Has the United States Violated the Law of Armed Conflict in the Iran War?

Host Ryan Goodman is joined by Tom Dannenbaum, Margaret Donovan, and Todd Huntley to discuss whether the United States has violated the law of armed conflict in its conduct of the Iran war. They discuss what evidence would be required to make that determination and what to watch for as the war continues. 

Show Notes:

• Collection: Iran, Israel and the United States at War (2025-2026 Operations) (continually updated)
• Mark Nevitt, Five “Blockades” and One Legal Problem: Naval Enforcement in the U.S.–Iran Conflict (May 1, 2026)
• Tess Bridgeman and Oona A. Hathaway, At the 60-Day Mark, the Iran War is Triply Illegal
• Brian Finucane, On the State Department Memorandum “Operation Epic Fury and International Law” (April 24, 2026)
• Michael Schmitt, Tess Bridgeman and Ryan Goodman, On Ambassador Waltz’s Defense of Potential Law of War Violations in the Iran Conflict (April 22, 2026)
• Tom Dannenbaum, Rebecca Hamilton, Adil Ahmad Haque, Oona A. Hathaway and Gabor Rona, Over 100 International Law Experts Warn: U.S. Strikes on Iran Violate UN Charter and May Be War Crimes (April 13, 2026)
• Margaret Donovan and Rachel VanLandingham, Lt Col, USAF (Ret.), When War Crimes Rhetoric Becomes Battlefield Reality: The Slippery Slope to Total War on Iran (April 6, 2026)

Transcript

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SPEAKER_03 0:05

Welcome to the Jess Security Podcast. I'm your host, Ryan Goodman, Jess Security's co-editor-in-chief. And today's podcast discussion, the topic for our conversation is an evaluation of whether or not U.S. military conduct in the Iran War has violated the law of armed conflict. And the podcast we're recording is uh happening on uh Thursday, August 27th, which is one day away from the sixth month mark of the US-Iran War starting on February 28th, 2026. And we thought this would be a good time to take a step back and just kind of evaluate um what's happened. And just I want to start the conversation with uh three caveats, and then uh we'll go around and folks will introduce themselves. But the caveats are that we're only discussing the law of armed conflict for those in the legal uh domain. It's uh use and belo, which are the laws that apply once the war has begun. We're not discussing Yused Bellum or the laws that apply as to whether or not a state should go to war, and it should go without saying, but um, compliance with the first category of a body of law, uh, the law of hostilities, does not excuse or remedy violations of the resort to war. And uh second caveat is that we don't, because of that, discuss here, unless it comes up somehow in a conversation, we're pretty much bracketing it, the United States and Israeli government's assertions that the resort to war was um legally justified because of an ongoing armed conflict. And then the last one is I think I'll just stipulate for the conversation, we can get into it if we need to, but just as a working assumption uh that Iran and the Iranian government has violated the laws of war in many different ways and in very serious ways, amounting uh easily to war crimes, at least in my estimation. But that might come into our conversation in some ways, but the focus is going to be on US military operations. So, with that, um we've assembled just a wonderful uh group of foremost scholars and experts in this space. And I just figured I'd go around, and if folks could just introduce themselves um alphabetically, it goes uh uh Tom Danabaum, Margaret Donovan, and then Todd Huntley. So, Tom, would you just like to say a few words about your background and then your current uh position where you're at?

SPEAKER_00 2:27

Sure. Well, thanks very much for having me, Ryan. It's a pleasure to be in this conversation with you and with Margaret and Todd. I'm Tom Dannenbaum, I'm the professor of law at Stanford Law School and the Frank Santon Professor of Nuclear Security at CSAC at Stanford's Freeman Spurley Institute for International Studies. And my work mostly focuses on international criminal law, law of armed conflict, and law governing the resort to force. So definitely related to what we'll be discussing today.

SPEAKER_02 2:56

And I'm Margaret Donovan. Also, thank you, Ryan, for inviting me and really honored to be on here with Tom and Todd in great company. Um right now I'm an attorney in private practice. I uh work at a law firm called Coskop, Coskop in Beter in Bridgeport, Connecticut. Um, but in my past life, I was a judge advocate general uh core officer in the US Army. And in that context, I did two combat deployments under first under the Obama administration in 2016 to Baghdad, Iraq, and next in 2017 under the first Trump administration outside of Raqqa Syria. I deployed with traditional army units, um the 101st Airborne in Baghdad, and then a special forces unit to the special forces group uh in Syria the next year. Um and across those two deployments, I did well over a thousand, uh, gave advice on well over a thousand airstrikes and other lethal engagements to those units. After that, I became a federal prosecutor and then I eventually landed at the firm I met now. But on the side, I'm also a coordinating attorney with the Yale Law School, uh, Peter Groomer, Peter Gruber Rule of Law Clinic, where we basically it's clinic uh it's a clinical uh program at Yale Law School where the students and coordinating attorneys and the instructors participate in various rule of law projects, including litigation.

SPEAKER_04 4:17

Thanks a lot uh for inviting me on, Ryan. I'm really uh really looking forward to the discussion with Margaret and Tom. Uh I'm the currently the director of the national security law program at Georgetown Law School. I have a retired Navy judge advocate general. I spent 23 years on active duty. Uh most of the last half of that was in the national security field. I did uh two deployments to Iraq, uh supporting the Joint Special Operations Command uh task force there, first one in 06 and the second one in 13. And then I also supported uh operations uh in 15 and 16 in Syria, uh back from uh home station at Fort Bragg. And uh my last job on active duty, I was a professor in the National Security Law Department at the Army's uh Judge Advocate Generation Charlotteville.

SPEAKER_03 5:07

Uh terrific to have you all uh focus your minds on these hard issues. Um so I guess the first one I wanted to start out with is a very specific um military strike. And then second question is just kind of opening it up to other uh issues that you think about are different um military operations that have taken place or have almost taken place. And I guess the one you know strike to think of is the one that's probably foremost in a lot of people's minds, which was on the very opening day of the US um resort to armed conflict with Iran, is February 28th, in which one of the targets um or uh buildings hit was the school girl, uh um the uh girls' school in uh Minab, Iran, and um with casualties up to over 150 people. And um I guess I want to start with one way in which I think of it, and then just throw it out to you all to see what you think about and about what we currently know about that strike. And then the second part of it is to think about why we don't know more, uh, which is the absence of a completed investigation by the US military and what you think um about that. So the way I'm thinking of it, and I think it would be very helpful for folks tuning into this conversation, is you know, there's a question of was it a law of war violation, you know, in terms of just what what on earth went wrong, because something went wrong, or was it actually a war crime? The way I think of that is that um for it to be a war crime, it would have to have been that the attack was either deliberately to try to attack a civilian um object like a girls' school, or that it was out of recklessness. So it was knowing that um that would be a foreseeable result, even if it wasn't their intention. And I I just I have not seen the evidence for that. I do think there was uh there's evidence for it being negligence, in which case it would still be a law of armed conflict violation, but there wouldn't be criminal liability for any individual. And I guess just want to throw it out to you all. Is that the way that you're thinking is the right way to frame that question? Uh feel free to completely disagree with me if you think I've misframed it. Um and what are you thinking um in terms of what evidence that we do have of what's being reported as to what created uh such a tragedy?

SPEAKER_00 7:22

Who should start here, Ryan? I I'm happy to jump in that.

SPEAKER_03 7:26

Sure, yeah. Tom, if you could jump in, because I'd I'd also really would love to hear what uh Tom and Margaret you have to say with respect to the second part of that, which is, you know, are you surprised we haven't had an investig any result of an investigation now six months in? Um what do you think explains that? And how do you think about that aspect of it?

SPEAKER_00 7:46

Yeah, on the on the question of whether there's a law of armed conflict violation, I think there are two different levels on which we can analyze that before even getting to the question of whether there's a potential war crime. The first is whether there's a violation of the principle of distinction as informed by the rule on doubt, and the second is whether there's a violation of the rules on precautions and particularly precautions relating to verification. And I think there are serious reasons for concern on both of these. In my view, it's clearly a violation of the requirements relating to precautions given the information that we already have, but it may also be a violation of the principle of distinction as informed by the rule on doubt. The principle of distinction precludes attacking or directing attacks at civilian objects. And then when there's uncertainty, the presumption is that an object is civilian. And the only question, therefore, is whether there was a reasonable belief that it was a military objective, if in fact it was a civilian object that was targeted. Here I think there are several things that are fairly clear. To me, it's fairly clear that this was not an errant missile. It was based on the analysis of people who work in targeting a picture-perfect strike on the structure. So it seems that this structure was the target and that it was targeted with a precision-guided ammunition atomahawk land attack missile. So it seems very unlikely that it was an errant strike on this structure. It also seems clear that the structure was a functioning school that at the time of the strike was in session and had hundreds of civilians in it, most of them young children. So it was a civilian object. There's no indication that it was being used to make an effective contribution to military action. It was adjacent to an IRGC base, but it was walled off from that base and was a separate object for the purpose of targeting analysis. So it seems clear that it was a civilian object, and it seems clear that this object was the target of the attack. The thing that's in debate, therefore, is whether or not it was known that this was a civilian object, or whether there was a reasonable belief that it was a military objective. And that then gets us into the question of doubt. Did the United States, did the relevant commanders at the time of the attack, have sufficient doubt to preclude engaging in the attack because they should have presumed it to be a civilian object? There, the information on the underlying details is, I think, a little bit murkier, but what it seems based on investigative reporting, some of which has been really quite thorough, whether it's by Sky News in a documentary, BBC, New York Times, multiple outlets that have sought to try and understand exactly what happened here, it seems as though the data upon which this targeting was predicated was at least a decade old. And that if you looked at satellite imagery going back a decade, you could see that this was ruled off from the IRGC compound, having previously been part of it, part of it a decade ago, and that there were warnings within the US database that this data was out of date, that it was widely known that the data was out of date, and that a commander would have had to have authorized the move from the inclusion of this object on the database into an operational targeting list. And so it seems to me that it's actually quite likely, given that there were warnings internal to that system, that there was sufficient doubt to preclude an attack, given that information that the target was based on intelligence that was a decade old should raise a sufficient level of doubt to preclude targeting without further betting. There's then a separate question about verifications that even if one thinks there wasn't sufficient doubt to preclude targeting in this context, were the requisite precautions taken to do everything feasible to verify that this was in fact a legitimate target? And there I think again, it's fairly clear that the strike falls short of the legal requirements, because this was a strike on the first day, as you mentioned, the first hour of the attacks. It was a deliberate, planned, scheduled strike. It wasn't in the context of a dynamic crossfire situation. It was identified and targeted. And open source investigators were able, subsequent to the strike, to very quickly identify multiple indicia that it was, in fact, a school. The walling off of the compound, a play area that was visible on Google Earth for years, the fact that there were pastel-colored walls that matched the years-long website presence of the school, the fact that if you looked at images of the outdoor spaces with persons in them, the shadow length of those persons indicated very clearly that they were children. There were just multiple indicia that if one had undertaken the vetting would have indicated that this was not a military objective and should not have been targeted. Those vetting processes fairly clearly weren't undertaken. And indeed, the investigative reporting that I mentioned earlier seems to indicate that they were bypassed. And so again, I think there's a violation of precautions there. That doesn't answer the question of whether there was a war crime. And maybe we can come back to that because I've already gone on for quite long. But in my view, it's fairly clear that we have a violation of the law of armed conflict, whether it's a violation of the rule on doubt or a violation of the precautionary obligations relating to target verification.

SPEAKER_03 13:14

Um, Margaret Todd, do you want to either weigh in on that part of it? Um, how you evaluate that or on the absence of an investigation report?

SPEAKER_02 13:24

Yeah, I I've been trying to um kind of square that strike with my own personal experiences. And of course, you know, across the amount of strikes that we did in Iraq and Syria, you had civilian casualties. That was just sort of a harsh reality of those environments. And they were not of the scale of the minobstacle strike, but they did require investigations. And that always happened within a matter of, you know, days that the civilian casualty was reported and the investigation was concluded quite quickly after that. And in you know, separate from my own experiences, but two instances that come to mind that have contextualized this for me and hopefully for your listeners a little bit, are the other two major instances of civilian casualties throughout the wars on uh throughout the past few decades, I'll say, that I think are helpful references to compare how odd it is that we have not seen an actual report from an Minop school strike. One of the most striking things that Tom just said, I think, is that all of this information that we have and every all of the details that Tom just went through are from investigative reporting and from, you know, basically open source journalists trying to figure out what happened. We don't have information from the Department of Defense, which in and of itself, initially after a strike, I think that's quite normal. You don't have information, you don't want to start rumors and conspiracies, but you usually at least see some admission of uh ownership of the strike. And so the two comparisons that I would offer that people can use as a reference or as a guidepost to this is the 2015 Kundu strike in Kunduz, Afghanistan on a Doctors Without Borders hospital. And in fact, just security is one of the only um sites that's still available that has the full uh report done, the 1506 investigation done by the military that people can read. But again, just as a reference, that strike occurred on October 3rd, 2015. And by October 6th, General Campbell, who at the time was the CENTCOM commanding general, was in front of Congress discussing it and testifying about it. And the final report was finished a month later in November. I think it took a few months for that report to eventually be released, a redacted version of that report to be released to the public. But the point is the military immediately investigated that, testified to it, had its leadership out front, admitting that it was a mistake. I think within a week, the Pentagon, this was then under the Obama administration, had offered condolence payments for people. So you saw really an immediate ownership of the strike. The second instance that I would recall was right after I left Iraq. I was in Iraq in 2016, and then in early 2017, um in Mosul, Iraq, there was a strike in the course of a dynamic target, basically a self-defense strike on two Islamic State fighters in the city of Mosul. And the strike was in the ground floor of a building that contained a lot of explosive material, and it caused secondary explosions that resulted in estimates between 100 and 500 civilian casualties. I don't think we have an exact report. But again, um, then Lieutenant General Townsend, who was in head of uh part of the combined joint task force of Operation Inherent Resolve, again, within days, was talking about the strike publicly, having press releases. Um, that strike was, I think, March 17th, 2017. And the report was done and a summary, an executive summary was available to the public by that May. And so to Tom's point, neither of those instances actually resulted in war crimes prosecutions. But the transparency and the ability for the Department of Defense to investigate and communicate with the public what happened in those strikes, I think that stands in stark contrast to what we have here, which is now we're at the six-month mark, and that is an opening strike of the war that we really have no official information on to even be able to gauge accountability. Um, the last point that I'll make is on this particular topic, and just to build on something Tom said, in addition to being a law of armed conflict or violation versus a war crime, it very well could be a violation of the rules of engagement for that scenario, depending on what the rules required in terms of the amount of forms of positive identification you needed to establish before engaging a target. But again, it's so hard to opine on that without actually knowing what happened. Um, but I'll I'll leave it there so uh Todd can can speak on this as well.

SPEAKER_04 17:48

Yeah, no, uh thanks. Um I again, most of my targeting experience in Afghanistan was uh with dynamic targets, but this target appeared to be probably one that had been included in the target list during the in, you know, who knows how long ago, right? The development of the operations plan. And at the time, at least from what I've read in reports, at the time um this, you know, this school was actually part of the IRGC base. And then at some point from the time it was included on the target list until the time the targeting was carried out, uh, it had changed, you know, and and had no longer been part of the base and had been turned into a school. And so I guess I differ a bit with Tom in that um I think the commander who ordered the strike, there was no doubt in his mind that that was a lawful target. And so I think, you know, you have to trace um the mistake back. Uh and it, you know, it appears to have been at some point, again, from what I've read, a DIA analyst had identified that this was now being used as a school. And for whatever reason, that was not entered into the database, or you know, it it ended up not resulting in a change to the target list. And so I think uh, you know, Tom, um, you know, Tom's assessment that this might be a violation of precautions, um, you know, perhaps also, you know, a failure for the US to exercise constant care and making sure that that target list is up to date uh and is accurate. Um, and so I think that um, yeah, you know, we would want to see, you know, that process between um the the analyst at DIA identifying as a school and the time the targeting was ordered, what happened or didn't happen. And was there a systems failure? Was it a, you know, why did we have that that breakdown? Um, and I think that uh there could be a violation of the law of armed conflict there. I don't think it was a war crime. Um, but uh, you know, to get uh I guess to go to Margaret's point about the investigation, uh, having been involved with investigations myself uh on, you know, claim civilian casualties, collateral damage, um, you know, there's no reason why somebody couldn't have stood up days after the strike and said, yes, this was caused by a US strike. Uh, we are investigating further uh to determine where the breakdown was. Um, and you know, that further investigation might take some time uh if they're looking at the systems to see, you know, if it was a computer glitch, a failure to update the database, uh, but not this long. Um and I think that uh particularly the point about the the failure to update the target list, uh I think one thing that would be interesting to note, yeah, yeah, especially in light of the report that came out yesterday, that um Secretary Hengseth supposedly polled the combatant commanders and other senior commanders about the need for civilian casualty mitigation cells within the combatant commands. And despite almost everybody agreeing that they should be maintained, right, they were cut drastically. And this is exactly the type of thing that that cell could have prevented had it been, you know, fully implemented, manned, and given the authority to do the job, you know, to take those precautions to exercise that constant care uh to minimize possible civilian casualties.

SPEAKER_03 21:33

Yeah. And so it's a great report in Pro Republican. We'll put it in the uh show notes. Um I do want to open it up to um you all to say a bit more about any of the operations, any of the strikes that either most concern you, but I don't want to only you know self-select for those kinds of um operations. So it's either strikes besides that particular strike with the monop school, but other Strikes that um operation are operations by the US military that most concern you from a law of armed conflict perspective, or if you think that there are um red herrings, like um operations or claims or allegations that have been made about the US military military operations that you think are wrong in terms of negative assessments that you think are wrong. And in doing so, I'd love it if we could just focus, at least for this piece, just on the actual operations themselves. So bracketing out for the moment um any rhetorical or public statements or declarations by president the president or the secretary of defense. And even to the point that we're bra by bracketing that, we are also bracketing that those public statements or declarations themselves could be violations of the law of armed conflict. But I do want to just focus in on operations uh and get a sense of where you all think about um how this has gone over the last six months. If you think that it's actually uh surprisingly compliant uh with law of armed conflict, and and and I say surprisingly given the Secretary of Defense's use of the law of armed conflict, or how you think the track record has been, or particular incidents that you would like to identify or talk about. So why don't we go in reverse order? How about that? Um so Todd, you want to go and then Margaret and then Tom?

SPEAKER_04 23:22

Sure, I you know, this is another area where I think uh, you know, we've had a real lack of transparency, and it it's you know, it's it's almost impossible to you know look at the strikes that took that took place um and make any kind of definitive statement as to the lawfulness or lack thereof when you don't have the intelligence behind the strike. Um and so I you know I think this is uh you know probably something Tom can speak to, you know, certainly more so than I. But one of the problems when we look at, you know, trying to make sure the law of armed conflict is complied with, we're missing that. And we're always kind of looking back after the fact to try to determine whether there was a violation. Uh and you know, that certainly doesn't help the people who were affected at the time of the targeting. Um, and so uh I think you know, at least from my perspective, I just don't know. I I am confident again, based on my own experience, that mistakes have been made, civilians have been killed. Um but I also, you know, I guess I'm fairly confident that um those strikes at least were not intentional, you know, in in that they were deliberate targeting of civilians.

SPEAKER_01 24:41

Uh and so I'll I'll echo what Todd just said here. Although first, Ryan, I will say that it's a very large bracket you are asking us to assume here. Um and so it it is hard, certainly looking at the targeting of um dual-use targets, it's hard to look at those without considering, you know, what is seems to be the obvious direction um and purpose behind those strikes, which of course is a significant consideration when you're assessing whether or not it is a law war violation or a war crime.

SPEAKER_02 25:10

Um but I will, I I do have to say it's I've been careful, and I know, I know Todd and Tom have as well and others, not to say that something is or isn't a war crime because you simply don't know. And until an investigation is done and you are, you have access to the same amount of intelligence that the commander or the target engagement authority had at that time, it is truly impossible to tell um whether or not something occurred. I will say one thing that has struck me though, or that has sort of um concerned me in an overarching manner, is the denial of civilian casualties or the sort of assertion that there aren't more civilian casualties. Because to me, you know, even when we were in a place like Iraq, from my, which is speaking from my experiences in Iraq or Syria, we had a partner force on the ground. We had either the Iraqi army and the counterterrorism services in Iraq, or we had the Syrian Democratic Forces in Syria. And so even if operating out of a strike cell, I'm not on the ground, you know, look, I'm only doing battle damage assessment using drone surveillance overhead after a target is engaged. I actually do have people on the ground who can report back to me as to what happened at that target or when they clear that territory, they can go through and identify civilian casualties. We don't have that equivalent here in Iran. This is truly there is no partner force on the ground that's informing us as to what's happening. And so I my concern really is just it's very risky. It's a risky um approach to just assert conclusively that there have been no civilian casualties other than these few that we have we have reported.

SPEAKER_03 26:47

Um and I don't mean to bracket completely any um public statements that have been made that would be helpful to evaluating a military operation. I only meant uh not to look at verbal statements that standing at standing alone, whether or not those would be violations if carried out, or or if they're violations on their own. So like the Secretary of Defense saying there should be no survivors and no quarter, that's that's I'm putting that into the bracket. And then the president saying um, you know, we're gonna destroy their entire civil civilization or destroy all power plants across the entire country on its own, or what that would mean if carried out. But I I totally take your point that if indeed if you want to look at some specific strikes that have taken place on power plants, it would be important to know that the commander-in-chief is actually saying that they should be targeted on a basis that doesn't uh fit within the law of armed conflict. So just want to be careful that we allow you all to just have that part of the conversation as well, um, to draw that kind of information or evidence in.

SPEAKER_02 27:56

Um my only addendum then would be just, you know, the strikes on bridges to me struck me as something that was quite commonly engaged, um, particularly when we were in geographic areas surrounding the Euphrates River, it was actually quite strategic to take out bridges in many instances. But it's very difficult to see them taken out here and to make an assessment when you hear, you know, the president basically saying overtly that we are going to take them out, notwithstanding there may be no military advantage. Um, those types of strikes would uh those are the ones that concern me.

unknown 28:26

Yeah. Yeah.

SPEAKER_03 28:26

And following, and and like you're saying, I think as well, um, following immediately after the president is using that rhetoric and those statements as a negotiating tactic or bargaining or pressure on the Iranian government, and like you said, um without any uh clear evidence or nexus to the actual battlefield or uh military uh benefit from that. Um, Tom, are there any on your mind given the way much time?

SPEAKER_00 28:53

I I think just connecting what you and Margaret have just been discussing and going back to Todd's initial framing, any object can, under the right circumstances, become a military objective, even those that are subject to special protections. And so it's difficult to evaluate from an external third-party perspective whether or not the very fact-sensitive determination of whether it became a military objective in the situation at hand applied or didn't apply. But I think what we can do is see patterns and then also relate the operations that we've seen to the statements of leaders, which again would be distinct from identifying those statements as violations, but instead using the statements as context to understand the operations. And a couple of things that are concerning in this respect. So in early April, the New York Times reported that there had been 22 schools impacted and 17 healthcare facilities. So, of course, any one of those could have been an errant missile, any one of them could have been impact related to a strike on an adjacent structure that then had collateral harm to the school or health facility in question. And in exceptional circumstances, it's even possible that one or another of those became a military objective because it was being used in a way that released the attacking party from the ordinary protections that apply to those kinds of objects. But the pattern is itself concerning. It doesn't mean that we can determine from the pattern a specific violation in a specific instance, but it certainly raises concern, particularly when juxtaposed with rhetoric that seems to diminish the importance of legal restraint in armed conflict, and that seems to emphasize lethality and tempo over legal restraint. And then combined with that, we can look at other situations. So I think you were referring earlier to the B-1 bridge incident, this bridge between Karaj and Tehran that wasn't finished, wasn't being used, therefore, to contribute to military action. And so the only basis for determining it as a military objective would have been a determination based on its purpose. That's always a potentially speculative determination. So it would need to be some assessment of what exactly was the information indicating that it would be used to support military action such that it would be a military object and a military objective. But much more concerningly than just that, there's the fact that the president posted immediately after that strike saying the biggest bridge in Tehran has come tumbling down and demanding that Iran make a deal, indicating no relationship at all to a specific contribution to military action and the military imperative to target that bridge on that basis, and instead targeting the bridge as a way of coercing the adversary in a political negotiation around the settlement ceasefire, whatever conclusion would be reached. And that maybe even implicates a concern about spreading terror among the civilian population as opposed to directing attacks on specific military objectives. So that is, I think, absolutely appropriate context to bring into an analysis of whether or not that targeting operation may have violated international humanitarian law. It doesn't mean that we can determine definitively that it did violate international humanitarian law, but it does elevate the level of concern with which we should be assessing that kind of situation because the rhetoric gives us a lens into what exactly the decision-making process was, given that the rhetoric is coming from the commander-in-chief. There's one other aspect that's maybe just worth briefly noting, which is on the first day, the US and Israeli strikes targeted a number of political leaders in Iran. So this is less about the targeting of objects and more about the targeting of persons. Those persons that are members of the military would be targets under the law of armed conflict. But those who were civilian political leaders, it's a much more complicated analysis. They would have to be directly participating in hostilities. And given that these strikes occurred at the very beginning of the conflict, before Iran was in fact participating in hostilities, it's not clear to me that that test could have been satisfied, particularly given that it seems that those were strikes designed to provoke regime change rather than to specifically neutralize military capability. So I think those also raise very serious concerns about compliance with the principle of distinction in relation to persons.

SPEAKER_02 33:17

Well, and Tom's first point, that's something I know Tad and I talked about in other contexts, particularly when the threats or targeting were related to opening the Strait of Hormuz, which was ostensibly because of the price of gas. And so you had these series of threats to bomb civilian infrastructure because gas prices were too high. And so that I think is really quite far removed. Now, it is entirely possible that the commanders on the ground or at sea, as it were, came up with a you know legitimate reason or had an alternative reason reason to engage targets following that rhetoric. But that is certainly really concerning uh preface to all of this.

SPEAKER_04 34:01

Ryan, if I could also just comment on you know those uh comments made by the secretary and the president. Um and um they put our military members and military leaders in a very bad spot. Because again, you know, all of the targeters, operational planners, judge advocates that I worked with, you know, during combat operations took their positions and their jobs very seriously. They did want to comply with the law of armed conflict and they worked hard to do that. Um, but now, you know, after those statements, I think people really call into question whether they are in fact doing that, whether they are in fact complying with their obligations. And um, you know, because those service members are not going to be able to speak out about the intelligence supporting the operations, um, you know, there is this there is this question mark that hangs over, I think, all of the targeting decisions now uh made by and carried out by the military.

SPEAKER_03 35:05

Yeah. Um and uh and I I did think that there's also another piece of the Pro Republica reporting that was somewhat buried below the headline. That um as you had said, Todd, there was near unanimous support for keeping uh the civilian casualty and civilian casualty assessment uh teams and um up and running. And then uh that there was actually also pushback against the Secretary of Defense since he had uh radically reduced their capacity to restore it um earlier this year, which you know goes to show that there are folks trying to do the right thing inside um and kind of return back to the equilibrium in which those things operated most effectively in these kinds of um environments. And I guess just to uh close with one uh last question, because I figure um close listeners will think that we maybe left something on the table, which is the question of war crimes. And the way in which um I think about this is, and tell me if I'm wrong, just from the conversation we've had, a lot of the conversation goes around the question of compliance with the laws of war and the law of armed conflict. And in that bucket would go questions about precautions, uh, questions about the how much uh went into the process and the level of certainty and confidence with the indicators that something like the girls' school was in fact a civilian target or others as well. But no violation of precautions itself would incur uh war crimes at the international level. Now, things could happen differently with US domestic and um following the rules of engagement and following orders as to what they should have done. But in that category, am I right? So that, for example, Tom, when you talk about precautions, it's cutting in the direction of law of war violations, but it's not, it's not even cutting in the direction of uh war crimes. And then the only question would be uh war crimes that would come up with intentional or recklessness. Um, so that might go to the question of if there's doubt about known doubt uh about an object. Is that the way that you would at least approach these questions that for the three of you when we get more evidence? I think we're all on the same page that the absence of transparency around these issues means it's very hard to reach any definitive conclusions. But when more evidence comes about, is that the right frame that you're applying to the, you know, the big question that a lot of people do have about criminal liability?

SPEAKER_00 37:36

Yes, broadly speaking, I think that's correct. I would just issue two caveats to that. One on this issue of recklessness and the question of how much information is sufficient to first of all imbue the actor in question with the doubt that would preclude attacking, but secondly, reach the level of recklessness that would entail criminal liability. And the second caveat is that there is an argument that uh Gabo Rona in particular has made about the way that the War Crimes Act in the United States internalizes Article 27 of the Hague regulations that might allow for a violation of precautions to entail criminal liability. It's a creative argument. I don't know of any precedent that supports it either domestically or transnationally. And so I'm not sure that it's a straightforward argument, it's certainly not a straightforward argument. It's based in the text of the War Crimes Act, which itself is rather laconic. So there are various challenges around that, but there is an argument out there on that point. But going back to the primary issue, which is this issue of doubt and recklessness, and this also relates to the slight disagreement that Todd and I had earlier with respect to how to understand the information that we have regarding the targeting of the school in particular. So, one question is whether the state, the United States, had sufficient doubt to preclude attacking. Because the rule on doubt in principle attaches to state responsibility. It's not about individual criminal responsibility. So, from my perspective, if there is doubt in the state system regarding that target, then that should be sufficient to say there's a violation of the rule on doubt if the state attacks it. If the reason that it attacked is because the commander who made the attack decision didn't receive information from the DIA analyst who had determined this was in fact a school, that might not mean that either of them is criminally responsible, but it would mean that the state had doubt because a state agent had more than doubt. They'd actually identified this as a school. And the failure to transmit that effectively should redound to the question of state responsibility because it's a state institutional failure. The separate question is whether an individual commander had sufficient doubt to then rise the level of recklessness. In other words, accepting a substantial and unjustifiable risk that the thing they were targeting was a civilian object. And here there's a distinction in the information we have so far. So the DIA analyst that Todd mentioned earlier apparently identified this as a school, but that wasn't integrated into the database. The reporting we have so far, though, does indicate that the database had warnings that the information in the database was years out of date and required re-vetting before targeting? So that information was available to the commander, even if the specific identification of this object as a school wasn't. And then the question is, was that information that this was years old intelligence sufficient to underpin a finding of recklessness regarding a commander who then received that information and decided to authorize the attack? That I think requires more information that we have, but I don't than we have, but I don't think it's clear-cut that this doesn't rise to the level of a war crime. It depends. It depends on what exactly the commander knew at that time, what they knew about, what was out of date, why it was out of date, what needed to be done in terms of vetting, whether there was some kind of AI interface that obscured the degree to which that warning should have prevailed upon their decision making, and so on. There are many factors that would need to be analyzed, but my view is that it's not clear cut that this was not a war crime. It would depend on whether the individual who made that decision acted in a context in which they accepted a substantial and unjustifiable risk that this was in fact a civilian object. And I don't think we have enough information to assess that one way or the other. So I definitely don't think it's clear that this was a war crime. I also don't think it's clear-cut that it wasn't. And again, there's this additional separate argument that Gabel Rona has made that the precautionary violation itself could implicate criminal liability, but that's that's relatively uh untested.

SPEAKER_03 41:43

Um Todd or Margaret, do you want to have a last word?

SPEAKER_04 41:47

Yeah, Ryan, if you don't mind, I oh go ahead, Margaret.

SPEAKER_01 41:51

Uh yeah, you can you can go ahead.

SPEAKER_04 41:53

Okay. No, I I you know um the the attitude of of the military when it comes to making targeting decisions, right, is shaped by leadership. It's shaped by the attitudes of our political leaders and our senior military leaders. And if we have senior leaders who are making such broad-based statements like, you know, we're gonna destroy their civilization, we're gonna destroy all their infrastructure, we have the secretary of defense and a president who are willing to uh pardon, you know, convict people who have been convicted of you know committing violations of the law of armed conflict, you know, quashing investigations into questionable behavior. I think that, you're right, and oh, and the secretary's emphasis on lethality, right? That removes some of the safeguards, the systematic safeguards um that that I think you know our military members would would approach these targeting decisions with, um, then I think that's a problem.

SPEAKER_02 43:00

I I I think I sort of agree with both of you, uh, except that I I really I have a hard time seeing this ever being adjudicated as a war crime because I think it's very hard for me to believe that this was intentional. And I think that the lack of discipline that led to the targeting error here, to me, it's going to rise to the same level as what happened in Kandu's Afghanistan. And that lack of intentionality, I think, is going to prevent people from saying that this is a war crime in the same way that, you know, the intentional slaughter of civilians or the murder of Afghan civilians or Milay or anything like that may have amounted to that. Um, I will say that that doesn't mean that there can be no accountability whatsoever. I think if the individuals responsible for transmitting the proper intelligence and the proper mapping of the geographical locations of protected objects onto the battlefield space, if they were reading uniform, they could very well be facing Article 92 of the UCMJ derelection of duty charges later, which are serious criminal charges but are not war crime charges. Where there could be, you know, this sounds really toothless, but it could be significant in terms of people's careers, administrative actions that uh are part of the fallout of this in terms of people not following proper procedures. So even though I have doubts that this would be found to be a war crime once the information comes out, it's not to say that I don't think that there will be some accountability. I hope that there will be some accountability at some point.

SPEAKER_03 44:35

Thanks. Um, thanks uh for the conversation. It really is uh a privilege to have this kind of a meeting of the minds with you all and just to see where our differences are and where our agreements are, and just to give everybody who's listening to this or tuning in the ability to um see how extraordinarily thoughtful and um expert uh individuals think about these issues. So thanks for folks who are listening and tuning in. The episode was hosted by me. Ryan Goodman was produced by uh Daniel Hajanaki, and with help from Poosha Shah, special thanks to our guests, Tom Dannenbaum, Margaret Donovan, and Todd Huntley for joining us. You can listen to this episode wherever you get your podcast or watch it on Just Security's YouTube channel. Additional resources for further reading will be in the show notes, including all the references uh that we discussed today. So thanks for joining us as uh we kind of work through what comes next in the US Iran war.