Penn Law Review hosted a panel with Yale Law School professor Oona Hathaway and New York Times reporter Azmat Khan discussing their upcoming Law Review article titled "'Mistakes' in War."
Penn Carey Law professor Jean Galbraith served as moderator for the event, which took place in the Fitts Auditorium on Sept. 24 with around 100 students in attendance. Hathaway is an international law professor who has served in the United States Department of Defense, while Khan is a Pulitzer-Prize winning investigative journalist and Columbia University Graduate School of Journalism professor.
Their forthcoming article examines the legalities that surround unintentionally killing civilians, focusing on American airstrikes that resulted in mass civilian deaths in the Middle East. Hathaway clarified that using the term “mistakes” is not meant to absolve those involved from responsibility. Rather, “mistakes” refer to an identifiable pattern of systemic failures.
“[Khan and I] are not trying to minimize the harm that takes place,” Hathaway said. “In fact, quite the opposite. What we’re trying to do is show that when you call something a mistake, even if you’re not legally responsible, that you may nonetheless be culpable and certainly morally responsible.”
Hathaway argued that the U.S. military purposefully ignored or did not accurately collect facts in order to justify its airstrikes, and that a disproportionate amount of civilians were injured or killed as a result.
“If you are intentionally collecting poor information, you may not expect many civilians to be there,” Hathaway said. “There’s an incentive not to know, because if you know the civilians are there, you may not be able to take the strike.”
The article was based on Khan’s ground reporting with the New York Times in Iraq, Syria and Afghanistan over multiple years, collecting public records of airstrikes and speaking to the families of victims. A series of articles published in 2021 revealed previously unreported civilian deaths resulting from "patterns of failure" in U.S.-led airstrikes, including flawed intelligence and misidentification of civilians. Khan won the 2022 Pulitzer Prize in international reporting for the investigation.
Khan, who joined through Zoom while reporting from the West Bank, spoke about the differences between civilian deaths reported by the military and reality.
“I was seeing front-page headlines that essentially said...the air war against ISIS has killed [about] 25,000 ISIS fighters,” Khan said. “And at the same time, the U.S coalition was stating... one in every 157 strikes resulted in a civilian death.”
During the event, Hathaway outlined the common mistakes in U.S. counterterrorism campaigns that violated the three basic principles of international humanitarian law: distinction, proportionality, and caution. For example, Hathaway said that the military often would inaccurately identify civilians as combatants.
“The fact you’re a person carrying a weapon in a conflict area is sometimes treated as a sufficient basis for assuming you’re a combatant,” Hathaway said. “But in areas that are heavily militarized, ordinary civilians are often carrying around weapons to protect themselves and their family.”
Khan emphasized the need for improved investigative processes for accountability against repeated, avoidable failures.
“There’s a failure to acknowledge the fact that there is a legal responsibility,” Khan said. “Part of what was so irritating for me again and again is ...this thought that calling it a mistake somehow absolves those involved of any kind of responsibility for what they’ve done.”
Similarly, Hathaway spoke about how systemic reforms, including clearer legal standards for recklessness, are critical in order to hold those involved accountable.
“The proposal [we have] is that we update the concept of proportionality to include an obligation to assess proportionality in light of prior performance,” Hathaway said. “[If] the actual harm that's taking place in your strikes is well above what you say you expected, maybe the margin of error you should be allowed in the future should be lower."
Hathaway and Khan's article will be published in the Penn Law Review's next issue. Kristina Kotyza, a third year law student and development editor of the Law Review, said that the publication received over 2,000 submissions for this round. A select number of authors were then invited to speak to law students at Penn.
"It's a very timely topic, given October 7 and the Israel-Hamas war too," Kotyza said. "It is a very unique opportunity to publish an article where there is a collaboration with a journalist.”
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