December 2011

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.