Civilian collateral damage and the law of war obligations of defenders not to commingle civilian and military objects

(Welcome Instapunditeers! The original instapundit post had a bad link (my fault) - it is here, on proportionality and jus ad bellum.)

Along with the discussion of proportionality in jus in bello in my earlier post, I wanted also to address the question of commingling civilian and military objects. At the beginning of the Iraq war, a group of professors and other law of war experts issued a public letter urging attention to the fact that defenders, as well as attackers, have obligations to protect civilians under the laws of war. The letter intentionally did not provide a doctrinal, citation based analysis, on account of the fact that although all the signers shared the final end point, they reached it in some cases by very different legal routes that precluded a definitive legal statement. In any case, Anthony Dworkin at the Crimes of War website posted it, and I reproduce it from the archive below.

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March 19, 2003

A Public Call for International Attention toLegal Obligations of Defending Forces as Well as Attacking Forces to Protect Civilians in Armed Conflict

As hostilities with the regime in Iraq appear on the verge of commencing the undersigned call upon concerned parties, including the Security Council and its members, the Secretary General of the United Nations, the government of the United States and its armed forces, the government of Iraq and its armed forces, other likely belligerents and their armed forces, and the International Committee of the Red Cross and other human rights monitoring organizations, publicly to affirm the legal obligations of defending military forces, as well as attackers, to take measures to protect civilians and minimize collateral damage during combat operations. These measures include prohibitions against the willful co-location and commingling of military targets among civilians and civilian objects for the purpose of rendering legitimate military objectives “off-limits” to attacking forces for fear of causing collateral damage. They further include prohibitions against the use of human shields or hostages, whether voluntary or involuntary, and whether by attackers or defenders, in order to protect military objectives.

Both attacking and defending military forces have independent and non-derogable legal obligations toward civilians in the course of combat operations. Their respective obligations merit equal emphasis in media reporting and commentary as well as in monitoring by human rights organizations and other concerned individuals, non-governmental organizations, and governments and international institutions. Reporting on instances of collateral damage must properly ask not only whether attacking forces took due precautions for the protection of noncombatants but also whether defending forces likewise took due precautions for civilian protection or, instead, whether defending forces explicitly or implicitly relied on the proximity of civilians to shield their forces from attack in violation of the laws of war. In accordance with settled standards of international humanitarian law and the laws of war, obligations of defenders to protect civilians are no less important or less obligatory than those of attackers.

These obligations are not nullified by the relative strategic or tactical advantages or disadvantages possessed by attacking forces or defending forces in any particular circumstances. Sheltering defending forces among the civilian population for the purpose of making them immune from attack for fear of collateral damage is contrary to the laws of war and cannot be justified by the contention, asserted explicitly or allowed implicitly, that defenders seemingly might have no means to defend themselves except by hiding and dispersing themselves among noncombatants. Such sheltering among the civilian population (including sheltering by the use of human shields, voluntary or involuntary) for the purpose of rendering one’s forces immune from attack is a violation of the laws of war.

Perhaps the apparent emphasis on the obligations of attackers and relative lack of emphasis on the obligations of defenders in both the Afghanistan conflict and possible Iraq conflict has been for the reason that the United States and allied parties are the attackers in the Iraq conflict, and their combat policies are more readily influenced by international public debate than those of Iraq. It might also be partly that the relatively disorganized nature of the Taleban and Al-Qaeda forces in the Afghanistan conflict seemingly made pointless any public calls for attention to the obligations of defenders. Nevertheless, defending military forces, like attacking forces, and whether Iraqi or US or anyone else, have non-derogable obligations under the laws of war. Generally speaking, the laws of war apply with equal rigor to all parties, and bind equally all military forces, whether large or small, well-equipped or not, advanced or inferior in quality or training.

In the case of a possible Iraq conflict, Iraqi forces are highly organized and, at least at the outset of hostilities, under tight command and control – a modern army. If the world is not gradually to slide to a position in which it is tacitly accepted that the obligation to take precautions to protect civilians falls fundamentally upon the attacker, or upon the technologically more advanced party, or upon the militarily less desperate party, rather than being an obligation of every party, then international opinion must insist upon compliance and accountability by each party, whether attackers or defenders, in taking due precautions with respect to civilians. This emphasis on the need for strict compliance by all parties is of utmost importance, both in minimizing collateral damage in future conflicts and in buttressing the long-term viability of the entire armed conflict-related body of law. Any effort to accept or justify the proposition that the laws of war’s strictures bind some parties more than others, or that non-compliance by some parties is somehow excusable or justifiable, would irredeemably erode the laws of war.

Although both attacking and defending forces have legal obligations to take precautions on behalf of civilians, the actions of defending forces create in the first place the conditions in which collateral damage is more or less likely to occur. Defending forces create these conditions through such decisions as whether to use hostages or human shields in order to attempt to shield military targets from attack, whether to locate military forces within civilian zones in order to deter attackers through fear of causing collateral damage among civilians, or whether to locate civilian installations, such as schools or mosques, next to military installations. The likelihood and extent of possible collateral damage by attackers is established in the first instance by decisions of defenders over how and where to deploy military assets that are themselves legitimate military objectives. These decisions by defenders are as much within the reach of international laws of armed conflict as the decisions of attacking military forces over how, when and where to attack.

Parties to the possible conflict, international bodies, and international human rights monitors should call upon both attackers and defenders to uphold their obligations to protect civilians in the course of combat operations and note that violations by either attackers or defenders can constitute a war crime. Media, commentators, and human rights monitors should scrupulously inquire into the observance of due care for the protection of civilians by both attackers and defenders, and not merely one or the other. All these parties should be aware, and endeavor to make the public aware that, in the event of conflict, the presence of well-meaning but illegally deployed voluntary human shields – European or American peace activists, for example, but also Iraqi civilians – at the site of a legitimate military objective might well result in deaths that simultaneously constitute legal collateral damage on the part of the attacker and a war crime on the part of the defender for having illegally permitted human shields. Moreover, death or injury to human shields, whether Iraqi or non-Iraqi, who voluntarily take up positions at the site of legitimate military objectives does not constitute “civilian” collateral damage, because those voluntary human shields have assumed the risk of combat and, to that extent, have compromised their noncombatant immunity.

The reality is that in the case of actual conflict the number of genuinely voluntary human shields, whether Iraqis or non-Iraqis, will be nominal. Far more important is attention to the millions of ordinary Iraqis who (as noted in the US Defense Department briefing of February 26, 2003) appear to have had numerous military targets illegally located among them or who have had civilian objects such as schools or mosques built adjacent to military installations, and who for that reason face increased risk of death and serious injury – even if attacking forces take proper and legally required precautions in launching attacks. The international public should understand that the willful co-location of military objectives among the civilian population or willful co-location of civilian installations such as schools or mosques next to legitimate military targets, for the purpose of immunizing those military objectives against attack by threatening collateral damage, in effect treats Iraqi civilians as though they were involuntary human shields – hostages to illegal actions of the Iraqi military. Defenders’ violations of their obligations under international laws of war, while not relieving attackers of their obligations, will in fact tend to make collateral damage from even legally permitted attacks more likely and more extensive. (At the same time, however, it should be noted that there remains at least the theoretical possibility under the laws of armed conflict that both sides might scrupulously observe their obligations to civilians and yet tragic collateral damage still occur. Not all collateral damage is necessarily the result of a failure to take proper precautions by either attackers or defenders.)

It should further be made clear that just as attacking forces and their members will be held to account for criminal violations of the laws of war, defending military forces and their members likewise will be held personally criminally accountable after any conflict, in a US court martial or other appropriate legal forum for trying war crimes, for any use of human shields or hostages, voluntary or involuntary, or for willful commingling or co-location of military targets among civilians or civilian objects. To that end, the undersigned welcome statements by US Secretary of Defense Donald Rumsfeld and Chairman of the Joint Chiefs of Staff General Richard B. Myers on February 19, 2003 that, in an Iraq conflict, the United States would treat the use of human shields or hostages, voluntary or involuntary, to protect military targets as a war crime, and that taking precautions for the protection of civilians is an obligation incumbent on defending as well as attacking armed forces. The undersigned likewise welcome statements by the US Department of Defense reiterating the US commitment to take proper and legally required precautions to avoid civilian casualties and minimize civilian collateral damage. The undersigned further welcome the willingness of the US government publicly to state, in advance of a conflict, its views of international law on this vital subject so that they are both known to all parties and available for open discussion.

The intentional commingling of Iraqi military forces among the civilian population of Baghdad or other population centers for the purpose of threatening mass civilian casualties and deterring attacking forces properly fearful of collateral damage – the spectre of urban warfare deliberately staged by defending Iraqi forces to create casualties among their own civilians – would constitute a horrific crime of war.

Signed (affiliation noted for identification purposes only):

Kenneth Anderson
Professor of Law, Washington College of Law, American University
Research Fellow, Hoover Institution, Stanford University
kanders@wcl.american.edu
(202) 274-4212
(Principal drafter and contact person)

William C. Bradford
Assistant Professor of Law
University of Indiana Law School

Lee A. Casey
Baker & Hofstedtler
Formerly attorney in the Reagan and Bush Sr. administrations

Samuel Estreicher
Professor of Law
New York University Law School

Douglas Kmiec
Dean and Professor of Law
Catholic University Law School

Jerome Marcus
Berger & Montague
Formerly of the State Department Office of the Legal Advisor

Madeline Morris
Professor of Law
Duke University Law School

Jeremy A. Rabkin
Professor, Department of Government
Cornell University

David Rieff
Co-editor, Crimes of War and Author, A Bed for the Night: Humanitarianism in Crisis

David B. Rivkin, Jr.
Baker & Hofstedtler
Formerly attorney in the Reagan and Bush Sr. administrations

Abraham D. Sofaer
Research Fellow, Hoover Institution, Stanford University
Formerly Legal Advisor to the State Department

Don Wallace, Jr.
Professor of Law
Georgetown University Law Center

Paul Williams
Professor, Washington College of Law and School of International Service
American University

Edwin D. Williamson
Sullivan & Cromwell
Formerly Legal Advisor to the State Department