The Washington Post Needs to Correct Its Syria Article

The Washington Post Needs to Correct Its Syria Article

Karen De Young and Missy Ryan have a long article today in the Washington Post about internal USG debates over the rules of engagement in Syria. It’s a very interesting and generally excellent article, but it contain one major error:

International law allows for civilian casualties, even intentional ones, providing an action is within the bounds of distinction and proportionality, a somewhat subjective judgment that the military importance of the target is worth it.

No, international law does not allow intentional civilian casualties. Intentionally attacking civilians violates IHL’s principle of distinction and is a quintessential war crime. The sentence should read “international law allows for civilian casualties, even ones known to be certain, providing an action is within the bounds of proportionality…”

I have tweeted the authors of the article. I will update this post if they issue a correction.

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A Limey Layman

To ordinary people ‘unlearned’ as we are, the distinction appears one without any difference. The civilians remain dead and injured, no matter what the fine argument. When will our lawyer friends get real?

CM
CM

Kevin, it is a standard US jury instruction that: “a person intends the natural and probable consequences of acts knowingly done”.

Thus, if killing civilians is a natural and probable consequence of a military attack that is knowingly undertaken, those killings are intended.

El roam
El roam

They are right ( concerning attacking intentionally , but , accidently right of course ) . In criminal law , universally speaking , being aware of probable results , means : intentionally acting , and that what is happening in case of civilian casualties in war . It is simply intentional , but justified in war .

If a military commander , is aware of presence of civilians inside military legitimate object , knowing that in attacking it , they shall be eliminated , then :

He can attack , despite knowing and being aware to the highly probable results !! As such , under principles of criminal law , it it is an intentional attack , by all means so !!

Intentional , defines state of mind , being aware to probable results , notwithstanding the wishful thinking or wishful intentions ( even if they are pure and good ones , it is intentional ) .

Only in ordinary and common meaning , intentional means : wishful thinking , not as legal meaning .

El roam
El roam

He who wants , can read demonstrations of the above written by me , from texas penal code , in that post of kevin :

https://opiniojuris.org/2015/05/22/when-the-left-shoots-itself-in-the-foot-ihl-version/

Thanks

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[…] as Kevin Heller correctly notes, the Post story leaves an unfortunate misimpression about what the laws of war allow.  The story […]

Jordan
Jordan

Further, it is not a “military importance ,,, worth it” test, but a definite, concrete, and direct military advantage test per GP I

Edward Brynes
Edward Brynes

From the WaPO article:

“If it’s one ISIL troop, an ISIL rifleman, and he is surrounded by several civilians, then it would stand to reason that it’s not worth the life of those civilians to kill a single rifleman,” said Col. Steve Warren, the Baghdad-based coalition spokesman. “If it were [Abu Bakr] al-Baghdadi,” the Islamic State leader, “standing next to one or two civilians, it might perhaps get looked at differently.”

Had the US and allies gotten more heavily involved in the war at an earlier stage, conflict might likely have been resolved earlier and the number of civilian casualties and refugees might have ended up lower even if there were more IHL violations along the way.

Jordan
Jordan

“expected to cause” is the men rea standard

Jordan
Jordan

actually, intentional killing of civilians who are DPH IS permissible

LY
LY

Kevin, are you suggesting that the war crime of intentionally attacking civillians requires direct intent/purpose/dolus directus in the first degree that will not be satisfied with a lower standard of knowledge of virtual certainty? The topical ICTY/R case law does not seem to adopt such an interpretation of the notion “intentionally” in the definition of this war crime and I would say that neither does the Rome Statute, given the text of Article 30 RS.

RJ
RJ

this piece somewhat bears resemblance to the debate between Noam Chomsky – Sam Harris debate.
Chomsky:
“Apologists may appeal to undetectable humanitarian intentions, but the fact is that the bombing was taken in exactly the way I described in the earlier publication which dealt the question of intentions in this case, the question that you claimed falsely that I ignored: to repeat, it just didn’t matter if lots of people are killed in a poor African country, just as we don’t care if we kill ants when we walk down the street. On moral grounds, that is arguably even worse than murder, which at least recognizes that the victim is human. That is exactly the situation. And we are left with your unwillingness to address the very clear question that opened the passage you cite is, instead offering evasions that are exactly as I described. And your unwillingness to address the crucial ethical question about intentions.”

http://www.samharris.org/blog/item/the-limits-of-discourse

Jordan
Jordan

So, their statement that “civilian casualties, even intentional ones, providing an action is within the bounds of distinction,” is appropriate if they meant that civilians can be targeted, intentionally, if the principle of distinction is complied with because the civilians are targeted, for example, while they are DPH (i.e., directly participating in hostilities).