January 27, 2023
In August of 2021, as the U.S. military was completing its withdrawal of troops from Afghanistan, a U.S. MQ-9 Reaper drone using Hellfire missiles blew up a vehicle near Hamid Karzai International Airport that the Department of Defense initially said was laden with explosives. However, despite weeks of insisting that the strike was conducted against a legitimate target, a U.S. investigation was only launched after the New York Times published the results of their own visual investigation that challenged the military’s assertion that the vehicle posed a threat to U.S. forces. Despite the Times report, and even after Defense Secretary Austin on September 17th, 2021 directed a review into the strikes to determine who should be held accountable and the, “degree to which strike authorities, procedures and processes need to be altered in the future,” nearly a month later, victim Zemari Ahmadi’s brother said that he had yet to be contacted by the U.S. government to either apologize or offer solatia or condolence payments. Moreover, at the end of the Department’s investigation, it was revealed that none of the military personnel involved in the failed drone strike would face any kind of punishment for their mistakes.
Sadly, the strike in Kabul was not an isolated incident, but merely part of a pattern of U.S. behavior in conflicts around the world where the knee-jerk reaction by DoD officials to allegations of civilian harm caused by U.S. operations is to circle the wagons and deflect criticism or blame for faulty targeting and decision-making while shielding wrongdoers from repercussions. Moreover, the Department of Defense’s reflexive refusal to provide compensation or even apologize to victims—despite eventually providing an undisclosed sum to Ahmadi’s family at some point months later—demonstrates a troubling pattern of behavior from all levels of the military chain of command and speaks to issues in investigating and responding to incidents of civilian harm. As Steven Kwon, the founder and president of Nutrition & Education International, the California-based aid organization that employed Zemari Ahmadi said to the Times, the DoD’s, “decision is shocking,” and that, “how can our military wrongly take the lives of 10 precious Afghan people and hold no one accountable in any way.” Unfortunately, as Mr. Kwon will have likely discovered, this is simply how the United States military behaves in armed conflicts around the globe.
Indeed, in late December of 2021, the New York Times published a rather shocking exposé outlining the failures of the American air war in the Middle East from 2014-2018. The piece, its author Azmat Khan wrote, “lays bare how the air war has been marked by deeply flawed intelligence, rushed and often imprecise targeting, and the deaths of thousands of civilians, many of them children, a sharp contrast to the American government’s image of war waged by all-seeing drones and precision bombs.” Moreover, Khan’s report documents how U.S.-led investigations into alleged incidents of civilian harm were routinely marred by slipshod pre-strike processes and an overall culture of impunity that failed to detect civilians, investigate incidents on the ground, identify lessons learned, or discipline those who were responsible for the tragedies in the first place. More disturbingly, the Times report suggests a military that simply wants to look the other way when it comes to alleged incidents of civilian harm that occur during its operations. Such a situation is both morally indefensible and strategically untenable.
The United States has known for years that the harm done to civilians from its military operations would have a deleterious effect on relationships with the populace, as the Open Society Foundation’s Christopher D. Kolenda, Rachel Reid, Chris Rogers, and Marte Retzius wrote in a 2016 report, “The Strategic Costs of Civilian Harm: Applying Lessons from Afghanistan to Current and Future Conflicts,” that U.S.-caused civilian harm had, “severely undermined the legitimacy of the international mission and as its partner and ally, the legitimacy of the Afghan government.” Kolenda et al. further noted that, “civilian harm was easily exploited by the Taliban,” as, “Taliban publications, public communications and propaganda routinely made use of incidents of civilian harm to paint U.S. forces as an indiscriminate, anti-Muslim occupation force.” Despite the fact that these Taliban allegations were often overblown or exaggerated, the civilian casualty incidents that did occur were frequent and widespread enough to lend credibility to such a propaganda campaign in the first place.
Ultimately, while the Department of Defense (DoD) is endeavoring towards reforming its civilian harm mitigation and response efforts, the 2021 Times report does indicate that there are certain problems which are not likely to be solved through more robust data management platforms, especially as the recently released Department of Defense Civilian Harm Mitigation Response Action Plan (CHMR-AP) does little to address issues relating to the independence and impartiality of investigators. Furthermore, until the issuance of the forthcoming DoD Instruction on Civilian Harm Mitigation and Response later this year, the CHMR-AP is simply more of a list of desired improvements than a true path towards mitigating future civilian casualties in U.S. and partnered military operations.
Whenever the DoD’s Instruction on Civilian Harm Mitigation and Response does emerge later this year, it must come with better procedures regarding the investigation into possible incidents of civilian harm or violations of international humanitarian law in armed conflict, with a special emphasis on the frameworks required to address questions of independence and impartiality regarding the military and civilian individuals tasked with looking into such alleged incidents. Moreover, in its quest to more adequately address future incidents of alleged civilian harm, the Defense Department must not forget to address prior cases where the DoD has received credible reports of civilian casualties—an issue that Senator Elizabeth Warren and Congresswoman Sara Jacobs recently highlighted in a December 19, 2022 letter to Defense Secretary Lloyd Audstin—making more frequent use of the $3 million that Congress has set aside for ex gratia payments to redress victims of injury and loss under the 2020 National Defense Authorization Act.
As Army Techniques Publication 3-7.06, Protection of Civilians, notes, “protection of civilians is important for moral, political, legal, and military reasons and must be addressed during unified land operations regardless of the primary mission.” Therefore, if the Department does not do more to address these issues, there is not only a risk that it will foster a culture of impunity amongst troops in the field and those making targeting decisions at headquarters, but it could pose real strategic concerns for future counter-insurgency operations, especially as, “studies show that counter-insurgencies fail when an insurgency has sustainable internal and external support, or a host nation government loses legitimacy,” and that, “civilian harm tends to accelerate both problems—it is like burning a candle at both ends with a blowtorch.”
In light of these facts, it is important to take a look at some of the key issues related to investigations into civilian harm in armed conflict as well as the challenges related to making amends and providing reparations to those harmed by U.S. and/or partnered military operations, even—and perhaps especially—as the U.S. continues to develop an over-the-horizon counterterrorism capability that sees an increase in strikes conducted by unmanned American vehicles.
Helpfully, the Center for Civilians in Conflict (CIVIC) recently published a primer on “Investigations into Civilian Harm in Armed Conflict,” prepared by Claire Simmons as part of a partnership between CIVIC and the Essex University Crisis and Conflict Hub, which aims to identify challenges related to investigations into possible incidents of civilian harm and provides key recommendation for U.S. decision makers in ensuring that effective investigations into those incidents are subsequently carried out.
As Simmons points out, in addition to often being politically and strategically necessary, “States have an international legal obligation to conduct investigations into severe violations of international humanitarian law (IHL) and international human rights law,” and if they do not, other States may prosecute members of their armed forces under universal jurisdiction or from some kind of international criminal tribunal like the International Court of Justice. Moreover, Simmons notes, States also have, “an established obligation to conduct some form of effective investigation into other possible violations of international humanitarian law, including those that may have caused civilian harm.”
However, in conducting these investigations, nations often run into a number of difficulties which impede their overall effectiveness and which often leave victims and their next-of-kin wondering if they’ve simply been even further mistreated. More specifically, though, Simmons’ recent CIVIC paper outlines five key issues that States often face when conducting investigations into alleged incidents of civilian harm, beginning with the credibility of the allegations being made against the armed force involved. Here, she notes that the credibility of an allegation will always depend on the specific context involved. However, she also points out that the person alleging the harm happened, the level of detail they provide in making that claim, and the corroboration provided by other sources will ultimately determine whether an alleged incident of civilian harm is deemed credible by decision makers.
However, despite Simmons’ admonition that, “States must not rely only on their own information to assess [an] allegations’ credibility,” especially as, “mistakes or inconsistencies in recording operational data may occur, and civilians may bring to the attention of militaries information about operations that they may be unaware of,” it appears that, all too often, that is exactly what happens, as, according to one recent RAND Corporation study looking at U.S. military operations from 2015-2017, “U.S. military officials did not sufficiently engage external sources for information before concluding that reports of civilian casualties were not credible,” instead relying on, “its own internal data and records [which] are sometimes incomplete.” As a result of this failure to give sufficient weight to external reporting mechanisms, Human Rights Watch wrote in 2017 that, “the U.S. government’s investigations regularly exclude one of the most important sources of evidence [in witness interviews], and are at odds with international fact-finding vest practice, developed over the past decades by researchers and investigators with human rights NGOs, the United Nations, and international criminal tribunals.”
Another issue that Simmons posits is standing in the way of effective investigations into alleged civilian harm incidents arises when alleged civilian harm incidents occur in difficult-to-reach locales such as when the U.S. conducts its “over-the-horizon” drone strikes in Pakistan, Somalia, Yemen, and elsewhere. With U.S. forces gathering their intelligence and manning drones hundreds or thousands of miles away from their intended target, “investigations into remote strikes with no personnel on the ground may consist primarily of reviewing pre- and post-strike footage (video or satellite imagery) and reviewing the decision-making process, such as the quality and sources of intelligence used and the analysis of this information.” In the case of these so-called “over-the-horizon” strikes, investigators are often unable to access the strike location and interview possible civilian witnesses on the ground who may corroborate possible civilian harm incidents. While non-governmental or civil society organizations and the media may conduct their own investigations, as seen above, the United States is often unwilling to accept or incorporate external sources of information regarding alleged incidents.
Yet another issue posed by Simmons’ piece for CIVIC—and which will be addressed in more detail in a section below—is that military investigations are often seen as insufficiently independent and impartial by victims and their fellow citizens, hindering the investigation’s overall strategic and political value. To overcome these issues, Simmons’ piece suggests that: commanders have a role in ensuring that adequate safeguards are set up to ensure there is no conflict of interest between investigators and those being investigated; that the complexity of an alleged incident may warrant outside expertise being brought in—for instance in evaluating what effects secondary explosions from U.S. strikes may have had on an alleged victim—to aid the investigation; that independent oversight—whether through appeals mechanisms, systems of inquiry, review procedures, legislative oversight or ombuds institutions—methods be established to ensure the accountability of investigators; and that there are simply certain situations where the use of military investigators may affect the overall perception of justice on the part of the victim and their fellow citizens.
The fourth challenge confronting the effective investigation of alleged incidents of civilian harm is that often today, the U.S. is not the only military force operating in an area, as the days of partnered and Coalition operations are only increasing. As Brookings Fellow and former Air Force officer Sara Kreps told the audience during an April 21, 2022 webinar on Protecting Civilians in Partnered Military Operations for the Brookings Institution, “since the end of the Cold War the United States is not fighting wars on its own. It’s always fighting with local partners, it’s fighting as part of a multilateral operation.” Moreover, in these multinational operations, it is often a challenge not only for victims to decipher which nation it was that actually caused them harm as well as the fact that different States often have different procedures and rules regarding investigations into possible violations as well as amends and reparations processes. As such, Simmons notes, these difficulties may create, “an apparent ‘cloak against accountability’ in which political and military stakeholders feel they have fewer incentives to hold their forces accountable for their actions.”
In investigating and determining the ultimate responsibility for alleged incidents of civilian harm, Simmons argues, States engaging in coalition operations should look to agree on common investigative procedures through their various memoranda of understandings and status of forces agreements with partner countries. Such standardized procedures should support common documentation and reporting requirements as well as common thresholds to trigger an investigative process in the first place.
One final barrier to effective investigations of civilian harm incidents in conflict zones that the CIVIC report lists is that States often do not provide enough transparency regarding the details of their investigations, resulting in an opaque process that reduces the legitimacy of investigation reports and undermines the credibility of U.S. military forces in the eyes of victims and their fellow citizens. While Simmons acknowledges that the exact degree of transparency required in an investigation will vary based on the particular context involved in the alleged violation, she does remark that, “the principle of transparency must…serve the overall effectiveness of the investigation and must, among other things, clarify the facts and judicial truths of a situation.” Despite this principle, States often impose blanket restrictions on information regarding investigation on the grounds of national security considerations, as, they insist, that transparency is not an absolute requirement and that it must be balanced with other competing interests.
Achieving Transparency, Impartiality, and Justice in Investigations in Armed Conflict
Fundamentally, then, the main tension when it comes to the effective investigation of alleged incidents of civilian harm caused during military operations is between what the military and civilians on the ground see as a “reasonable” investigation into the incident. As Claire Simmons also writes in her paper for the International Review of the Red Cross, “Whose perception of justice?: Real and perceived challenges to military investigations in armed conflict,” any, “investigations into serious violations of IHL must be effective, and the adequacy of the reasonable measures put into an investigation must be assessed in light of this effectiveness.” However, she also notes that, “one of the biggest causes of contention regarding the effectiveness of any military investigation into possible violations of international law is the matter of independence and impartiality,” as, “it is often perceived that if military personnel investigate a member of the armed forces for alleged (criminal) offenses, this is nothing more than ‘the military investigating itself’, and an expectation exists that a finding of wrongdoing would have no credibility.”
Whether it is in Pakistan, Somalia, Syria, or Yemen, U.S. airstrikes have resulted in the deaths of countless thousands of innocent civilians; and while the Department of Defense will likely tell you that almost every single case of civilians being killed was a mistake, the point remains that not only has the armed forces of the United States slaughtered far too many innocent non-combatants. Ultimately, the crushing volume of civilian deaths in U.S.-led operations, and the military’s stubborn refusal to thoroughly investigate alleged incidents before denying their validity—as Chairman of the Joint Chiefs of Staff Gen. Mark Milley said in the aftermath of the U.S. strike in Kabul that, “the procedures were correctly followed and it was a righteous strike,”—demonstrates why the U.S. military is often not seen as a credible actor in the eyes of victims and their fellow citizens.
Essentially, when combining the U.S. military’s reflexive denial of culpability for civilian harm with the concern that civilians may have with military officials investigating the alleged harm caused by their own fellow servicemembers, it can lead to a situation where civilians lose whatever small degree of trust that they have towards the armed forces, undermining the objective to help partner governments win the “hearts and minds” of civilians in counterinsurgency operations, and ultimately hindering the cooperation between the public and the military that is so often needed in even the modern war environment.
As Daniel Mahanty and Sahr Muhammedally wrote in their paper, “The Human Factor: The Enduring Relevance of Protecting Civilians in Future Wars,” not only does protecting civilians from harm in U.S. military operations help, “to fulfill the government’s public responsibility to protect the moral welfare of those who do the fighting,” the country, “learned through its experience in Vietnam that the use of unbridled violence in pursuit of war aims could be as much of a liability as an asset, not only with respect to the limited aims of winning the war, but in preserving the moral welfare of the country itself.”
In examining investigations into civilian harm, it is important to, as Simmons states, look at the, “particular tensions [which] arise with the perception of justice in the context of military judicial procedures, especially surrounding questions such as whether independence is possibly within a chain of command, or how military culture might affect impartiality.” Moreover, “in addition to these challenges, the nature of an armed conflict itself can often lead to aggravated distrust of State institutions, leading to particular difficulties in establishing a perception of justice,” in the country experiencing military operations.
In light of these facts, it is perhaps best to examine Simmons’ recommendations for achieving the perception of justice in military investigations in armed conflict through the lens of the ongoing U.S. air war in Somalia, a conflict that has recently seen U.S. troops return to ground operations, which has already resulted in the killing of one high-ranking ISIS figure in recent days. As Amanda Sperber’s report for the Dutch peace organization PAX, “Is it too much to kill three or four Al Shabaab: Civilian perceptions on Al Shabaab and harm from US airstrikes in Jubbaland, Somalia,” submits, “the impact of [U.S.] airstrikes clearly takes a broad toll on communities across Jubbaland, affecting more than the intended targets alone and frequently resulting in long-term negative effects.”
Despite this being the case, the United States, “has fallen short in providing meaningful response. In situations where [US Africa Command-AFRICOM] has acknowledged civilian harm, it has not communicated this to the victims or relatives thereof, who often had to learn of this through AFRICOM’s civilian casualty assessment reports…Nor have ‘credible’ assessments ever resulted in ex gratia payments to the affected civilians or their families.” As the U.S. is currently operating in Somalia in an attempt to shore up the administration of Hassan Sheikh Mohamud and to, “enable a more effective fight against al Shabaab,” in a seeming continuation of former President Trump’s own approach to the country.
As the PAX report points out, under the Trump administration, one, “former Somali official described the situation as the US having been given a ‘blank check’ regarding airstrikes,” despite the fact that, “as the number of airstrikes increased, so did allegations of civilian casualties and reports of displacement and other civilian harm effects caused by US operations.” Despite these reports, however, there are credible allegations that U.S. processes for investigating incidents of civilian harm in Somalia do not satisfy the requirements for independence, impartiality, and effectiveness required to achieve justice for victims and their families.
In examining the issues with the U.S. response to alleged cases of civilian harm caused by U.S. forces in Somalia, the PAX report first describes the process of investigation on AFRICOM’s end. At first, the combatant command conducts an assessment to verify whether the date and location of an incident corresponds to instances of U.S. action in the area. If this is determined to be the case, the command then completes a Civilian Casualty Assessment Report which, “contains information about the incident, as well as documentation supporting its conclusions, such as full motion video.” The combatant command then comes to a conclusion, based on its own internal review, of whether an allegation is “credible”—meaning more likely than not that civilian deaths or injuries were caused as a result of U.S. military action—and publishes its determination on its website.
However, as the PAX report notes, “researchers and civil society organizations have, over the years, identified several flaws and limitations in this system, not only in relation to AFRICOM but also with regards to US military practice overall.” The report notes that—as a recent RAND Corporation report has also concluded—human remains buried in the rubble of a building struck by an airstrike would likely remain undetected from overhead video surveillance. Moreover, AFRICOM’s assessment procedure does not require its personnel to consult with non-military sources during their investigation, meaning key data points may be overlooked. The report also points out the fact that civil society activists have expressed frustration over the poor state of direct communications channels between AFRICOM and civil society organizations on the ground, with existing channels suffering from the key flaw that the main way to submit allegations of civilian harm caused by U.S. operations is through a web portal in a country with a a total Internet penetration rate of just 13.7%. Finally, Sperber notes that, “PAX research on this topic indicated that several Somalis who managed to use the system had not heard back from AFRICOM, receiving neither answers, acknowledgement, nor reparations.”
Therefore, it can be said that AFRICOM’s investigatory processes in Somalia run into the second, third, and fifth issues covered in the CIVIC investigation’s report. Moreover, AFRICOM struggles with what Simmons calls the five general principles that are recognized as contributing towards the effectiveness of investigations: independence, impartiality, thoroughness, promptness and transparency. What’s more, even if AFRICOM were to improve its civilian harm reporting mechanisms through implementation of a standalone, Somali-language civilian harm website; a dedicated telephone line for reporting allegations of civilian harm caused by U.S. military actions; physical office space—not only in Mogadishu but in areas around the country accessible to ordinary Somalis—where citizens can report incidents of civilian harm; or by enabling reports through trusted intermediaries like certain humanitarian organizations or Somali government representatives; decision makers would still likely be confronted with the perception that in its own investigations, AFRICOM is merely the fox guarding the henhouse, undermining Somalis overall perception of whether justice has been done.
Impartiality and Independence in Internal Military Investigations
As Simmons points out in Whose perception of justice, there are two main elements most relevant to concerns of impartiality and independence in military investigations into alleged incidents of civilian harm: the military hierarchy and the overall culture of the military. When it comes to military hierarchy, Simmons argues that while, “an impartial investigator is expected to be able to make decisions related to the investigation (for example, in the collection of evidence) based solely upon the relevant facts of the case and the law or regulations applicable to the investigation procedures,” that, “disciplinary or administrative powers,” including the power to promote or demote another member of the military, “may lead them to consciously or unconsciously take into account whether their superior will approve or disapprove of the investigative decisions being made.” This can result in a situation where it is difficult for a junior officer to make a determination of U.S.-caused civilian harm if that officer feels that her superiors have an active interest in the determination that any civilian harm—if it was caused by an outside force—did not come from U.S. forces.
Yet another area where issues of impartiality and independence exist is in the overall cultures of military forces, where, as Mark Bowden once chronicled, soldiers in the head of battle think thoughts like, “all that did matter were his buddies, his brothers, that they not get hurt, that they not get killed. These men around him, some of whom he had only known for mothers, were more important to him than life itself.” As Simmons writes, “in a similar fashion to investigations into police misconduct, there is an assumption that there are factors within military life and military culture which will affect the impartiality of investigators, regardless of any structural guarantees of independence that may be in place.”
(More to come on issues of independence and impartiality next week along with a section touching on amends and reparations for harm caused by U.S. forces/strikes)
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