A family who fled their home in Mamun, a neighborhood in Mosul, Iraq, March 9, 2017. A US airstrike in Mosul last month killed more than 200 people, causing the largest loss of civilian life since the United States began bombing ISIS in Syria and Iraq in 2014. (Photo: Ivor Prickett / The New York Times)
Just two and a half months into his presidency, Donald Trump has already distinguished himself as a war criminal. His administration is killing unusually large numbers of civilians, in violation of US and international law.
Killing Civilians in Record Numbers
The Trump administration began to kill civilians over inaugural weekend, with two drone strikes in Yemen that claimed 10 lives. One drone struck three people on a motorcycle. The other hit seven people riding in a car. Neither Trump nor Defense Secretary James Mattis admits to having approved the strikes. It is not clear who authorized them.
One week after his inauguration, Trump bemoaned the death of a US Navy Seal in a botched raid he personally ordered in southern Yemen. Trump made no mention of the 30 people, including at least 10 women and children, killed by the US bombers. The attack badly damaged a health facility, a school and a mosque.
Over the past month, the US-led coalition has killed an inordinate number of civilians.
"Almost 1,000 non-combatant deaths have already been alleged from coalition actions across Iraq and Syria in March -- a record claim," according to Airwars, a non-governmental organization (NGO) that monitors civilian casualties from airstrikes in the Middle East. "These reported casualty levels are comparable with some of the worst periods of Russian activity in Syria."
Airwars says that US aircraft have inflicted most of the casualties in the coalition strikes.
Indeed, so many civilians have died from coalition airstrikes since Trump took office, Airwars is reducing its work on "alleged Russian actions in Syria -- so as best to focus our limited resources on continuing to properly monitor and assess reported casualties from the US and its allies."
During the last part of March alone:
-- US drones bombed a mosque in Aleppo, Syria, claiming at least 47 civilian lives.
-- US aircraft bombed homes, a school and a hospital in Tabqah, Syria, killing 20 civilians.
-- A US-led coalition airstrike on a school that was housing 50 families displaced by the fighting near Raqqa, Syria, killed at least 33 civilians.
-- A US airstrike in Mosul, Iraq, killed more than 200 people, causing the largest loss of civilian life since the United States began bombing ISIS in Syria and Iraq in 2014. The attack was approved somewhere in the Middle East, according to US defense officials, probably by a one-star general or a team working under her or him.
Abu Ayman, who lives in Mosul, told Reuters he saw several flattened houses and severed limbs scattered around. "I ran to my next-door neighbor's house and with others we managed to rescue three people, but at least 27 others in the same house were killed, including women and children of relatives who fled from other districts," he said. "We pulled some out of the rubble, using hammers and shovels to remove debris. We couldn't do anything to help others as they were completely buried under the collapsed roof."
Another Mosul resident said, "Now it feels like the coalition is killing more people than ISIS."
Chris Woods, director of Airwars, told the Washington Post, "Casualty numbers from western Mosul are absolutely shocking. In Syria it's a car here, a family there. It happens every day."
The coalition forces' use of white phosphorous, a chemical weapon that burns to the bone, has been documented in Mosul. And the US Central Command has confirmed that it has used depleted uranium, arguably a war crime, against ISIS in Syria.
Coalition Airstrikes Violate US Law
The Trump administration, like its two immediate predecessors, justifies the use of armed drones and other forms of targeted killing with reference to the Authorization for the Use of Military Force (AUMF) that Congress passed just days after the September 11, 2001, attacks. In the AUMF, Congress authorized the president to use force against groups and countries that had supported the terrorist strikes. But Congress rejected the Bush administration's request for open-ended military authority "to deter and preempt any future acts of terrorism or aggression against the United States." Deterrence and preemption are exactly what Trump is purportedly trying to accomplish by sending robots to kill "suspected militants" or those who happen to be present in an area where suspicious activity has taken place.
In 2013, the Obama administration promulgated a Presidential Policy Guidance for targeted killing "outside areas of active hostilities."
The guidance allows the targeting of a person who poses a "continuing, imminent threat" not just to "U.S. persons" but also to "another country's persons." A 2011 Department of Justice white paper, leaked in 2013, said a US citizen could be killed even when there is no "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." This makes a mockery of the "imminent threat" requirement. There is presumably an even lower bar for noncitizens.
In addition, the guidance requires "near certainty that an identified HVT [high-value target] or other lawful terrorist target" is present before using lethal force against him. Yet, like the Obama administration, the Trump regime probably mounts "signature strikes" that don't necessarily target individuals, but rather all males of military age present in an area of suspicious activity.
And the guidance says there must be "near certainty that non-combatants [civilians] will not be injured or killed." Given the large number of civilian casualties from drone strikes and other targeted killings, the Trump administration does not appear to be complying with this requirement.
Now, the Pentagon is proposing to expand "the battlefield" beyond Iraq, Afghanistan and Syria, so that other designated countries won't be considered "outside areas of active hostilities." The threshold for protecting civilians would thus be lowered from "near certainty" that civilians won't be injured or killed to a "reasonable certainty." This will invariably result in even more civilian casualties.
Trump has designated three areas in Yemen, and will soon designate Somalia, "areas of active hostilities," or "temporary battlefields."
Moreover, the National Security Council is contemplating whether to rescind the Obama guidance altogether, eliminating the "continuing and imminent threat" requirement. It's possible that it could modify the "near certainty" standard to apply only to women and children, but not to men of military age.
Trump has granted broad power to the CIA to conduct lethal drone attacks. Obama had largely limited that power to the Defense Department's Joint Special Operations Command. The CIA, unlike the Pentagon, doesn't have to report how many people it kills during a strike.
In mid-March, 37 former government officials and national security experts from across the political spectrum sent a letter to Defense Secretary James Mattis, warning the administration to proceed cautiously when reviewing the targeted killing guidance. The letter said, "Even small numbers of unintentional civilian deaths or injuries ... can cause significant setbacks."
Regardless of the guidance, however, the coalition is still constrained by international humanitarian law.
Coalition Airstrikes Violate International Law
"Self-defense," under Article 51 of the United Nations Charter, is a narrow exception to the Charter's prohibition of the use of force. Countries may engage in individual or collective self-defense only in the face of an armed attack. To the extent the United States claims the right to kill suspected terrorists or their allies before they act, there must exist "a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation," under the well-established Caroline Case. Trump's targeted killings do not meet this standard.
Drone attacks off the battlefield violate well-established principles of international law. Targeted or political assassinations -- sometimes known as extra-judicial executions -- run afoul of the Geneva Conventions, which include willful killing as a grave breach. Grave breaches of Geneva are punishable as war crimes under the US War Crimes Act.
The United States has ratified the International Covenant on Civil and Political Rights, which states: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The Covenant also guarantees those accused of a crime the rights to be presumed innocent and to a fair trial by an impartial tribunal. Targeted killings abrogate these rights.
There is also a legal obligation to comply with the requirements of proportionality and distinction, two bedrock principles of international humanitarian law, as delineated in the First Protocol Additional to the Geneva Conventions.
Proportionality means an attack cannot be excessive in relation to the anticipated military advantage sought. The administration is using drones to take out convoys and is killing large numbers of civilians, compared with the number of "militants" it is targeting.
Distinction requires that the attack be directed only at a legitimate military target. The coalition has been targeting sites with no clear military purpose, including hospitals, schools, mosques and passenger ferries. And if the Trump administration is continuing Obama's policy of launching signature strikes, bombs are being dropped on unidentified people located in an area of "suspicious" activity.
The Rome Statute for the International Criminal Court defines the following as war crimes: willful killing; willfully causing great suffering or serious injury; intentional attacks against civilians or civilian objects; and intentionally launching unjustified attacks, knowing they will kill or injure civilians.
US-led coalition bombings of schools, hospitals, homes and mosques, resulting in high numbers of civilian casualties, constitute war crimes.
Mosul Eye, a monitoring organization, warned Iraqi troops that civilians were trapped in homes days before the US airstrike, even sending the coordinates. Amnesty International concluded that the US-led coalition should have known its airstrikes would cause many civilian casualties because the government had told people to remain in their homes.
Amnesty International said the coalition was not using sufficient precautions to avoid civilian casualties in Mosul, calling it a "flagrant violation" of international humanitarian law. "Disproportionate attacks and indiscriminate attacks violate international humanitarian law and can constitute war crimes," Amnesty International noted.
Trump Escalates in the Middle East
Meanwhile, the US military is planning to deploy an additional 1,000 troops to northern Syria. There are roughly 500 US Special Operations forces there already, as well as 200 Marines and 250 Rangers.
The administration reportedly plans to lift the troop caps of 5,000 in Iraq and 500 in Syria that were established by the Obama administration.
Trump is asking Congress to add $54 billion annually to the military budget for what he refers to as his "public safety and national security budget."
Disturbingly, Trump has not ruled out the use of nuclear weapons as he prosecutes his "war on terror." In an interview on MSNBC, he wondered, "Somebody hits us within ISIS [also known as Daesh], you wouldn't fight back with a nuke?"
And Trump made the troubling assertion that he would consider killing innocent families of suspected terrorists, declaring, "When you get these terrorists, you have to take out their families." Targeting civilians violates the Geneva Conventions.
The Trump administration will likely relax the rules of engagement for targeted killing, resulting in the deaths of increasingly large numbers of civilians, in violation of US and international law.
Under the doctrine of command responsibility, commanders -- all the way up the chain of command to the Commander-in-Chief -- can be liable for war crimes if they knew or should have known their subordinates would commit them and did nothing to stop or prevent them. Command responsibility is enshrined in Supreme Court case law and the US Army Field Manual.
Trump and other high officials in his administration should be held accountable for war crimes.
MARJORIE COHN
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and deputy secretary general of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse; Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.
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