The Washington Post Needs to Correct Its Syria Article

by Kevin Jon Heller

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.

http://opiniojuris.org/2015/12/22/the-washington-post-needs-to-correct-its-syria-article/

15 Responses

  1. 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?

  2. 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.

  3. 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 .

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

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

    Thanks

  5. CM,

    You have left out a critical part of the instruction: “You may infer, but you certainly are not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.” The instruction does not say that knowledge and intent are one and the same; it says that knowledge can be considered circumstantial evidence of intent. The same is true in IHL: in determining whether the defendant intentionally attacked civilians, it is relevant that he knew that civilians would be affected by his attack. But the mere fact that he knew does not necessarily mean he intended to attack civilians.

  6. A Layman,

    It is not a question of being learned or unlearned. It is simply a matter of legal doctrine: in creating international humanitarian law, states have insisted that there is a difference between intentionally attacking civilians and intentionally attacking military objectives knowing civilians will be killed. It is perfectly fair to insist that there is no moral difference between the two — but for better or for worse, there is a legal one.

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

  8. 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.

  9. “expected to cause” is the men rea standard

  10. actually, intentional killing of civilians who are DPH IS permissible

  11. 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.

  12. LY,

    I was avoiding that particularly difficult issue. As you may know, I agree with you. But that nuance was clearly not what the authors of the article were trying to suggest…

  13. 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

  14. 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).

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