Trump’s campaign rhetoric, ISIS and the law of war

Honor Guard standing outside the Pentagon in Washington, D.C. on December 10, 2015. REUTERS/Yuri Gripas

As a retired military officer, I do not publicly endorse candidates.

But as someone who served as a judge advocate, or military lawyer, for 34 years, I do think it can be helpful to examine in a nonpartisan way the legal aspects of Donald Trump’s campaign rhetoric on the use of force against the Islamic State, or ISIS.

Here are two recent quotes from Trump:

One of the problems that we have and one of the reasons we’re so ineffective is they’re trying to, they’re using [their own families] as shields …

We’re fighting a very politically correct war. [Y]ou have to take out their families. They care about their lives, don’t kid yourself, but they say they don’t care about their lives. You have to take out their families.

Exactly what Trump is suggesting doing is not clear here, so let us examine some of the different possibilities.

Protecting human shields

Some might argue Trump was merely making the point that regardless of the enemy’s use of their own families as human shields, he would still order attacks on Islamic State fighters.

The law in this regard is made clear in the 2015 U.S. Department of Defense Law of War Manual, which codifies how the U.S. military can wage war. Civilians cannot be targeted unless they are directly participating in hostilities – a distinction that can be complicated to determine.

However, the manual also concludes that the illegal use of human shields does not necessarily bar otherwise legitimate attacks on military targets like enemy fighters. According to the manual, the party that employs human shields assumes responsibility for any injury to them.

Here’s where it gets complicated. Normally, the “proportionality rule” forbids any attack if it is expected that the incidental civilian casualties would be excessive in relation to the anticipated military gain, such as killing ISIS fighters.

However, with respect to situations where the enemy is using civilians as human shields, the manual’s view of the law puts the shields in a unique category. Although an attacker would still need to do everything feasible to protect the shields, the proportionality rule itself would not bar an attack on those who use them.

Why? The manual reasons that to allow an enemy like ISIS to manipulate the proportionality rule by employing human shields to virtually prohibit all attacks would “perversely encourage” ISIS and others to use human shields with abandon. To be sure, human shields themselves can never be targeted. But the US reserves the right to still target and attack the enemy, even if that enemy is using their own family members as human shields and those shields become incidental casualties.

Beyond the issue of human shields, Trump is plainly frustrated by today’s policy restrictions in battling ISIS. Current U.S. targeting limitations do seem to go well beyond what the law of war requires. The limitations apparently permit attacks only where there is a near certainty of zero civilian casualties.

These beyond-what-the-law-requires rules of engagement have been criticized by experts not only as bad warfighting strategy, but also on moral grounds. Retired Air Force General Mike Loh charges that constraints in the fight against ISIS violates “the just war principle of winning quickly with a high probability [of] success.”

The Obama administration seems to be recognizing problems with its overly restrictive policies.

Recent reports now say that “the administration is taking the gloves off after more than a year of reluctance to target the terrorist’s core infrastructure for fear of hitting civilians or risking the lives of American troops.” If Trump is only suggesting stepped up attacks on ISIS, military law would not create any barriers.

Targeting civilian family members

The law is subtle when it comes to human shields. In very rare circumstances, it can even be tricky when it comes to the idea of targeting civilian family members.

To be clear, an order from President Trump – or anyone else – to target civilian family members who were not directly participating in hostilities simply as a strategy to coerce the fighters themselves could not be reconciled with the law of war. Such an order could not – must not – be obeyed.

Has any president ever issued illegal orders to the military? Many scholars believe that Lincoln’s suspension of habeas corpus, which was enforced by the military, along with the Civil War trials of civilians conducted by military commissions, were unlawful. Arguably, this would make any orders to effectuate those policies unlawful as well.

But the legality of orders isn’t always clear-cut. In the Republican debate on March 3, Trump introduced (perhaps unwittingly) some new and complicating nuances to his proposal by setting it in the context of the 9/11 attack.

According to Trump, two days prior to the attack, family members of the terrorists got “sent back” to a location to where “they watched their (sic) husband on television flying into the World Trade Center.” Trump insisted that “the wife knew exactly what was happening.” Assuming for purposes of discussion that this rendition of the facts is accurate (and there is real disagreement about that), the legal issues can get convoluted.

Contrary to what some people seem to think, the law of war does not limit its protections to just “innocent” civilians.

So long as they do not directly participate in hostilities, people typically retain the legal status of protected “civilians” for purposes of targeting under the law of war, even if they are morally or criminally liable in some way. In my opinion, simply “knowing” about a terrorist act does not amount to direct participation in hostilities. That means the wife in Trump’s anecdote could not be targeted with bombs, but might still be held accountable under the law.

For example, Umm Sayeff, the wife of a former Islamic State leader killed in the May 2015 Special Forces raid that resulted in her capture, was charged on February 8 with conspiracy to provide material support to a foreign terror organization in connection with the death of American hostage Kayla Mueller.

Sayeff is reported to have been “running ISIS’ sexual slavery network.” As part of this network, Mueller was allegedly tortured into becoming the personal sex slave of Islamic State kingpin Abu Bakr al-Baghdadi. As loathsome as Sayeff’s behavior is alleged to be, it doesn’t necessarily follow that she would have lost her status as a “civilian” under targeting law.

However, deadly force may be applied to such persons under international human rights law which can operate alongside of the law of war. In this criminal law regime, a killing is justifiable if its done in defense of someone in imminent danger of becoming a victim of a serious crime such as rape or genocide, even if the perpetrator is a “civilian” who cannot be targeted under the law of war.

Of course, law enforcement forces, not the military, are typically responsible for protecting people from criminals. However, if a military strike was the only way to save someone from becoming a victim of a horrific crime, I don’t think international or domestic law would block it. But absent more facts, none of this seem to me to justify attacking the wives of the 9/11 perpetrators who were not, to my knowledge, engaging in anything like Umm Sayeff’s behavior.

Law of reprisal

Trump’s reference to the 9/11 attacks raises another complex question under the law of war: to what extent can otherwise protected civilians who may support – or even be complicit in – terrorists acts that violate the law of war become subject to attack under the law of reprisal?

According to the Pentagon’s Law of War Manual, “reprisals” are “acts taken against a party that would otherwise be unlawful, in order to persuade that party to cease violating the law.”

Most countries are parties to Additional Protocol 1 to the Geneva Conventions which, in Article 51, forbids reprisals against civilians. The U.S., however, is not a party to Protocol I and does not consider this portion to be binding customary international law.

The U.S. finds the provisions restricting reprisals to be “counterproductive [because] they remove a significant deterrent that protects civilians and war victims on all sides of a conflict,” according to the Law of War Manual.

Long before Trump’s candidacy, thoughtful scholars have raised the idea that reprisals are not permitted in conflicts where the adversary is not another country.

The U.S. approach to reprisal is not an invention of the Obama administration. A footnote in the manual makes it clear that it is a U.S. position of long standing by quoting a 1987 statement of Judge Abraham Sofaer, then legal advisor to the U.S. State Department.

Sofaer explained that the U.S. would not sign on to the elimination of reprisals because “[h]istorically, reciprocity has been the major sanction underlying the laws of war.”

He added if the prohibition came into force for the U.S., an “enemy could deliberately carry out attacks against friendly civilian populations, and the United States would be legally forbidden to reply in kind.” He warned that to “formally renounce even the option of such attacks … removes a significant deterrent that presently protects civilians and other war victims on all sides of a conflict.”

Some people might say that Trump’s proposal does not even go as far as to “reply in kind” against an entire “civilian population” as the U.S. interpretation of the law would seem to permit. Rather, he suggests targeting only those adult family members of terrorists who “knew exactly what was happening.”

They might also say he’s further limited his proposal to a reprisal for 9/11 attacks against American civilians, which the world has condemned as unlawful. Moreover, some might argue that Trump could order reprisals in response to ongoing war crimes committed by ISIS. After all, Trump has saidof them: “They’re chopping off the heads of Christians and anybody else that happens to be in the way. They’re drowning people in steel cages.”

In my view, however, the other stringent prerequisites for lawful reprisals have not yet been fulfilled.

For example, the Law of War Manual points out that other “means of securing compliance with the law of war should be exhausted before resorting to reprisals.” I think it remains to be demonstrated that has occurred, or that reprisals would be effective persuasive tools in the current conflict with the Islamic State.

To me, the absence of evidence of a reasonable prospect of success undermines the lawfulness and morality of any reprisal. And I have long rejected the application of reprisal to any civilians though not against civilian property such as personal bank accounts, luxury items and the like.

Looking ahead, it is significant that Trump recently acknowledged that the U.S. “is bound by laws and treaties” and that as president he would “not order a military officer to disobey the law.” Instead, he said he would “seek [the] advice” of military and other officials.

This is good news, and something all the candidates – and their critics – ought to embrace, as applying the law of war in the 21st century is much more complicated than many think. Words do matter, and where the nation’s security is concerned, no words can be more important.