In Response to the Letter by International Law Experts

Introduction

On April 2nd, over 100 U.S.-based international law experts published a Letter expressing “profound concern about serious violations of international law†in the present armed conflict in the Middle East. Section 2 of the Letter asserts that U.S. forces likely violated the law of armed conflict (LOAC) and potentially committed war crimes.

At the outset, we note our agreement with aspects of the Letter, specifically that it is essential U.S. armed forces remain committed to the respect for and good-faith implementation of international legal obligations – most notably those established by the LOAC (international humanitarian law) – during the conduct of military operations. Any suggestion to the contrary is corrosive to the efficacy, discipline, and morality of our armed forces; it also compromises the legitimacy and strategic interests of U.S. military operations.

However, we want to address Section 2's “[c]oncerns about violations of international humanitarian law†by U.S. armed forces. This should be understandable as each of us have served as the Army's Senior Law of War Advisor (though we each write here in our individual/personal capacity) and we have spent our careers primarily focused on the study and practice of the LOAC's provisions during all aspects of U.S. military operations.

In the first half of Section 2, the Letter – without reference to the operational context and targeting rationale – outlines these concerns by highlighting purported strikes against civilians and civilian objects, oil and gas infrastructure, water desalination plants, and energy infrastructure. In the second half of Section 2, the Letter – again absent reference to operational context and targeting rationale – concludes that a U.S. strike which hit the Shajareh Tayyebeh Primary School likely amounted to a LOAC violation and may potentially constitute a war crime.

We find the methodology underlying the Letter's concerns troubling. At its core, Section 2 reads like a not-so-subtle accusation against unknown, yet very real, U.S. commanders and staff engaged in the immense challenge of selecting and engaging targets in a complex operational environment. We do not believe the Letter's “concerns†characterization negates this inference, nor does it justify the Letter's over-reliance on assumptions and sources of limited relevance. We believe that to suggest the serious allegation that U.S. commanders and armed forces have likely violated the LOAC and potentially committed war crimes requires a credible factual foundation derived from rigorous investigation. Unfortunately, we don't believe the Letter reflects such a foundation.

General to Specific LOAC Violation Concerns

The Letter focuses on purported U.S. attacks on civilians and civilian objects, oil and gas infrastructure, water desalination plants, and energy infrastructure as the basis for its asserted concerns. However, examination of the hyperlinks provided in support of these concerns reveals the flawed foundation upon which they are premised.

For example, the Letter quotes from Iranian Red Crescent Society (IRCS) damage claims while omitting exponentially different damage statistics from another source, a joint civil society report (JCS report). (The Letter shows awareness of the JCS report by citing it, but for civilian casualty claims.) The ICRS statement claims that over a 17/18 day period (28 Feb – 17 Mar), “67,414 civilian sites have been struck, of which 498 are schools and 236 health facilities.†In contrast, the JCS report asserts that over a longer 23/24 day period (28 Feb – 23 Mar), 129 residential buildings, 44 schools and 60 health facilities were verifiably damaged (neither the statement nor the report discusses which of the attacks were by the United States or Israel). Unlike the IRCS statement, the JCS report explains its methodology and verification process.

News stories provide the basis for the Letter's concerns regarding attacks on oil production facilities. These stories – including an ABC News story and a New York Times article – also do not indicate whether the United States or Israel conducted the purported attacks. Nor do they provide any operational context – information that is essential to assess the legality of any such attack.

The Letter also relies on a New York Times article to support the assertion of concerns regarding attacks on desalination plants. The article states a desalination plant in Iran was attacked and references the Iranian foreign minister's claim that U.S. forces were responsible. The article also references a U.S. Central Command spokesperson's claim that the United States was not responsible for the strike. With no other evidence of a U.S. attack, it seems odd that the Letter would rely on an unverified, Iranian government claim as the basis for concern.

As for strikes on energy infrastructure – which in certain operational contexts may meet the test for lawful attack – the Letter relies on condemnation by the UN High Commissioner for Human Rights, which highlights the adverse impact any such attack may have on the civilian population. But adverse impact on the civilian population alone does not render such an attack unlawful.

We agree that the effects on civilians and civilian objects from an attack during the conduct of hostilities are relevant and appropriate when assessing LOAC compliance. But they are rarely conclusive and must be assessed in the operational context and associated targeting rationale. Relying on sources focused only on attack effects in Section 2 with little to no consideration of the context and rationale distorts the assessment and perception of targeting process and legality.

The Shajareh Tayyebeh Primary School: A Possible War Crime?

The Letter discusses the tragic loss of life that resulted when a U.S. cruise missile apparently struck the Shajareh Tayyebeh Primary School is a “particular concern.†Specifically, the Letter notes:

Based on easily accessible online information and commercially available satellite imagery, it appears the building had been used as a school for a decade. President Trump denied U.S. responsibility, falsely stating that “It was done by Iran.†However, a preliminary investigation by the Department of Defense reportedly determined that the U.S. conducted the strike, and the targeting had been based on outdated intelligence.

The Letter concludes: “[t]he strike likely violates international humanitarian law, and if evidence is found that those responsible were reckless, it could also be a war crime.â€

There is no indication the United States intended to attack a girl's school, nor does the Letter make such an assertion. Instead, the Letter indicates a mistake in target identification apparently resulting from reliance on outdated intelligence likely violated the LOAC.

Mistakes, even tragic mistakes, happen in war. Whether they violate the LOAC depends on whether they were reasonable under the circumstances. Was reliance on the intelligence that informed this attack unreasonable? Perhaps. But that conclusion requires more extensive inquiry and analysis.

The preliminary investigation the Letter relied on reportedly indicates there was a mistake, and that this mistake was based on an intelligence assessment identifying the building as a military objective. What is absent from the Letter's assertion is any explanation of why those who identified the target or the commander who ordered this attack should have had some reason to distrust or question that intelligence (assuming it erroneously indicated the building was a military objective). Without more information as to if and why the intelligence was erroneous – in other words whether there was some reason for the military planners or attacking commander to question the assessment – it is premature to assert that decision was unreasonable and amounted to a “likely†LOAC violation.

The LOAC does demand a commander gather the best available information before making an attack decision, an obligation that is important to emphasize. But that obligation is informed by the operational situation. As the International Committee of the Red Cross commentary to Additional Protocol I notes, “those who plan or decide upon [a long range] attack will base their decision on information given them, and they cannot be expected to have personal knowledge of the objective to be attacked and of its exact nature.†Any expectation that staff (who plan) or commanders (who decide) can somehow guarantee the accuracy of every intelligence assessment in the context of a large-scale combat operation is obviously unrealistic. What the law demands of military planners and commanders is reasonable judgment, which includes best practices to ensure the accuracy of intelligence. But emphasizing the importance of developing and implementing such best practices is a far cry from alleging a “likely†LOAC violation.

The suggestion the attack may have also constituted a war crime is even more perplexing. The Letter bases this claim on determining whether “those responsible,†presumably including the unknown commander who authorized the attack, were reckless. Recklessness requires proof the commander or some other individual responsible for ordering or planning the attack was consciously aware of a substantial and unjustifiable risk yet ignored that risk and launched the attack. The Letter does not mention any information indicating the commander or anyone else involved in this attack decision was alerted to or aware of the possibility the intelligence was invalid and that the building was a school. The fact that the result of the attack did not align with what was intended certainly could not, standing alone, indicate a reckless attack decision. We assume everyone agrees on that legal point.

Who exactly would be the alleged war criminal? The commander who ordered the attack? The staff officer who proposed the target? The intelligence analyst who assessed the building as a target? And a war crime according to the laws of which jurisdiction? Certainly not the International Criminal Court, as neither the United States nor Iran are parties to the Rome Statute and recklessness is arguably not sufficient to establish the crime of launching an attack on civilians or civilian objects or launching an indiscriminate attack under the statute. And, as the experts know, war crimes are not enumerated in the Uniform Code of Military Justice, and a reckless attack decision does not seem to fall within the scope of the federal War Crimes Act.

If subsequent investigation indicates the commander or anyone else involved in this attack decision ignored alerts to doubts about the intelligence, or a risk that the nominated target might not be a military objective, a case for recklessness might be viable. But, at this point, it is premature and speculative to make any such assessment now.

Conclusion

As noted above, we share the Letter's overall goal: to emphasize the critical importance of LOAC compliance by U.S. armed forces in every aspect of this (and all other) conflicts. And we are as ardent in support of this goal as the Letter's authors and signatories. However, we also believe critiques of the legality of U.S. military operations are most useful and influential when they are premised on solid factual foundations, including operational context and associated targeting rationale.

Based on our collective experience working with U.S. operational commanders, we believe that the vast majority endeavor in good faith to comply with LOAC obligations. Are there occasionally attack mistakes or errors? Of course. It is essential to credibly investigate such incidents, not only to determine whether they resulted from unreasonable decisions, but also to learn how to better avoid them in the future. If that was all the Letter called for, we would be strongly aligned. However, we believe any statement by international law experts that U.S. commanders likely violated the LOAC and may have committed war crimes should be based on a more compelling factual and analytical foundation.

 

FEATURED IMAGE: This picture taken December 26, 2011 shows the Pentagon building in Washington, DC. Headquarters of the United States Department of Defense (DOD), the Pentagon is the world’s largest office building by floor area, with about 6,500,000 sq ft (600,000 m2), of which 3,700,000 sq ft (340,000 m2) are used as offices. Approximately 23,000 military and civilian employees and about 3,000 non-defense support personnel work in the Pentagon. AFP PHOTO (Photo credit should read -/AFP via Getty Images)