The Corner

National Security & Defense

ISIS Bears the Moral and Legal Responsibility for Increased Civilian Casualties

This weekend, the New York Times reported that American air strikes in Mosul may have killed up to 200 Iraqi civilians. The strikes – coming just as Iraqi forces are assaulting deeper into the last major ISIS-held city in Iraq – raised questions about a potential change in the rules of engagement governing U.S. forces. Here’s how the Times put it:

Taken together, the surge of reported civilian deaths raised questions about whether once-strict rules of engagement meant to minimize civilian casualties were being relaxed under the Trump administration, which has vowed to fight the Islamic State more aggressively.

American military officials insisted on Friday that the rules of engagement had not changed. They acknowledged, however, that American airstrikes in Syria and Iraq had been heavier in an effort to press the Islamic State on multiple fronts.

I have two responses to this news. First, the rules of engagement need to be relaxed. As is, they go well beyond the laws of war and provide the enemy with too much freedom of movement in civilian zones and effectively encourage the use of human shields. While commanders would of course still be free to refrain from striking based on military, diplomatic, and humanitarian concerns, they should also be free to attack in accordance with the standard laws of armed conflict.

Second, it’s worth remembering that unless American forces are refusing to discriminate between military and civilian targets – or use force disproportionate to the threat – that these casualties are ISIS’s moral and legal responsibility. The laws of war impose on both parties a duty of “distinction.” It is the combatants’ responsibility to not only distinguish between military and civilian targets but to facilitate that distinction with uniforms and clear markings. The party that fails to distinguish their forces (by looking like civilians, hiding in civilian buildings, using civilian vehicles) is at fault when their failure causes civilian casualties.

Indeed, the effort to impose heightened requirements on American forces when the enemy violates the laws of war defeats the very purpose of the laws of war. If it is better for a combatant to violate the law, they will, and our own rules – while arguably humane – make it much better for ISIS to keep defying international law.

I say our rules are “arguably” humane in part because it’s far from settled whether, in the long run, more civilians die when warfare drags on, and the enemy is permitted to burrow ever-deeper into the civilian population. With each new restriction, we enable more misconduct. It’s time for the international community to read headlines about civilian deaths and realize who’s really to blame.

Most Popular

Law & the Courts

Inside the Mueller Farce

The publication of Andrew Weissmann’s book Where Law Ends: Inside the Mueller Investigation enables us to see what was always suspected by many to have been a fanatical determination on the part of the Mueller investigative team to destroy President Trump. The administration had to be destroyed because Mueller ... Read More
Law & the Courts

Inside the Mueller Farce

The publication of Andrew Weissmann’s book Where Law Ends: Inside the Mueller Investigation enables us to see what was always suspected by many to have been a fanatical determination on the part of the Mueller investigative team to destroy President Trump. The administration had to be destroyed because Mueller ... Read More

Ben Sasse: Everybody Loves Amy

After Justice Anthony Kennedy announced his retirement in 2018, Ben Sasse had three words on his mind: Amy Coney Barrett. They’d been on his mind for a while. The Nebraska senator had first started hearing about Barrett from faculty at Notre Dame Law School, where Barrett was a professor, shortly after Trump ... Read More

Ben Sasse: Everybody Loves Amy

After Justice Anthony Kennedy announced his retirement in 2018, Ben Sasse had three words on his mind: Amy Coney Barrett. They’d been on his mind for a while. The Nebraska senator had first started hearing about Barrett from faculty at Notre Dame Law School, where Barrett was a professor, shortly after Trump ... Read More