The wrong target: air strike, legal limit, human voice

About the author
John Wooding is a trainee solicitor in London, with experience in advising on human rights issues

The military commander of the United States's efforts in Afghanistan, General David H Petraeus, announced on 10 May 2009 that he was appointing a senior colleague to conduct an investigation into the conduct of US air-strikes in Afghanistan. This follows a week when as many as 150 Afghan civilians may have been killed in such strikes in the west of the country, an outcome that has provoked demonstrations by Afghan students and protest from the country's president, Hamid Karzai. 

The phenomenon of non-combatants being killed and wounded accidentally in the course of air-assaults intended to hit military targets has been a consistent feature of the wars of the 2000s in (for example) Afghanistan, Iraq, Pakistan, Gaza, and Lebanon. The details of each incident are as varied as these locations, yet the media reporting-cycle tends to settle into a familiar, constantly repeated pattern:

* the military's initial press-release describes a precision-strike on a group of militants

* a claim emerges that non-combatants have died in the relevant attack

* the military responds by arguing that the civilians' non-combatant status had been compromised, either by participation of some of them in (for example) guerrilla action or by the use of civilian locations for military purposes

* a series of claims and counter-claims are made about the numbers and identity of those killed and injured

* the media caravan loses interest and moves on, leaving the competing accounts to be investigated (if they are) by those with the resources to do so - with little expectation of high-level publicity being attached to their findings.

Paul Rogers's weekly column on openDemocracy has frequently addressed the issue of air-war and civilian deaths in Afghanistan, Iraq, Pakistan, Lebanon and Gaza. A selection of relevant articles:

"Endless war" (19 January 2006)

"Lebanon: the war after the war" (12 October 2006)

"The war of the long now" (10 January 2008)

"Pakistan: the new frontline" (18 September 2008)

"A three-front war: Iraq, AfPak...Washington" (20 March 2009)

"Afghanistan: the last throw" (3 April 2009)

"Drone wars" (16 April 2009)
These incidents and their brief media trail form part of the background noise of international politics. They are always "there", but so rarely followed up. In particular, the voices of the victims and their relatives are almost never heard.

This is, as implied above, in part a problem for the media: of access, attention-span, independence and responsibility (see Eric V Larson & Bogdan Savych, Misfortunes of War: Press and Public Reactions to Civilian Deaths in Wartime [Rand Corporation, 2006]). But it is also, I would argue, one for international humanitarian law. For the law itself as it stands has allowed a "culture of impunity" to envelop such incidents. This brief article poses the question: how can the protection afforded to non-combatants against "accidental" air-strikes and other military attacks be improved?

An ethical dimension

The principle in international law known as jus cogens - which "compels" universal and non-derogable observation on fundamental matters such as genocide or slavery - requires that states engaged in military action take precautions to avoid confusing non-combatants and combatants across a range of activities: weapons-selection, timing, and intelligence verification among them.

The problem arises that in the latter set of cases this duty is in practice highly contextual, and may be hard to observe in absolute terms. The legal scholar and former director of legal services of the British army, APV Rogers, has argued that the circumstances in which a state acts in matters such as targeting are crucial, and that it is not possible to lay down general exemptions.

Does this subjectivity make the law on (for example) targeting a sham? No, because the lack of an absolute requirement to take precautions in particular cases is not in itself fatal to the law. Rather, the subjective approach is designed to reflect the delicate balance inherent in international humanitarian law between the waging of war and the obligation always to reflect common humanity. If the law works as intended, planners and troops will be inculcated with a deeply ingrained sense of what is right and wrong in the heat of battle, while keeping the discretion to respond to military necessity as required.

This implies the important point that humanitarian law demands more of states than merely formal or token (even if highly visible) efforts to comply with its strictures; instead, it requires that states absorb the laws underlying principles on a deeper, moral level. When a state defends a targeting decision purely by arguing that its actions were "legal", this is not necessarily saying very much.

True, most militaries do make highly visible efforts to comply with international law on targeting - by, for example, issuing comprehensive manuals that go into considerable detail on the legalities of target selection. But these efforts are not enough by themselves. It is partly that these details allow for "technical" adjustments that suggest less a concern for civilian lives than a wish visibly to comply with the law for public-relations purposes. More fundamentally, well rehearsed efforts to show compliance with the law can divert public attention from the deeper question of whether practitioners are asking themselves the moral questions that they should be confronting.

The law on precautions over matters such as targeting is meaningful only when accompanied by a certain moral ethos (as Tom Porteous, London director of Human Rights Watch, has said, you can kill a lot of civilians without breaking international law). In combat-zone conditions in particular, adherence to the letter of the law without reference to its ethical foundations can lead to disastrous results on every level - moral, strategic and political. In these situations, mere compliance with the law is not enough.

In these circumstances, states that justify accidental attacks on non-combatants solely by reference to the law run the risk of eroding the law's normative foundations. This problem is longstanding and wide-ranging: it applies to Nato operations in Kosovo in March-June 1999 and the Israel Defence Forces (IDF's) assaults on Gaza in December 2008-January 2009 as well as to the lengthier campaigns in Afghanistan and Iraq.

A human voice

Moreover, the sheer density of legal arguments that often follow an air-strike involving civilian deaths may act as a convenient diversion for the perpetrating state, insofar as this can replace any apparent sense of connection between the act and its human consequences. This situation creates an opportunity for states and their representatives to engage in what David Kennedy terms a "collaborative denial" by military lawyers of their participation in the machinery of war. The result is to stoke an underlying ethos of irresponsibility and detachment, which in part explains why public disputes over targeting errors tend to acquire a repetitive and sterile quality.

The starting-point of progress here may be to acknowledge that the existing legal paradigm is no longer able to protect non-combatants caught in conflict-zones. An over-reliance on this paradigm has fostered the creation of an expert consensus between military and humanitarian actors like the International Committee of the Red Cross (ICRC), wherein the two share the same vocabulary and pride themselves on their pragmatic relationship. In consequence, these actors have come to negotiate the balances inherent in humanitarian law in an insular way, thus reducing the law to a mere language by which states communicate their preconceived policy-goals (see Eyal Weizman, "Lawfare in Gaza: legislative attack", 1 March 2009).

In this situation, what is needed is an attitudinal and cultural shift that can break the evasions, the confusions and the cycle of unresolved claims that surround incidents. The only groups capable of initiating this are non-governmental organisations, for they alone collate and disseminate the actual experiences of non-combatants caught in conflict-zones.

This was evident during Israel's three-week assault on the Gaza strip in 2008-09, when monitors from Human Rights Watch overcame the refusal of access to the territory to compile detailed reports on the munitions being used by observing the bombardment from a nearby hill. In addition, monitors from the B'Tselem group helped Palestinians to influence the terms of debate by providing them with digital cameras on which to record human-rights abuses. Such projects upset the calculus whereby states make targeting decisions, and shift the dominant narrative away from the bombers and back to the bombed.

The United States military leaders in Afghanistan may (if General Petraeus's briefing is a guide) belatedly be understanding that attending to the needs of civilian populations in conflict-zones makes strategic sense as well as being a humanitarian imperative. The classic dichotomy in humanitarian law between military necessity and protecting non-combatants cannot apply in cases where counterinsurgency operations depend on winning political battles at a highly local level - for in these circumstances, securing non-combatants' support is the most important military objective of all.

The military commanders' political overlords have yet to grasp this point.  Until they do, the only way of mitigating the recurring pattern of "tragic-accident" air-strikes is to nurture a milieu in which it is politically unacceptable for states to block investigations of questionable targeting decisions. This must involve the entry of new voices (including those directly affected by the air-strikes) into the public sphere, as part of the formation of a fresh humanitarian consensus.