Today’s post is by my friend and – really – mentor, Professor Geoff Corn of Texas Tech University School of Law. Geoff deftly addresses an important issue as we view the terrible consequences of the war in Ukraine, that is, that the “presence of damage to civilian structures or death or injury to civilians does not alone constitute a war crime.”
Geoff warns that an “effects based” analysis can lead us astray as culpability for war crmes requires more than injury to civilians or civilian objects. Rather, it “requires careful assessment not just of the effects of the attack, but of the decision-making process of the commanders who launched them.”
Such an evaluation is vital to the fair and just adjudication of war crimes liability. Geoff reminds us that a misapplication of the law of war could come back and haunt U.S. and allied troops. (Indeed, he explains why he concludes that a recent UN report about alleged violations of international law during hostilities between Israel and Hamas in the Gaza Strip is flawed.)
As he puts it:
“While the temptation to draw ipso facto conclusions from the sad images of modern conflict may be strong, we owe it to those entrusted to fight our wars to ensure that they are judged according to the proper standards. It may be hard, but it is certainly no harder than making the life and death decisions we demand of them.”
Here’s Geoff’s analysis:
War Accountability and the Elusive Objective of Objectivity
by Geoff Corn
Images of Russia’s unrestrained brutality in its war against Ukraine evoke visceral and instinctive condemnation. They offer the world deeply troubling visual evidence of the worst of humanity that results from unleashing ill-disciplined armed forces fighting on behalf of a nation that disdains the rule of law. These images also almost certainly indicate the commission of war crimes.
Yet, although condemnation of Russian conduct in Ukraine is both understandable and justified, it also offers a cautionary tale. There is danger in assuming too much about the legal culpability of combatants from just the harmful consequences of war.
It can be tempting to come conclusions about the legality of actions taken in other conflicts by also focusing on visual evidence—pictures of destroyed buildings and lifeless bodies. However, while a picture may speak a thousand words, it is rare that it can provide conclusive evidence of war crimes.
Yes, when there is virtually no plausible indication that attacks were launched against legitimate military targets and no indication that commanders made even the slightest effort to reduce the risk to civilians—pervasive aspects of Russian attacks in Ukraine—such conclusions may be warranted.
But in most situations, whether tragic images of suffering prove war crimes requires careful assessment not just of the effects of the attack, but of the decision-making process of the commanders who launched them.
Unfortunately, the tendency to draw conclusive inferences from attack effects in other conflicts seems nearly as pervasive as the illegality of Russian operations in Ukraine.
This “effects-based” accusation tendency frequently involves Israel and are especially problematic at the United Nations, as seen in the latest report of the Commission of Inquiry, chartered by the United Nations Human Rights Council to investigate alleged violations of international law in Israel and the Palestinian territories, particularly the May 2021 hostilities between Israel and Hamas in the Gaza Strip.
The Commission refers to Israel’s “apparent failure to verify that targets were military objectives” in order to suggest that it had “serious concerns regarding Israel’s compliance with…international humanitarian law [the law of war].” But there is little in the initial report that explains the evidentiary basis for this accusation.
Certainly, there is no careful reconstruction of the operational situation that framed the Israeli attack decisions under scrutiny. Instead, the Report merely cites the summary of the UN High Commissioner for Human Rights of the effect that Israeli airstrikes had in Gaza: “the high number of civilian casualties and extensive damage to prima facie civilian objects.”
This most recent example of relying almost exclusively on the harm inflicted on civilians and civilian property as proof of war crimes is both lacking basis in the law and dangerous.
Such judgements distort the true focus of legal compliance during hostilities: whether the attacking commander made a reasonable judgment at the time the attack was launched.
This must be determined by recreating, as best as possible, the situation confronted by the commander, to include the importance of the target, the enemy efforts to shield the target by embedding it among civilians, and if and how the commander implemented measures to reduce civilian risk such as issuing warnings or selecting the most risk-averse weapons and tactics available.
The presence of damage to civilian structures or death or injury to civilians does not alone constitute a war crime.
Moreover, focusing merely on the outcome of attack, incentivizes combatants in conflicts to exacerbate risks to civilians, precisely as Hamas did in Gaza. This is because they know that even when attacks are conducted in strict compliance with international law, creating conditions that make it impossible to avoid such outcomes will create an almost automatic perception of illegality on the part of their opponent.
Assessing compliance with laws of war requires consideration to substantial amounts of information; information that may not be accessible to investigators, or may not even exist any longer. But the fact that such information is beyond investigatory reach cannot justify resorting to effects-based conclusions.
Indeed, an objective assessment of legal compliance in relation to the conduct of hostilities demands the courage to acknowledge when the information available is simply insufficient to confirm the fact of violations even where the attack effect created a perception of violations.
One year out from the Gaza conflict, even the U.S. State Department seems incapable of isolating issues of respect for law in war from the broader reflex to judge attacks purely on their effects.
Just recently, when asked about the U.S. position on the IDF destruction of the building that housed Associated Press and al-Jazeera offices, the best the State Department spokesperson could do was indicate the Israelis provided the U.S. with “some information” and that the attack was “troubling.”
Having participated in several Israeli/Hamas conflict assessments with retired U.S. general officers and admirals with the Jewish Institute for National Security of America (JINSA), I have been privy to the caution guiding these officers and the qualified nature of their conclusions. Indeed, concerns related to the AP building attack were a focus of our discussion.
High-level IDF officers with first-hand knowledge of that attack decision indicated to us that Hamas was using floors of this building to develop capabilities to degrade the Israeli Iron Dome missile defense system. That alone rendered the building a high value military target.
Furthermore, the absence of any reference, by the United Nations or the State Department, to the warnings Israel issued that enabled the attack to proceed without killing a single civilian, or the fact that Hamas was obviously seeking to exploit the presence of the offices to shield its vital assets from attack (itself a war crime), reveal that even for Israel’s closest ally, objectivity is often elusive.
Accountability for the commission of war crimes is a critical component in ensuring future respect for the international legal humanitarian limitations on how wars are fought. And attack effects are certainly important evidence of war crimes.
But it is essential that the reaction to what’s happening in Ukraine does not infect the way in which criminal accountability in any context is assessed.
While the temptation to draw ipso facto conclusions from the sad images of modern conflict may be strong, we owe it to those entrusted to fight our wars to ensure that they are judged according to the proper standards. It may be hard, but it is certainly no harder than making the life and death decisions we demand of them.
About the author:
Lieutenant Colonel Geoffrey Corn (USA, ret.) is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy at Texas Tech University School of Law. He is also a Distinguished Fellow at the Jewish Institute for National Security of America (JINSA).
Originally published on the Lawfire blog.