Professor Alexander Orakhelashvili
Warfare in modern conditions has posed some challenges to international legal reasoning. However, the use of latest technological tools such as AI, drones or other unmanned vehicles does not inherently require developing a separate legal analysis to underlying military incidents. Instead, and whether the relevant attack is carried out with those advanced technological tools or with WWI-type artillery, the legal requirements of precaution (e.g., under API 1977 or corresponding customary international law), and standards of mens rea under international criminal law (whether that would be the one under the ICC Statute or one under customary law) remain the same in relation to all military attacks. Whatever technology is employed does not influence any requirement as to foresight, any standard of proof or provide any other excuse to the perpetrator. To the contrary, modern technology also increases awareness of those who possess that technology, and thus their responsibility to exercise the foresight and precaution using the sources of information that they have.
The difference between API 1977 requirement as to precautions, and mens rea standards under international criminal law should not be overstated either. Obviously, they operate under different sources and instruments of international law. Nevertheless, they always, and inevitably, operate together wherever a State and its military officials are involved in armed attacks, and with regard to both standards or areas, the essence of a military object or lawful target remains a key consideration. Although they involve different words or terms such as precaution under IHL and mens rea standards under ICL, those concepts cannot and do not operate in a mutual isolation. It is hard to argue that whether a military official exercises the due precaution as required by IHL has nothing to do with how mens rea of the same military official gets formed. Precaution, foresight and mens rea cannot be so easily disentangled. For instance, ICTY Appeal Chamber in Galic has confirmed the link between the two areas of law and standards that they operate with (paras. 44-46; and see Kordic, Trial Chamber, paras. 327-328). It would likewise be entirely unfounded to argue that, in situations governed by IHL requirements that apply to distinction and precaution, and specifically with regard to urban areas, a military official’s mens rea could be formed in isolation from applicable requirements under IHL, i.e. in isolation from whether they take due care to identify the nature of the relevant object or exercise in precaution, because all that inevitably has to do with their state of mind.
Article 52(3) API 1977 focuses on situations of doubt, and also mentions schools alongside with other civilian objects. How one acts in situations of doubt, whether by disregarding that doubt or by not querying into whether there could be some doubt as to the relevant target’s military nature, has to do with certainty about whatever is being attacked, and this is obviously relevant in assessing the relevant person’s mens rea as well. Article 52 deals with the same subject-matter as Article 57 API (see Sandoz et al., Commentary to API, p.638). Article 57 requires, in its turn, that military officials do everything to identify whether the relevant object is military or civilian and in the case of doubt, cancel the attack.
Article 57(2)(iii) API 1977 increases foresight and precaution requirements by requiring to “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. To answer that question, the authors of the strike had to first figure out what the IRGC facility was about (and as reports suggest it included a clinic and cultural centre), as well as what else was nearby. And in line with the text of Article 57, the commentary to API 1977 has specified that “even if there is only slight doubt, they must call for additional information and if need be give orders for further reconnaissance to those of their subordinates and those responsible for supportive weapons” (Sandoz et al., p.680, my emphasis).
Now, what was certain and what was doubtful about the Minab school? The Report of the UN Fact-Finding Mission has explained that “the nearest IRGC facility located approximately 72 metres from the school building”, from 2016 onwards its distinctive features as an educational institution were obvious, and it was separated by the wall from ICRG facilities (Mission Report, paras 81-82). That has to prompt the questions about why the relevant military personnel was not made aware of the data obtainable from the satellite imagery; and further why that fact of distance and separation was not factored in the weapon or target selection decision. Clearly someone somewhere across the US military hierarchy has either decided not to verify data or facts, or was aware of those risks and has disregarded them. On its face, it looks as though the above two options could convey two different positions regarding the relevant officers’ state of mind (mens rea), as between intention and recklessness. On the other hand, the key question, along with the civilian nature of the school, is whether and to what extent the relevant US officials have verified the nature, size, activities and other relevant elements of the ICRG facility itself, because this is what is said to have been the principal target and the reason behind the whole attack. The Mission Report is clear that “the building of the school was the intended point of impact and that the damage did not result from an errant strike or collateral damage from the attack on the adjacent IRGC compound” (para. 89).
Kevin Jon Heller suggests that “nothing in the public record indicates either that any US military personnel personally observed the school prior to or during the attack.” However, the issue of whether the school was properly observed and identified as a military target cannot be separated from what has been done or ought to have been done with regard to the ICRG facility in the first place, and how well it ought to be observed before carrying out the attack. Any failure to properly identify the size and use of the ICRG facility, any failure to overlook the observable features or surroundings of the facility, directly feeds into the issue of the formation of mens rea both with regard to the attack on that facility and the attack on the school. This is even more important, given that the school was struck repeatedly, which conveys the impression that the authors of the strike treated the school as a significant military object worth that effort (if and in case they thought that was the case).
Heller insists on the “evidence that at least one perpetrator was subjectively aware the school might be a civilian object instead of part of the IRGC naval complex and nevertheless either attacked, ordered the attack, or contributed to the attack”. However, what the Mission has properly identified is that the Minab school attack was a war crime in the sense that at some level of US military hierarchy someone has perpetrated the relevant conduct with the appropriate mens rea. The Mission is not a criminal court and its Report is not part of criminal proceedings. Hence, it did not and could not have identified who exactly is responsible for that crime, a launching officer, senior officer, War Secretary or the President, or one or several of them. It could potentially be anyone on that equation and only the information from the US government, not available to the Fact-Finding Mission, could clarify that issue of detail about perpetrators, again without affecting or altering the classification of this conduct as a war crime.
Heller challenges the Mission’s findings about recklessness and suggests that “the IIFFM doesn’t identify which US military personnel it believes acted recklessly.” Again, that was not the Mission’s task, because it is not a criminal court trying specific individual defendants. What the Mission had to do, and did, was to address the question whether a bombing incident like this could have materialised without someone across the US military hierarchy acting at least recklessly. And, as clarified above, it was not merely about observing the school specifically, but also about properly observing the ICRG target that was being attacked and clearly identifying its military nature, focusing on its features and activities it was used for. If it were the case that no conclusion about the commission of war crimes could be made, here in contexts other than criminal proceedings, in the absence of exactly knowing who the perpetrator was, then the outcome would be endorsed that, provided that everyone sits tight and does nothing till the disaster occurs, no one among them is responsible for the relevant war crime. Again, who exactly the responsible perpetrator (or how many of them) would be could be established only through criminal proceedings. But the argument that owing to everyone’s ignorance no one could be accused of commission of war crimes is highly implausible, to say the very least.
As for the more general context in which the attack on the school was planned and authorised, the Mission Report identifies the fact or “the U.S. Government’s deprioritisation of civilian harm mitigation and of compliance with IHL” (Report, para. 124). This is, in essence, a policy decision of which all military personnel would be or would have to be aware; it also goes hand in hand with the overall attitude expressed about the Presidential level that international law is irrelevant to America’s conduct in relation to other States.
Heller suggests that “deprioritising civilian harm is unlikely to have encouraged US military personnel to target Iranian objects despite being aware they might be civilian.” However, deprioritisation cannot be without impact on military personnel’s tasks and job description and, in essence, it was nothing but a form of encouragement that the personnel need to worry less about the distinction or precaution requirements. The personnel would have been aware and fully understood all that rather well, and that too cannot be without influence on the personnel’s tasks and job description. And, if that were the case, the fact (as such very unlikely) that someone at the lower level of military hierarchy might have been ignorant of relevant policy, fact and detail does not mean that no one else could be held criminally responsible for giving a green light to attack civilian objects or for disregarding the distinction principle.
Heller also insists on the evidence that “the analyst or validator inferred from awareness the target data was outdated that the Minab target might, be a civilian object; and … evidence that the analyst or validator nevertheless provided the outdated target data to a commander, thus making a substantial contribution to the war crime”. Again, that narrows down the focus on some issues of detail and puts that detail out of its context. If precaution and foresight mean anything, using an outdated data is inherently a problem. It is not simply about the launching officer, analyst or validator empirically or affirmatively inferred with regard to the relevant target, but also about what steps they took or would take in the face of uncertainty described above and whether they had to loyally follow the deprioritisation policy and not ask any further questions about the nature of the target. As soon as it is known to a person involved in the relevant situation that the data is outdated or as soon as someone authorises acting on outdated data, a mens rea to commit a war crime of launching an indiscriminate attack resulting in loss of life or injury to civilians or damage to civilian objects is immediately formed. And that is what paragraph 124 of the Mission’s Report is all about.
Both Heller and earlier Marko Milanovic have suggested that criminal responsibility would here be negatived owing to the mistake of fact defence. There are, however, several reasons why the recourse to that defence would not be easy. In the first-place normative framework of this defence has to be clarified. The ICC Statute does not apply to the Minab school case, and it is doubtful whether the defence of the mistake of fact under its Article 32 would be relevant here at all. It is also material that this defence can be made good only if it additionally negatives mens rea, and that could not be assumed as a matter of course where some form ignorance could be pleaded. Definitionally, thus, ignorance per se and negation of mens rea are not similar or symmetrical. Cassese even suggests that a mistake of facts should not be a result of negligence (ICL, 2nd ed., 2005, 251). This defence could work, for instance, where the accused was misled by official information that was issued to him by competent authorities about a specific person by a regular court and through proper proceedings (id., 255). Here, however, we are operating on the premise that, most probably, the potential defendant was told which target to strike without further information about that target’s nature and would infer from that nothing else apart from the fact that, on a general plane, striking targets like this one was acceptable. An analyst, validator, launching officer, as well as their superiors have, or ought to have, been aware that the civilian distinction was deprioritised and (also possibly owing to that) the target data were outdated, and yet they all proceeded without wondering about anything, asking any questions or taking any precautions. We do not know inside facts, but it is inevitable that the decision to overlook the distinction issue was taken at least by someone in the military hierarchy, and most probably across several levels. Mens rea was therefore formed across the minds of more than one person in the military hierarchy and, hence, criticisms of the Fact-Finding Mission’s conclusions are unsustainable.