A Response to Dapo Akande — Part I

My friend Dapo Akande takes me to task today at EJIL: Talk! for my position on drone strikes directed at combatants attending a funeral or helping the wounded.  I will address his curious reluctance to address the text of the Rome Statute in Part II of my response; in this post, I want to address his arguments concerning IHL.  Here are the key paragraphs:

First of all, Article 51(2) which prohibits attacks on the civilian population and individual civilians does not simply prohibits attacks but rather makes it illegal to make civilians and the civilian population “the object of the attack”. To me this emphasises that what is at issue is the question of who the attacker wishes to affect, who he is aiming his attack at. It seems to me that in the scenario under discussion, where the aim is simply to kill the combatant, it is the combatant that is the object of the attack. The civilians are not. The use of the words “as such” after civilian population in Art. 51(2) AP II also suggests that a violation would require that the attacker wishes to target the civilian population, knowing that they are a civilian population and making them a part of his objectives. Indeed, the ICRC commentary to the provision states that:

“By using the words ‘directed’ and ‘as such’ it emphasizes that the population must never be used as a target or as a tactical objective.”

[snip]

Secondly, if one were to adopt the Kevin’s approach it is difficult to see what meaningful role the principle of proportionality would play in the context of attacks against people. If it is ipso facto unlawful (under the principle of distinction) to launch attacks against groups of people, the vast majority of whom are civilian but which also include combatants, then we don’t need the principle of proportionality  when considering attacks against persons. We would only analyse proportionality when considering attacks against objects. However, this is not only contrary to received wisdom but also seems contrary to the structure of API where the proportionality principle is included in Art. 51 (which deals with attacks against civilians and the civilian populations ) and not in Art. 52 (which deals with attacks against civilian objects).

To begin with, it should be pointed out that Dapo is misstating my claim in the previous post.  I did not claim that it is “ipso facto” unlawful to attack civilian populations, which implies that I believe the mens rea of attacking a civilian population is strict liability.  On the contrary, I argued that, under the Rome Statute, the civilianness of a civilian population can be understood only as a circumstance element, which means that a perpetrator has the necessary mens rea for the war crime of intentionally attacking a civilian population only insofar as he acts with the “awareness that [the] circumstance exists.”  That is a very exacting standard; a perpetrator has the necessary awareness only if he is “virtually certain” concerning the existence of the circumstance.  In terms of attacks on a civilian population, therefore, a perpetrator would not violate the principle of distinction if he (1) did not consider whether his target was among a civilian population; (2) believed that his target was not among a civilian population; (3) only suspected that his target was among a civilian population; or (4) believed but was not completely convinced that his target was among a civilian population.  Moreover, there will be a wide variety of situations in which the presence of combatants in a civilian population does deprive the population of its civilian status, such as where combatants are using a civilian population as human shields.  (There is a reason why the ICTY has emphasized that Article 50(3) has particular application when combatants are among civilians for non-military reasons, such as visiting family on leave.)  In all of those situations, the perpetrator’s attack would be subject only to the principle of proportionality.

Dapo also — and more problematically — ignores the provision on which my previous post focused: Article 85(3), the grave-breach provision of AP I.  Here is the relevant text (emphasis mine):

In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health… (a) making the civilian population or individual civilians the object of attack.

Article 85(3)(a) does not contain Article 51(2)’s “as such” language.  (Though I don’t think it would matter if it did.)  More importantly, as I noted in my previous post, the same ICRC Commentary that Dapo quotes approvingly with regard to Article 51(2) makes clear that “wilfully” making the civilian population the object of attack does not require the perpetrator to subjectively desire to attack civilians (emphasis mine):

3474 Common constitutive elements applicable to all the sub-paragraphs of paragraph 3 are the following: — wilfully: the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing the (“criminal intent” or “malice aforethought”); this encompasses the concepts of “wrongful intent” or “recklessness”, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences (although failing to take the necessary precautions, particularly failing to seek precise information, constitutes culpable negligence punishable at least by disciplinary sanctions).

We may regret this definition of “wilfully, ” but it is anything but ambiguous: it means that a perpetrator who is aware that he might be attacking a civilian population but attacks it anyway (thereby accepting the possibility that the attacked population qualifies as civilian) has “wilfully” attacked a civilian population and thus committed a grave breach of AP I.

Again, Dapo does not explain why the definition of “wilfully” in Article 85(3) requires the subjective desire to attack a civilian population, despite the ICRC’s clear statement that it does not. Nor does he address a second statement in the ICRC Commentary to Article 85 (emphasis mine) that reinforces that definition:

3476 It is a grave breach under this sub-paragraph to make the civilian population or individual civilians, knowing their status, the object of attack when the attack is wilfully directed against them and when the consequences defined in the opening sentence follow.

This definition also does not require the subjective desire to attack a civilian population.  It is enough to attack a civilian population “knowing their status.”  Indeed, the “knowing their status” language would be completely superfluous if Article 85(3) required the subjective desire to attack a civilian population; a perpetrator could not subjectively desire to attack a civilian population unless he already knew that the object of his attack qualified as one.  The “knowing their status” language thus seems specifically designed to make clear that a perpetrator can commit a grave breach even if he does not subjectively desire to attack a civilian population, especially in light of the broad definition of “wilfully” discussed above.

Any remaining doubt that the ICRC believed that a reckless attack on a civilian population was a grave breach is then put to rest by its commentary to Article 85(3)(b), governing disproportionate attacks (emphasis mine):

3479 This sub-paragraph 3(b), like sub-paragraph 3(c), adds the words “in the knowledge” to the common constitutive elements set out in the opening sentence: therefore there is only a grave breach if the person committing the act knew with certainty that the described results would ensue, and this would not cover recklessness.

That comment draws a categorical distinction between attacks on a civilian population, which are grave breaches if the population is attacked recklessly, and disproportionate attacks, which are disproportionate only if launched knowingly.  Given the far greater uncertainty involved in the proportionality of an attack than in the civilianness of a civilian population, it makes perfect sense for AP I to impose a higher mens rea on the former determination.

Finally, Dapo fails to address why, if the drafters of AP I wanted to limit the grave breach of attacking a civilian population to attacks in which the perpetrator subjectively desired to attack civilians, it did not include more specific language to that effect.  After all, the drafters knew how to impose a specific-intent requirement when they wanted to.  Article 37, for example, provides the following (emphasis mine):

It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.

Similarly — and even more revealingly — Article 51(2) itself imposes a specific-intent requirement on acts of terrorism (emphasis mine):

The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

If Article 85(3)(a) required the subjective desire to attack a civilian population, the drafters of AP I would have written it differently.  They could have prohibited “attacking a civilian population intending to harm civilians.”  They could have prohibited “attacking a civilian population the primary purpose of which is to harm civilians.”  Both formulations — particularly the latter — would have made complete sense in light of Article 50(3)’s insistence that “[t]he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”  That they did not speaks volumes.

In short, contrary to what Dapo claims, the last thing my argument does is render the principle of proportionality superfluous.  On the contrary, it simply and modestly suggests that, in addition to deliberate attacks on civilians, Article 85(3)(a) is designed to prevent one narrow category of attacks on a combatant who would otherwise be targetable: namely, when he is among a civilian population solely for a non-military reason such as mourning at a funeral or helping treat the wounded.  In such a situation, Article 50(3) provides that the civilian population maintains its civilian status despite the presence of the combatant.  And Article 85(3)(a) makes it a grave breach to attack the population despite being aware of that status.