La humanización de la guerra: Ética, derecho y civiles en conflicto

MITT REGAN: Hello, everyone. Welcome to this discussion of ethics, law, and protecting civilians during wartime, sponsored by Ethics & International Affairs, the journal of Carnegie Council. I am Mitt Regan, professor at Georgetown Law School and co-director of our Center on National Security at the school. I am also a fenior fellow at the Stockdale Center on Ethical Leadership at the U.S. Naval Academy.

The editors of Ethics & International Affairs brought this panel together to follow up on an essay that I recently published in the Winter issue of that journal, discussing the complex legal and ethical issues involved in protecting civilians in conflicts between states and non-state armed groups. These kinds of conflicts are by far the most common since World War II and have involved groups such as the Islamic State of Iraq and Syria (ISIS), Hamas, Hezbollah, the Revolutionary Armed Forces of Colombia (FARC), and the Tamil Tigers in Sri Lanka.

I am honored today to be joined by three distinguished panelists to help me analyze these issues:

Ashley Deeks is the Class of 1948 Research Professor at the University of Virginia Law School. Her primary research and teaching interests are in international law, national security, intelligence, and the application of new technologies to these fields. Professor Deeks has also served in national security positions in the U.S. government.

Adil Haque is Professor of Law and Jon O. Newman Scholar at Rutgers Law School. He writes on the law and ethics of armed conflict and the philosophy of international law. His first book Law and Morality at War, an important contribution to the field, was published by Oxford University Press in 2017.

Emily Tripp is director of the UK-based nonprofit Airwars, an organization that tracks and analyzes civilian casualties in conflicts around the world. She has lived and worked across the Middle East, including Syria, Turkey, Iraq, and most recently Tunisia, where she remotely managed teams in Libya.

Let me start by briefly summarizing my essay that is the impetus for our discussion. Since our audience is both lawyers and non-lawyers interested in these questions, I will define some legal terms so everyone can follow the discussion.

International law traditionally concerned only relationships between or among states. Beginning with the Universal Declaration of Human Rights in 1948, however, and continuing with the ratification of several human rights treaties in the decades afterward there is a trend toward what has been called the “humanization” of international law, that is, a focus on the individual as an object of concern rather than simply states. Among other things, this has led to individual criminal liability for violating the laws of war and recognition for the most part that individuals do not lose their human rights even during wartime.

Turning to the protection of individual life, there are two bodies of law that govern when a state may take life. The first is human rights law. It sets strict limits on when states may use lethal force, essentially limiting it to when that is necessary to stop an imminent threat to life. It is the default law that governs the use of lethal force by police during periods of relative peace and stability.

International humanitarian law or IHL, which we will be talking a lot about, is triggered by the existence of an armed conflict, a war in colloquial terms, and is more permissive by allowing lethal force against enemy combatants at any time, regardless of what they are doing, and against civilians who are directly participating in hostilities.

Using force to take a life against anyone who does not pose an immediate threat to life would be a violation of human rights law. IHL, however, permits this on the ground that enemy combatants always constitute a threat to life regardless of what they may be doing at the time force is used.

The drafters of IHL assumed that armed conflicts would mainly be between states. This gave rise to a clear division of regulation. Human rights law would govern state responses to threats to life by non-state actors during peacetime, while IHL would govern state responses to threats to life posed by other states during wartime. As I said, this assumption has turned out to be mistaken. The most intense hostilities since World War II have between states and non-state groups. Hostilities between revolutionary forces in Colombia, for instance, lasted for 60 years.

Often, however, when hostilities with non-state groups are substantively armed conflicts that should be governed by IHL, states prefer to classify these conflicts as “police actions” against criminal organizations. They don’t want to admit having lost so much control over the use of violence that they are now engaged in a war. They also don’t want to give groups they regard as criminals the status of enemy military forces.

Without an armed conflict IHL does not apply. This leaves human rights law to govern use of force in these hostilities that are, in all but name, armed conflicts. This has led to claims in human rights courts that states have violated the human rights principle of protection of life in their military operations. Human rights courts generally defer to states on whether there is an armed conflict. If a state refuses to acknowledge this, then IHL will not apply.

This may seem an opportunity to humanize the law of warfare by applying a stricter set of rules than IHL. Courts know, however, that it is not practical to strictly apply human rights law during periods of intense hostilities. They therefore interpret human rights law in a way that is far less demanding than for police operations.

In my essay I argue that this risks diluting human rights law. It may result overall in less protection of the right to life outside of wartime. I argue that when hostilities are effectively armed conflicts a court should treat them as such and apply IHL, even when a state is not willing to do so. My argument is that in the long run this will better preserve human rights protection of the right to life.

Let me start by posing a question to Emily. I should note that I will be posing questions to the panelists, but they all have the prerogative to direct questions back to me.

Emily, we should be concerned about all loss of life during violent conflict, but protection of innocent civilians is especially important. Your organization does tremendously valuable work on this issue. Before we get to some of the legal issues, what do you see as the biggest challenges in protecting civilians during armed conflicts?

EMILY TRIPP: Thank you so much and thank you for having me on the panel.

I think I might just push against exactly your framing there, Mitt, actually. For us it is not about innocence. “Innocence” is a loaded term, but civilian status is associated with protection under IHL. One of the challenges that we face—we are a civilian harm-counting watchdog organization; that means we track civilian casualties across the world, even in cases where states are ostensibly applying international humanitarian law.

I think one of the important points that I want to bring up here is that, yes, you have your various legal regimes which govern the conduct of militaries around the world, but you also have to some extent a normalization of civilian harm which has been very much within the framing of “collateral damage.” It is referenced frequently also throughout the essay in that as long as something is within the discretion of the commander or something is justified within the nature of the military campaign, then that justifies a certain loss of life. I think what our organization has tried to do is ask: “What does that mean? What does it mean when you say, ‘This is justified within the military campaign,’ and what do you mean when you say ‘collateral damage,’ and how can you account for that on the basis of an individual loss of life?”

Our organization has been counting casualties across many different campaigns including Russian strikes in Syria and parts of Ukraine but also U.S. actions and U.S.-allied actions across Iraq and Syria, for example. Seventy percent of the investigations of the U.S. military that conducted a war against ISIS were originally Airwars referrals. These are investigations into civilian harm which fall out of this framing of IHL necessarily or human rights law but nevertheless are an integral part of how the militaries are trying to understand how they conduct themselves.

As we go through this discussion I think it is important to also say that IHL is not by any chance a proactive model that is being used to protect civilians even in the kinds of states of armed conflict. In fact, for us we see it as the bare minimum, which is why a lot of our work is around how we can influence norms and behaviors and what else we can put in place within the international order that makes sure that civilians are protected over and above the minimum standards of IHL.

MITT REGAN: Thank you very much.

Adil or Ashley, do either of you want to jump in on this particular question?

ADIL HAQUE: Mitt, when you opened you said that there are two bodies of international law that govern killing of other human beings, human rights law and IHL. Of course, there is a third body of law, which is the law governing resorting to military force, so thejus ad bellum under the UN Charter.

One of the most interesting questions under contemporary human rights law is whether all intentional killing and all intentional infliction of harm in furtherance of a war of aggression violates human rights. The Human Rights Council has indicated that it does, and there is at least some interest among judges on the European Court of Human Rights in that framework.

It also raises a further question: What about killings not in a war of aggression but a war that exceeds the limits of the right of self-defense that is unnecessary or disproportionate in its scope or its impact on civilians. This is another legal framework that might be brought to bear and that might in fact prohibit under the heading of human rights law actions that do not necessarily violate international humanitarian law.

MITT REGAN: Thank you. Ashley, you know, both as a scholar and as a practitioner, that as a practical matter the lines between “war” and “peace”—if we want to use the colloquial terms—are quite blurry today. There are questions about whether there is an internal disturbance or an armed conflict in Haiti or in Ecuador. States address that in various ways.

Is a court in a good position, as I assume, to determine when a civil disturbance has evolved into an armed conflict, or are states better positioned to make this determination? In other words, should courts ultimately defer to states’ judgment on this?

ASHLEY DEEKS: It is a good question, and I think your essay grapples with this at the end. I would say that at least in the U.S. judicial system there have been occasions over time where our federal courts have actually had to ask themselves this question: “Are we suited to judge whether we are in an armed conflict or not?” They have kind of produced mixed results. Way back in the Prize Cases during the Civil War you found some justices willing to say: “Yes, this is an armed conflict. We can make that objective assessment.”

But in the period since we have also found situations in which our courts will invoke something like the political question doctrine that effectively concedes that they are not as well-suited as an actor like the Executive Branch in our system to make that judgment. It is particularly clear, or it had been clear, under a Supreme Court case from the 1950s that it was for the Executive to decide when the conflict had ended.

This has come under some pressure, especially during the U.S. conflict with al-Qaeda, which has extended now for multiple decades, whether that is still the right place for courts to land, but I think we see at least U.S. courts making a few inroads into that assessment recently in light of the unusual nature of that conflict with al Qaeda and associated forces.

MITT REGAN: Adil, I would be interested in your thoughts on this because I know this is the kind of issue that you have also thought about quite extensively, whether courts are well-positioned to make this kind of determination or whether we ought to defer to states who ostensibly have the best sense of what is going on on the ground.

ADIL HAQUE: It’s interesting. There is a range of accountability mechanisms and human rights bodies that might be faced with this question about undeclared wars, armed conflicts that are not labeled as such by the participants. For many of those bodies it makes sense for them to make their own independent assessment because that is their mandate, simply to investigate whether violations are occurring.

Courts are in a slightly different position because most courts accept some version of a party presentation principle, so if the state does not invoke international humanitarian law there are practical problems with a court contravening the state’s position, kind of putting words in the state’s mouth.

First, there might be legal questions that the court will have difficulty resolving without legal arguments being submitted to it. There might also be factual prerequisites that this court might need to establish that only the state possesses, so if the state refuses to go along with an IHL inquiry that may leave the court in a position where it cannot evaluate IHL claims, and then the question becomes: On whose shoulders should that burden fall?

If we are thinking about an applicant, an individual whose family has been killed in an armed conflict and who is bringing a case before a human rights court or an interstate case before the European Court of Human Rights, would it really be to the detriment of the applicant that the respondent state refuses to provide the court with the requisite legal arguments or actual basis to make IHL determinations. Or should the court say: “Well, look, if the state just refuses to invoke IHL and give us a basis for us to make actual determinations, then it is to the detriment of that state, and we will simply apply ordinary human rights standards to the facts as they have been presented to us. And if that ends up with the respondent state getting an unfavorable outcome, then that is the responsibility of the respondent state.” That is what the court will explain to the public: “Given the arguments presented to us, this is our legal conclusion.” I have some affinity for that view.

MITT REGAN: Emily, I don’t know whether you have thoughts on this or wanted to jump in.

EMILY TRIPP: As a nonlegal mind I can maybe speak to the more—just as you were saying, Adil, what is an individual’s recourse for accountability in this situation? Where is an individual going to go if they have been harmed in an armed conflict? I think often it is not necessarily incumbent upon that individual to understand the different legal regimes of all the different countries. Particularly if you are looking at cases like an international coalition or a NATO campaign, it is really, really difficult to find a mechanism for accountability for that action.

I would just like to highlight some moves toward this direction in the Netherlands because I think it is important to reflect on those. There is this incredible human rights lawyer, Liesbeth Zegveld, who has been fighting for civilians and using any legal regime that she can essentially in order to get compensation and redress. There are lots of other human rights lawyers also, lawyers like Joanna Naples-Mitchell at the Zomia Center, people who are trying to understand what is best for their clients who have been affected in an armed conflict, and how can they use the systems that are available to them.

I think particularly within the U.S. context there is an interesting bit of legislation and law around a certain amount of money which is available for civilians to get compensation and amends based on harms that are conducted and can be proved by the states.

To complement those two mechanisms of accountability when it comes to civilians, I think it is important to recognize the efforts of particularly imaginative human rights lawyers who are trying to understand the system for the civilians they represent.

MITT REGAN: Very thoughtful observations. As we all know, there is no tribunal in which individuals can raise claims of violations of IHL in the sense of a specialized tribunal that is dedicated to those sorts of claims, but as we have seen some special international criminal tribunals, particularly for the former Yugoslavia, have contributed substantially to jurisprudence on IHL. My suggestion could lead to regional human rights courts playing the same role.

A variant I suppose of my earlier question is: Would it be a desirable sort of trend to begin to have human rights courts be the bodies that are the primary ones that provide interpretations of IHL? Are they well-suited to do that? I am curious what people think about that.

Of course under IHL we have the possibility of state prosecutions of their own service members, for instance, for war crimes. We have the International Criminal Court, but is it possible that we could then develop a body of IHL jurisprudence through human rights courts? Would that be something that would be desirable?

ADIL HAQUE: I will offer some thoughts. In one way, of course, it would be desirable just to have impartial adjudication of legal questions, and human rights courts will have briefing and they will have staff to help them resolve these questions.

My only concern is that I don’t want human rights courts to assume that they must find a clear violation of IHL before finding a violation of human rights law. This I think gets to the question in your piece about how exactly you see the relationship between these two bodies of law.

As you all know, there are a couple of different views on this question. One view that has been discredited is the idea that human rights law no longer applies in armed conflict. That view has been pretty roundly rejected.

There is a second view which says that human rights law continues to apply during armed conflict, but its content essentially converges with IHL, so where IHL also applies human rights law provides no additional protection. If a court were to embrace that view and feel that it has to find a violation of IHL to find a violation of human rights law, that might be good for the development of IHL, but it might set back the development of human rights law.

The third view is that where IHL and human rights law both apply they complement one another, and in principle human rights law may prohibit acts that IHL permits, even where IHL applies to those very same acts.

Mitt, in your introductory remarks, you alluded to cases of military strikes against members of an opposing armed force or armed group who do not pose an immediate threat and one can add to that those who perform no combat function, who are not part of the fight, who perform administrative tasks, and who are not going to be engaged in combat. Under IHL if those individuals do not surrender, they remain lawful targets and are not protected by IHL, even if they would surrender given the opportunity.

That is one of a few areas in which human rights law might kick in and say: “No, if you can spare those people’s lives, you should. If you can give them an opportunity to surrender without compromising your own safety and they are likely to take that opportunity, then you must do so under human rights law.” The African Commission on Human and Peoples’ Rights has alluded to that as a stance that they would take, and under other human rights treaties similar conclusions can be reached.

I would like to see that third model developed, where human rights courts will engage with IHL and maybe contribute to the interpretation of IHL but not feel that they have to find a violation of IHL to find a violation of human rights law.

ASHLEY DEEKS: If I can just jump in, I have two distinct thoughts on this. First, I will just say that I am sure that an actor like the U.S. government would be concerned about the idea of having a human rights tribunal be the one to assess in a particular instance during an active conflict whether a particular strike violated human rights law or even whether it violated IHL, if that were the body of law the tribunal were applying.

That is a doctrinal statement I think of where the U.S. government has been on this, but one reason I think for that concern is classification. The United States relies on classified information to decide whether a person is a lawful target or a particular civilian object has people who are taking a direct part in hostilities inside it such that they are lawful targets. They may get information from allies that they also feel they can’t disclose. One would have to think through very carefully how the particular governments whose actions were being challenged would be able to put forward a defense to a particular case. I think that would be tricky.

The second point I will say is actually a little bit in tension with that, which is, putting aside the role of courts making the decision as to which body of law to apply, one case that is of interest to me is the al-Awlaki case. This was a case in which Anwar al-Alwaki’s father—he was a U.S. citizen who had gone to Yemen and was part of al-Qaeda in the Arabian Peninsula—brings a case in U.S. court saying: “I have reason to believe that al-Alwaki has been put on a targeted killing list by the U.S. government, and I want the court to basically declare that the United States should not be allowed to strike my son unless he poses an imminent threat of harm to another person or the U.S. government and it is absolutely necessary that the government use force,” in other words, they don’t have any other options—they can’t arrest or detain him.

He loses that case, again based on the political question doctrine that I mentioned earlier, but if you fast-forward to the U.S. government’s targeted killing policy under President Obama and again under President Biden, they actually pick up a lot of what the test is that Anwar al-Alwaki’s father proposed, that is, the person to be targeted poses an imminent threat and the near certainty that there won’t be any civilian casualties. It is interesting to me that at least in this setting of targeted killings outside active hostilities in a non-international armed conflict, those standards have converged a little bit, at least with regard to U.S. policy.

MITT REGAN: I think that is a very interesting development. I want to return to that shortly, but let me just come back to Adil for a moment.

Adil, what about the argument in response to your suggestion about how IHL should be interpreted that IHL is in fact a body of specialized law that states have weighed military necessity and the principle of humanity in ways that reflect some relative degree of agreement on this and that if IHL says that a combatant can be attacked at any time, then that should be the standard as opposed to adding the qualification of “only when that person actually poses an immediate threat?”

As you know, the International Committee of the Red Cross Interpretive Guidance on the Direct Participation in Hostilities has a section in there that suggests that the principle of military necessity should be construed in a way consistent with the formulation that you suggested.

How do you respond to the argument that your approach would in fact be giving precedence to human rights law rather than attempting to harmonize the two bodies of law?

ADIL HAQUE: I don’t see it as precedence. I see it as a human rights court has a mandate to apply human rights law, and if it is going to look to another body of law to guide the interpretation or application of human rights law, then the court needs to make its own assessment of whether that other body of law adequately protects human rights.

I have a particular interpretation of IHL, which is quite protective of civilians and other vulnerable individuals, but if you look historically IHL has not always had that quality. Even after the first four Geneva Conventions, there was little treaty regulation of the conduct of hostilities. Would we want to say that in armed conflict human rights law therefore does not protect people from the effects of hostilities?

Fast-forward to the late 1970s with the Additional Protocols. We have a very different set of rules in international armed conflict and non-international armed conflict. Should a human rights court say that your human right to life has a fundamentally different content depending on the classification of the conflict in which you happen to be caught up? Would it make sense for a human rights court at that time to say that your human right to life does not protect you from being used as a human shield or does not protect you from unnecessary or disproportionate incidental harm? I don’t think so.

Today we think those rules have largely converged, and many of us have a very protective interpretation of IHL, but I think from the perspective of a human rights court they should always make their own determination of whether this other body of law adequately protects human rights because that is their mandate, protecting human rights. I think they always need to make that separate assessment. The answer might be yes, the answer might be no, but the court always has to ask that question for itself.

MITT REGAN: Ashley, I wonder how we should deal with the fact that the United States by and large does not acknowledge the application of human rights law beyond its borders. Does that create a challenge in using human rights courts to try to develop a jurisprudence that tries to reconcile IHL and human rights law in the sense that that would not be regarded as a legitimate sort of enterprise by the major state that uses military force in the modern world?

ASHLEY DEEKS: Let me just say, yes, you are right, the United States with regard to a treaty like the International Covenant on Civil and Political Rights continues to take the view that it does not apply to U.S. activities outside of its territory. As a related matter, I think it means there are not tribunals or human rights courts that generally can bring the United States into its jurisdiction.

This is why I think the United States has tried to do a fair amount of work, especially recently, as an Executive Branch and to some extent Congress, to make these policy changes itself because there are not going to be many tribunals that would be able to reach U.S. behavior here. That is not to say that the United States would condemn a tribunal like the European Court of Human Rights for taking on cases that are within its jurisdiction and assessing them under whichever body of law or both bodies of law that they see fit.

MITT REGAN: Let me follow up on that last point, Ashley, because Emily referred earlier to IHL as being something of a floor, a minimum standard. Certainly groups such as Airwars and the Center for Civilians in Conflict, and others have pushed modern technologically sophisticated states to do more with respect to protecting civilians, in other words, not to regard their allegations as satisfied as long as civilian harm is not excessive compared to anticipated military advantage from an attack.

There does seem to me to be some indication of developments—and I will focus on the United States—that have attempted to adopt as policy, not as binding law, norms and practices that are more protective. Ashley mentioned the presidential policy guidance on direct action, targeted killing basically, that somewhat surprisingly to some was preserved in many respects during the Trump administration and is certainly in place now in the Biden administration.

Emily, as you know, the United States has recently established the Civilian Harm Mitigation and Response Action Plan (CHMR-AP) announced by the secretary of defense and a Civilian Protection Center of Excellence there that is meant to coordinate efforts to not simply ensure that civilian harm is not excessive but to try to reduce it as much as possible. Again, the use of force in the modern age has now to some degree become uncoupled with legal compliance.

I am curious whether folks would have a thought on that.

ASHLEY DEEKS: I am sure that Emily has thoughts on this, and I am very interested in hearing her reaction.

Just to pick up on your point, Mitt, I think that is right. Putting aside what the legal baseline is, including for principles of distinction and proportionality, core norms that apply in non-international and international armed conflicts, I think the United States at least has appreciated that there are real costs to civilian harms beyond just nonlegal compliance. There are moral concerns, ethical concerns, concerns about turning local populations against the efforts that you are trying to undertake, and so on.

I do think we see, as you mentioned, the Department of Defense (DoD) civilian harm-reduction efforts. They have come out with a long directive from DoD that specifies who needs to do what. It is creating a Center of Excellence, and it is staffing it with very high level people inside the Defense Department, so at least on paper it appears as though it has very high level buy-in.

You see National Security Memorandum 20, which the White House put out, requiring the government to take a careful look at whether allies who are receiving U.S. weapons and other kinds of defense systems are complying with the laws of armed conflict, so using some leverage that the United States may have to encourage other actors to take their civilian harm-mitigation obligation seriously.

We have statutes on the books here. Congress has enacted a statute that basically is focused on making sure that U.S. humanitarian assistance is not being impeded when it is being sent into conflict zones.

You also have nongovernment organization (NGO) pressure. You have public pressure from groups including Emily’s, which I think is doing excellent work in making sure that governments are tracking this issue carefully and taking it seriously.

MITT REGAN: Adil, let me turn to you and get your thoughts. Do you see this as a promising direction? Are you skeptical about what can be accomplished?

ADIL HAQUE: I think it is a double-edged sword. In one way, of course, it is a positive development that the United States is taking certain civilian-protection measures or civilian harm-mitigation measures as a matter of policy. That is obviously better for the civilians who are going to be impacted by our own military operations.

But I think from the very beginning of this development a number of scholars and observers worried that there is a growing divergence between U.S. policy and U.S. legal positions, and it creates a kind of illusion about the commitment of the United States to civilian protection because as has been pointed out those policies, first, can be reversed at pretty much executive whim, and second, those policies are not binding on other states, so if as a matter of law the United States government takes a very expansive view of the amount and kind of harm it can inflict on civilians, that is going to potentially apply to us in future conflicts.

It is also relevant to our relationships with allies. Ashley mentioned that we have various laws and policies in place that ostensibly limit our ability to give military assistance to other states that violate international law, by the way, not only international humanitarian law but other bodies of international law as well, so in principle international human rights law as well.

But because our legal positions are so expansive and so permissive it remains to be seen whether those restrictions on military assistance will have any bite. Of course, this is what everyone is waiting to see with respect to Israel and the national security memo. For the United States to find that Israel is violating international humanitarian law, it would be finding that it is violating the U.S. interpretation of international humanitarian law.

There is a real concern that Israel’s conduct in Gaza is widely—almost universally—viewed as illegal but that the U.S. government will find it very difficult to identify violations of the U.S.’s own legal positions with respect to IHL, even though it will be easy to say that Israel is not following U.S. best practices or U.S. policy.

The extent to which Israel is violating the U.S.’s interpretation of IHL is a further question that needs to be asked, and potentially it could have a very damaging answer. If the United States were to come out and say that everything that Israel is doing is consistent with the U.S.’s own legal position about the interpretation of IHL, I think that would have an incredibly destructive effect on the U.S.’s own standing in the international community. It would basically be saying, “In the right circumstances we would be prepared to do what Israel is doing in Gaza,” and I think that would have a very damaging effect on the U.S.’s standing in the world.

MITT REGAN: Thank you. Emily, you have been in this field for a while, literally on the ground where these conflicts are happening. What is your sense of the dynamics by which I think NGOs particularly prominently but perhaps other groups have helped shape a shift to some degree that is manifested at least in policy with respect to thinking about civilian harm in a different way beyond simply legal compliance?

EMILY TRIPP: From our perspective I have limited experience with other colleagues as well, but there are organizations like the Center for Civilians in Conflict and others that have been trying to ask, “What does protection look like from a civilian perspective?” Often when you are in these humanitarian settings you are not thinking ten years or five years down the line in terms of accountability within necessarily a judicial framework.

I think there are lots of brilliant organizations that are trying to equip civilians and citizens to document harms as they happen in real time, but what we have been doing is trying to shift—I caught the end of this discussion a little bit —trying to shape that kind of norms and behaviors that happen within militaries themselves. When there is a military that decides, “Okay, we are going to do a campaign in an urban area,” are they thinking about what weapons they are using and explosive weapons, are they prioritizing civilians, and are they prioritizing the human costs when they are making those strategic decisions, or are they saying, “Okay, let’s just try to avoid getting in trouble?”

That is a different way of thinking. I think the thing I have learned, particularly in the last few years working directly with various kinds of military professionals themselves, is they say, “We don’t aim to destroy areas to deliberately kill civilians”—depending on who you talk to—but there is this civilian toll. It is something we don’t talk about because it is happening within this completely fine and legally permissible framework, which also means that the effect on the militaries themselves, who are responsible in many ways for civilian harm, is complicated. They are saying, “You’re not getting in trouble because you have potentially killed these civilians in this area.” But there is no room then to discuss that that is still bad and still a moral injury that we all need to talk about, whether that is the civilian who has had their family killed in a U.S. airstrike or whether that is the drone pilot who is responsible for making the decisions that led to that strike.

I think when we only look at the legal framework we start to lose sight of the other discussions that you can have around civilian harm that take place above and beyond, which is why things like the new explosive weapons in populated areas political declaration as well as other kinds of conventions and customs are in place. I think it is important to push that, particularly in the context of this conversation.

MITT REGAN: Ashley, I want to turn to you, not as a representative of the entire U.S. government, but you have experience there. We have the new CHMR-AP and we have the Department of Defense instruction. As you know, the United States government and Department of Defense in particular are very large organizations, very bureaucratic. What do you think will be necessary for this kind of policy initiative actually to take root and ultimately to affect military operations on the ground?

ASHLEY DEEKS: Thanks, Mitt. I would say a couple of things would be important. I will just say my understanding is that the idea is to have this fully implemented by 2025, so there is a bit of an on-ramp.

Of course, I should have said in the beginning that I am not speaking as a U.S. government while, so these are just my personal thoughts.

I think if you see high-level attention to this at DoD—and by that I mean secretary-level, deputy secretary-level attention—questions about “How are we doing on this, are you running into roadblocks?” etc., I am paying attention to this challenge. I think that will be both important and probably necessary.

I think also attention from the White House, State Department, and other agencies that are operating in this realm will be important, and I think Congress has a role to play here in asking questions about how things are going and how the appropriations are being used.

Emily mentioned early on funding that Congress sometimes provides for providing reparations to people who have suffered harm from U.S. military operations. I would want to track that and see how that is going because I think that would be relevant to how the Defense Department incorporates and internalizes all of this.

All of this is to say that it is not that the Defense Department has been immune to questions about civilian harm. This is something that has been on their radar for quite some time. Starting in the Obama administration there was more attention paid, but this has turned up the dial even stronger now.

MITT REGAN: Emily, we met a few weeks ago when you were in town, and I know you had some interaction with the Pentagon and the Center of Excellence at that point. There may be things you are not able to discuss, but I am curious as to your general impression on how promising that is and what would be necessary to realize that promise.

EMILY TRIPP: There is a lot of openness in the new Department of Defense instruction as well as in the CHMR-AP about the importance of engaging with NGOs. That is no secret. I think this is an important part of a functioning democracy to the extent that we call it that. That is the role that we have constantly played, which is that we are an NGO, we are coming from outside, but we are also documenting harm from U.S. actions that they themselves have never been able to do, even the fact that it says within the Department of Defense instruction that it is important to gather outside voices and is important to consult with others. I know the baseline is a little low, but that is far above and beyond what other states are doing when it comes to acknowledging input from other organizations and outside voices. To that extent, I think that is promising.

There are lots of things within the CHMR-AP that reflect conversations and recommendations that Airwars and others—we are part of a working group in DC which includes lots of other different organizations. These organizations for 20 years have been asking for certain things, and we started to see those things reflected in the CHMR-AP, almost word for word. So I think there are to some extent these promising signs, but as was said before by Ashley, we have not seen this fully implemented yet. I think the Center of Excellence will take time to stand up, and it will depend on whether or not the promises, hopes, and ideas behind the CHMR-AP are implemented in a way that makes sense for civilians affected by conflict, because I think that is the aim of this all, to prioritize and elevate those voices. If this turns into something that just becomes a kind of side project of the DoD, it will not be effective and will not fulfill that legacy.

I caught the end of Adil asking what that means in the context of something like Israel and Gaza and what does that mean in the context of current narratives on civilian protection. I think that is a real question. To what extent is Austin’s legacy kind of questioned by the current behaviors and approaches when it comes to Israel?

There are lots of questions. I am not going to say just nice positive things, but I think also it is important to acknowledge that this is something that is not happening elsewhere, this kind of proactive engagement with civil society.

MITT REGAN: Thank you. We have a question in the chat from Reed Bonadonna, who I have not seen in quite a while, but I know he was at the Coast Guard Academy. I was always impressed because he taught an ethics course in which the students read Jane Austen. Reed asks, “Speaking of culture, is this taught sufficiently in military education and training in the United States and United Kingdom?” I will weigh in first, but I would be interested in others to the extent that they have a sense of that.

As I mentioned, I am a senior fellow at the Stockdale Center for Ethical Leadership at the Naval Academy, and the key I believe would be to encourage a sense of professional identity in which being a member of the military involved basically a responsibility to protect civilians, that is, to internalize that as a norm in the profession. Certainly I think there is concern for civilian casualties with members of the military I have spoken to both who have served in combat and those in military education. I think integrating that as a fundamental element of what it means to be a member of the military perhaps is something that has not yet occurred, but I think that is something that would be valuable.

I am curious if others have any thoughts based on their own experience.

EMILY TRIPP: I could maybe just hop in. Quite a bit throughout the CHMR-AP is the importance of training and the importance of getting this within different levels of the U.S. military in particular. Is it taught sufficiently? I think the answer has to always be no because we have seen civilian harm at such levels by actors who are ostensibly acting within IHL, but I think there is something militaries hopefully are now starting to reckon with. There is a whole section in the CHMR-AP on misidentification and understanding how misidentification and how bias could influence certain decisions that are made on the battlefield.

As long as we continuously strive to push for better prioritization of civilians, that is kind of where we are heading, and one of the big tasks of the Center of Excellence in the United States is how do we make sure that the military are sufficiently trained and educated not just in adhering to IHL but in the protection of civilians as something that is then normalized throughout all institutions. I think that is something that will be interesting to see as the world plays out essentially and in future wars and combat, but I think one thing that is dangerous and scary in many cases is the remove from the militaries to the war zones in which they operate.

If you speak to any military professional who has had ground experience and has been on the ground, they have a very different relationship with civilians they are around rather than potentially pilots and people who are more remotely dealing with the battlefield. So making sure that even when you are not face to face with the civilians who could be harmed by your actions how that is integrated into training will be interesting to play out.

MITT REGAN: Thank you. Adil, I know you have contact with military personnel as well. I am curious as to your thoughts and impressions.

ADIL HAQUE: I certainly agree that any time you want to improve compliance with law, policy, or basic ethical considerations that building a sense of personal identity, of normative identity, is extremely important. That is a very powerful motivation if you feel like, I just am the sort of person who does this; I am not the sort of person who does that.

The only thing that I sometimes worry about is the idea that soldiers have a special role morality that is distinct from the ordinary morality that applies to every human being. That can potentially go awry if they feel that as soldiers there is a special set not only of legal rules but of moral rules that apply to them and that is exhaustive of their moral responsibilities to other human beings; that can potentially lead them astray. They might think that there are certain types of moral considerations that no longer apply to them because they are occupying this special role, and I would want to resist that.

Just as I think that human rights law applies and protects all human beings at all times in and out of armed conflict irrespective of the application of international humanitarian law, I similarly think that the moral right of every human being—not to be killed, not to be injured—applies everywhere, at all times, and in all places, and there is no special rules of military ethics that displaces those more fundamental moral protections.

MITT REGAN: Thank you. That is a very good way of summarizing the focus of our discussion here. We have now the recognition that human rights law is something that applies in all instances. We do have—I wish I could say they were exceptional—situations in which there is not the sort of stability that we expect, a sort of paradigmatic setting in which human rights law is applied, wartime. There is a set of legal rules that apply to that.

The question is, how do we harmonize this universal aspiration that is reflected in human rights law with the realities of intense conflict? One of the things we all are going to be examining closely over the next several years is: How exactly do we think about the relationship between human rights law and IHL? There are a variety of ways in which we could try to reconcile those. If we accept that they are applicable, even in times of armed conflict, that IHL does not simply displace human rights law, how do we think about trying to give sufficient weight to the concerns that are reflected in each body of law? My essay is a very preliminary foray into that.

I want to thank all of you for joining us. We have had such a rich discussion. You all bring such interesting and diverse perspectives. I certainly have learned a lot. I hope the audience has as well.

Ashley, Adil, and Emily, thank you so much. My thanks also to Carnegie Council for sponsoring this event.