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On September 6, the United Nations Human Rights Council (UNHRC) Commission of Inquiry (COI) on Syria issued its latest report in anticipation of the current Human Rights Council session. The COI criticizes the Syrian regime and the so-called Islamic State of Iraq and Syria (ISIS) for their failure to document violations of international law. Additionally, the report offers significant evidence indicating that the Assad regime deliberately used chemical weapons against civilians. This work is critically important as there are few mechanisms available for accountability in this brutal conflict.
Therefore, it is extremely disappointing, and troubling, that the COI damages its own credibility with a flawed legal analysis of a recent U.S. airstrike.
In addition to heavily emphasizing the failures of the Syrian regime and ISIS, the report also examines the actions of other actors in the conflict, including the United States. This examination is appropriate and to be expected. However, the COI’s emphatic, and faulty, conclusion that the U.S. violated the Law of Armed Conflict (LOAC) in a March 16 air strike undercuts the UNHRC’s authority to condemn truly illegal behavior.
The air strike in question occurred in the village of Al-Jinah, which borders Idlib province in Syria. According to U.S. Central Command (CENTCOM), the strike, which resulted in one civilian casualty, targeted a group of regional Al Qaeda leaders meeting in a small building. In contrast, the COI concluded that the strike killed thirty-eight civilians and that the targeted meeting was, in fact, a religious gathering of local residents and internally displaced persons. The COI’s conclusion, which follows a similar finding by Human Rights Watch, was based on interviews with locals of unknown identity or motivation. The COI did note that Al-Jinah is populated by members of Hay’at Tahrir al-Sham (an Al-Qaeda affiliated militia) and that militants may have been among the worshippers during the strike.
CENTCOM conducted an investigation of the air strike and, in June, verbally briefed reporters on its findings. In that briefing, CENTCOM admitted that the U.S. commander who ordered the strike did not realize, at the time of the decision, that the building was part of a religious complex. Moreover, the investigation found that procedural errors in the targeting process reduced the thoroughness the U.S. typically achieves through its targeting methodology. Despite these shortcomings, the investigation ultimately concluded that the strike was lawful. Disagreeing with this determination, the COI accused the U.S. of violating the LOAC for failing “to take all feasible precautions to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects.”
The Commission’s finding is erroneous for two significant reasons. First, the COI applies a non-existent legal standard to the airstrike. The law applicable to the 16 March airstrike is Additional Protocol I (AP I), Article 57(2)(a), which states:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding or minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects; and
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
The COI ignores that law and instead attempts to impose an absolute requirement on commanders to avoid or minimize incidental loss of civilian life in targeting decisions:
The Commission therefore concludes that United States forces failed to take all feasible precautions to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, in violation of international humanitarian law.
This is simply not the legal standard. While the language of Article 57(2)(a)(ii) appears similar to the language in the COI report, this portion of Article 57 only governs how to attack—not whether to attack. In fact, the COI discusses the weapons used by the U.S. and repeatedly notes they were intended to avoid collateral damage. Instead, the COI seems to replace the principle of proportionality as expressed in subsection (iii)—which requires a commander to refrain from launching an attack if the incidental loss of civilian life would be excessive in relation to the concrete military advantage anticipated—with its own “minimize or avoid” legal standard.
The COI’s fabricated standard departs from the principle of proportionality, a well-established norm of customary international law. By way of example, imagine a scenario in which the leader of the entire enemy war effort is in a crowd of civilians. The law, as currently structured, allows a commander the discretion to drop a bomb on the hypothetical leader assuming the resultant civilian death and injury is not excessive in relation to the expected military advantage gained. In the same example, applying the COI constructed legal standard, a commander would be prohibited from targeting the enemy leader regardless of the expected military advantage—even if those gains could hasten the end of the conflict. This is obviously counter-intuitive and is why the LOAC allows military commanders the legal authority to balance the protection of civilian life and property with the achievement of military objectives. What the COI offers instead is a common conflation perpetrated by those who attempt to usurp the LOAC by injecting some version of human rights laws.
Second, the COI does not have the necessary information to conclude that the U.S. violated the novel “minimize or avoid” legal standard it espouses. The COI exclusively references interviews with individuals in Al-Jinah, a village admittedly connected to al-Sham, to support the assertion that only civilians were inside the building at the time of the strike. While it is farcical to hold this information as impartial without some corroborating evidence, the statements of individuals in Al-Jinah about who was in the building are also irrelevant. Instead, what matters is what the commander reasonably knew at the time the decision was made to attack the building. The “Rendulic Rule,” as this standard is known, is broadly accepted by both practitioners and scholars and recognizes that a commander’s decision is not regulated by strict liability. Commanders’ actions are not judged by the ultimate result but rather by the reasonableness of their decision based upon contemporaneous knowledge. It is important note, application of the Rendulic Rule is only necessary if a commander makes a mistake. In such a situation, again, the attack remains in accordance with international law if the decision is deemed reasonable.
CENTCOM admits to not knowing that the targeted building in Al-Jinah was part of a larger religious compound at the time of the airstrike. However, this lack of knowledge is not legally problematic. Generally, a religious facility is prohibited from being targeted under AP I. Articles 52 and 53. However, a religious building loses its protected status if misused for a military purpose. In those circumstances, the structure becomes a lawful target, at least for the duration of the misuse, and a commander applies the proportionality analysis discussed above. Therefore, in regards to the March 16 airstrike, what is important is not whether the structure was religious in nature but whether it was being used for a military purpose at the time the commander made his decision.
With CENTCOM and the COI disagreeing as to who was inside the targeted building, and why they were there, there is simply not enough information available to make this determination. However, it is worth reiterating, that based on the information provided by CENTCOM, the commander believed the building was being used, at the time of the airstrike, for a meeting between regional leaders of Al Qaeda.
But assume the COI is correct and the airstrike mistakenly destroyed a religious structure, accidentally killing civilians instead of Al Qaeda leaders. In that case, the commander still has not violated the LOAC unless the commander acted unreasonably given the available information. Assessing the commander’s knowledge at the time of the airstrike, as necessitated by the Rendulic Rule, requires intimate details that are, again, not currently available. The COI, acknowledging this fact, blames CENTCOM for failing to provide the highly classified details concerning the targeting decision. Yet, rather than memorializing its concerns about the lack of available information thus hindering its ability to make an informed legal analysis, the COI instead relies on irrelevant information to declare that the March 16 airstrike in Al-Jinah violated the LOAC. The COI simply was not in a position to make such a definitive conclusion, and doing so erodes its authority in this and future investigations.
The work of this Commission, and similar bodies, are critical to ensuring compliance with the LOAC and accountability for those who fail to comply. However, to be effective, the Commission must assiduously guard its role as a neutral arbiter. It failed in this circumstance and, as a result, severely damaged its own efforts. Perhaps of greater consequence, the COI diminished the power of the UN to use this type of impartial mechanism to police other conflicts and, as a result, hold accountable those responsible for violations of international law. We exhort the COI to continue its important and crucial work, but only if it applies the law correctly.