Introduction
On April 2nd, over 100 U.S.-based international law experts published a Letter expressing “profound concern about serious violations of international law” in the present armed conflict in the Middle East. Section 2 of the Letter asserts that U.S. forces likely violated the law of armed conflict (LOAC) and potentially committed war crimes.
At the outset, we note our agreement with aspects of the Letter, specifically that it is essential U.S. armed forces remain committed to the respect for and good-faith implementation of international legal obligations – most notably those established by the LOAC (international humanitarian law) – during the conduct of military operations. Any suggestion to the contrary is corrosive to the efficacy, discipline, and morality of our armed forces; it also compromises the legitimacy and strategic interests of U.S. military operations.
However, we want to address Section 2’s “[c]oncerns about violations of international humanitarian law” by U.S. armed forces. This should be understandable as each of us have served as the Army’s Senior Law of War Advisor (though we each write here in our individual/personal capacity) and we have spent our careers primarily focused on the study and practice of the LOAC’s provisions during all aspects of U.S. military operations.
In the first half of Section 2, the Letter – without reference to the operational context and targeting rationale – outlines these concerns by highlighting purported strikes against civilians and civilian objects, oil and gas infrastructure, water desalination plants, and energy infrastructure. In the second half of Section 2, the Letter – again absent reference to operational context and targeting rationale – concludes that a U.S. strike which hit the Shajareh Tayyebeh Primary School likely amounted to a LOAC violation and may potentially constitute a war crime.
We find the methodology underlying the Letter’s concerns troubling. At its core, Section 2 reads like a not-so-subtle accusation against unknown, yet very real, U.S. commanders and staff engaged in the immense challenge of selecting and engaging targets in a complex operational environment. We do not believe the Letter’s “concerns” characterization negates this inference, nor does it justify the Letter’s over-reliance on assumptions and sources of limited relevance. We believe that to suggest the serious allegation that U.S. commanders and armed forces have likely violated the LOAC and potentially committed war crimes requires a credible factual foundation derived from rigorous investigation. Unfortunately, we don’t believe the Letter reflects such a foundation.
General to Specific LOAC Violation Concerns
The Letter focuses on purported U.S. attacks on civilians and civilian objects, oil and gas infrastructure, water desalination plants, and energy infrastructure as the basis for its asserted concerns. However, examination of the hyperlinks provided in support of these concerns reveals the