DOD and NATO Should Conduct Analysis of State Practice of Targeting in Libya Air War

by Kenneth Anderson

CJ Chivers and Eric Schmitt have a lengthy and important front-page story in this past Sunday’s New York Times detailing scores of instances of civilian collateral damage from NATO air operations in the Libya fighting.  I’m surprised it hasn’t received more attention, though North Korea surely has something to do with it.  Although I have no special factual knowledge beyond the public and media accounts, I incline to believe that the Times’ accounts are correct and that the real numbers are considerably higher.  (This is apart from a separate question of violations of the laws of war committed by the Libyan rebels as NATO co-belligerents and whether NATO has any attributional responsibility for the actions of these forces, or for negligence in failing to take reasonable steps to restrain these forces. That legal issue is not considered in this post or in the original NYT article.)

As readers know, I’m an uncompromising advocate of precision technologies in warfare, including drones and other remotely controlled machines that, by removing the issue of soldiers defending themselves, allow for more careful targeting decisions.  I’m also a strong advocate of the Obama administration’s targeting killing programs, both by the military and the CIA.  That said, proponents of precision targeting through better technology have long risked raising expectations well beyond what technology supports at any given moment.  Gains in civilian protection come incrementally, much of it through trial and error, a combination of technology and experience gained about operations using it in the field.  Either over-promising too much, too soon or demands that any “improvement” meet a zero damage, strict liability standard has the effect of stopping improvement in its tracks because improvements come incrementally, one grinding step at a time.  Magic bullets come after a long series, over decades, of unmagic ones.

Unsurprising but nonetheless disappointing, then, was the initial reaction of NATO officials to these Times reporters in their inquiries.  It amounted to a shrug of the shoulders:

By NATO’s telling during the war, and in statements since sorties ended on Oct. 31, the alliance-led operation was nearly flawless — a model air war that used high technology, meticulous planning and restraint to protect civilians from Colonel Qaddafi’s troops, which was the alliance’s mandate.  “We have carried out this operation very carefully, without confirmed civilian casualties,” the secretary general of NATO, Anders Fogh Rasmussen, said in November.

“Without confirmed civilian casualties”?  Not confirmed because NATO declined to make inquiries.  Only after the Times reporters gave NATO officials a 27 page memo documenting collateral damage deaths in particular sites in Libya did NATO change its stance. (Note that Russia is now pressing for an accounting of NATO-caused civilian casualties in the Security Council.)

Two weeks after being provided a 27-page memorandum from The Times containing extensive details of nine separate attacks in which evidence indicated that allied planes had killed or wounded unintended victims, NATO modified its stance.  “From what you have gathered on the ground, it appears that innocent civilians may have been killed or injured, despite all the care and precision,” said Oana Lungescu, a spokeswoman for NATO headquarters in Brussels. “We deeply regret any loss of life.”

That is not an offer by NATO to conduct an investigation; it’s a dismissal of the issue.  NATO will conduct an after-action review in the form of “lessons learned” — an essential and useful exercise for guiding future operations — but apparently not a formal legal review of targeting.  This seems to me a grave mistake — and particularly a lost opportunity for the United States.  NATO should conduct a legal review of targeting in the Libya campaign, and the United States military should likewise undertake its own review of all NATO targeting in Libya.   I do not find anything in the Chivers and Schmitt report that looks to raise issues of negligence under the proportionality standard for collateral damage in the laws of war.  Liability is not the issue or the reason for a formal legal review (I suppose it might arise in a very extreme case of gross and wanton recklessness, but the legal presumption and legal safe harbor in favor of the commander’s good faith judgment on issues of proportionality is profound and does not appear to be an issue in what the Times writes).

The real reason for doing this is, instead, that the Libya hostilities offer an opportunity for the United States to examine targeting standards as state practice.  State practice defended as lawful, as undertaken by the United Kingdom, France, and other allies, in an operation undertaken on their initiative, and with their own equipment, intelligence, legal officers, targeting standards and operational law – rather than simply piggybacking on the US (I realize how much of a behind-the-scenes role the US played; but it was still an unusual instance of non-US NATO countries doing it themselves).  It’s an opportunity for the US to enunciate a legal baseline of state practice in targeting regarded as lawful in particular factual circumstances by its closest allies.  And to do so in circumstances that are not Afghanistan after ten years of war, but instead a new situation, with vastly less intelligence and other capabilities than are available today in the Afghanistan conflict. Circumstances, however, in which the targeting, and collateral damage, was regarded by our closest allies and friends as being compliant with the laws of war.

Thus, one reason DOD should insist on an event-by-event legal review of targeting state practice is implicitly to reiterate that the standards applied in Afghanistan today are proper policy — and also that they far, far exceed any legal requirement.  And that the US’s NATO allies demonstrated important state practice which they regarded as lawful in the conduct of the Libya operations.  Because the next time the US goes to war, it will likely be a lot closer in its initial intelligence and information about targeting to what just took place in Libya than what goes on today in Afghanistan.  The US should be able to draw upon the detailed, incident-by-incident state practice of its closest allies, and their defense of those practices as lawful, as support for its own conduct.

That’s my basic policy take-away — a plea to DOD to insist on a serious analysis of what was regarded in Libya as lawful targeting, including acknowledgment of its limitations and regrettable yet lawful collateral damage.  Ideally there would be an internal version.  But also, importantly, a public version aimed at emphasizing that the “commander’s discretion” under the law of war is real and that the laws of war provide a firm safe harbor for commander’s decisions on targeting — and doing so on the basis of evaluating the particular targeting practices in the Libya operation by allied NATO forces.

Below the fold, a little more discussion of the Times article and the crucial role of ground level intelligence in the conduct of drone warfare and targeted killing.

I have pointed out in earlier blog posts at both Volokh and OJ that Libya is an important marker of operational targeting law.  Chivers and Schmitt reach more or less the same conclusion:

The failure to thoroughly assess the civilian toll reduces the chances that allied forces, which are relying ever more heavily on air power rather than risking ground troops in overseas conflicts, will examine their Libyan experience to minimize collateral deaths elsewhere. Allied commanders have been ordered to submit a lessons-learned report to NATO headquarters in February. NATO’s incuriosity about the many lethal accidents raises questions about how thorough that review will be.

The lasting significance of NATO and US Defense Department review of targeting rules in Libya is different from what Chivers and Schmitt argue that it is, however.  They argue that the failure to investigate collateral damage incidents mirrors the early period of the Afghanistan war, and that it was on account of investigations of collateral damage that led in Afghanistan to tightening of the rules on targeting, thus reducing collateral deaths:

NATO’s experience in Libya also reveals an attitude that initially prevailed in Afghanistan. There, NATO forces, led by the United States, tightened the rules of engagement for airstrikes and insisted on better targeting to reduce civilian deaths only after repeatedly ignoring or disputing accounts of airstrikes that left many civilians dead.

One can debate whether NATO — i.e., the US — repeatedly ignored or wrongly disputed these accounts; that’s not the important point.  Far more important — and the real lesson of the debate over Libyan collateral damage — is that tightening of targeting rules for airstrikes became possible over the course of that decade-long war mostly on account of two developments: better technology, such as drones and more precise weaponry, and crucially better intelligence.  Or, more exactly, the accumulation of far greater intelligence and means of gathering intelligence about Afghanistan.  One intelligence officer remarked to me a year ago that parts of Afghanistan are among the most mapped areas on earth.  The intelligence gathering runs from physical, political, and social geography to human intellligence gathered on the ground — which is, by many accounts, the key reason for the US success with its counterterrorism targeted killing campaign — but the accumulation over ten years is “a,” if not “the,” crucial reason why the US has been able to shift to narrower and more demanding targeting standards.

Read closely Gregory McNeal’s new article on the extraordinarily fine-tuned targeting and damage mitigation standards in Afghanistan today.  They have reached the point where “law” is not really an issue — the policy standards are far more exacting than that.  It is clear, however, that no such level of planning, review, collateral damage mitigation exercise, etc., could meaningfully take place for most of the Libya operation — not from lack of desire to minimize collateral damage, but from lack of accumulated intelligence of all kinds by which such review could have some real effect.  One can insist in a targeting review on any standards one likes, in other words, but if you don’t know a vast amount about the target environment, it won’t actually improve your targeting.  In Afghanistan at this point, that information includes detailed knowledge about the load-bearing of the earthen walls of compounds, anthropological surveys about likelihood of civilians in the streets after dark, and lots of other things that have never been imagined to be asked about Libya, let alone answered.

Although I don’t doubt that NATO/US officials wanted to avoid awkward questions about collateral damage early on in the Afghanistan war — who wouldn’t? — and although I don’t doubt that awkward questions helped raise the profile of the issue, the actual ability to do anything about it arose from technology, experience, and the accumulation of intelligence.  The technology can be transferred from one place to another, and so can part of the operational experience.  But intelligence accumulation, especially local geography in all its senses and ground-level human intelligence, as well as the operational experience that those convey with respect to the new precision technologies — no, those are not transferrable.  And note that the US ability to engage in its remarkably low collateral damage operations has required many years of patient, unsung work by both military intelligence and the CIA.

So the ability to make good on demands for lower collateral damage is in considerable part a side benefit of an entire decade of war.  If you want those kinds of possibilities in Libya, you need to have those kinds of intelligence capabilities on the ground.  If you don’t have them, but you think — on grounds of imperative national security, imperative demands of humanitarian intervention, or any other reason — that you must use force, you can set your standards as high as you like, you can conduct as many after-action reviews, you can bring in the ICC prosecutor.  Either you won’t attack at all, or else your targeting will continue to be less precise — by orders of magnitude less precise — than Afghanistan today.  Fixing the problem requires not just insistent demands for it, and not just technology — but detailed intelligence, which takes time to develop.  The key point is that targeting in Libya resembled Afghanistan in the early days because the intelligence framework was not there.  As for drones — they are an important element in gathering intelligence, but when it comes to firing missiles, the drone is the last kinetic step in a long process of intelligence accumulation.  The less intelligence, the less ability to use the drone precisely.

I worry sometimes that the US might be passively or inadvertently allowing the implicit legal bar to be raised regarding the quality of targeting.  In some of my conversations with younger JAG lawyers who have served as legal advisors on targeting, they sometimes take for granted everything that is now available for the Afghanistan theater — and assume that it will be there for every other situation.  It’s almost inevitable after a decade of fighting there — for many of the young JAG officers, their entire operational law careers have been framed by Afghanistan and Iraq.  It is hard to keep in mind that there will be other wars in which there is not a decade of intelligence built up over years and on the backs of many unfortunate and regrettable — but lawful — instances of collateral damage.

I’ve raised this occasionally in guest lectures at the JAG school, and I find there is often a palpable double-take when students think about what it would be like to arrive in a new conflict.  I think as well that there is much greater awareness of this issue precisely on account of the Libya fighting.   But I also hope there is long term awareness in DOD and other agencies of the need to remind the public that the legal threshold is much, much lower than what we are able to do in Afghanistan.  The casuistical, incident-by-incident analysis of state practice in Libya helps keep that in mind.  And a public release of a version of that analysis, in order to emphasize precisely those limits to the US and NATO’s interlocutors in the public.

http://opiniojuris.org/2011/12/20/dod-and-nato-should-conduct-analysis-of-state-practice-of-targeting-in-libya-air-war/

7 Responses

  1. Response…
    But note that the U.S. sent more than  one hundred missiles into Libya — not drone targeting and how “smart”?  And a great deal of targeting was done by “NATO” aircraft — not drone targeting and how “smart’?
    Yes, there should be an inquiry even for internal purposes.

  2. Jordan, sorry of I wasn’t clear – I agree there should be review of all operations, manned aircraft, drones, all of it, US and combined NATO ops, whole thing.

  3. Response…
    agree — it would be useful to chart such re: use of different types of weapons, e.g., drones, aircraft using …, and missiles.

  4. Wonderful post, Ken.  We should also remember the nature of the enemy or target in this process.  Targeting uniformed troops and/or more structured/regular forces with conventional weapons systems does increase the known military advantage of an attack, thereby adding to that side of the proportionality equation.  It is different when fighting irregular forces.

    The intelligence in other theaters — like Afghanistan — is geared not only to minimizing civilian casualties, which in context is both a strategic and (comparatively lesser) legal imperative as you point out, but also to accurately identifying targets/irregular forces.  In other words, intelligence plays an important and intricate role on both sides of the proportionality equation: expected harm and expected muilitary advantage.  

    When attacking more conventional formations, intelligence continues to play an important but less central role in calculating the military advantage of targeting regular armed forces.  The Republican Guard undoubtedly had a higher military value/advantage than a regular unit in Sadaam’s Iraq and would legally (not necessarily strategically) justify a higher rate of collateral civilian harm.  However, eliminating an enemy formation of any type has a clear, fundamental (concrete and direct) military advantage.  Such clarity is often lacking when fighting irregular, particularly insurgent, forces.

    Also, as you indicate by reference to available mud wall information, the more one knows about civilian objects in the location of an attack, the better one can predict collateral consequences of an attack.  This does not mean, however, that one must spend ten years preparing for an attack. 

    The bottom line is that we must remember that the basic legal standard: the commander ordering an attack must exercise due diligence under the attending circumstances to determine whether the “expected” harm to civilians and civilian objects would be “excessive in relation to the concrete and direct military advantage anticipated.”  Determinations required by every word that I quote and emphasize above rest on available information. 

    What Gregory McNeal’s article demonstrates is a level of due diligence in seeking relevant information that cannot possibly be replicated in circumstances like Libya, or even by lesser trained or equipped armed forces regardless of how long they have been fighting the same enemy in the same location.  The key question seems to be the role that the possession of a given intelligence capability plays in how we assess a commander’s diligence in pre-attack assessment.  That no doubt truns in part on the commander’s available time to access and meaningfully use that asset in the context of the larger operation.  Available time no doubt depends on strategic, operational and tactical circumstances which would seem to vary based upon the actual nature and purpose of the operation.

  5. curious to read a post by someone from oj on that one: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-12/cp110139en.pdf

  6. I agree with the conclusion – NATO ought to analyze the cases of unintended civilian casualties – and much of the reasoning. I was brought up short by this:

    “Thus, one reason DOD should insist on an event-by-event legal review of targeting state practice is implicitly to reiterate that the standards applied in Afghanistan today are proper policy — and also that they far, far exceed any legal requirement.  And that the US’s NATO allies demonstrated important state practice which they regarded as lawful in the conduct of the Libya operations.  Because the next time the US goes to war, it will likely be a lot closer in its initial intelligence and information about targeting to what just took place in Libya than what goes on today in Afghanistan.  The US should be able to draw upon the detailed, incident-by-incident state practice of its closest allies, and their defense of those practices as lawful, as support for its own conduct.
    That’s my basic policy take-away — a plea to DOD to insist on a serious analysis of what was regarded in Libya as lawful targeting, including acknowledgment of its limitations and regrettable yet lawful collateral damage.  Ideally there would be an internal version.  But also, importantly, a public version aimed at emphasizing that the “commander’s discretion” under the law of war is real and that the laws of war provide a firm safe harbor for commander’s decisions on targeting — and doing so on the basis of evaluating the particular targeting practices in the Libya operation by allied NATO forces.”

    What bothers me about the first paragraph is that it suggests that the main motive for the analysis is an ulterior one: vindicating Afghanistan targeting practices and marshaling support from other states’ practices in anticipation of the next US campaign. What bothers me about the second is the suggestion that, whatever the analysis shows, there should be a “public version” that strongly emphasizes commander’s discretion.

    It seems to me that a genuine analysis goes in without any predetermined conclusions and takes the facts wherever they lead. A good faith analysis has to be open to the possibility that NATO commanders abused their discretion, or were sometimes negligent, as well as to the possibility that commander’s discretion is not a “done deal” in the law. The Gotovina decision that Corn & Corn criticize (in the paper Ken links to) doesn’t grant commanders much discretion, which is precisely why it has come under criticism. But that debate is too recent to be resolved yet, and for the moment Gotovina stands as legal authority by a very distinguished tribunal for quite limited commander’s discretion. At the very least, the existence of broad commander’s discretion is an open and contested legal question. I think it would be improper for NATO to undertake an analysis if the purpose was mainly to shore up one side of an open and contested legal question. The analysis has to be done in good faith from the get-go, else it is not really an analysis.

  7. Response…
    Yes, David, but the criminal responsibility standard under CIL involves mens rea standards from wanton-reckless disregard to intent — unlike the limited standard within the ICC, which simply limits ICC jurisdiction.

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