27 Sep The Law Applied by the UN Syria Commission to the Al-Jinah Strike is Correct – And Reflects US Doctrine: A Reply to LTC Reeves and Narramore
[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva.]
A few days ago, US Army Lieutenant Colonel Shane Reeves and Lieutenant Colonel Ward Narramore published a harsh criticism of the U.N. Commission of Inquiry (COI) on Syria for its “emphatic, and faulty, conclusion that the U.S. violated the Law of Armed Conflict (LOAC)” in an airstrike that hit a religious complex in the village of Al-Jinah. The two authors challenge both the factual and the legal findings of the Commission. In this post, I do not engage in the factual controversy – as long as the facts underlying the legal analysis are withheld from public or judicial scrutiny, everyone will inevitably retain room to influence the narrative. However, I challenge the surprising legal claim made by the authors that there is no duty to take all feasible precautions to minimize incidental civilian harm. This reading of the law contradicts a host of sources, including US military doctrine (for a strong critic of other arguments they raised see this on point reply by Adil Haque).
LTC Reeves and LTC Narramore argue that the COI applied a “non-existent legal standard” when it found that “United States forces failed to take all feasible precautions to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, in violation of international humanitarian law”. Let us first note that the COI did not, as the authors argue, “impose an absolute requirement on commanders to avoid or minimize incidental loss of civilian life”, but only a duty to take all feasible precautions to achieve this aim–an obligation of means rather than of results.
According to the authors, the COI mistakenly interpreted an obligation to refrain from causing excessive civilian harm as a more demanding duty to take all feasible precautions to minimize incidental civilian harm. It supposedly did so by borrowing the standard of Art. 57(2)(a)(ii) AP I to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding or minimizing incidental [civilian harm]” (emphasis added) and by unduly applying this standard to the proportionality rule (reflected in Art. 51(5)(b) and Art. 57(2)(a)(iii)).
I would respectfully suggest that their view conflates proportionality and precautions, and fails to recognize the full scope of the customary obligation to take precautions. It is clear that the Commission’s findings are not based on proportionality but on precaution rules. These rules include the duty to take all feasible steps to avoid or minimize incidental civilian losses. This obligation derives from Art. 57(1) – which the authors’ analysis omits. That paragraph provides that: “[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” This general obligation is to be implemented by taking different precautions including those described in other parts of Article 57. The general aim of “sparing civilians” includes protecting civilians both from deliberate targeting and from incidental harm. In relation to the later aspect, not only is it prohibited to cause excessive collateral damages, there is also a positive obligation to take feasible measures to minimize even those collateral damages that might be deemed acceptable under the proportionality rule.
This duty is stated explicitly in Rule 15 of the ICRC Study on Customary IHL and confirmed by state practice and scholarship. The U.S., which is not a party to AP I, has unambiguously recognized that, as a matter of customary law, “[a]ll practicable precautions, taking into account military and humanitarian considerations, shall be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects” (see here p. 233). This obligation further appears in the U.S. Law of War Manual (see section 5.3.3 on “Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protected Persons and Objects” and section 5.11 on “Feasible Precautions In Conducting Attacks To Reduce The Risk Of Harm To Protected Persons And Objects”) as well as in the U.S. Operational Law Handbook (“If civilians are present, a duty also exists to take feasible… precautions to minimize civilian casualties”, p. 24). The Commission applies this exact rule. So LTC Reeves and LTC Narramore’s blunt statement that “this is simply not the legal standard” is more than a little surprising.
In their example of an enemy leader in a crowd of civilians, they claim that:
“[T]he law, as currently structured, allows a commander the discretion to drop a bomb on the hypothetical leader assuming the resultant civilian death and injury is not excessive in relation to the expected military advantage gained.”
I argue that the lawfulness of the strike depends on the rest of the story. The commander may well act in compliance with the principle of distinction and proportionality, but if she failed to take feasible precautions that could have brought the foreseeable civilian casualties down to, say, 30 instead of 50, then there is a LOAC violation (although no war crime would be committed).
As to the possible measures aiming at minimizing incidental losses, some are listed in Art. 57 (or in corresponding customary rules of the ICRC’s Study). But they are not limited to that list–and certainly not limited to the choice of means and methods of attack, as the authors seem (?) to suggest when they mention Art. 57(2)(a)(ii). The U.S. Law of War Manual Section 5.11 supports that finding:
“Feasible precautions in conducting attacks may include the following:…”
Feasible precautions could include for instance adjusting the timing or point of impact of the strike. Logically, collecting sufficient intelligence (on the nature of the target, possible collateral damages and how to minimize them) is the first component of the obligation to take precautions. This aspect is an important part of the COI’s findings.
Ultimately, whether the COI was correct when it concluded that the US airstrike on Al-Jinah violated the LOAC depends, as always, on the facts. The views of CENTCOM and the two authors on these facts are important. However, calling into question the law applied by the COI is not warranted here. There is a duty to take all feasible precautions to avoid or minimize incidental civilian casualties and damages–even below the threshold of proportionate collateral damages. Restating this is not an attempt “to usurp the LOAC by injecting some version of human rights laws” but a correct reading of the LOAC. It would be important for the authors to clarify their view, as this rule is too significant to leave the wrong impression that the US does not agree with it (anymore?). There is a number of complex legal questions implicated in this event (such as what precautions were “feasible” in this context, or what the commander could have “reasonably” known and how this relates to the COI’s findings on public knowledge about the religious nature of the building and the frequency of religious gatherings there) – but the existence of this specific rule is simply not one of them.