I’m reminded of the many YouTube videos where someone is detained by the police and they’re going on and on demanding the officer explain his “reasonable articulable suspicion” for the stop. It is true that an officer needs to have reasonable articulable suspicion (RAS) to justify the stop, but it is not required that the officer explain his RAS to the person detained. He doesn’t need to explain anything to the suspect. He only needs to be able to document it in a report and/or explain it in court later.
Similarly, those ordering the strikes need only to have a legitimate military objective for the attack. But they don’t need to explain that objective to every curious person on the internet. I have no doubt a plausible military purpose can be stated when and where it becomes required. Justifying it in this case would be trivially simple.
I’ve witnessed strikes where the target engagement authority is about to order a drone to fire its missile at a target, and he’s rapidly conversing with all the advisors in the room, to include the representative from JAG. Time is of the essence, but he still needs to get input from everyone about collateral damage assessments, military necessity, advantage gained, etc. Among these things is “positive identification”. The vast percentage of people in the room don’t even have the complete picture, because their Security Clearance or Need-to-Know doesn’t allow it. There are a half-dozen people in the kill chain from the General Officer to the lowly airmen stateside about to press the button that fires the missile. None of these people even know who or why they are about to attack this target (kill this human being). They only need to trust there is a lawful reason. They don’t need to know what that reason is. I watched a JAG lawyer say, “I’m not confident we have positive ID on this person. How do we know it’s the person we think it is.” Only to be told, “We know 100% it’s him. We can’t tell you how we know, but we know.” Then he just says, “Well, if you have PID, then I have no objections.” And there lies the grey area with these types of things. It’s not as clear cut as illegal orders vs. legal orders.
Just following orders is not a defense. Ignorance of the law is not a defense. BUT ignorance of the facts, is absolutely a defense. If a Soldier is ordered to blow up the hospital because some classified intel says it’s a legitimate military target that has lost all its Geneva protected status due to its use in military activities, its destruction is a military necessity offering a significant tactical advantage and the loss of civilian life is within the acceptable bounds of proportionality… it’s not an illegal order. The officers and soldiers given that order are going to carry it out. If the facts turn out to be wrong, or an outright lie, that’s not going to fall back on them unless they actually knew or should have known it was a lie or otherwise false (and it can be proven that they knew or should have known it to be false). Just like the guys carrying out drone attacks. They often don’t know who they are shooting or why. Other people are telling them that it’s legitimate, legal military targets and all requirements are met. All of that info is often so compartmentalized that the person flying the drone and the person controlling the cameras on the drone, and the person shooting the missile from the drone, and the person ordering the missile to be fired, all of these people sitting in different parts of the world have none of the details required to determine if the strike is actually a war crime or not. This one aircraft is being controlled by teams of people thousands of miles apart who have never met each other, and none of them have any idea who or what they’re about to destroy. That knowledge belongs to the people who actually built the dossier on the target, the people who identified the target, etc. They’re not sharing all of their classified info with all of the other people. They’re just sharing what’s necessary for the Target Engagement Authority to give the order to fire. Everyone else in the kill chain have to trust that all the legal requirements have been met. Everything is compartmentalized. And all of this happens in minutes. Sometimes seconds.
So, like I said, it’s not as easy as someone being given an order such as, “Hey, LT! Go blow up that hospital. While you’re at it, go blow up the church and torture some nuns.” It’s much more nuanced.
But all the reporters and lawyers can get easy attention by making statements like, “Trump might be committing a war crime. His actions may be illegal.” Maybe. But they also might be completely 100% legal. It all depends. Even the wording in the Geneva Conventions leaves it open to debate. There is no mathematical formula for determining proportionality. There is no scale for determining military advantage. Who’s to say if the targets meet the threshold or not? Certainly not the Soldier on the ground. Obvious things, yes. Everything else? No way.
Blowing up a power plant is not presumed to be illegal the way bombing a Red Cross compound is. Purposely destroying a bridge is not presumed to be a war crime like purposely destroying a hospital. It can be in some situations. But in most situations it is not, and even in those situations, it’s simply too easy to justify in a legal context that it becomes moot. So, nobody is going to refuse the order. And nobody is going to be prosecuted for it–at any level. It sounds tantalizing to say that it could be a war crime (under certain situations), and that surely sells papers and drives clicks much more so than saying that it could also be completely legal and justified (which it most likely is in this case).