’s conscience. Likewise, the Department of Defense (DOD) stated that the Baghuz strikes followed the rules of “legitimate self-defense” and that “no disciplinary actions were warranted.”
Indeed, the U.S. military is often at pains to stress that it follows strict procedures to mitigate the risk to civilians. As top Pentagon spokesperson John Kirby reiterated in the wake of the Baghuz revelations: “No military in the world works as hard as we do to avoid civilian casualties.”
That claim should be viewed with skepticism. In recent decades, the United States often appears out of step with international law when it comes to the use of force, much to the chagrin of its European partners. British parliamentarians, for example, requested in 2016 that the U.K. government provide “reassurances” that British personnel supporting U.S. drone operations were “not at any risk of criminal prosecution for complicity in killings which may lack international legal justification.” German courts similarly have ruled that there are “strong reasons” to suspect that U.S. drone strikes and other special operations are not in full compliance with international humanitarian law (IHL).
Moreover, the United States is one of the few countries – alongside Iran and a handful of other outlier states – that has declined to ratify the first additional protocol to the Geneva Conventions of 1977 (AP I), which sets strict standards for the protection of victims in armed conflict. This failing, along with U.S. interpretations of IHL that diverge from those of its partners and allies, creates a protection gap that all too often results in civilian harm.
The Protection Gap
International law requires belligerents to distinguish between combatants and civilians, and to refrain from directly targeting the latter group (unless and for such time as a civilian is directly participating in hostilities). In non-international armed conflicts, the International Committee of the Red Cross (ICRC) maintains that individuals “cease to be civilians” when they are members of an organized armed group, which consists “only of individuals whose continuous function it is to take a direct part in hostilities (‘continuous combat function’).” Only individuals who have such a “continuous combat function” are liable to attack as members of an organized armed group, and only “for as long as they assume their continuous combat function.”
While there is no settled legal standard for determining who should qualify as a combatant by virtue of membership in an organized armed group, the U.S. approach is markedly different than that taken by the ICRC and many other states. Specifically, the U.S. military uses far broader criteria to determine which individuals are “formally or functionally” part of a non-State armed group, an approach that allows individuals who perform a wide range of non-military functions for the group to be targeted continuously. In the U.S. view, evidence of formal membership in an armed group may include “accessing facilities, such as safehouses, training camps, or bases used by the group,” “traveling along specific clandestine routes used by the group,” or “traveling with members of the group in remote locations or while the group conducts operations.” In the case of the Kabul strike, for example, drone operators considered Mr. Ahmadi’s cousin – a young man who opened the gate to the compound – to be a combatant presumably because of his association with Mr. Ahmadi.
The United States also diverges from mainstream interpretations of international law on what constitutes “direct participation in hostilities.” The DOD Law of War Manual asserts: “civilians who take a direct part in hostilities forfeit protection from being made the object of attack,” but explicitly states that taking “direct part in hostilities” does not imply U.S. acceptance of the direct participation in hostilities rule in Article 51 of AP I (nor the ICRC’s interpretative guidance on the matter). In the U.S. view, taking a direct part in hostilities “extends beyond merely engaging in combat” to include certain acts which “effectively or substantially contribute to an adversary’s ability to conduct or sustain combat operations.”
The assessment on whether individuals are taking direct part in hostilities is therefore highly context dependent, and various factors may be taken into consideration such as “the degree to which the act is temporally or geographically near the fighting.” In contrast to the ICRC’s position, the U.S. military also maintains that there is no “revolving door” of protection for civilians, meaning only civilians who have “permanently” ceased participation in hostilities may not be made an object of attack.
These U.S. definitions allow for considerable leeway in determining who “counts” as a combatant and also which civilians may be targetable by virtue of “directly participating in hostilities.” In its statement to the New York Times, U.S. Central Command (Centcom) said it could not determine “conclusively” whether 75 percent of the targets in the Baghuz strikes – 60 people, including women and children – were combatants or civilians. The reason for this indeterminacy, according to Centcom, was the fact that “multiple” women were carrying weapons and “at least one” child was armed.
But simply being armed is not a recognized standard, under international law, that would cause a civilian to become a member of an organized armed group or to lose protection from direct attack (particularly in dangerous locations where being armed is the norm and may be a form of simple self-protection). It raises the question: does the U.S. military consider anyone carrying a weapon in areas proximate to hostilities to be a combatant? This would be a highly irregular view since even medical and other civilian personnel serving in the military must be protected (and not be made the object of attack) even though they may carry weapons (which may be for personal protection).
Finally, if the United States cannot determine “conclusively” who is a civilian, even years after the strikes, then it is impossible for DOD to determine ex ante whether the expected civilian loss of life would be excessive in relation to the anticipated military advantage. In such cases, the best practice clearly would be to refrain from conducting potentially disproportionate attacks. Yet in the Baghuz case, the principle of proportionality appears to have been misapplied entirely. In its statement, Centcom asserted that the strikes using three 500-pound bombs “were proportional due to the unavailability of smaller ordinance at the time.” This formulation is not a recognized standard of proportionality (either under the rules of targeting in war or the rules on resorting to force in self-defense). So, here again, there is a disconnect between what international law requires and what DOD interprets those requirements to be.
The Need for Precaution
There will, of course, always be borderline cases where it is impossible to determine whether people are civilians or combatants. But international law requires a higher standard in cases of doubt than the standard DOD applies. Article 57 of AP I requires belligerents to “take all feasible precautions” to verify that targets are not civilians nor civilian objects, and Article 50 states: “in case of doubt whether a person is a civilian, that person shall be considered a civilian.” The ICRC’s Commentary on the Additional Protocols similarly affirms that in situations where there may be “room for doubt” or “hesitation,” “the interests of the civilian population should prevail.”
The U.S. military does not operate under this presumption of civilian status as a matter of law. The DOD Law of War Manual requires officers to take “feasible precautions” (decidedly avoiding the standard international term of “all feasible precautions”) to “reduce the risk of harm to civilians,” and then goes on to say that these precautions must be based simply on “good faith” interpretations of the information “available to them at that time.” There is no requirement to refrain from conducting attacks when there is doubt about an individual’s status – even when a strike is not taken in self-defense or under significant time pressure.
Sadly, the U.S. military seems to apply the same rule even to children. At a minimum, DOD should accept the presumption of civilian status when it comes to children. The presumption in the Baghuz case should have been that children were victims of ISIS, since even child soldiers are often drugged, physically and psychologically abused, and forced to fight against their will. Children should not have been considered combatants unless they were directly attacking U.S. or partner forces.
Realistically, it is likely that U.S. and partner forces on the ground in Baghuz did not see the women and children before the strike (Centcom claimed the standard-definition UAV in the area was “unable to discern any civilians”), just as the U.S. military drone operators did not see the children who moved into the frame before launching the strike in Kabul. According to both investigations, the failure to perceive these civilians was a mistake, not a war crime nor even a violation of the law of armed conflict.
Still, the U.S. military has the most advanced technology in the world and ostensibly wages, according to the official position, the most precise and humane form of warfare possible. So why in the Baghuz case did DOD not require trained operators to use UAVs with high-definition cameras to check for civilians when, by its own admission, this was a feasible precaution that should have been taken? And why did drone operators fail to perceive the presence of multiple children in the Kabul strike, even with extensive aerial surveillance in place? Does DOD assess that feasible precautions were taken in these cases?
In short, it is impossible for DOD to reduce civilian harm if it does not first address the risk that civilians will be misidentified as combatants in the first place and take all feasible precautions to mitigate this risk. But here, again, civilian harm is not an accident but rather a systemic problem stemming from a broad definition of who counts as a “combatant” and overly permissive rules of engagement.
The upshot of all this is that the U.S. military has classified many civilians, perhaps inappropriately, as combatants in pre- and post-strike assessments. It is difficult to know how many civilian deaths have gone unreported in the past two decades, but the Baghuz case raises cause for concern. Even the four civilian deaths that Centcom acknowledged in the aftermath of the Baghuz strikes were not included in DOD’s annual civilian casualty reports to Congress in 2019 or 2020. The 60 additional deaths seemingly never were counted at all. The Secretary of Defense, Congress, and the American people should demand to know why.
Even if the U.S. military did hold itself to the highest standards possible, it is doubtful that it would hold its partners to those same standards. The U.S. military relies heavily on local partners in the vast majority of the “wars” it is currently fighting, from Somalia to Syria, Iraq, and Afghanistan. In many cases, these partners are disinclined or unable to follow U.S. military standards. In the Baghuz example, it was the Syrian Democratic Forces (SDF) who instructed U.S. special forces to call in strikes, stating they were under fire and needed immediate assistance. The SDF reported that there were no civilians in the strike area, a claim that turned out to be patently false. Why did the SDF say they were under fire from that location and what, if anything, did U.S. and partner forces on the ground see? A similar incident occurred in Afghanistan in 2015, when Afghan forces fighting the Taliban in Kunduz requested U.S. air support, resulting in a strike against an NGO-run hospital that killed more than 40 doctors and patients.
The vast majority of these strikes have been characterized as “self-defense,” (a DOD term that does not correspond to its specific meaning in international law) even in cases where it is not at all clear that U.S. or partner forces faced an imminent threat. In practice, this characterization has allowed the U.S. military significant freedom of action to circumvent strict policy restrictions and approvals. That pattern of behavior suggests that strengthening the rules of engagement will not reduce civilian harm sufficiently without broader institutional changes.
Failing to Change
In the words of Inspector General Lt. Gen. Sami Said, we have “seen this movie before.”
What occurred in Baghuz and Kabul are not unique or isolated incidents. For years, human rights organizations, the United Nations, and even internal DOD reports have pointed to numerous problems with U.S. procedures – including confirmation bias, communication breakdowns, and problems with the methodology for counting civilian deaths – that do not appear to have been addressed in recent strikes.
The lack of transparency concerning civilian deaths, compounded by the refusal to hold anyone accountable, has produced a culture of military impunity. This institutional culture has allowed good people to do bad things under pressure, to repeat past mistakes, and to fail to take seriously lessons learned on civilian harm in the past two decades. As Larry Lewis argues, lessons were identified repeatedly but not implemented due to bureaucratic inertia, a failure of leadership, and a lack of resources specifically dedicated to reducing the risk of civilian harm. Bureaucratic inertia was at least partly responsible for the lack of accountability in the Baghuz incident, since Centcom’s headquarters in Baghdad and Tampa inconceivably “failed to review and close” the inquiry into the strikes that was sent from the field. And the deeper lessons that Luke Hartig has identified, such as the need to take fewer strikes and rely more on defensive capabilities, seemingly have not been learned yet at all.
Ultimately, the problem is not a failure to identify lessons learned but rather a failure to act upon these lessons. Notwithstanding official expressions of regret, good intentions do not make a morally wrongful act right. Nor is collective guilt or system errors a reason to fail to hold individuals in leadership positions accountable.
The thing about tragedies is that they absolve both the protagonist and the audience from guilt and blame, transforming a painful mistake into the cathartic belief that moral transgressions are in the past and the future is once again bright.
That is what is happening now.
The first step toward change is an honest accounting of the past. Secretary of Defense Lloyd Austin reportedly has been briefed on the Baghuz strikes. That’s good news given Kirby’s initial insistence that as press secretary he would not “relitigate” the past – even though, by all accounts, the strikes were never properly “litigated” in the first place. The House Armed Services Committee has done the right thing in announcing that it will investigate the matter, and Sen. Elizabeth Warren has called for the Senate Armed Services Committee to do the same. The results of these investigations should be made public, including any recommendations on the laws, procedures, and accountability mechanisms currently in place.
The United States is not destined to repeat these mistakes.
In Afghanistan, a small girl sits by the graves of her siblings and cousins, the seven children who were killed in the Kabul strike. She prays while cleaning the headstones, which read: “I ask, ‘why did you leave, this was not our destiny’ – they say, ‘what can we can do, destiny is like this.’” It is high time for DOD to review its targeting procedures and to stop treating civilian harm as if it were the inevitable, tragic cost of war. It is only by rejecting the military culture of impunity – and correcting systemic problems – that the United States can do better.