Ukraine Symposium – Effects-Based Enforcement of Targeting Law

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| Jun 2, 2022

Effects-Based Enforcement

The international armed conflict between Russia and Ukraine tragically demonstrates that the European continent is still not immune from war. It also illustrates that the laws of war are only as effective as the leadership and discipline that guides military forces engaged in hostilities. The conflict in Ukraine is a prime example of how any diminishment of either dramatically increases and may even guarantee law of war violations and war crimes.

The conflict also reminds us that some of the worst war crimes result from targeting operations. Wars are awful, but some of the most awful wars are those that abandon military logic, humanity, and morality in the use of destructive combat power. Attacks on civilians, use of indiscriminate weapons, and unlawful tactics naturally evoke a visceral demand for accountability.

Condemnation and accountability, however, require evidence that meets the law’s standards of proof and persuasion. While it is often instinctive to assume an immediate correlation between civilian casualties and illegality, it is essential to rigorously consider how compliance and violation are credibly and objectively sorted from one another. To that end, the focal point of inquiry related to targeting operations must be the attack judgment, not the attack outcome.

To be sure, attack effects often provide powerful indicia related to this evaluation. The captivating visual nature of attack effects—especially harm to civilians and civilian property—make them an enticing focal point. But attack effects can also offer incomplete or even misleading impressions of legality. Targeting law tolerates even extensive civilian harm so long as it is incidental to sufficiently compelling anticipated direct and concrete military advantage.

Therefore, sound legal evaluations of attacks demand consideration of the complexities normally associated with the totality of the operational and tactical circumstances—the enemy situation, friendly situation, anticipated civilian risk, available resources and assets, alternative options, timing and pace of operations, urgency, knock-on effects—all of which inform attack decisions.

All the same, as recent operations in Ukraine suggest, in some situations attack effects nearly speak for themselves. Indeed, some deaths and destruction appear to present almost conclusive evidence of law of war violations and unlawful attack judgment. This is particularly true when operations demonstrate an overall, systemic, and pervasive pattern of disregard for legal limits on warfighting. Even in this context, however, drawing ipso facto conclusions of illegality solely from attack effects must be done cautiously.

This post emphasizes that decisional analysis is essential to sound enforcement of targeting law. We concede that the evidentiary value of attack effects can increase as patterns emerge that indicate military force is not being used under genuine responsible command. Patterns of effects can be highly probative of leadership and attack judgments that disregard law of war obligations. But ultimately, legal evaluations of an attack must be grounded in probative and reliable evidence of the attack judgment itself.

Gotovina, Gaza, and Effects-Based Condemnations

Attack effects, as noted above, are increasingly observable, publicized, and emotive. That lethal and destructive attack effects generate suspicion of war crimes is both understandable and logical. Nonetheless, experience shows that converting suspicions to conclusions based primarily on such effects is a fraught legal path.

This was the controversial road taken by a trial chamber of the International Criminal Tribunal for former Yugoslavia (ICTY) in Prosecutor v. Gotovina et al. Ante Gotovina, a Croatian General ordered to reclaim the break-away Croatian-Serb area of Krajina, commanded an offensive that involved indirect fire against targets in the Krajina capital city of Knin. Those fires resulted in substantial destruction – most inflicted on military objectives but also undeniable collateral damage to civilian property – and an undetermined number of civilian casualties.

The Prosecutor made the Knin attacks the centerpiece of a broader allegation that Gotovina and his co-accused carried out a campaign to terrorize the civilian population and to ethnically cleanse the area. Careful consideration of the operational situation, however, painted a very different picture; one of a commander endeavoring under challenging operational conditions and in good faith to identify and engage military objectives, deliberately located in a population center, in support of a larger effort to defeat enemy entrenched forces surrounding the city. A group consisting of both operational law experts and experienced combat commanders shared this conclusion.

Nonetheless, the trial chamber convicted Gotovina and General Mladen Markač, focusing almost exclusively on attack effects. Most infamously, the Chamber concluded that any munition crater 200 meters or more from a putative military objective was ipso facto proof of an illegal attack.

The ICTY Appeals Chamber not only reversed that conviction, it also concluded that the evidence was not sufficient to support a rational finding of guilt. The Appeals Chamber did not remand the case but rather made an extremely rare substitution of an acquittal. While procedurally controversial to this day, the primary rationale for this unusual appellate decision was that the same attack effects the Trial Chamber used to convict were, in fact, highly inconclusive in an operationally complex environment and not sufficient alone to justify conviction.

Further and compelling examples of a rush-to-war-crimes judgment based on attack effects have arisen in the periodic and tragic flare-ups of hostilities between Israel and Hamas (and other organized armed groups) in Gaza. It is well-documented that Israel Defense Forces (IDF) strikes in Gaza often result in substantial damage and destruction of civilian property and loss of civilian lives. These effects generate public outcry and near-automatic allegations of war crimes. After all, what else could explain such terrible effects from a military as capable as the IDF?

In fact, a lot; not least, an enemy that deliberately nests vital military assets amongst civilians and civilian property to achieve tactical and strategic advantage. In Gaza, IDF hesitation or refrain from attack is a tactical Hamas win. Meanwhile, every attack IDF commanders launch that inflicts incidental civilian death, injury or collateral damage is a Hamas strategic win, particularly in the information domain.

Are the effects of IDF attacks relevant and probative to war crime assessments? Of course. Are they conclusive? Rarely. Without considering the totality of the situation that frames these attack decisions, particularly how the situation appears to commanders at the time of these decisions, concluding that attack effects prove war crimes is akin to concluding 1 + “I don’t know” = 10.

Admittedly, and particularly outside the circle of command involved in a strike, discerning the totality of circumstances surrounding an attack is extremely challenging. Moreover, recreating the intensely time-sensitive judgment process of combat decision-making and the supporting ex ante legal assessment may often be impossible. But this is an inherent aspect of converting ex ante operational judgments into the basis for criminal responsibility.

Indeed, it is not so different than the challenge confronting any investigator, prosecutor, or juror tasked with assessing the legality of a police officer’s use of force; a challenge that often leads to “effects-based” suspicion of wrongdoing without sufficiently compelling evidence to justify criminal condemnation. Yet, as challenging as it may be to asses criminality for what we suspect to be war crimes, it is essential that investigative and legal assessments resist the powerful pull of affirmation biases and the path of least resistance offered by exclusively effects-based conclusions. To succumb to the temptation of post-hoc, effects-based condemnations is to undermine the carefully-honed logic of the law of war. Worse, it is to subject commanders to a profoundly unjust standard.

Attack Effects in Ukraine

Investigations of the hostilities in Ukraine are already underway. The Prosecutor of the International Criminal Court began an investigation at the behest of over 40 States in March 2022. The Organization for Security Cooperation in Europe has already dispatched a mission of experts who submitted a report on violations of the law of armed conflict, war crimes, and human rights law. Meanwhile, Ukraine itself has opened investigations into hundreds of incidents and has even secured a guilty plea in its first war crimes prosecution of a Russian soldier.

In addition to reports of custodial abuses, deportations, property crimes, and breaches of occupation law obligations, each of these enforcement efforts has already examined or will soon examine the conduct of attacks and their aftermath. In terms of scale, they have their work cut out for them. The conflict has already seen enormous destruction resulting from attacks with grave humanitarian consequences to civilian lives and property. These effects already exceed the consequences of the strikes examined in the Gotovina proceedings and may even rival those resulting from the various stages of the prolonged Gaza conflict. Securing and sifting through the mountains of evidence produced in Ukraine will be a monumental investigative and prosecutorial task.

But these efforts have their legal work cut out for them as well. The scale of human suffering in Ukraine, the heart-wrenching pictures of apparently civilian bodies strewn around targets, and the unshakable images of valuable and even essential infrastructure destroyed by strikes and shelling will inspire a near-irresistible urge for comprehensive accountability.

While lamentable in human terms, as explained above, these effects are rarely sufficient in legal terms to establish breaches of the law war or war crimes. While often probative of violations of the law of war targeting rules, they are almost never dispositive. That “almost” may, however, may be rebuttable through evidence that under no circumstances could the object attacked have been reasonably considered a military objective or through evidence that under no circumstances could the foreseeable civilian harm have been legally offset by the anticipated military advantage gained through the attack.

Similarly, as Professor Garraway suggested recently, when a pattern of repeated effects presents clear and compelling evidence that an armed force has not engaged in or systemically does not undertake meaningful precautions in attacks, reliable conclusions may be drawn as to war crimes judgments. In this regard, Ukraine may represent an outlying example from the usual decision focused law of war standard; one in which war crimes affirmation bias appears to align consistently and reliably with objective facts relating to decision making.

The Probative Value of Precautions

So how should attack effects be assessed? Effects certainly play an important role in both forming a reasonable suspicion of unlawful attacks and in determining whether guilt for war crimes related to attacks is established beyond a reasonable doubt. But because the ultimate legal question focuses on the suspected defendant’s alleged criminal mental state in relation to the attack decision, effects are by definition circumstantial evidence. They support inferences related to the legality of an attack judgment. This means that other critically important circumstantial evidence must be considered to determine whether it aligns with or contradicts an effects-based inference of an unlawful attack. Most often, clear evidence of the situation as it appeared to the attacker in the circumstances ruling at the time and a picture of the command measures taken in those circumstances prove most probative in the assessment of whether an attack was unlawful.

In that respect, precautionary measures taken to mitigate risk to civilians play a powerful role in this assessment. Each of us has expressed views on such precautions’ value as free-standing legal obligations (here and here). But we agree that exercise or failure to exercise “constant care” to minimize risk to and suffering of civilians in hostilities is highly probative to whether commanders and subordinates have met their humanitarian legal requirements.

Like attack effects themselves, precautionary measures are not conclusive as to attack legality. But it is entirely logical to assess whether reasonable attack judgment has been exercised by considering whether feasible precautions were implemented in relation to the attack or the broader combat operation. In short, the greater the evidence that a commander endeavored to mitigate civilian risk through precautionary measures, such as reconnaissance, target assessment and confirmation, warnings and evacuations, weapon choice, and methods and timing of attack, the lower the probability that adverse attack effects were the result of a criminal state of mind.

That final point may be one of the most important facets of the conflict in Ukraine. There are scant objective indications that Russian forces have made meaningful and consistent efforts to implement civilian risk mitigation precautions. Instead, from Vladimir Putin down to what appears to be the very lowest levels of tactical command, indifference (if not outright disdain) for the law of war seems to be the controlling norm.

Comparing this pattern of conduct to the situation in Knin, or to the most recent IDF military campaign against Hamas presents a stark contrast. That contrast is arguably the most compelling indicia that what we assume we are witnessing in Ukraine is in fact exactly what we assume: a campaign involving the unlawful employment of combat power in overall disregard of the law of armed conflict’s most fundamental humanitarian obligations.

Conclusion

We applaud efforts underway to establish accountability for war crimes committed in the Ukraine-Russia conflict. At the same time, we urge a cautious legal approach to the conflict’s destructive consequences. While we concede that in some circumstances, attack effects may support initiation of investigations or even prosecutions, such cases are extraordinarily rare. Most often, evidence of the circumstances of the attack judgment is required to responsibly and justly verify war crimes. Vigilant and rigorous attention to the evidentiary demands of the law of war, and a cautious, even circumspect approach to attack effects, will best serve justice, avoid the errors of preceding enforcement efforts, and preserve the law of war as a relevant and effective restraint on combat.

***

Geoffrey S. Corn is the Gary A. Kuiper Distinguished Professor of National Security Law at South Texas College of Law Houston, and a Senior Advisor to the Gemunder Center for Defense and Strategy. Professor Corn will join the Texas Tech University School of Law faculty this summer as the Killam Chair of Criminal Law and Director of the Center for Military Law and Policy.

Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.

 

 

Photo credit: Levi Meir Clancy

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