03 Oct The Attack on the MSF Trauma Center in Kunduz and the Limitations of a Risk-based Approach to War Crimes Characterization (Part 2)
[Brian L. Cox is an adjunct professor of law at Cornell Law School, a visiting scholar at Queen’s Law, and a retired U.S. Army judge advocate. This two-part post commemorating the five-year anniversary of the Kunduz strike is part of a larger cross-blog collaboration with Just Security, Lawfire and the Harvard International Law Journal Online. You can find links to the other posts below.]
Part 1 of this post focuses on two main Opinio Juris posts that were published soon after the official Kunduz airstrike was released to the public in the endeavor to examine whether the attack on the MSF trauma center constitutes a war crime. For Part 2, the examination expands beyond these two central OJ posts to consider the issue of a war crime characterization in the broader context. The assessment here in Part 2 begins by addressing the two primary factors that lead to my assertion that recklessness should be excluded from the spectrum of mens rea for war crimes in an armed conflict targeting scenario.
The first primary factor is that the concept of necessity operates differently in a targeting context than it does in standard criminal law. Here, I draw heavily on the description of necessity as a cluster concept that is developed by Jens and co-author Larry May in Necessity in International Law. In a targeting scenario, necessity operates as a license for the attacker “to act in certain ways [here, applying force to achieve a military benefit] once one can show that the action is part of a role.” In a general criminal law context, and indeed in an armed conflict detention context, necessity functions as an exception “to an otherwise binding obligation” to prohibit an actor from using force unless a valid and recognized exception applies.
The second primary factor that leads to my assertion that recklessness should be excluded is that the tactical and operational information environments in which decisions must be made in a targeting scenario are usually vastly different than the information environments typical in a domestic criminal law or armed conflict detention scenario. This is why, to borrow from the DoD Law of War Manual, the endeavor to assess responsibility after an attack should not “second-guess military decisions with the benefit of hindsight.” In short, as the Manual succinctly notes elsewhere, “During war, information is often limited and unreliable.”
To provide descriptive context to this characterization of the information environment that is typical in an armed conflict targeting scenario, the Manual observes that “combatants must make decisions while enemy forces are attempting to attack them and while enemy forces are seeking to deceive them” and that “the importance of prevailing during armed conflict often justifies taking actions based upon limited information that would be considered unreasonable outside armed conflict.” Because of this phenomenon, as the Manual notes separately on the topic, “Even when information is imperfect or lacking (as will frequently be the case during armed conflict), commanders and other decision-makers may direct and conduct military operations, so long as they make a good faith assessment of the information that is available to them at that time.” This information environment bears little resemblance to that which is typical in a standard domestic criminal law context or even in an armed conflict detention context.
These two factors, the particular function of the cluster concept of necessity and the information environment that is typical in an armed conflict targeting scenario, are the primary reasons I take issue with the prevailing perspective that recklessness is a sufficient mens rea to support a war crimes characterization in the targeting context.
When applied to the Kunduz airstrike, as an example, the multispectral television sensor operator on the supporting AC-130 gunship says at one point during the target identification portion of the strike phase of the attack, “I just want to verify that before we start declaring people hostile, that we are 100% sure that this is the correct compound.” (p. 057 of the complete investigation report) Everyone involved in the attack was aware that the available information may be incorrect and civilian persons or objects, rather than military objectives, may be harmed. We know after the attack that they got it horribly wrong, but at the time, as the AC-130 infrared sensor operator recalls after the attack, the personnel “knew with 100% certainty” that they were attacking the correct compound. (p. 058 of the complete report)
In almost every targeting scenario, including in the Kunduz airstrike, an attacker, “without being certain of a particular result [that civilians may be harmed],” nonetheless “accepts the possibility” and engages in the attack anyway. This is the recklessness standard adopted by the ICTY Galić trial chamber, which “accepts this explanation” with no critical analysis from the ICRC Commentary to AP I. Because an attacker inherently “accepts the possibility” that the available information is incorrect and civilians may be harmed before almost every attack, applying this risk-based approach as the applicable mens rea for war crimes in the targeting context would operate to criminalize nearly every attack that causes accidental civilian casualties based on the result of the attack.
Incidentally, this assessment of the recklessness standard makes me reluctant to endorse Jens’s proposal of developing a war crime of recklessly attacking civilians. I wholeheartedly agree with the inclination to “create a duty on the part of attacking forces and then penalize them for failing to live up to it.” However, I think the responsibility for penalizing a failure of this nature should remain the purview of applicable internal military justice processes rather than characterizing such a failure as among the “most serious crimes of concern to the international community as a whole.”
Regarding the inclination to penalize an attacker for “recklessly” engaging in an attack, practical application of the principle of military necessity generates a powerful, though rather intangible, incentive for an attacker to exercise due care (to draw on a more colloquial use of the term “reckless”) in target selection and the application of force. If an attacker is “reckless” as to target selection, there is less of a chance that the attack will bring about the desired military benefit of neutralizing personnel or equipment of the adversary. “Recklessness” in the actual employment of weapons can lead to preventable incidental damage, which can have a detrimental impact on the overall campaign and which serves no cognizable military benefit. In any event, what I refer to in the Lawfire post of this collaboration as the “legitimacy imperative” in military operations functions as a powerful incentive for internal military command processes to prevent, correct, and account for truly “reckless” behavior in the targeting context.
There are two more important points, each of which emerge in the comments to the posts by Jens and Kevin, that I would like to briefly address before closing. First to Adil’s point involving the choice of legal frameworks. He observes in the comments to Jens’s post and elsewhere that the Rome Statute does not necessarily displace existing customary international law involving recklessness and war crimes that was established in relevant ICTY jurisprudence.
This is a topic I address in greater detail in the forthcoming GJIL article and with which I would invite the opportunity to discuss in the comments here, but briefly for now I challenge the assertion that jurisprudence from the ICTY was capable of establishing customary international law on this topic or any other in the first instance. The text of the Rome Statute and my ongoing study of state practice (inspired by Adil’s suggestion in the comments to Jens’s post) both provide overwhelming evidence that recklessness is not a component of the mens rea for war crimes. While the data collected in my ongoing study contradicts the recklessness standard seemingly “established” by the ICTY, I nonetheless challenge the characterization that ICTY jurisprudence can qualify as a primary source of customary law.
Finally, one of the points I make early in this post is that I do not assess the actions of the personnel involved in the attack to be factually reckless. This characterization may seem rather implausible based on the seemingly damning findings of the official investigation. Both Jens (in his post) and Marty (in the comments to Jens’s post) cite several findings that seem to indicate that the personnel involved in the attack at least acted “recklessly.” I address the official findings in more detail in other posts in this collaboration, but for now I will just say that, beyond the basic factual record elucidated, the official Kunduz investigation report is an utterly unreliable source of information. The exchange between Charlie and Marty involving the supposedly “arbitrary” nature of the target selection decision hints at this phenomenon, but, as I describe elsewhere, the official findings are irreparably flawed and are, therefore, unreliable as an analytical tool.
The conclusion that the Kunduz airstrike was not a war crime is, of course, not the only issue of central importance. Whatever the legal analysis, the fact remains that a functioning medical facility was attacked and the result was utterly and horrendously devastating. Based on my critical assessment of the official finding and lessons “learned” following the airstrike, the conditions that led to the tragedy have still not been identified, much less corrected. Even if that failing is rectified, nothing can reverse the horrific outcome of the attack.
While discussion of the legal characterization should not divert attention away from the tragedy that took place, the legal debate is nonetheless vitally important. Often the dividing line between accident and war crime is a matter of intent. Getting the legal and factual intent components right, then, is a central aspect of achieving meaningful accountability following attacks that result in civilian casualties. The institutional reckoning that must take place in response to the Kunduz airstrike is yet to come. As a matter of individual accountability, though, my assessment of the factual record and relevant legal standard is that the attack on the MSF trauma center in Kunduz, Afghanistan was unequivocally not a war crime.
Other posts in this collaborative blog series:
Harvard International Law Journal Online: