The Duck of Minerva

Is there a legal obligation to report war casualties?

2 March 2010

This year at ISA a theme which seemed to crop up again and again (at least among the laws of war crowd – we’re small but mighty) was the idea that “we” (international society, academia, NGOs, I guess) need more information on civilian casualties, particularly those caused by air strikes in Pakistan and Afghanistan. There was a real sense of frustration that the US was not more forthcoming on casualties, who was being targeted and who died.

Certainly, arguments were provided that there was a moral duty to provide such information. Although democracies may fight very deadly wars, constituencies within them want and demand to know exactly who we are fighting and why and with what means.

But is there a legal obligation to do so? The idea that the US (the CIA specifically) is fighting a shadowy war in Pakistan using unmanned aerial vehicles (UAVs) has lead to allegations of civilian atrocities and war crimes. No one seems to be able to provide an accurate count. (And I struggle to find a reliable one on the internet.)

But must the US actually provide information as to who it has targeted and who has died under the laws of war?

I can find no straightforward obligation in the laws of war which states that governments must report casualties in an armed conflict. They must report all prisoners taken (GC III, Art 70, 122) and their deaths (GC III Arts 120, 122). But the laws governing the death of civilians and combatants (legal and unlawful) in operations is much less clear. Most civilian protections are from the Hague Conventions (which did not envision Predator UAV strikes, although the idea of Aerial Warfare was not entirely foreign) and Additional Protocol I (which, of course the US has signed, but not ratified.)

While, Governments are required to take precautions in attack, operate in a proportional manner and to make efforts to avoid disproportionate damage, there is little in which to enforce or hold states accountable because there is no requirement to provide information.

Does this requirement to be proportional and discriminate then implicitly oblige states to provide information to demonstrate that they have been acting in accordance with the laws of war?

This was the argument of Philip Alston, United Nations special rapporteur on extrajudicial, summary or arbitrary executions and NYU Professor and … who has argued with Hina Shamsi:

Used without fanfare in remote and inaccessible areas, they are invisible to all but their potential victims. The military advantages are obvious, but so too are the potential rule-of-law problems. Unless governments voluntarily disclose information, human rights monitors and independent journalists are unable to verify claims that there are limited or no civilian casualties, let alone to weigh them against credible reports that hundreds of innocents have died…

Accountability is an independent requirement of international law. When complete secrecy prevails, it is negated. Secrecy also provides incentives to push the margins in problematic ways.

Yet Alston does not cite any specific legal obligation other than to invoke these principles that are, it is fair to say, less than straightforward and do not provide any specific guidance. Indeed, later on in the article, it seems that the real “beef” that Alston has is the dehumanized process employed by a generation reared on Call of Duty.

Equally discomfiting is the “PlayStation mentality” that surrounds drone killings. Young military personnel raised on a diet of video games now kill real people remotely using joysticks.

Morally, Alston may have a point, but I am not convinced that he has legally demonstrated his case. Things that are “discomforting” are not necessarily illegal.

It is fair to say that the US position is that no such obligation exists. In searching for an answer to this question, I contacted a lawyer friend at DoD in a position to know about these things. The response I received made it was clear that they do not believe that they are under any such obligation for several reasons.

First, reporting on friendly casualties may provide too much intelligence to enemies on the effects of their actions. (ie: that they are being effective).

Secondly, reporting on enemy casualties is not without moral risks. The US was criticised (and “rightfully so”, my friend added) for excessive reporting of enemy casualties in Vietnam. The policy of “body count” was used to demonstrate that the US was winning the war but lead to rather more tragic consequences. This was the position taken by General Tommy Franks in Afghanistan when he told reporters “We don’t do body count.” Franks was not saying that the US military didn’t care – but rather that he did not want to repeat the same mistakes that had been made in Vietnam.

Finally, on civilians, there seems to be the problem of knowledge. That while an attacker can (and must) make an estimate as to how many civilians might be killed in its proportionality calculation. However, there is simply no way to confirm reliably the number of deaths or to know whether any casualties were “directly participating in hostilities” (Which, the US tends to regard very differently from the ICRC these days.) Whether this problematizes the fact that they were targeted in the first place is up to the reader to decide.

So any reporting on casualties is not being done under any belief that there is a legal obligation to do so.

I’m sure the advocates for more information did not exactly have “body count” in mind when they demand more information and accountability. But this does raise an interesting point – that casualty reporting may also be used for other, more sinister purposes.

Am I missing something here? Can anyone point to an item of law which suggests that there is an obligation to do so?

I would like to stress that I am not conflating legality and morality here. The trick about the laws of war is that it lets you do a lot of really nasty things to a lot of people legally – let’s not kid ourselves. But if there is a claim that there is a legal obligation to provide information, I’ve yet to see it.

The only thought that comes to my mind is that the strikes in Pakistan do not amount to an “armed conflict” and therefore a human rights framework (which has much stronger accountability mechanisms) applies rather than the laws of war… but I think this needs to be the subject of a different post…