Military accountability

An edited transcript of a discussion in the Accountability strand of the Freedom Across Borders conference, London, 6 July 2019.

Participants: Dmytro Chupryna, Airwars; Jennifer Dathan, Action on Armed Violence; Dearbhla Minogue, Global Legal Action Network.

Facilitated by Eyad Hamid. Transcript by Zoë Ranson.

Image: Men wait by the side of the road for casual labour amongst the ruins of Raqqa. Photo by Amnesty International, from War in Raqqa: Rhetoric versus reality, a joint report by Amnesty International and Airwars.




This session began with Eyad asking Jennifer Dathan of Action on Armed Violence to explain their work, and why they focus on explosive weapons in particular. Jennifer began with telling about AOAV’s study of global explosive violence data for the period 2011-2018. This study included data on 22,153 incidents in 119 countries or territories, with 309,044 total casualties including 133,732 people killed and 175,312 people injured.


Jennifer Dathan:
We recorded over 300,000 casualties in that period, and over three-quarters of these were civilians. And in terms of patterns of harm, we also found that when explosive weapons were used in populated areas, over 90% of those killed or injured are civilians. And that there’s this consistent pattern of harm. It shows that it is always predictable that when explosive weapons are used in these areas, the people harmed are civilians. And there’s this direct impact and also, unlike some other types of weapons, there’s also this indirect harm that stems from their use. So, there’s also the damage to infrastructure, schools, hospitals, power and water networks. And these reverberating consequences, can have lasting civilian harm for decades even.

We’ve done research in Sri Lanka and Lebanon, and obviously a lot of our research, recently has been focused on Syria, but in these other contexts where the war was maybe a decade or so ago, there’s still these impacts that are lasting even now. So I think that’s why our work focuses on this area, because it is not only this significant, immediate harm, but the consequences of it are very severe and lasting.

Eyad Hamid:
Dmytro, Airwars, your organisation, focuses on gathering and assessing local reporting of civilian casualties. How does it work, if you can explain that to us, and what is the aim of it? Are you seeking legal litigation at some point, or is there another aim?

Dmytro Chupryna:
Reflecting Jennifer’s words, the key challenge we face now, for the last decade, is that conflicts have changed, and now, civilians are those who suffer the most, while militaries have almost no harm on their side. Militaries can’t understand civilian harm, and also are not willing to be transparent and accountable for their actions, so Airwars is designed to challenge that narrative.

There are three levels to how Airwars can change that. At the first level, we gather evidence of civilian harm by monitoring all available sources on a hyper-local level, to understand what civilians are telling themselves, on social networks, on Facebook and Twitter, and through local media. Airwars preserves this data from being lost or deleted and carefully records all the civilian harm allegations. This work builds up our civilian casualty archive, which we effectively use towards seeking transparency and accountability.

On the second level, we challenge the systematic narrative across militaries of zero civilian harm from their actions. Our aim here is to ensure that proper structures within militaries are existing to understand civilian casualties, to monitor, to assess, to investigate, and to be transparent and accountable. So, gathering this expertise and gathering our work with the Coalition we know what kind of a system should be in place, and we want to establish it on a durable basis, on a permanent basis, putting the proper structure inside the militaries for them to be capable to do it from day one if a new conflict emerges.

And of course the third one is the policy level, so all our advocacy work is to do with that. Because militaries know they kill people—they kill innocent people, they know that, but there’s some point where they can’t admit it it. So all our broader civic advocacy work, with a large network of partners, aims to challenge that global narrative and contribute to broader protection of civilians. The process of lessons learned and changes on the policy level will prevent civilian harm in new conflicts.

And also it could lead to bigger things. We don’t work in the financial territory, but we hugely assist organisations who do, and so one of the aims is for the governments and militaries to not only admit harm, but also to provide some compensation or means of justice.

Eyad Hamid:
Dearbhla, your organisation has conducted a series of investigations with Bellingcat on airstrikes in Yemen. These build on experience with open source investigations done in Syria, Ukraine, and other places. Do you aim to use these in courts as proof in a legal application, or is it something else as well?

Dearbhla Minogue:
Yeah, the project that we’ve been doing with Bellingcat, we’re trying to bring together the open source investigative skills that Bellingcat have, with the kind of legal principles that might mean that ultimately, in future legal proceedings, the evidence that they uncover is admissible in court, or is given more weight, depending on the kind of proceedings that you’re talking about. And the way we do that is that my organisation doesn’t do the investigations, it’s Bellingcat, but we sort of work together and shape how it’s all done.

Bellingcat have been building on the same sort of techniques that people like Syrian Archive have been doing for a number of years now. They make sure they also archive everything, and I think one of the biggest things that Bellingcat does, is that they drill down into the detail of the actual digital content that they find.

So, coming back to what was said earlier on, about how there is quite often this incredibly overwhelming flood of information, when you want to look online and see what’s happened, if there’s been an incident report of an air strike. Bellingcat have started to follow this quite replicable methodology, which tracks everything they’re doing online, shows how they arrived at certain pieces of evidence—let’s call it evidence, because we’re hoping at some point it could be—and then they perform verification on that content. So if somebody’s started filming after an air strike, has landed, they perform a series of verification tasks on it. And the main one usually being geolocation, so, they’ll compare it with other landmarks and satellite imagery to figure out where it was filmed.

They’ll also try and figure out, quite often, from shadows and from other reference points, you can find out exactly when it was filmed. And you can also find out whether or not it’s appeared online before, so whether it’s been repurposed, essentially. All of these go into whether it’s genuine, authentic, and reliable as a source of information about an air strike.

So, that’s the main verification that takes place. And also in terms of helping to say whether or not a given air strike violated international law, it can add quite a lot, because the Bellingcat investigations do collate reports on civilian harm, but it’s quite hard to verify that information using open sources, so they’ll focus in particular on things like, what did the target look like from above? Once you’ve found the geo-coordinates, you can look on satellite imagery. And, sometimes, when these investigations are finished, you can see that actually a particular market was very clearly a market from above, because you can see all the stalls. So with things like that you can talk about not only was there civilian harm, but the military responsible should have known that it was going to cause a lot of civilian harm, or you could even say they did know.

And then another area, that actually comes down to the use of wide area explosive weapons, is the fact that once you know what the site looks like, a lot of the time, using the open source information, you can figure out how far the damage extended into the surrounding streets, and you can also then compare that with what you would probably anticipate, knowing the blast area of these bombs. So, knowing that militaries are required to conduct collateral damage estimates, and also knowing the kinds of bombs that they favour, you can say a bit more about what could have been predicted from a certain air strike, even if you can say there was a military target.

There’s another thing, if I’ve got time? One issue is being able to use the open source information to contradict what the responsible authorities are saying. So, a lot of the time with the Yemen air strikes, the authorities will say either that there was a legitimate military target, so therefore the strike was lawful, or quite commonly they’ll say that there was no air strike, it must have been some other kind of explosion, and, therefore, they’ve got nothing to do with it. And quite often the open source information will actually enable you to say this definitely was an air strike, because you either have a very obvious crater, or you have a very obvious type of structural damage to a building, that a weapons expert can then come and say, that couldn’t have been caused by shelling, or an explosion of another kind. So it’s quite good for that as well.

Eyad Hamid:
Thank you. I’m going to follow up with three more questions, if you don’t mind. Jennifer, when you have several states in a coalition, say with the western Coalition in Syria as an example, it seems even harder to pin responsibility for actions on particular governments, or individuals. Can you say something about the problem in that, and how it can be tackled?

Jennifer Dathan:
We’re seeing more coalitions, and I guess it benefits them in the sense that they share resources, share expertise, but we are also finding that it decreases transparency in terms of addressing civilian casualties, because it’s more difficult to assess, in the sense that not only do they have different methods, rules of engagement, and ways of assessing civilian casualties, there’s also this ability to hide in the crowd. States aren’t likely to come forward, and say who caused what civilian casualties and damage.

So in terms of our work, we don’t always necessarily focus our advocacy on addressing individual states, but we try and take that bigger picture in, and we know that civilian casualties are being caused by the Coalition, and then we can also take that even bigger step back and say that we know that civilian casualties are highly likely from the airstrikes that are occurring by the Coalition, because of the areas they are being used in, and the weapons that are being used.

So our work mainly focuses on that big step back, so we are part of the International Network on Explosive Weapons, and through this really pushing for political commitment to address civilian harm, through preventing the use of explosive weapons with wide area impact in populated areas. So through that strand, AOAV tries to look at that wide picture, but AOAV also work with states directly as well to address the issues with transparency, similar to Airwars, for example we are engaging with the MoD to try and get a civilian casualty monitor similar to the one in the United States, so I think it’s important to address and tackle this through multiple strands.

Eyad Hamid:
Back to you Dearbhla. Is the flipside of dealing with coalitions, that it can increase the number of possible approaches or targets for strategic litigation? As in the recent legal case against the UK arms exports to Saudi?

Dearbhla Minogue:
Yeah, I think so, I mean you obviously have the case where in any given airstrike, you can’t necessarily know which state was responsible, where a couple of members of the [Saudi-led] coalition have jets flying and launching air strikes, but then equally because of the way the legal framework is here in the UK, and I think it’s similar in other European states, because it’s all based on the same common EU position, the Government is not allowed to grant a licence a weapons sale, where there’s a clear risk it might be used in a serious violation of international law. So, it kind of puts the onus on the government to say, if somebody brings a challenge, as was done in the recent case, saying these weapons that you’re selling, while the coalition is not transparent and doesn’t tell you which nation state is responsible for each strike, the Government is responsible for the risk assessment, and so it’s up to them to say whether they know enough about which states are carrying out which air strikes, and if they don’t think there’s a clear risk, then why not? If there were multiple states carrying out those air strikes, they would need to break it down and explain it. So the fact that there is a coalition, the way the law is written, I think means that it’s actually harder to hide behind that than they might want.

Eyad Hamid:
Dmytro, do you and your colleagues at Airwars have a different expectation of what might be achieved, when you’re reporting say on Russian airstrikes in Syria compared to [US-led] Coalition airstrikes? Do you see a relationship in how Russia responds and how the Coalition responds? Are there similarities, or differences for that matter?

Dmytro Chupryna:
That’s a good question. Despite our success with the Coalition in admitting more than 1,300 deaths from their airstrikes, and the majority of these assessments referred to Airwars data, we haven’t seen the same level of transparency and accountability form other belligerents. We have good examples, like Australians admitting their civilian harm, but the UK still accepts only one civilian death from thousands of airstrikes on Raqqa and Airwars report ‘Credibility Gap’ shows clear evidence on why these claims are not relevant. The same with Belgians, with Dutch, with France. The Foreign Policy investigation two years ago showed the evidence of their responsibility for civilian harm from European belligerents, but they are still declining to release the data based on intelligence and security issues.

It also gets to a very strange situation, where they, for example the Dutch military—sorry for going into details, but it’s very clear example—the Dutch military say, ‘we can’t publish information on our air strike, because of security reasons, for our pilots.’ And the next day, on Dutch television, there is a documentary where the pilots sits in the studio, and say, ‘oh I dropped bombs on Raqqa.’

And this is really for political reasons, but we will do this work, our aim is to unlock all these relationships.

Regarding Russia, Airwars keeps monitoring Russian campaign in Syria but there’s no dialogue, they are not ready to work with us. And we can’t see that the same kind of work that we do with the Coalition will lead to a discussion with Russia, because it’s really different.

And the tactics they do are also different. So, from the patterns of the civilian harm from airstrikes, we can see that the Russians are really responsive to the political side, ceasefires, to some political targets, Assad government targets. While the Coalition mostly have their own military targets and so the civilian harm pattern is like—we use this bulldozer image—they are just pushing away.

So, it’s a difference, and our data analysis could bring a lot of insight for other post conflict war or political analysis. We are not experts in that particular area. But we also open for anyone who is interested to do this kind of research, to support and assist, because we can do a lot, having the evidence, having the data, reflecting all these investigations.

Each incident is an investigation, it’s based on overlapping geolocation, also media reporting, official reports as well. And each case on our website is open, it’s not closed. If we receive more information, for example from our recent project with Amnesty on Raqqa, so we provided assistance on data for particular events, Donatella [Donatella Rovera of Amnesty] did a lot of investigations on the ground, and then we updated our database based on this data, so it’s ongoing, and building, and open, and this is the basis for a lot of work, years ahead.

Eyad Hamid:
Thank you. We’re going to have a few rounds of questions.

Question:
Thank you so much. My question is about—you’ve mentioned a lot about the accountability for casualties caused by the airstrikes—but is there anything that is being done regarding disappeared people, detainees, especially here, I’m talking about under ISIS. Since, there is this kind of accountability discussed for the Coalition, and here maybe it is about the Coalition and also the Syrian Democratic Forces, so, is there anything that has been done regarding that issue?

Dmytro Chupryna:
We are quite niche organisation and only capture the data which is related to airstrikes and civilian casualties, and unfortunately we don’t track this information.

Dearbhla Minogue:
I don’t have an answer. Maybe somebody else will?

Question:
I’m a British trained lawyer, and I used to be a soldier in Saddam Hussein’s army, and I fled. I have a question about leveraging the data that you have, and also the laws in the UK that stops these transactions from happening. What are the implications, the punitive measures, that if there was a breach of that law, what can you do in order to punish the party? What is embedded in the law itself, if this happens, then this is the punitive measure? And have you tried to build a lobby in order to get that more enforced in your favour?

Dearbhla Minogue:
In the terms of the UK law, are you talking about the criminal law?

Question:
I don’t know. The statutary instrument that you rely on in order to build the litigation case, there should be in the law itself that if so-and-so happened, then here are the punitive measures accordingly.

Dearbhla Minogue:
I can only talk about the domestic framework in so far as it applies to Yemen, because that’s what I work on. But, it’s general principles, so here we have the International Criminal Court Act, which makes it a crime for UK nationals or residents to commit what would be a violation of the Rome Statute, of the International Criminal Court, so genocide, crimes against humanity, and war crimes. And so, if anybody who is living here, or a national of here commits a crime, no matter where it happens, they can be prosecuted here.

And it also applies to secondary liability, so aiding and abetting a principle perpetrator of one of those crimes. So in that situation, the principle perpetrator doesn’t have to be a UK national or a resident, so somebody who’s a resident here could, for example, supply a weapon to somebody who has another nationality, and if they know that weapon is going to be used to commit a war crime, then they could be liable under criminal law, and prosecuted as if they’d committed it themselves.

And then we also have the Geneva Conventions Act as well, which makes it a crime to commit a grave breach of the Geneva Conventions, which covers a lot of the same kinds of crimes, in particular killing civilians. And that doesn’t have a geographical restriction. Anybody could pass through the UK and be prosecuted under that framework.

Question:
But, let’s say you’ve found someone, you have all the data to corroborate that, and if he was found guilty, what are the repercussions then? How would you guarantee—is it embedded in the law that this person will guaranteed not walk free, or, is the law very vague about that?

Dearbhla Minogue:
I think the sentencing guidelines are similar to if you committed a murder. It’s probably life imprisonment, if you commit a war crime. I actually don’t know for certain, but yeah, it’s considered to be on a par.

Dmytro Chupryna:
It depends from country to country. We work internationally. There’s a whole set of organisations working in that area, and we co-operate with them, for example, ECCHR in Germany, Reprieve here in the UK. We can assist with our data, but this work is not a part of our expertise. We even helped in the Australian case which I mentioned. They confirmed in January, so now we are assisting a law firm in Australia, which is trying to pursue some compensation from the Australian government on behalf of the family.

Question:
In the US, they gained support in pursuing money from the Saudi government for the 9/11 attacks, so the flipside of that coin also should be applicable, where there should be an entity here supporting you guys, backed by the government, or backed by MPs, in order to pursue an action. And, I’m wondering if you guys pursued any litigation?

Dmytro Chupryna:
For us, it’s not our core competence. We are an open source monitoring organisation. You can’t put everything in one. It’s just a whole set of organisations who could round out this discussion, and there is a lot of things happening in the UK. There was a Parliament hearing in human rights, with an all-party group on human rights, on IHL procedures, civilian harm, and the protection of civilians. So, there is a discussion and if you need it, I can refer you to some people to ask that.

Question:
With the recent decision in court, and the issue then of the UK government exporting arms, is that going to be a vehicle to try and use Airwars data to try and challenge other decisions in the UK on other conflicts in therms of the military? Has that opened the door to that kind of litigation, that kind of action? And does that circumnavigate potential issues of international responsibility, as well as how political international law can be? Is there sort of a way forwards?

Dearbhla Minogue:
I think it’s definitely opened the door to a lot more challenges, because before the court of appeal decision, the government had got away with saying, ‘in order to assess this future risk question, we just need to look at all the information in the round, but it’s ultimately up to us as to how we make the decision.’ So they were talking about all sorts of assurances that they were getting from Saudi Arabia, you know, public statements that were being made by Saudi Arabia, and they were looking at past incidents, but they were just saying, ‘oh we don’t really have enough information, and we don’t really think that any of this establishes a clear risk.’ And what the Court of Appeal said was that it’s completely irrational to say you can assess future risk, without actually looking at individual past incidents, and saying whether they violated international law.

So now, I think it would be a lot easier for claimants to actually push the Government to make the call on whether or not a past incident had violated international law, which in itself would be an incredibly valuable advocacy tool. Because if they were to say, ‘okay we’ve looked at it now, and we think that these five incidents in the past were serious violations of international law, I mean, there’s so much advocacy you can do around that. Because even if the UK then continues to supply weapons, you can ask why are they doing that when they themselves have had to admit that previous incidents have been violations. And I also just think it makes it a lot more difficult to justify continuing to sell weapons, if you’ve already identified previous violations. So I think it will definitely lead to more challenges to weapons sales to other countries.

Question:
Do you think it could be used outside of that context, not just weapons sales, but also other actions, for example, humanitarian aid, or financing? In terms of okay, we’re putting money into this country, so we need to be more transparent about where that money is actually going? Or is that a step too far?

Dearbhla Minogue:
I think that the arms trade is a very specific legal framework, that comes down through the arms trade treaty, and I’m not an expert on the aid and assistance area. I guess if you extrapolate the public law principle from the CAAT case to other risk assessments, then it probably would lead to more claims. Because you could say, you could apply the same principle to your assessment of future risk of the funds being used to facilitate violations of international law. So, thinking about it just on the spot, I think maybe so, yeah.

Jonathan Brown:
There’s been a long-running campaign by Syria Solidarity UK and other organisations, to challenge or to request the government to publish details on airstrikes by other countries, on which countries and which pilots and which aircraft were involved in conducting airstrikes, with the aim of establishing evidence that could theoretically be used in future in a war crimes trial.

I know Bellingcat has recently produced investigations where they’ve named individual Russian military commanders that were involved in Ukraine with the shooting down of the aircraft. So, it’s sort of two related questions. One is why is the UK government not willing, and has remained unwilling to do this, even to countries it is not on very friendly terms with, and given the UK government’s unwillingness to do it, through open source intelligence, are any other organisations able to do it themselves?  Even if it wouldn’t have quite the same weight as coming from a government? Are other organisations able to name specific pilots?

Dmytro Chupryna:
For the pilots, we don’t conduct these type of investigations, but for each incident we have a suspected belligerent, and we also, based on the data we receive from the Coalition, from all the official reports, we can by this kind of small investigations we can say, because when we know the campaign in official reports say that they bombed in that area, and using the geolocation, we can suspect the belligerent. And then as I said, cases are updated and this can be confirmed.

For particular pilots, that’s not necessarily our territory of the war. But I think it’s possible of course to do everything now with the data. The last thing I will say because of the reasons you asked the first question. Our director Chris Woods had an oral evidence session in the Defence Select Committee in Parliament, in January, and one of them, he said reflecting on his enquiry on transparency and accountability, one of them in the room said, we don’t want it to distract our citizens that we’re killing innocent civilians in other countries.

So, that’s a kind of response we have at the moment. We hope that we can establish a dialogue, and change the narrative, and the importance of that is also to have a broader and more coordinated partner network. And also, on that level, we need to involve NATO. And a lot of international UN missions, a lot of international missions could put influence on particular governments requesting to publish this data.

As the main proposal that we use is that the Coalition publish the data of airstrikes—on what particular and precise date and location—we have no case from several years of this engagement, no case when it affected personally the security of a particular pilot, or a particularly military, so they can’t hide behind that, there’s no reason for them not to publish or not to be transparent. There’s no reason.

Eyad Hamid:
Any other questions?

Question:
I have one, actually. I was going to ask can you point to any particular reasons why the Australian government has been more transparent than any other members the Coalition?

Dmytro Chupryna:
I think it’s in one case they just followed the recommendation from the US lead partner. Another point, I think it also depends on the particular domestic legislation. Regarding the acknowledged Australian airstrike, from the very first day, we had it in our database, but it took Australians several years to admit it. So the problem is why militaries are not doing proper investigations, and not reaching affected families, as it is quite a straightforward process. We have more than five thousand victim names, photos, event details, and in this case we reached the family within half an hour after the Australians admitted it.

Eyad Hamid:
I’ll ask a question for all of you, if you don’t mind. And, maybe we can finish with this one. It’s more about the future. You mentioned Brexit. How do you see the work of your organisations being affected by the UK leaving the European Union? It may be very speculative but I would like to hear your thoughts on that. Is it very pessimistic, or do you see it like some hope in pushing the UK government in doing something different?

Dmytro Chupryna:
I think Brexit is not a problem. The problem is the permanent narrative with society and its interest in civilian harm, that we’re killing innocent people somewhere. The same question we have regarding the media, and now Airwars is doing a study on the US media coverage of civilian harm in the war against ISIS, on why US media were so poor in reporting civilian harm, why with these thousands of deaths, just no-one heard about that, and trying to understand how we can improve on the reporting.
The same challenge we have also working with European media. It leads to lack of transparency and accountability, so we need more voices raised on civilian harm issues. Brexit will not really affect that, it’s more about civil society changing the narrative, and the media, as well.

Dearbhla Minogue:
I actually really agree with that, and I can’t fathom why people don’t care about this kind of civilian harm. I don’t know if I will ever understand it. And also, quite a lot of people have said, you know, why did everybody suddenly care about the air war in Yemen when Jamal Khashoggi was murdered? Because he didn’t have anything to do with Yemen, and obviously people were saying, this is terrible, this is such an awful thing to happen to this man, but what’s this got to do Yemen? Yet suddenly, for some reason people cared so much more about that. And then, by association, they were suddenly very angry with Saudi Arabia. But anyway, that just made me think of that.

In terms of Brexit, for me, I’m a little bit worried about what the UK will do with its arms trade legislation. Because, the current standards are derived from the EU common position, and so there might be an opportunity for them to water them down further, if we leave.

Jennifer Dathan:
I agree, but also, I’d add that as this Brexit debate has fuelled nationalism, critiquing military becomes harder, and is seen as that you can’t be critical of the state, because you’ve just got to be supportive of the national effort and critique of such efforts, including highlighting civilian harm from such airstrikes is seen as unpatriotic. And so I wonder if that will then make the narrative harder to dismantle, so we can progress and increase transparency? I worry that it will make it harder.