On August 26, ISIS bombed the Kabul airport killing 182 individuals including 13 American soldiers. On August 29, the U.S. military feared a similar airport attack as U.S. troops were still conducting evacuations. After multiple intelligence reports and eight hours watching live feeds, the U.S. ordered a drone strike to prevent a car laden with explosives from reaching the airport. The military acted to minimize civilian casualties by carefully timing the strike and even adjusting the missile’s fuse to limit the detonation radius. General Mike Milley, the chairman of the joint chiefs of staff, praised the strike as “righteous.” For two weeks, the U.S. maintained that the airstrike killed someone who had picked up explosives from a Daesh safehouse and referenced secondary explosions as implicit evidence of the explosives in the car.
In fact, while the U.S. struck its intended target, Zemari Ahmadi had not loaded explosives into his car for an airport attack. Rather, he and a colleague had retrieved and then filled water jugs for Ahmadi’s family since his neighborhood had a water shortage. Zemari Ahmadi was not an ISIS supporter or a Daesh facilitator, but a long-term employee of an American relief organization. While the military may have taken some actions to minimize civilian casualties, drone operators only very briefly reviewed the area around the vehicle before launching the attack. And most tragically, the CIA had intelligence that should have paused the strike, but because of the division of labor for some drone strikes, the military was likely warned just seconds after the strike that civilians were present and perhaps even in the vehicle.
On September 17, U.S. Marine Gen. Frank McKenzie acknowledged that Ahmadi posed no threat, had not associated with any terrorists or a terrorist safehouse, and that the strike killed 10 civilians including 7 children. McKenzie called the event a “tragic mistake” made in “earnest belief” based on “reasonable certainty” of an imminent threat. Both McKenzie and Defense Secretary Lloyd Austin publicly apologized. Austin also called for the U.S. Central Command to conduct a “thorough review” of the strike “to consider the degree to which the investigation considered all available context and information, the degree to which accountability measures need to be taken and at what level and the degree to which strike authorities, procedures and processes need to be altered in the future.”
The strike and its aftermath have been condemned by such unlikely bedfellows such as Ted Cruz, Marjorie Taylor Greene, Ilhan Omar, Kayleigh McEnany, Mike Pompeo, Bernie Sanders, and the ACLU. In this series of three posts, I would like to explain why. First, in this post, I raise two concerns: first, that civil society rather than the government brought the mistake to light, and second, the surprising absence of a legal requirement to pay reparations. In the second post, I will address the U.S. approach to voluntary condolence and solatia payments. And in the final post, I will sketch out what a more robust amends policy might look like.
To begin, we often rely on journalists and civil society to identify possible violations of the laws of war because the government chooses not to do so. Take this strike, for example. Because this strike was in Kabul, news organizations were able to investigate immediately. As early as August 29, the New York Times was already skeptical of the official account and had identified civilian victims. The New York Times quickly investigated video evidence, interviewed people on the ground, and conducted forensic analysis of the car and the surrounding environment. This investigation sharply called into question whether Ahmadi had any contact with a Daesh safe house, whether the items he loaded into his car could plausibly be explosives, and the existence of a second explosion in the car itself. The AP and other news organizations identified the driver as an employee of the U.S. aid organization. The New York Times contradicted the military’s claim of possibly three civilian casualties with its own number of ten.
This reliance on journalists and civil society to detect problems is a problem for a number of reasons. First, strikes often happen in locations with limited media and civil society access, and thus their capacity for detection and investigation is hampered. Second, even if strike areas are easily accessed by others, the government ought to be forthcoming with possible wrongdoing. In the absence of leaks, only it can speak with authority as to its own fact-specific decision-making. Often the government could do so without compromising intelligence sources or revealing sensitive information. Of course, the incentives are often strong not to do so. In the absence of the journalistic push-back, the government could claim this strike as a major victory in thwarting terrorism as it concluded its evacuation efforts. And less cynically, the government might have been conducting a robust internal post-strike review, but reluctant to share information until it had reached any conclusions. Either way, it’s fair to say that we only know what we know about this strike now because of an aggressive investigative journalistic effort. And to the extent that we should expect that the proportion of mistakes will increase as the U.S. lacks not just boots on the ground but other valuable sources of human intelligence in many places that it still conducts strikes, we should be especially troubled about this lack of transparency.
Even once the identities of the innocent victims are known, readers may be surprised to learn that compensation is not legally required. Ahmadi’s family and many others have called for payment which the military is currently discussing. But why is it a conversation at all?
Under international law, states that commit a legally wrongful act in another state’s jurisdiction are generally expected to make reparations for harm caused. But reparations have historically been limited to victims of unlawful harm. Harm that results from lawful conduct does not give rise to a legal claim for reparations, even if it gives rise to a moral one. In defining lawful and unlawful acts in the armed conflict setting, the laws of war seek to strike a fundamental balance between a military’s ability to accomplish its objective of weakening or destroying opposition forces and the desire to maintain humanitarian restraint. In other words, many but not all kinds of killing during an armed conflict can be lawful.
States may not knowingly target civilians, but accidental targeting can be lawful. For example, the intentional killing of a village full of elderly men, women, and children, none of whom were fighting—as occurred in My Lai, Vietnam—is prohibited. The laws of war principle of distinction directs combatants to respect and protect civilians by distinguishing between civilian and military populations and directing attacks only at military objectives. In order to satisfy these rules, combatants must behave reasonably. If a combatant makes a mistake as to a target or mistake as to how much damage will ensue from the action, the laws of war ask whether the combatant took sufficient precautionary measures to avoid recklessly causing harm. If the relevant decision-maker concludes the combatant did, no reparations are owed.
This limitation is a meaningful one, as the laws of war permit the death of innocent civilians in two broad categories. First, the laws of war allow collateral damage or the incidental loss of civilian life when it is not excessive given the “concrete and direct military advantage anticipated.” In other words, if a military target is important enough, then anticipated civilian deaths, perhaps even extensive civilian deaths, are allowed. Proceeding with an attack given mere awareness of the risk of civilian deaths is not a per se violation of IHL. If troops seek to engage, for example, in a bombing raid of a high-value military site, the presence of civilians who will be killed does not automatically render the strike unlawful. Or if Ahmadi had in fact loaded explosives in his car and was heading to the airport to carry out an attack similar to the one that killed 182 individuals just a few days before, the military might have been justified in striking his car even knowing of the likelihood of injuring or killing a number of civilians.
Second, and more relevant to the facts as we now know them, the laws of war permit reasonable mistakes that may result in civilian casualties. For instance, if a commander takes sufficient precautions to verify a target’s identity and classification as a legitimate target, but is mistaken and the target turns out to be an innocent civilian, the death of the civilian is lawful. Here, the government has claimed that while on-the-ground conditions precluded a pattern of life assessment, it properly formed reasonable certainty that Ahmadi was a threat given sufficient information from multiple intelligence reports. Likewise, if a commander complies with requirements related to identifying a legal target, but is still reasonably unaware of the presence of civilians, civilian deaths resulting from attacks on the target are similarly lawful. So even though the drone operators did not take a long time to survey the parking lot, the military maintains that “The operators quickly scanned the close confines of the courtyard and saw only the one other man talking to the driver. The commander concluded this was the best time and place to take the shot. If the Americans waited and the vehicle wove through busy city traffic or approached the airport, the risk to civilians would be much greater—either from a drone strike or the detonation of suicide vests or a huge car bomb.” If this was in fact the reasoning behind the quick decision and only one person was in fact visible, the government will likely conclude this decision was reasonable as well.
While the multiple mistakes made while surveilling Ahmadi will undoubtedly lead many to dispute the reasonableness of the military’s conclusion that Ahmadi posed a threat and that a strike was warranted, those legal determinations are left to the military. I cannot imagine it will conclude that any single mistake or combination thereof precluded it from satisfying the legal standard it applies to the strikes. And with that conclusion, any consideration of compensation or other amends is purely discretionary. In my second post, I will explain how condolence and solatia payments work.
