This extraordinary article finds that U.S. airstrikes kill civilians 31 times more often than the military thinks. Inadvertently, the article provides some clues that many of these deaths may result from the U.S.’s (flawed) understanding of the law of armed conflict. 1/
As I explain here (ssrn.com/abstract=30467…), the U.S. combines a broad substantive standard of what makes persons and objects into lawful targets with a low evidentiary standard for determining whether specific persons or objects satisfy that broad substantive standard. 2/
This deadly combination multiplies the risk of erroneously targeting civilians and/or erroneously discounting expected collateral harm to civilians. 3/
Apparently, the coalition’s process is designed to answer the question “Is the proposed target actually ISIS?” However, according to DoD, a person “is ISIS” even if they never fight for ISIS, and an object “is ISIS” even if ISIS will never use it in military operations. 4/
Moreover, according to DoD, U.S. forces are not required to presume that persons and objects are *not* ISIS until proven otherwise, do everything feasible to verify that they *are* ISIS and *not* civilians, or refrain from attack in cases of grave doubt and minimal urgency. 5/
To the extent that DoD’s legal views influence targeting decisions, more civilians will die than U.S. forces foresee. 6/
We should reject DoD’s views. If we regard persons as lawful targets if and only if they fight, presume they do not fight, do everything feasible to verify that they fight, and refrain from attack in case of grave doubt, then we are less likely to mistakenly target civilians. 7/7
