NYT: Alleged War Crime Coverup by US Military

11/14/2021

"The Baghuz strike was one of the largest civilian casualty incidents of the war against the Islamic State, but it has never been publicly acknowledged by the U.S. military. The details, reported here for the first time, show that the death toll was almost immediately apparent to military officials. A legal officer flagged the strike as a possible war crime that required an investigation. But at nearly every step, the military made moves that concealed the catastrophic strike. The death toll was downplayed. Reports were delayed, sanitized and classified. United States-led coalition forces bulldozed the blast site. And top leaders were not notified."

NYT link here.

Update from Task & Purpose, here.

Comment: Korsak is a hero. This incident demonstrates, yet again, "the downsides of high trust in the military." The problem is not a new one.

Here are some comments I have received/seen offline:

"Considering LOAC is up there with good order and discipline as the military’s go to argument for command prosecution authority, this seems to eviscerate that argument. Along with everything from My Lai to Haditha."

"Special Operations Command needs to be shut down due to track record of impunity for war crimes - AND across DOD prosecutorial discretion shifted to independent lawyer command for ALL crimes including war crimes "

Brenner Fissell

EIC

2 Comments

Brian L. Cox link

11/14/2021 01:28:37 pm

"Korsak is a hero" is certainly one perspective. My take is that Korsak could use a refresher on basic LOAC rules.

Let's start with this passage from the NYT story:

The initial inquiry "determined that the bombing was lawful because it killed only a small number of civilians while targeting Islamic State fighters in an attempt to protect coalition forces, the command said."

It seems from the story that this is the primary aspect of the inquiry to which Lt. Col. Korsak strenuously objected. Let's borrow from the Rome Statute for a basic formulation of the potential war crimes that could be involved in this strike.

1) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.

2) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects...which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Now, I have long maintained that the UCMJ should be reformed to add a section that implements basic LOAC rules since existing punitive articles are a poor fit for potential war crime offenses. That's a project on which I am still working, but for now since we're talking "war crimes," let's stick with the formulations from the Rome Statute as a template.

Based on the NYT report, there is no indication that the distinction rule was violated, so war crime #1 is ruled out. That leaves the proportionality rule, or war crime #2 articulated above.

This is the point at which, from my understanding of his objection, Lt. Col. Korsak's objection to the way higher headquarters handled this incident goes off the rails. Notice that the relevant war crime is intentionally launching an attack IN THE KNOWLEDGE that the incidental damage will be clearly excessive in relation to the direct overall military advantage ANTICIPATED.

If we're talking about war crimes, then, there is very little of value to be gained by going out to investigate the site to find out how many civilians (not taking a direct part in hostilities) were actually killed in the strike. We need to know what the personnel involved in the attack expected, and presumably the official inquiry assessed this and determined that the personnel didn't commit a crime.

This is where the faulty reasoning in the NYT story comes in. Apparently the initial inquiry is to be criticized and characterized as a potential coverup because it determined that the attack "killed only a small number of civilians while targeting Islamic State fighters" and was therefore lawful. This is simply false. How many civilians were actually killed is outcome irrelevant in the analysis of whether the attack was lawful. If that's what led Lt. Col. Korsak to believe the investigation was inadequate, he's wrong on the law, too.

As for your comments as EIC, Brenner, the arguments of which you take note make a mockery of the movement to remove court-martial authority from commanders. Can anyone please explain: 1) how the commanders got this wrong as a matter of law, 2) why you think a lawyer who is actually proficient in LOAC would have arrived at a different conclusion, and/or 3) what UCMJ punitive article (or LOAC war crime) was violated by this attack? If we're going to claim there is some pervasive "track record of impunity for war crimes," it would be helpful to explain exactly what these supposed war crimes are.

Jay Jackson link

11/15/2021 04:37:24 pm

Excellent analysis. Agreed on all points.

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NYT: Alleged War Crime Coverup by US Military

Brenner Fissell

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