The laws of war don’t apply to the Kabul drone strike

The laws of war don’t apply to the Kabul drone strike

Charli Carpenter
Last week, the U.S. Department of Defense released a one-page summary of its findings from an investigation into a drone strike in Kabul that killed a family of 10 during the U.S. withdrawal from Afghanistan. U.S. military officials had received intelligence that a specific car had visited a “suspected” Islamic State safehouse and loaded what “appeared to be” explosives into its trunk.
After the vehicle was de-stroyed with explosives in the driveway of the house, it was determined that the driver was actually Zemari Ahmadi, an electrical engineer who worked for a U.S. aid organization. Ahmadi was killed in the attack, and nine members of his family, including seven children who had come out of the house to greet their father, also died of their injuries, including burns and shrapnel. A New York Times investigation later showed that the luggage loaded into Ahmadi’s car was likely water canisters.
The DoD’s statement absolved those involved of responsibility for the “reg-rettable” civilian deaths. As the report notes, “Individ-uals directly involved in the strike interviewed during the investigation believed at the time that they were targeting an imminent threat. The overall threat to U.S. forces at [the Hamid Karzai International Airport] at the time was very high. Intel indicated attacks were imminent. The investigation found no violation of law, including the Law of War.”
By the standards of the international laws of war, the DoD finding could easily be correct. War law allows such mistakes, and it allows incidental civilian damage when the perceived military utility of an attack on a military target is high.
On the other hand, even by war law standards, the DoD’s investigation was wanting. Twenty-two of the 29 individuals interviewed were involved in planning or carrying out the attack; civilians on the ground were not interviewed in equal numbers. The investigation was non-transparent and remains classified, a move for which there was no justification, military justice expert Eugene Fidell recently argued in Just Security. The secrecy is also at odds with past DoD practice, given that previous reports, such as the 160-page report on the 2015 Kunduz hospital bombing in northern Afghanistan, were released to the public. And even in a situation of armed conflict, had the target actually been a combatant, choosing to strike while the car was in a residential neighborhood surrounded by children—rather than at any other moment during the previous 8 hours, when collateral damage could have been more limited—demonstrates a grave misapplication of the principle of proportionality.
But focusing on that obscures the real problem: The U.S. military should not be applying a laws-of-war framework to a situation in which a war has already ended, and where a law enforcement strategy is arguably far more appropriate to the facts at hand. The laws of war apply in situations of active armed conflict, that is, either in a war between states—which does not describe this case—or in non-international armed conflicts. International law lacks a clear definition of the threshold between low-level political violence and active civil war. But the International Committee of the Red Cross defines non-international armed conflict as “a situation of violence involving protracted armed confrontations between government forces and one or more organized armed groups, or between such groups themselves, arising on the territory of a State.” The confrontations, it adds, must also “reach a minimum level of intensity” defined, among other means, by the “duration and gravity of the clashes.”
If “duration and gravity” in part defines an armed conflict, it is hard to argue that a single ISIS-K attack against civilian infrastructure constituted a state of civil war between ISIS-K and the government of Afghanistan, any more than the Oklahoma City bombing in 1995 created a state of civil war between right-wing extremists and the U.S. government. It strains credulity to believe that, at the time of that drone strike, the U.S. was actually in a situation of armed conflict that would justify the use of aerial bombing in a residential neighborhood to address what was at best a hypothetical law enforcement situation. And if this wasn’t an armed conflict, it makes little sense to dwell on whether the doctrine of proportionality was adequately implemented. The concept of “collateral damage” and even the use of the term “civilian” itself—which implies that some individuals in the area are “combatants” and therefore legitimate targets—are simply misnomers in a situation where a war has already effectively ended.
The U.S. military should not be applying a laws-of-war framework to a situation in which a war has already ended, and where a law enforcement strategy is arguably far more appropriate to the facts at hand.
The bigger problem is that so few recognize this, including organizations whose job it is to ensure the correct application of human rights law, a responsibility that begins with insisting the right law be used for the right context. We see too little of this. Human Rights Watch’s article on the Kabul strike, for example, criticized the U.S. for violating war law principles. “In Afghanistan, civilian harm has been emblematic of the U.S. and international presence,” Andrea Prasow, the advocacy group’s deputy Washington director, wrote. “In Iraq and Syria, U.S. forces and their Iraqi partners have conducted airstrikes that were unlawfully indiscriminate, failing to distinguish between military targets and civilians.” She might have instead criticized the U.S. for using war law at all where it simply doesn’t apply.
Civilian-protection organizations that specialize in war victims’ rights do have much to add to U.S. defense policy in situations that truly rise to the level of armed conflict. For example, the Center for Civilians in Conflict, or CIVIC, released a statement in response to the DoD finding that repeats calls for the department to issue an “Instruction on Civilian Harm” policy that would rectify “systemic shortcomings in civilian harm prevention and response.” This step, if undertaken by the Biden administration, would dramatically improve the way the U.S. approaches targeting and its overall respect for civilian harm mitigation. But it will not by itself resolve the deeper problem, which is the application of a “civilian-protection” framework to contexts where it is not relevant, such as situations where state fragility combines with sporadic threats of political violence from armed groups or armed individuals.
The composition of advocacy campaigns helps determine how causes are understood, so it is important for human rights groups like Amnesty International—not just civilian-protection groups like CIVIC—to take the lead in pushing for the proper application of war law. This could be a key agenda for the coalition of organizations that recently formed to oppose the United States’ use of drone strikes and targeted killings more generally. But this issue is broader than targeted killings, as it pertains to the entire framework of norms governing the use of force to protect the public interest in different contexts.
Even the language used matters enormously. In cases such as the Kabul airport attack, it is more correct to say that “citizens” were affected by “violence” rather than that “civilians” were affected by “war.” Citizens in the U.S. and other democracies face similar violence in many respects—like terror attacks, mass shootings and threats against their political infrastructure—but no one would argue the U.S. faces a domestic “situation of armed conflict,” or that standard law enforcement rules should be replaced by a permissive war law approach. The main difference is not the nature of the violence, but rather the set of rules relied upon to address those threats.
Under human rights law, governments retain the right to make lethal decisions in the public interest, and the notion of “imminent threat” is indeed used to justify the use of lethal force in certain situations, even at the risk of innocent life. However, the bar for doing so and the means of carrying out such an attack are very different. Generally, governments must first make efforts to engage the suspect with non-lethal means, attempt negotiation or induce a surrender. Interventions almost always involve the approach of law enforcement on foot, providing situational awareness not possible through aerial surveillance.
If violence is required, it is targeted: a bullet fired by a trained law enforcement officer, rather than high explosives lobbed indiscriminately from the air. The FBI’s SWAT teams also make mistakes, but for these reasons theirs typically result in far fewer lives lost.
It follows that one of the most important human security issues of our age is not merely ending the use of targeted killings outside hot battlefields, but also to recalibrate international understandings of what situations fall under non-international armed conflict law versus human rights law. Unfortunately, this remains a grey area in treaty law, a seam that may only be sewn up through a more concerted advocacy movement to develop clear definitions and codify best practices by states, one that should be led by a broad coalition of humanitarian and human rights groups. It may be that what is ultimately needed are new norms and perhaps neutral institutions that have the authority to adjudicate what is or is not considered a “battlefield” at a given point in time.
To its credit, the Biden administration is taking steps to roll back the post-9/11 conceptualization that the U.S. is at “war” everywhere with any jihadist group. For example, it has quietly reverted targeting authority for drone strikes away from hot battlefields and back to the White House, and it is reportedly conducting a major policy review of the drone program. This reassessment has the potential to respond to CIVIC’s call. But more needs to be done to prioritize the question of which set of rules applies and when, especially since it is likely that the Biden administration would still have considered Afghanistan a hot battlefield even if drone strikes had already ceased in places like Somalia. And the Ahmadi family would be dead even if the missile had come from a manned aircraft instead of a drone.
One area the Biden administration—and human rights groups—could consider working on is reconceptualizing what it means to include legal advice in conflict zones. Currently, a corps of military lawyers are involved in the kill chain leading up to an attack in countries like the U.S. and Israel. But these professionals are trained to assume it is war law they should be applying to targeting questions. Including human rights lawyers to determine which law should apply, and how to weigh human rights and humanitarian law, in situations other than clear-cut interstate war, would require a new kind of bureaucratic thinking. But certainly, until this line is correctly drawn, the preventable deaths of children will continue. Regrettable, indeed.
She tweets at @charlicarpenter.

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