This year at ISA a theme which seemed to crop up again and again (at least among the laws of war crowd – we’re small but mighty) was the idea that “we” (international society, academia, NGOs, I guess) need more information on civilian casualties, particularly those caused by air strikes in Pakistan and Afghanistan. There was a real sense of frustration that the US was not more forthcoming on casualties, who was being targeted and who died.
Certainly, arguments were provided that there was a moral duty to provide such information. Although democracies may fight very deadly wars, constituencies within them want and demand to know exactly who we are fighting and why and with what means.
But must the US actually provide information as to who it has targeted and who has died under the laws of war?
I can find no straightforward obligation in the laws of war which states that governments must report casualties in an armed conflict. They must report all prisoners taken (GC III, Art 70, 122) and their deaths (GC III Arts 120, 122). But the laws governing the death of civilians and combatants (legal and unlawful) in operations is much less clear. Most civilian protections are from the Hague Conventions (which did not envision Predator UAV strikes, although the idea of Aerial Warfare was not entirely foreign) and Additional Protocol I (which, of course the US has signed, but not ratified.)
While, Governments are required to take precautions in attack, operate in a proportional manner and to make efforts to avoid disproportionate damage, there is little in which to enforce or hold states accountable because there is no requirement to provide information.
Does this requirement to be proportional and discriminate then implicitly oblige states to provide information to demonstrate that they have been acting in accordance with the laws of war?
It is fair to say that the US position is that no such obligation exists. In searching for an answer to this question, I contacted a lawyer friend at DoD in a position to know about these things. The response I received made it was clear that they do not believe that they are under any such obligation for several reasons.Morally, Alston may have a point, but I am not convinced that he has legally demonstrated his case. Things that are “discomforting” are not necessarily illegal.
First, reporting on friendly casualties may provide too much intelligence to enemies on the effects of their actions. (ie: that they are being effective).
Secondly, reporting on enemy casualties is not without moral risks. The US was criticised (and “rightfully so”, my friend added) for excessive reporting of enemy casualties in Vietnam. The policy of “body count” was used to demonstrate that the US was winning the war but lead to rather more tragic consequences. This was the position taken by General Tommy Franks in Afghanistan when he told reporters “We don’t do body count.” Franks was not saying that the US military didn’t care – but rather that he did not want to repeat the same mistakes that had been made in Vietnam.
Finally, on civilians, there seems to be the problem of knowledge. That while an attacker can (and must) make an estimate as to how many civilians might be killed in its proportionality calculation. However, there is simply no way to confirm reliably the number of deaths or to know whether any casualties were “directly participating in hostilities” (Which, the US tends to regard very differently from the ICRC these days.) Whether this problematizes the fact that they were targeted in the first place is up to the reader to decide.
So any reporting on casualties is not being done under any belief that there is a legal obligation to do so.
I’m sure the advocates for more information did not exactly have “body count” in mind when they demand more information and accountability. But this does raise an interesting point – that casualty reporting may also be used for other, more sinister purposes.
Am I missing something here? Can anyone point to an item of law which suggests that there is an obligation to do so?
The only thought that comes to my mind is that the strikes in Pakistan do not amount to an “armed conflict” and therefore a human rights framework (which has much stronger accountability mechanisms) applies rather than the laws of war… but I think this needs to be the subject of a different post…