Last week, the Pentagon released a two-page summary outlining the conclusions of its review of a US airstrike in Baghuz, Syria, in 2019 that reportedly killed dozens of civilians. The review ultimately found no wrongdoing and recommended no disciplinary action, illustrating systemic shortcomings in how the US military prevents, investigates, and transparently responds to civilian harm.
Civilian casualties from the devastating strike were first reported by local sources and later investigated by the New York Times, whose Pulitzer prize-winning investigation revealed that the strike was flagged as a possible war crime and concealed at multiple levels. Additional Times reporting also found that the same special operations cell responsible for the Baghuz strike repeatedly sidestepped safeguards and killed civilians throughout the counter-ISIS campaign.
Despite these reports, the Pentagon’s investigation into the Baghuz strike found that though the US military’s initial investigation of the attack was mishandled, there was no wrongdoing nor need for disciplinary action. According to the New York Times, the review also disputed the Times’ initial investigation, finding that “most of the people killed in the strike…were probably Islamic State fighters.” But were they? More importantly, why doesn’t the US military have a definite answer? And why won’t the Pentagon provide basic information about its methods and findings to the public?
REPLICATING SYSTEMIC FLAWS
The Pentagon’s review of the Baghuz strike and its roll-out has perpetuated longstanding flaws in the US approach to civilian harm, and has done little to improve the US military’s accountability.
The Baghuz investigation asks us to, once again, trust the US military’s investigation of itself. But how can we when so much of it is shrouded in secrecy?
First, the review has been shrouded in unnecessary secrecy. The entire investigation is classified, and the public two-page summary does not provide adequate transparency around how the investigation was conducted or what it actually found. For example, we don’t know who investigators spoke to, including whether and to what extent civilian victims, survivors, or witnesses were consulted. However, we know that the US military routinely fails to speak to civilian survivors and witnesses in its investigations, contributing to a significant gap between the civilian casualty numbers reported by the Department of Defense (DOD) and credible external observers.
We also don’t know who the DOD found to be civilians or combatants and what standards and definitions the department used to determine their status. According to anonymous US officials interviewed by the New York Times, the investigation found that the majority of people killed in the strike were “enemy fighters.” This conclusion is absent from the two-page summary, as is any evidence as to why the public should trust this investigation over the findings of the Times. The American people, and the civilian victims and survivors of this strike, deserve far more transparency. The department should swiftly make public the full investigation.
The review also appeared to perpetuate serious flaws in how the US military interprets and abides by international humanitarian law, including its repeated failure to presume civilian status in the case of doubt. According to the anonymous US officials cited by the New York Times, the DOD’s assessment of the Baghuz strike classified all adult males at the site as fighters, whether they were armed or not. Yet, US Central Command also stated that the women and children killed in the strike may have been combatants because women and children in the Islamic State sometimes took up arms. This is deeply troubling and fundamentally inconsistent with international humanitarian law, which requires that parties to a conflict distinguish between civilians and combatants and, in cases of doubt, presume civilian status (see in particular Additional Protocol I to the Geneva Conventions and customary international law). In a public letter in December 2021, 21 civil society organizations urged Defense Secretary Gen. Lloyd Austin to revise the department’s Law of War Manual to reflect this key legal principle.
Finally, despite reportedly finding that at least four civilians were killed and 15 injured in the Baghuz airstrike, the department has not made any mention of amends for these civilian victims, survivors, and their families. Amends, which can include apologies and explanations, condolence payments, and other offerings based on the needs and preferences of survivors, can play an important role in expressing contrition for harm and recognizing the agency and dignity of civilian victims. The department should consult with survivors to explore amends options — including drawing from the $3 million that Congress provides for condolence payments each year and which the department has rarely utilized.
WHAT CONGRESS CAN DO
The shortcomings illustrated by the Baghuz review are all the more frustrating given their stark contrast to Austin’s recent commitment to improving the way the US military prevents and responds to civilian harm. While one part of the DOD is developing an action plan to finally implement longstanding recommendations — including recent RAND Corporation suggestions for the Department to improve how it investigates civilian harm and standardizes its amends responses — the Baghuz investigation appeared to deliver quite the opposite.
Hopefully, the current reform process will address some of these flaws, enshrining long-needed fixes into doctrine and policy so that future investigations cannot get away with this level of secrecy, methodological weakness, or lack of accountability and dignified response. But it is also clear that Congress, which has been a key driver of progress on protecting civilians in recent years, has a critical role to play. To help address the challenges embodied in the Baghuz investigation, Congress can pass the Protection of Civilians in Military Operations Act and the Department of Defense Civilian Harm Transparency Act. The legislation would strengthen US military investigations of civilian harm, improve transparency around civilian protection standards and casualty assessments, and increase staffing and resources to prioritize civilian protection better.
The Baghuz investigation asks us to, once again, trust the US military’s investigation of itself. But after more than 20 years of repeated civilian harm and flawed investigations, the public, including the civilian victims and survivors of the strike, deserve more.
Annie Shiel is the Senior Advisor for US Policy and Advocacy at the Center for Civilians in Conflict. She leads its work by engaging with US policymakers, lawmakers, and advocates to improve the protection of civilians in conflict.