This is a truly impressive effort of investigative journalism that successfully pieces together what appears to be a tragic CIVCAS incident. I’m currently working on a more thorough LOAC analysis for a separate project, but here are the basics:
The three central LOAC rules to address for this strike are distinction, proportionality, and feasible precautions in the attack.
The distinction rule requires the decision-maker/operator to direct the attack against a military objective, which in this case is reportedly the vehicle that was believed to be carrying explosives. Compliance with the distinction rule, like other LOAC rules, must be assessed based on the information that was known to the attacker at the time of the attack. The information that is publicly available indicates that those involved in the strike intended to direct the attack against the vehicle, which was assessed to be an object that by its (at the time current) use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. This suggests compliance with the distinction rule.
It is difficult to assess compliance with the proportionality rule based on the information that is currently publicly available, but my best guess is that the decision-maker chose that time/place because s/he assessed that little or no incidental damage would result from the attack. That is, if the compound, vehicle, and persons in the vehicle were assessed to be military objectives and the collateral hazard area of the Hellfire only included these people/objects, there would be no expectation of incidental damage. In the absence of any anticipated incidental damage, the proportionality rule is not a factor in the strike. If there was an expectation of incidental damage, the extent of that damage must not be assessed to be excessive in relation to the concrete and direct military advantage expected from the attack. This is why compliance with the proportionality rule is difficult to assess: it requires an evaluation of the incidental damage that was anticipated *by the attacker* and an evaluation of the concrete and direct military advantage expected *by the attacker* at the time of the attack.
For feasible precautions in the attack, the US only considers Article 57(1), 57(2)(c), and 57(4) of AP I to reflect customary international law. In the context of this attack, the basic articulation of feasible precautions (from AP I, Art. 57(4)) requires that the attacker to “take all reasonable precautions to avoid losses of civilian lives and damage to civilian property.” Based on the information that is publicly available – primarily on the fact that ISR tracked the vehicle for what appears to be several hours and that the strike was ordered for a time/place that the expected harm to civilians would be reduced or non-existent – it appears likely that the decision-maker/operators complied with the feasible precautions rule.
That’s the basic LOAC analysis. There are several lessons to be learned, both in the lead-up to the strike and in the way the military described the attack afterward. However, my assessment based on the information that is available to the public is that the strike did not violate the applicable LOAC rules.
Thank you—thorough. Does loac permit liability for negligent conduct in any case? Or strict liability?
Hi, Brenner! Glad to share - though I'll be rather more brief this time. :)
There used to be some discussion suggesting that recklessness (akin to negligence) is a sufficient mens rea to support a characterization of a serious violation of LOAC. I conducted a deep-dive on that assertion (for 52 Georgetown J Int'l L 1 (2020)) and concluded that recklessness is not included on the spectrum of mens rea for war crimes (a more abbreviated analysis is available here: http://opiniojuris.org/2020/10/03/the-attack-on-the-msf-trauma-center-in-kunduz-and-the-limitations-of-a-risk-based-approach-to-war-crimes-characterization-part-2/)
Strict liability also isn't supported by application of LOAC rules since compliance must be assessed based on the information that was reasonably available at the time of the attack. For strict liability, the assessment would be reversed: liability would attach *regardless* of the information that was reasonably available at the time.
Glad to engage further, but hopefully that covers it for now. Cheers!!
Week In Review