Civilian Casualties and the Law-Policy Conundrum

[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]

While Syrian atrocities and North Korean provocations have garnered headlines of late, it is the threats posed by non-state actors (and their transnational pursuit by powerful militaries) that have most bedeviled scholars and practitioners of international law in the new millennium. This challenge is unlikely to abate anytime soon. Aside from the preliminary matter of resort to armed force, foremost among the dilemmas is how best to minimize civilian casualties in a context where the use of both human shields and surreptitious baiting is prevalent, distinction is difficult to begin with, and collateral damage exacts a strategic toll on top of its moral and legal burden.

In this vein, the uptick in civilian casualties from coalition airstrikes this year has raised the specter of a “more cavalier” approach toward civilian deaths accompanying the transition of US administrations. The US military, for its part, maintains that its standards have not changed. In a May press conference, Defense Secretary James Mattis reiterated that “there has been no change to our rules of engagement and there has been no change to our continued extraordinary efforts to avoid innocent civilian casualties.” What has changed, according to the Pentagon, is a delegation of authority to launch attacks and a shift toward surrounding rather than evicting ISIS fighters from their strongholds.

The concern over a purported “loosening” of counterterrorism rules begs the question of how protective of civilians the Obama-era policy really is or was. An excellent window into that issue is provided by a debate earlier this year over at Just Security between Gabor Rona and Ryan Goodman. To oversimplify, Gabor argued that the presidentially-mandated Director of National Intelligence (DNI) report claiming that only one non-combatant death resulted from US counterterrorism strikes outside areas of active hostilities in 2016 was not credible, due in large part to “an inappropriate application” of international humanitarian law (IHL) or the law of armed conflict (LOAC) outside of armed conflict. Ryan responded that Gabor was making “a category mistake” by confusing a “policy innovation” (i.e., “areas of active hostilities”) with the legal definition of non-international armed conflict (NIAC). Gabor conceded that “areas of active hostilities” and NIAC are not synonymous, but pointed out that it nonetheless remained unclear where the US government considered itself at war. Ryan, together with Stephen Pomper, replied that such lack of clarity shouldn’t be a reason to distrust the DNI report since, in any event, national self-defense targeting in response to imminent armed attacks is more restrictive than IHL targeting.

Simply put, I think that Gabor is more likely to be right for the basic reason that his main point is unassailable: how you define the terms can influence the result you get. The input (definitions) determines the output (numbers). What constitutes a non-combatant death outside an area of active hostilities is dependent, among other considerations, on the applicable legal regime (which under this formulation must be IHL, or else the entire exercise is futile), a shifting policy determination of where active hostilities exist, and an idiosyncratic definition of “non-combatant” that appears to apply the notion of combatancy outside the context of armed conflict in a “national self-defense” strike. The stark reality is that any time combat power is employed innocents are likely to be harmed, no matter how cutting-edge the technology, prescriptive the policy framework, or conscientious the warfighters. This is why the talk of “zero” civilian casualties was always disconcerting, and why, in Gabor’s words, claiming one civilian casualty in a year strains credulity.

Recently, Bobby Chesney provided another useful reminder that the phrase “areas of active hostilities” is not a legal term and is not meant to denote the applicable legal regime. He also offered an astute analysis of what the policy framework was intended to do: namely, “to eschew the full range of authority that LOAC would permit, in favor of a more constrained approach,” so as to enable the Obama administration to downplay the practical gap between the US position of “a borderless armed conflict and the position of those who reject that view.” In so doing, however, the administration continued to offer assurances of compliance with IHL, whether or not it was the relevant legal framework, while claiming that its policy overlay was a heightened standard rather than a failure to comply with international human rights law (IHRL).

The result is what Naz Modirzadeh aptly called “folk international law,” the mixing and matching of IHRL, IHL, and jus ad bellum standards into a hodgepodge of norms that provided a shiny veneer of legal and policy frameworks for US counterterrorism operations. The problem is not that these standards weren’t well-intentioned or crafted by some of the best legal minds the US has to offer—indeed, they almost certainly were—but that they sowed legitimate confusion among supporters and critics alike by using policy to bend rather than supplement the law.

For example, the location of active hostilities per US policy “does not turn exclusively on” the existence of armed conflict, yet the “scope and intensity of US counterterrorism operations” are a key factor in making that determination. If this sounds a lot like the first Tadić factor for determining the existence of a NIAC, that’s because it does. So Gabor can perhaps be forgiven for his alleged “category mistake” of assuming that active hostilities have something to do with armed conflict, and the American Civil Liberties Union (ACLU) and other human rights organizations cannot be totally off base for highlighting the cognitive dissonance of a policy framework that specifically applies outside areas of active hostilities yet “contains some standards that are contrary to what is legally required outside of armed conflict situations.”

Where does that leave us today, now that the rhetoric of US political leadership has shifted from interagency “coordination and review” to “total authorization” and “annihilation”? Perhaps the best, even if not wholly satisfying, answer is a return to first principles and an acknowledgement that the law has not changed. It is axiomatic that IHL is triggered by armed conflict and does not apply outside it. No policy framework, no matter how much legal-sounding terminology it incorporates, can alter this. Nor is any policy that risks blurring this crucial distinction, and is thereby dependent upon the supposedly “unique moral nobility” of a particular leader or cabinet for its responsible application, one that is ultimately sustainable.

IHL “sets the outer limits” of what is permissible in war. Within that construct, how much authority to delegate, or what level to call in strikes, is a matter of discretion. Exceeding IHL’s outer limits, or transposing those limits outside armed conflict, is not. Policy innovations like “areas of active hostilities,” even if conceived to exceed humanitarian safeguards, risk couching over-application in the language of constraint. The best way to avoid policy being misconstrued as law is to clearly differentiate law from policy. And the best way to address the myriad international legal challenges posed by non-state actors is to avoid further muddling an already complicated terrain.