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An interview with Janina Dill

Janina Dill is the John G. Winant Associate Professor of U.S. Foreign Policy at the Department of Politics and International Relations of the University of Oxford and a Professorial Fellow at Nuffield College and Co-Director of the Oxford Institute for Ethics, Law, and Armed Conflict. Janina Dill’s research focuses on ethics and law in modern warfare with a particular focus on how legal and moral imperatives interact with strategic thinking and technological developments to explain conduct in war and the development of armed conflict. Here she talks to AOAV about her work.

What are, in your opinion, the most concerning aspects of basing a counterinsurgency campaign on aerial power, specifically in terms of the consequences for civilians?

In counterinsurgency operations, harming civilians is not only morally and potentially legally problematic, it is also strategically costly. Most counterinsurgency operations depend for their success on the support of the local civilian population in two ways. First, insurgents rely on the cover and support of the local population to effectively fight an often technologically superior COIN campaign. Put simply, the more the civilian population supports the COIN campaign rather than the insurgency, the militarily weaker an enemy the COIN campaign faces. Second, COIN campaigns also often depend on the local population for the achievement of their desired political end-states. COIN campaigns are not military ends in themselves. Ultimately insurgency and COIN campaign amount to a contestation over how (and by whom) a society should be governed and organized.

Even highly discriminating COIN campaigns, whether conducted from the air or predominantly on the ground, end up harming the local civilian population. If harming civilians, even “just collaterally”, turns the local population against a COIN campaign and the local regime contender that it supports, then civilian casualties are strategically problematic. At the same time, if a COIN campaign is to be militarily effective in overcoming the insurgency, it will be very difficult, even impossible, to avoid civilian casualties altogether. Western military doctrines, specifically U.S. COIN doctrine, acknowledge of this dilemma. The U.S. COIN manual literally speaks of a “collateral damage dilemma”: We need to use enough kinetic force to overcome the insurgency, but every use of kinetic force also bears the danger of undercutting the support of the local population. The doctrine does not, however, point towards a way out of this dilemma. The fundamental question that this dilemma raises is whether and when it really makes sense to pursue complex perception-dependent political end-states with military force.

What do you think is the overarching legal challenge with precision bombing? Is it by nature the “most feasible?”

No, what means or method of attack is militarily the most feasible depends on the context. Air power compared to ground attack will often better serve the goal of protecting friendly forces from harm. Western militaries place considerable emphasis on keeping their soldiers alive and rules of engagement obviously reflect this. As a result, it is not necessarily true that a ground engagement of a particular target will always endanger civilians less than an air strike against the same target. There may be means of casualty mitigation that are considered feasible before an air strike that rules of engagement would eschew as infeasible on the ground because they would endanger friendly forces.

Law demands that attackers take “all feasible precautions” to avoid and minimize civilian casualties. However, law affords little concrete guidance on what it looks like to do everything feasible. In hindsight, it is often difficult to assess what precautions were reasonably feasible before an attack. Moreover, legal opinions diverge on the extent to which risk to friendly forces renders a measure to mitigate risk to civilians “infeasible” for the purposes of the law. We obviously need to insist on militaries’ complying with their obligation to take all feasible precautions in attack, and we need to insist on a meaningfully restrictive interpretation of this obligation, but law is no panacea. This may sound cynical, but the less often the aims of mitigating risk to civilians and mitigating risk to friendly forces are pitted directly against each other, the better for civilians.

Has the threshold for permissible collateral damage changed, possibly been lowered, during the past years? Could one argue that the (perceived) precise nature of missiles generates a looser attitude towards targeting?

It is not possible to answer this question at such a general level. The number of expected incidental civilian casualties that rules of engagement permit differs across theatres of war, belligerents, and time. This is not itself incompatible with law because the legal principle of proportionality leaves considerable room for interpretation. It is important to note though that the precision of a weapon can never on its own be taken to render legal an attack against a military objective. Even an attack that is as discriminating as humanly possible and that is expected to only cause the absolute minimum number of truly unavoidable civilian casualties can still violate the principle of proportionality. Such a highly precise attack is disproportionate, if the number of expected (unavoidable) civilian casualties is excessive in relation to the anticipated concrete and direct military advantage. Minimizing civilian casualties through the use of highly precise means of attack is not the same as complying with the principle of proportionality. Precision is not sufficient for legality.

The precision of a weapon, of course, does affect how many casualties in the context of a particular attack are truly – as a matter of fact – unavoidable. Precision strike capabilities should therefore heighten, not lower our expectations of what is acceptable incidental civilian harm for the purposes of the principle of precautions in attack. I interpret this principle to mean that attackers are under an obligation to use the most precise weapon reasonably available to them for any given attack.

While Coalition Commander Lt. Gen Townsend claims that there has “never been a more precise air campaign in the history of armed conflict”, Amnesty International describes the situation in Iraq and Syria as incomparable “to anything we’ve seen in decades of covering the impact of wars” – why do we see so diverging interpretations of the very same conflict? What are the challenges associated with how to count collateral damage in an era of remote, asymmetric warfare?

There are several reasons for your observation that the same military campaign, and the consequences it has for civilians, generate radically different normative evaluations. One reason is obviously contestation of the facts on the ground, such as the number of civilian casualties. The explanation that preoccupies me most in my research is that widely shared expectations of appropriate state conduct diverge from the conduct that law permits. IHL does not prohibit killing civilians. It only demands that they are avoided and minimized as much as possible. Casualties that cannot be avoided must not be excessive in relation to the anticipated military value of an attack. IHL is also agnostic towards the merits of a military campaign. Does a war respond to an urgent crisis, does it have a politically clearly defined goal, is the war morally just? Answers to these questions inevitably influence what the general public and political observers think are acceptable levels of civilian harm. Answers to these questions do not, however, influence what law permits on any given battlefield. This is not at all to say that coalition conduct in Iraq and Syria is fully compliant with law. My point is that even if it were, this would not necessarily vouchsafe the perceived legitimacy of the catastrophic civilian harm these operations have caused.

In my book, I also argue that international norms, meaning public expectations about appropriate state conduct in war are changing in the direction of greater sensitivity towards foreign civilian casualties. Law is obviously very slow to change. So, a campaign that is conducted according to the principles of IHL does not necessarily meet the public’s expectations of legitimacy. The increasing support for the applicability of human rights law in armed conflict, for instance, is a symptom of a move of international norms towards a higher level of protection of human life, a level of protection that IHL does not necessarily afford. The recently released new commentary on the right to life under Article 6 of the ICCPR argues that individuals retain this right even during the conduct of hostilities. What exactly this means is controversial, but it highlights that we may soon be in a position in which compliance with IHL is not the sole legal bar that military forces have to meet on the battlefield.

So international human rights law does not step aside in times of war, being replaced with IHL?

This was long a mainstream position: IHL is “lex specialis”; that means it displaces human rights law during the conduct of hostilities. Many international lawyers now argue that this is no longer the legal situation and human rights law continues to apply alongside IHL even during the conduct of hostilities. What exactly this means is subject to some controversy.

Finally, have you come across evidence or research indicating a correlation between civilian harm caused by airstrikes and suicide attacks in retaliation?

There is quite a bit of research in political science that links civilian casualties to strategic outcomes in war. The evidence generally suggests that the strategic implications of harming civilians are problematic, because, as I mentioned earlier, local populations turn against a belligerent that causes civilian casualties. My own research does not link civilian casualties to strategic outcomes, such as suicide attacks or retaliation. Instead, I investigate how civilians perceive or react to being harmed in order for us to better understand how these strategic outcomes come about. Interviews I conducted with civilians who were harmed by coalition attacks in Afghanistan suggested that the circumstances of an attack that causes civilian casualties matter for how civilians react to it. I specifically found that the perception of harming as intentional or avoidable was associated with narratives that cast the attack as illegitimate and the attacker as blameworthy. This highlights just how important it is that belligerents who seek to “win hearts and minds” scrupulously comply with the principles of distinction and precautions in attack. Of course, as I mentioned earlier, complying with law may not on its own be enough for civilian harm to be perceived as acceptable, by the local civilian population, by the public at home, or by political observers. Compliance with law should be understood as an absolute minimum threshold, the beginning of a normative conversation about how wars should be conducted, not its end.