In our new report, “The compliance trap and the protection of civilians”, Alexander Holder seeks to reconcile the sharpening contradictions between the discourse which surrounds the protection of civilians in international fora and the realities of the legal practices surrounding targeting and the use of force.

In recent months, a series of powerful investigations published by the New York Times has provided a timely reminder of just who has suffered as a result of global military activities undertaken by the United States: the civilian populations who live in areas which have been devastated by conflict.

In September 2021, an investigation revealed that a drone strike which had been carried out in the final days of the war in Afghanistan had resulted in the deaths of ten civilians, including seven children and an aid worker. The strike took place following the mistaken identification of Zemari Ahmadi a humanitarian worker fighting food poverty in the area as an ISIS insurgent by a Reaper drone crew who believed his movements around Kabul were suspicious. Despite the Reaper crew’s catastrophic misreading of Ahmadi’s activities and the unimaginable harm those misinterpretations undoubtedly caused, US investigators subsequently declared that there had been sufficient evidence of Ahmadi’s guilt to legitimise the mistaken killings and that no violation of the laws of war had taken place.

Just a few months later, a second investigation was published, this time covering a massive civilian casualty incident which had taken place in Syria in 2019. The so-called ‘Baghuz strike’ resulted in the deaths of around 70 civilians and was authorised by an American special operations unit known as Task Force 9, who had been placed in charge of US ground operations in Syria. In light of a troubling number of civilian casualty incidents, the New York Times revealed that significant concerns had been raised within the US military that Task Force 9 had been “systematically circumventing the safeguards created to limit civilian deaths”�. According to a former officer who had been deployed with the unit, Task Force 9 made strategic use of a broad interpretation of self-defence rules in order to legitimise strikes against ISIS forces which might otherwise have been prohibited by the US rules of engagement. Though the Baghuz strike was not subjected to independent assessment until after the revelations of the New York Times investigation, Task Force’s own assessments of the incident declared that the strike had been conducted in compliance with the law.

Shifting orientations to the law

The civilian casualty incidents in Kabul and Baghuz constitute further evidence of a feature of contemporary military practice which has been crystallising for several years. Namely, that discreet shifts in the interpretation and application of the laws of war by highly militarised states – including the US, United Kingdom, Israel, and others – have, among other features of contemporary warfare such as the use of explosive weapons in populated areas, allowed for large amounts of civilian harm to emerge from instances of the use of force which have been conducted in compliance with international humanitarian law (IHL). Granted, it is a core feature of IHL that it does not prohibit harm to non-combatants so much as it establishes restrictions upon the circumstances in which such harm can be legitimate – but there is something more insidious to the patterns of harm which are seen in incidents such as those in Kabul and Baghuz.

In recent years, a number of scholars have discussed a shift in the orientations of militarised states towards a radically altered conception of the regulatory capacity of IHL. Where, for many years, IHL was conceived more as establishing restraints upon military conduct, a transition has occurred whereby a strong emphasis has instead been placed upon the ways in which IHL establishes states’ legal rights to employ force. As Craig Jones puts it in his recently published book, The War Lawyers, the law has come to be seen by a few (often heavily militarised) states as being “productive of violence” rather than restrictive, providing a set of resources by which the legitimate use of force can be produced and maintained in an expanded range of circumstances. Though the law may have been constructed with this capacity, states’ orientation to it have changed.

In light of this shift by which IHL can be viewed as an asset rather than a restraint for militarised states, it is perhaps no coincidence that those same states have been the most vocal in seeking to resist efforts to develop new mechanisms for regulating the use of force beyond the provisions of pre-existing IHL. Time and again the US, the UK, France, Israel, and even Russia, have contested that there is no requirement for the development of new mechanisms to regulate the use of force because IHL already constitutes a wholly sufficient mechanism for the protection of civilians. The real problem, they argue, is non-compliance, i.e., the civilian harm that is caused by the illegal use of force perpetrated by parties to conflict who do not respect the rule of law.

The distance between legality and civilian protection

Though this is undoubtedly true to a degree, what are we then to make of the civilian casualty incidents which took place in Kabul and Baghuz, both of which were deemed to have been conducted in compliance with IHL? How much legitimate civilian harm are we to accept before the claim that ‘pre-existing IHL is sufficient’ is deemed untenable? Studies have repeatedly demonstrated that 90 percent of the casualties which emerge from the use of explosive weapons in populated areas are civilians, and both the Kabul and Baghuz strikes – legal strikes�- have contributed to that figure. By this point, serious questions must be raised about the huge capacity for harm which exists within the compliant use of force, and states must recognise that further steps will be necessary to suitably protect civilians from harm during periods of armed conflict.

In our newly published report, The compliance trap and the protection of civilians, Alexander Holder – a socio-legal researcher based at the University of Liverpool – takes up the sharpening contradictions which are inherent to militarised states’ present discourse on IHL compliance and the protection of civilians. The report is structured in two halves. In the first half, the report introduces a distinctive line of argumentation in international forums – referred to as the “compliance argument” which is commonly deployed by militarised states in order to contest the development of new mechanisms for the protection of civilians through international legal and political standards.

Having outlined the key features of the compliance argument and explored the pre-suppositions upon which it rests, the report then turns to a detailed empirical investigation of a civilian casualty incident, known as the “Uruzgan incident”, which took place in Afghanistan in 2010. Though the Uruzgan incident took place over a decade ago, it bears a number of troubling similarities to the incidents at Kabul and Baghuz. As in the Kabul strike, the Uruzgan incident was authorised following a sustained period in which a drone crew misinterpreted the activities of a group of civilians as being the activities of a hostile force preparing for an attack. As in the Baghuz strike, the use of force in the Uruzgan incident was authorised by reference to a controversial interpretation of self-defence rules.

By analysing transcripts which depict the real-time activities of military personnel engaged in targeting and the use of force, the report explores the ways in which IHL compliance is “achieved” at a fundamentally local level, with competent military personnel exhibiting a surprising capacity to ensure the legality of the use of force in light of the extensive rules and regulations which purportedly place restrictions on their conduct. In the report’s conclusions, it is argued that the claim that “IHL is sufficient” is rendered untenable in light of a close analysis of the ways in which civilian harm can all-too-easily emerge from the compliant use of force. Though a lack of available data means that precise conclusions cannot be drawn regarding how the lawfulness of the Kabul and Baghuz strikes was established, the information which has been made available via the New York Times investigations provides strong indications that the failures which resulted in the Uruzgan incident may continue to persist to this day.

Read the report: The compliance trap and the protection of civilians: An empirical investigation of ‘the achievement of legality’ in an aerial targeting operation

Featured image: View from a CH-47 helicopter over the mountains of Uruzgan province, Afghanistan, 2013. Photo: U.S. Army/Sgt. Jessi Ann McCormick https:// flic.kr/p/en62NG