U.S. Consequences: Perpetual Immunity and Changing Guidelines

By United States Department of Defense – US Gov, Public Domain, https://commons.wikimedia.org/w/index.php?curid=1052956

This is Part Four of four installments examining American human rights violations in the Middle East, and the steps the U.S. is taking to prevent further harm. Read parts one, two, and three.

***

The United States has a superiority complex in respect to violating the rules of war. Predominantly displayed in American interventions in the Middle East, war crimes apparently can only be committed by U.S. adversaries.

The potential war crimes outlined in the previous parts of this series deserve to be independently investigated to ensure that there is a path for justice for the civilians harmed by American recklessness. The U.S. has strategically positioned itself at the head of the international order by purporting to be a champion of freedom and democracy while shielding itself from scrutiny.

U.S. leaders know that the notion that the country can do no wrong is misguided, the precise reason that they have rejected joining any organization that would have jurisdiction over people in power in America. Should third parties be given the freedom to scrutinize American actions in conflict, America’s self-righteous delusions would be exposed. Yet that is precisely the reason why these measures are necessary.

There are three paths forward for the United States in the wake of its actions in the Middle East: (1) pretend nothing is wrong and plow forward committing the same crimes as before, (2) change policy yet neglect to reconsider past wrongs and ignore the creation of an effective system for justice, or (3) fully commit to decency by being willing to have America’s flawless image take a hit. It appears that the U.S. is taking the middle road by choosing the second option.

The United States is beginning a long process of self-reflection as it contemplates how to rectify the often impetuous militarism of its past with its current statements seeking to find a more just way forward. The success of this journey is critical in order to acknowledge America’s bloody past and ensure that every civilian life is valued.

American impunity

What should be the predominant organization for international law, the International Criminal Court (ICC), has three quite conspicuous absences (United States, Russia, and China) and has been marred by controversy, including accusations that it is ineffective and potentially biased. Despite these flaws, this international organization is desperately needed to confront the mass atrocities being committed from Ukraine to Sri Lanka to Ethiopia.

The ICC lacks the funding necessary to try accused war criminals efficiently and shift its focus to more elusive targets. If the United States wants to see people like Russian President Vladimir V. Putin put on trial for war crimes, it must be willing to put its former leaders at varying levels under the same scrutiny.

If the U.S. were to join the ICC, the move would grant unprecedented legitimacy to the institution and allow it to achieve its goal of putting “an end to impunity for the perpetrators of [grave] crimes.” While various reasons are cited for the U.S. refusing to become a party of the ICC, ranging from its lack of due process to its potential unconstitutionality, the true rationale is the least friendly to the U.S. image: the United States does not want to see its former leaders face punishment for the potential crimes they committed.

The U.S. refusal to join an organization it helped create is a miscarriage of justice that can only be truly rectified by reversing course by joining the ICC. This would be a painful process for a government that has tried to delude its people that it is never at fault, or that if it is, there is no need for proportional punishment. But this is an essential step to bring about the justice for which the U.S. claims to fight around the world.

The U.S. has not signified that it will change policy anytime soon and join the ICC, but that does not mean it should avoid scrutiny and criticism. Without an independent look at previous U.S. actions in the Middle East, possible crimes will go unpunished.

Future goals

The buildup of evidence of U.S. war crimes eventually overcame governmental stagnation and forced policy changes throughout the ranks of America’s war mechanisms. U.S. Secretary of Defense Lloyd J. Austin III said that the U.S. military should do more to prevent civilian casualties in the wake of the Baghuz airstrike that killed 80 people. (16 deaths were fighters and four were civilians according to the official account of the strike. The remaining 60 deaths went unexplained.)

Congress has tried to act in place of the Department of Defense by restricting military funds until the Pentagon submitted a civilian casualty policy. Financial pressures are often the most effective within government to force change, and Congress sought to utilize this fact and compel the Department of Defense and the Pentagon more broadly to value civilian lives.

At first, the Department of Defense found that the United States Central Command and its subordinate commands “followed joint doctrine” in its airstrikes, though it would try to find ways to improve the accuracy of its strikes. Eventually, Mr. Austin realized the need for a more serious revamp of Defense Department conduct during conflict, explained in the Civilian Harm Mitigation and Response Action Plan (CHMR-AP).

Civilian Harm Mitigation and Response Action Plan

In response to the growing criticism of his department, Mr. Austin directed the creation of the CHMR-AP on January 27, 2022, which was published on August 25. The plan laid out 11 objectives:

1. Establish a Civilian Harm Mitigation and Response Steering Committee to oversee Department of Defense actions;
2. Establish a Civilian Protection Center of Excellence to improve the knowledge of civilian harm;
3. Create guidance across the full spectrum of departmental operations;
4. Improve the knowledge of the civilian environment;
5. Reduce cognitive biases;
6. Standardize reporting and data management;
7. Introduce Department-wide investigative procedures;
8. Provide ex gratia payments and a public acknowledgement of harm, as well as updates on the situation;
9. Incorporate ally and partner efforts;
10. Consider civilian harm risk in all phases of operations; and
11. Dedicate staff positions for civilian harm.

This expansive plan has four phases with Phase Zero starting in Fiscal Year 2022 and Phase Three finishing in Fiscal Year 2025. Within this timeframe, the Department of Defense will gradually build on each of its 11 targets with improvements coming in each phase.

One of the most important aspects of this plan is the introduction of 150 staff dedicated to civilian safety; currently, there is not a single official within the department that fully devotes themself to this topic. Staff committed to ensuring civilian safety and the reduction of civilian casualties signals Mr. Austin’s shift toward putting considerations about the potential for civilian harm on a similar level as other factors during military action.

The CHMR-AP is the robust plan that has been needed to protect civilian lives since the U.S. military focused on conflict in the Middle East in the wake of the 9/11 attacks. This is a critical step in ensuring that going forward, the United States will consider the effects of its actions on civilians and effectively work to protect civilian life.

Drone policy

In a reversal of former U.S. President Donald J. Trump’s loose rules regarding drone strikes, President Joseph R. Biden has limited the use of drone strikes outside of conventional war zones, now only Iraq and Syria, according to the New York Times. This reins in the wide latitude given to commanders on the ground to conduct drone strikes on targets, especially in assassinations, who now must seek White House approval before any counterterrorism strikes are made.

Had this policy existed during the Taliban takeover of Afghanistan, ten civilians might still be alive instead of being struck down during a botched drone airstrike.

This new policy would still allow commanders to circumvent White House approval when acting in what they determine to be self-defense or when the target is in Iraq or Syria, but it is still progress in an arena in which the U.S. has acted with little consideration for the repercussions of strikes under Mr. Trump.

This change remains classified and the extent to which the White House is returning to the norms of former President Barack Obama remains unclear, but any effort to increase the scrutiny of potential strikes is almost certain to save civilian lives.

The ease of haphazardly launching a drone strike has already killed innocent civilians in the Middle East. This policy is another indication that the U.S. government is reconsidering its guidelines in an effort to protect civilians wherever it militarily intervenes.

What’s left out

Despite the improvements of U.S. policy in order to protect civilian lives, there are still shortcomings in the military system. While further safeguards should be implemented with the CHMR-AP, the functionality of the plan remains to be seen. The plan does not address how the Department of Defense would integrate third-party data about casualties, nor does it consider consequences for breaches of policy or disregard for civilian lives.

Past crimes do not have a method to be reexamined, leaving the possibility that all who have already been harmed by U.S. aggression in the Middle East will still have no legal recourse to seek justice.

Protecting civilians in the future is critical for the U.S. military, but justice is critical for those harmed by that same military in the past. Without outside scrutiny and the possibility for trials for those implicated in war crimes, these current changes will mean nothing to those already scarred by the United States.

Progress is always welcome, but that does not mean the past should be swept under the rug. American immunity must end. It is the only way for true justice to be served.