Back in June, Oona and I sharply criticized various sections of the DoD Law of War Manual, all of which state or suggest that different categories of civilians, as well as protected (e.g., hors de combat) belligerents, should be excluded from proportionality assessments in various circumstances–in particular, when they “assume the risk” of being in the vicinity of legitimate military objects.
Today, Heather Brandon reports from the ABA SCOLANS conference that Chuck Allen of DoD has said there that the Department is “making changes to the proportionality section of the manual” to provide (at least) that “[a]ll civilians must be counted for proportionality analysis.” Kudos to DoD for being open to making such changes, and following through on it. I hope that the forthcoming amendments also include a change to the statement in Section 18.104.22.168–concerning the principle of distinction–that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects,” and to that section’s rejection of the idea that customary law includes the requirement in AP I Article 50(1) that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian” (as well as the corresponding provision of Article 52(3), establishing a similar presumption in a case of doubt about whether or not an object is dedicated to civilian purposes).
As we noted at the Georgetown Law panel on the Manual, Chuck Allen and his team are genuinely welcoming of thoughtful critiques and suggested amendments–they take them very seriously, as today’s announcement demonstrates. So keep them coming!