Continuing our coverage of the Transatlantic Dialogue on International Law and Armed Conflict, Lawfare is pleased to publish the discussion paper for the conference that Geoff Corn (South Texas) produced on the topic of how criminal responsibility relates to battlefield regulation.
Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility
During our conference, I was asked to generate discussion on issues related to accountability for law of armed conflict/international humanitarian law violations.
Any discussion of this issue must begin with the recognition that international criminal responsibility for serious LOAC/IHL violations is today a firmly entrenched component of the IHL compliance mosaic. Investigation, prosecution, conviction, and punishment of war criminals is expected to produce both retributive and deterrent effects, ostensibly enhancing the probability of legal compliance in on-going and future armed conflicts. Military commanders must be the critical focal point for this accountability; a focal point that is logically aligned with the unique authority of commanders to train, direct, and oversee the conduct of subordinates armed with immense lethal force capability.
While these assumptions may be unremarkable, and perhaps even axiomatic, my discussion questions focused on what I believe are several complex questions that arise in this accountability equation. As a general matter, I sought to highlight what I believe are several evidentiary and institutional complexities associated with subjecting commanders and other operational decision-makers to criminal accountability for battle-command judgments - complexities that will become more significant as cases focus increasingly on complex operational decision-making, particularly in relation to targeting. What follows are several of the discussion questions that highlight these complexities.
1. The Doctrine and Reality of War Crimes Accountability for Complex Tactical and Operational Judgments?
Prosecuting cases involving complex battlefield decision-making poses obvious investigatory and evidentiary challenges. These type cases raise serious questions over how the intersection of battlefield regulation and doctrines of criminal responsibility will produce credible and reliable prosecutorial outcomes. More specifically, how, if at all, does or perhaps should the so-called ‘fog of war’ impact the adjudication of guilt? In my view, a more extensive consideration of this question that contributes to a better understanding the interplay between operational planning, real-time mission execution, and the process of imposing criminal responsibility can only enhance the efficacy of the law from both a regulatory and accountability perspective.
This simply highlights the importance of considering how the synchronization, or lack thereof, between operational complexities and criminal accountability impacts international criminal law’s ultimate and essential contribution to LOAC/IHL compliance. Maximizing such synchronization and thereby bridging the divide between operational regulation and criminal responsibility contributes to several potentially valuable outcomes. These include enhancing the deterrent effect of criminal prosecutions, enhancing respect for tribunal judgments among the militaries that will have to implement IHL/LOAC obligations, and enhancing the clarifying and contributory effect of judicial decisions on rules that regulate future operations.
2. Reconciling Battlefield Regulation with Principles of Criminal Culpability.
One obvious example of a potential delta between LOAC/IHL regulatory and accountability principles is the increased burdens established for imposing criminal responsibility based on targeting judgments. This is reflected in the ICC prohibition against indiscriminate attacks, which requires proof that an attack would cause injury that was ‘clearly’ excessive (Art. 8(2)(b)(iv), ICC Statute). This appears to impose a more demanding burden on prosecutors seeking to convict a defendant for a violation of the proportionality rule than the regulatory standard imposed by the IHL/LOAC rule itself (Art. 51(5)(b), Additional Protocol I). From a culpability perspective, what distinguishes a judgment that an attack will produce excessive civilian harm from a judgment that the attack will produce ‘clearly’ excessive civilian harm? From a criminal culpability perspective, such a qualifier seems logical, as it will limit culpability to the most blatant violations of the proportionality obligation. But this justifies asking whether this method of imposing a more demanding standard for conviction inherently dilutes the regulatory effect of the rule? Even if one were to conclude that this is a necessary and logical approach to protecting commanders and other military decision-makers from the risk of unjustified post-hoc condemnation of complex battlefield judgments, does it have the negative second order effect of suggesting that only ‘clearly excessive’ risk triggers the proportionality constraint? If the answer is no, then one must ask whether similar qualifiers should apply to other rules regulating the targeting process, such as the military objective judgment or the feasible precautions judgment? Finally, how will acquittals based on failure to satisfy these increased standards of culpability – or perhaps even decisions to forego criminal investigations because of an absence of prima facie evidence of a ‘clear’ violation - impact respect for the regulatory effect of the law?
3. Operational Complexity, Resource Challenges, and the Impact on Credibility
Prosecuting commanders and other decision-makers for complex operational judgments also raises complex issues related to resources and access to evidence. Individuals accused of criminal misconduct have an undisputed right to fair process. How that right is implemented will almost certainly increase in significance with cases that involve complex battlefield judgments, particularly when the nature of the accusation places the defendant in a position of needing extensive expert assistance. How can a defendant’s interest in developing an effective case be most efficiently advanced? Are the resources generally available to defendants sufficiently analogous to those available to prosecutors? If not, should there be a right – particularly before international tribunals – to obtain analogous resources? Does a minimalist approach to defense access to resources jeopardize not only the legitimacy of outcomes, but also perceived credibility of tribunal judgments in relation to the evolution of the law? Do cases such as Prosecutor v. Gotovina (where the defendants benefited from significant defense resources) suggest that resource parity may play a more important role in war crimes adjudications than in normal domestic criminal trials?
An equally difficult issue arises in relation to court access to government records, particularly in the context of international tribunals. Accountability for operational and tactical judgments must be based on an assessment of the situation that confronted the decision-maker at the time of the judgment. Accordingly, tribunals adjudicating such accusations must have access to the data that informed the judgment, most notably judgments related to target selection and engagement. This information will frequently be considered sensitive, and may be classified, by defendant’s state. What is the most effective mechanism for ensuring prosecutors (and defense counsel) have full access to such essential and highly probative evidence? At the international tribunal level, if requests for such information are ignored or if the prosecution suspects an evasive response, could some evidentiary presumption be triggered, allowing the trier of fact to assume certain facts that would allegedly be established by such information? Would such a rule be compatible with the presumption of innocence? And even if it were, would to be fundamentally unfair to penalize the defendant for a decision made by his or he state authorities? At the domestic level, should all States be encouraged to enact some type of classified information access rule, allowing for meaningful defense access to what they consider essential information, or perhaps unclassified substitutes of classified information? Would the use of such a substitute at the international level or by the court of another State be considered fundamentally fair? What judicial officer would validate the efficacy of the proffered substitute? What type of weight would such a substitute be entitled to?
4. Evidentiary Standards and IHL Presumptions?
Another complicated aspect of criminal prosecution based on alleged unlawful targeting decisions is the relationship between LOAC/IHL presumptions and criminal burdens of proof. The presumption of innocence an axiomatic component of any fundamentally fair trial, and imposes on the prosecution the burden of production and the burden of persuasion. However, several LOAC/IHL targeting rules are based on presumptions which, when applied in the criminal context, arguably shift the burden of production to the defense.
These presumptions are established by Additional Protocol I, and widely accepted as customary international law applicable to all armed conflicts. Article 52(3) establishes the rule that whenever there is doubt as to whether a place or thing qualifies as a military objective, it shall be presumed to be civilian in nature and protected from attack. Article 51 establishes a similar presumption, albeit not explicit: civilians (anyone who does not qualify as a combatant pursuant to Art. 43 and (for some States Art. 44)) are protected from attack unless and for such time as they take a direct part in hostilities, effectively imposing a presumption that they do not qualify as lawful objects of attack. Article 58 indicates that parties to a conflict “shall” take appropriate precautions against the harmful effects of attack, “to the maximum extent feasible”, thereby establishing a presumptive obligation to utilize such precautions.
When a defendant is alleged to have violated one of these fundamental targeting rules, how are these presumptions reconciled with the presumption of innocence and the burden of proof? May a finder of fact apply these presumptions when assessing guilt, imposing on the defense a practical if not legal burden to provide evidence in rebuttal? While doing so will certainly align the assessment of guilt with the operational regulatory presumption, does it conflict with the presumption of innocence? If so, what level of evidentiary certainty is required to rebut the presumption? Can this problem be solved by establishing a ‘permissible inference’ instruction for use in such cases? And if the defendant is protected against compelled self-incrimination, don’t these presumptions functionally ‘compel’ an accused to testify in order to explain his or her subjective decision-making process?
It seems inevitable that as the machinery of international criminal accountability continues to evolve, there will be an analogous increase in the complexity of the situations that trigger criminal prosecutions. The execution of combat operations – actions that used to be largely hidden from widespread public scrutiny – have become the modern focal point of media and public interest. While it is today easy to observe from afar the brutal effects of combat operations, what remains largely cloaked from public view is the complex processes related to the employment of the combat power that produces these effects. While ‘effects based critique and condemnation’ may be an inevitable reality of war, media, and the public conscience, it cannot become the standard by which military personnel are held criminally accountable for their operational and tactical judgments. Our discussion in Oxford was, I believe, a useful first step into considering how to effectively synchronize regulation and accountability.