Targeting, the Law of War, and the Uniform Code of Military Justice.

AuthorMeier, Michael W.
PositionSpecial Issue: The Law of Armed Conflict

TABLE OF CONTENTS I. INTRODUCTION 788 II. AIRSTRIKE ON THE MSF HOSPITAL 791 III. ERRORS IN JUDGMENT AND THE LAW OF WAR 794 IV. TARGETING, THE LAW OF WAR, AND MENS REA 796 A. Targeting Duties 796 B. Information Assessment Duties 798 C. Mens Rea 799 D. Competent Authority Required 799 V. THE RELATIONSHIP BETWEEN DOMESTIC LAW AND 800 THE LAW OF WAR VI. THE LAW OF WAR AND THE UCMJ 802 A. Public Authority Justification and 802 the Law of War B. Grave Breaches of the Law of War 804 VII. CONCLUSION 806 I. INTRODUCTION

In ground operations, one of the most difficult tasks for soldiers under the Law of Armed Conflict is targeting. In making a targeting decision, parties to an armed conflict must conduct an attack in accordance with the principles of distinction and proportionality, which impose a duty to assess available information to determine whether a particular attack would be lawful. (1) This is especially true when conducting an attack in a populated area with civilians and civilian objects in close proximity to the fighting, which often leads to unintended civilian casualties and damage to civilian objects. On the night of October 2, 2015, that is exactly what happened in Kunduz, Afghanistan, when an AC-130 gunship mistook a hospital operated by Medecins Sans Frontieres (MSF), also known as Doctors Without Borders, for a Taliban compound. During a thirty minute period, the AC-130 gunship fired more than two hundred rounds at the hospital, resulting in the tragic death of over thirty civilians and injuring an additional thirty-seven others. (2)

Almost immediately after the attack, MSF, through its General Director, Christopher Stokes, in addition to calling for an international investigation, stated in pertinent part:

Not a single member of our staff reported any fighting inside the MSF hospital compound prior to the US airstrike on Saturday morning. The hospital was full of MSF staff, patients and their caretakers. It is 12 MSF staff members and ten patients, including three children, who were killed in the attack. We reiterate that the main hospital building, where medical personnel were caring for patients, was repeatedly and very precisely hit during each aerial raid, while the rest of the compound was left mostly untouched. We condemn this attack, which constitutes a grave violation of International Humanitarian Law. (3) MSF's outrage over the airstrike on the hospital is certainly understandable. The airstrike was a horrible tragedy, but did it amount to a "grave violation" as MSF alleged?

A Department of Defense investigation (4) disagreed, asserting "this tragic incident was caused by a combination of human errors, compounded by the process and equipment failures" and the fact "that the aircrew [was] 'unaware'... they were firing on a hospital." (5) Yet, the investigation did not cite to any authority that distinguished "human errors" from a violation of the Law of War, nor did it adequately address Mr. Stokes's assertion that the incident constituted a "grave violation of International Humanitarian Law." (6)

When there is an allegation of civilian deaths or injury, or damage to civilian property, caused during combat operations, commanders must review or investigate those incidents. Such an investigation requires the reviewing commanders to consider relevant and credible information from all available sources, such as other agencies, partner governments, and nongovernmental organizations, and to take measures to mitigate the likelihood of future civilian casualties. (7)

When an Army Commander appoints such an investigation, it must be conducted pursuant to Army Regulation (AR) 15-6, (8) and the investigating officer must determine the facts and make recommendations regarding lessons learned in order to alleviate future similar occurrences, as well as determine whether individual soldiers should be held accountable. (9) In the case of the MSF incident, an officer conducted an AR 15-6 investigation, and an Army Judge Advocate completed a legal review and determined the Kunduz investigation was in compliance with AR 15-6. (10)

Although the investigation may have been conducted in compliance with AR 15-6, The Judge Advocate General (TJAG) of the Army believed US Army investigative procedures should be improved to address international law issues. In particular, TJAG was concerned that "legitimacy"--a principle of warfare for US joint operations (11)--could be undermined if targeting investigations did not clearly delineate between human error and international criminal violations, including "grave breaches" of the Law of War. (12) Yet the Uniform Code of Military Justice (UCMJ), the criminal code that applies to all US service members, does not specifically address these matters. (13) Further, the 1949 Geneva Conventions, which define "grave breaches" of the Law of War, do not clearly articulate how a violation of Law of War targeting requirements can amount to such a breach. (14)

On May 30, 2017, TJAG promulgated the Targeting and the Law of War: Administrative Investigations and Criminal Law Supplement (Targeting Supplement), (15) which articulates the link between targeting law, the UCMJ, and the pertinent 1949 Geneva Conventions. (16) The Targeting Supplement explains the analytical framework for assessing compliance with the Law of War and is intended, in the context of targeting, to assist Judge Advocates in recognizing pertinent lines of investigative effort required to thoroughly and impartially investigate suspected violations of both the Law of War and the UCMJ. (17)

TJAG references legitimacy as an underlying purpose of the publication, stating, "[f]rom the perspective of our partners, allies, and non-governmental organizations, the Law of War is the lens through which they view U.S. adherence to the rule of law in the context of targeting." (18) Further, the Targeting Supplement also notes that legitimacy has a domestic component, stating that "from a domestic audience's perspective... adherence to the rule of law may be best understood" by that audience "through the application of common law concepts that underpin the UCMJ's punitive articles." (19)

Using the airstrike on the MSF hospital as the backdrop, this Article articulates how, in the context of targeting, a violation of the Law of War is made punishable under the UCMJ as explained by the Targeting Supplement. Part II discusses the factual circumstances surrounding the "human error" that led to the MSF incident. Part III addresses how the Law of War distinguishes between such error and international criminal violations of the Law of War. Part IV addresses the Law of War duties the Targeting Supplement applies to targeting and the required mens rea to establish a Law of War violation in the context of those duties. Part V explains how the Targeting Supplement distinguishes between violations of the Law of War and violations of US domestic law and explains how a violation of the latter can result in a violation of the former. Finally, Part VI explains how the Targeting Supplement establishes the link between Law of War violations, the common law-like crimes contained in the UCMJ's punitive articles, and the "grave breaches" (20) of the 1949 Geneva Conventions.

  1. AIRSTRIKE ON THE MSF HOSPITAL

    On September 28, 2015, after months of fighting, Taliban fighters unexpectedly seized the northern Afghan provincial capital of Kunduz, a city of approximately three hundred thousand residents. (21) This sudden seizure of Kunduz gave the Taliban a political and military victory that had eluded them since 2001 and presented the Afghan government with a demoralizing setback for the control of Afghanistan. There were approximately five hundred Taliban fighters in the city, while seven thousand government troops retreated to the airport. (22)

    On September 30, 2015, Afghan forces, with support from US Special Forces, began to try and regain control of Kunduz. (23) Between September 30 and October 2, Afghan and US forces established a small base at an Afghan police compound and repelled several Taliban attacks. (24) During the evening of October 2, 2015, Afghan forces decided to attack an insurgent-controlled target in the city. (25) As part of their planning, the Afghans requested air support from the Special Forces elements supporting their efforts. (26) An AC-130 gunship was directed to provide the requested support and arrived near Kunduz in the early morning on October 3, 2015. (27)

    The aircrew attempted to locate the Taliban-controlled target site from the grid coordinates provided by the Afghan forces that the US Special Forces commander on the ground was relaying through the Joint Terminal Attack Controller (JTAC). (28) The aircrew was still unable to locate the target as the grid coordinates directed them to an open field, so the aircrew attempted to visually identify the target structure based on a description relayed from the Afghan forces through the JTAC. (29)

    The aircrew identified a structure that they believed to be the intended Taliban-controlled target, but that structure was actually the MSF Trauma Center. (30) Before they engaged the target, one aircrew member, the TV Sensor Operator, identified the correct structure as also fitting the intended target. However, after several attempts to clarify which structure was the intended target, the aircrew was again redirected to the MSF hospital, as it generally matched the physical description of the intended Taliban-controlled target, even though it was approximately four hundred meters away. (31)

    At approximately 2:08 a.m., the aircrew began firing on the MSF hospital under the mistaken belief that it was the Taliban-controlled compound. (32) Around 2:19 a.m., MSF personnel contacted US government personnel, notifying them that the MSF hospital was receiving fire. (33) Because of the fighting around Kunduz, it was not initially clear who was engaging the MSF hospital. (34)...

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