We commend Department of Defense General Counsel Jennifer O’Connor for her very important speech at NYU Monday evening—especially for her vivid, detailed account of how the United States implements the laws of armed conflict.  The speech effectively demonstrated the United States’ commitment to comply with that body of international law, which, as she put it, “reflects our core values, the very principles that we are fighting to protect and preserve—in short, it reflects who we are.”

We are especially grateful for O’Connor’s careful discussion of DoD’s understanding of circumstances under which it is permissible to target so-called “war sustaining” objects, such as ISIL’s petroleum reserves and bulk cash-storage sites.  In accord with some suggestions Ryan has offered and that Marty has summarized, O’Connor stressed that such targeting is only permissible when, among other things, the destruction of the target is expected to provide a definite military advantage; that the uniqueness, or irreplaceability, of the resources in question are an important criterion for assessing whether the advantage is “definite” (e.g., “ISIL cannot easily substitute petroleum for other sources of ready fiscal income”); that another important element in the equation is whether the enemy controls the object in question; and, critically, that as the military advantage to be gained from the object’s destruction becomes “less certain, and more remote,” the “less likely [it is that the advantage will] qualify as ‘definite.’”  Although this description may not entirely assuage all concerns about targeting war-sustaining objects, it certainly provides important limiting principles that the U.S. government has not previously articulated.

We were also greatly heartened by O’Connor’s announcement that the Department is amending its Law of War Manual to address concerns that two of us have previously raised (see here and here) about several passages in the Manual suggesting that commanders do not need to assess anticipated harm to certain civilians and other protected persons—such as involuntary human shields, civilians who are knowingly in the proximity of a legitimate military objective (such as workers in a munitions factory), medical and religious personnel, and civilians accompany armed forces—in applying the principle of proportionality.  If those passages in the current Manual are understood as we and others have read them, they plainly do not reflect customary law and could have dire operational and precedential impacts.  The amendments that General Counsel O’Connor announced therefore are very important.

That said, O’Connor’s discussion of the Manual gave us pause about two discrete questions.  The first involves a new idea about the application of the proportionality principle to which O’Connor briefly alluded in her speech–about variable weighing of the lives of different types of civilians–that threatens to undermine the salutary changes in the Manual passages about proportionality.  The other is an important issue respecting the Manual’s discussion of the principle of distinction that O’Connor did not discuss.  We hope DoD will address each of them as it incorporates its latest edits to the Manual.

1. Proportionality.  Section 5.12 of the Manual correctly sets forth the proportionality principle, which is repeated throughout the Manual:  “Combatants must refrain from attacks in which the expected loss of life or injury to civilians, and damage to civilian objects incidental to the attack, would be excessive in relation to the concrete and direct military advantage expected to be gained.”  As General Counsel O’Connor said in her speech, this is a “fundamental principle” of the law of armed conflict, one that “shape[s] and guide[s] every decision our military makes to use force.”

According to O’Connor, the amended Manual will clarify—as it should—that the proportionality principle applies to involuntary human shields and to “civilians who are proximate to military operations, such as workers in a factory that produces military weapons”; moreover, “feasible precautions must be taken to reduce the risk of harm” to such civilians.  This is very welcome news; we are grateful that the Department took our suggestions to heart.  We hope and expect that the Manual will reflect the same principles in its sections involving other protected persons, as well, including medical and religious personnel and civilians accompanying armed forces.

O’Connor then added a qualification, however, that has the potential to be very problematic:  If and when civilians who are proximate to military operations make a “choice to support military operations in or on a military objective”—such as, presumably, by working in a munitions factory, accompanying the enemy armed forces, or acting in a medical or religious role for such forces—that “choice,” said O’Connor, “may be weighed by commanders as a factor in the proportionality analysis.”

We do not know exactly what this qualification means, how it would be applied, or how it might be reflected in the revised Manual.  The statement appears to suggest, however, that if and when civilians or other protected persons “choose” to “support military operations in or on a military objective,” commanders contemplating attacks on legitimate military objectives may discount the value of their lives in the proportionality analysis.

If the Manual were to include any such qualification, we think it would be very troubling, for at least three reasons.

First, there is, as far as we know, no support in customary law (or in the provisions of API that incorporate that customary law) for such a “sliding scale” of civilian valuation in the proportionality analysis.  To be sure, some commentators have floated such a proposal.  Indeed, it sounds as if the idea derives from the following controversial passage in the Bothe, Partsch and Solf commentaries on Additional Protocol I:  “It is . . . doubtful that incidental injury to persons serving the armed forces within a military objective will weigh as heavily in the application of the rule of proportionality as that part of the civilian population which is not so closely linked to military operations.”  The Bothe, Partsch and Solf treatise does not, however, cite any state practice or opinio juris as authority for this notion, and we are not aware of any.  It does not, for example, appear in allies’ law-of-war manuals, as far as we know.  And we do not recall seeing anything like it in any U.S. manual or guide, either.  As for practice, if states had decided to adopt such a rule, presumably there would have been extensive discussions among experts as to how to weigh different civilians’ lives.  Yet there has been no such discussion.

Under well-established law, there is only one basis for “discounting” the value of civilian lives in the proportionality analysis—a finding that they are directly participating in hostilities.  The DPH determination is an either/or proposition.  And in cases where it is determined that a civilian is directly participating in hostilities, any anticipated harm to such persons is not “weighed differently” in the proportionality analysis—it is not weighed at all.  The civilians at issue in the controversial sections of the current Manual, however, are not directly participating in hostilities.  As to such civilians (as well as medical and religious personnel within the armed forces), we are not aware of any basis in the law for weighing their lives any differently than other civilians, even when they choose to assist the military effort.

Second, such a relative-civilian-value scale would undermine the central purpose of the proportionality principle, which is to protect civilians (and other protected persons and objects) in the vicinity of lawful targets unless they are directly participating in hostilities.  The moral value of such persons’ lives does not change because they are in the proximity of a military target, nor because they voluntarily offer support for military operations that falls short of direct participation in hostilities.  And on the other side of the proportionality equation, the direct and concrete military advantage of the potential attack by U.S. forces is not affected by whether or not such protected persons are killed or harmed.

Third, to insist upon such relative valuation of civilians in the proportionality analysis would impose extraordinary operational costs upon military decision-makers.  As one of us has written with respect to Bothe, Partsch and Solf’s idea of “discounting civilian value in a proportionality analysis”:

The standard . . . poses practical difficulties.  By eluding ready quantification, the art of determining proportionality already amounts to one of the most complex and difficult decisions warfighters make.  For instance, what does the term “excessive” means in practice?  How should one compare two disparate values—“incidential loss of civilian life, injury to civilians, damage to civilian objects” and “concrete and direct military advantage”?  Proportionality assessments depend as much on instinct as calculation.  Suggesting that certain civilians should count less than others would only render a sibylline determination more so.

The Manual should not invite such confusion and uncertainty.

2. Distinction.  In her speech, General Counsel O’Connor did not address another very important error in the Manual that Marty flagged earlier, regarding the principle of distinction.  Section of the current version of the Manual states that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects.”  That section also expressly denies 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).

Even if one concedes, as almost all serious authorities and commentators do, that customary law does not require a presumption of civilian status whenever there is any doubt whatsoever (e.g., even when the commander is 95 percent certain that the person or object is a legitimate military target), the claim that there is no legal presumption of civilian status is clearly mistaken.  (We should stress here that applying a presumption of civilian status in the ex ante assessment for use of force does not imply that such a presumption would be appropriate with respect to the prosecution’s burden of proof in a hypothetical criminal case alleging an attack on a civilian target.)

The Department should amend the Manual to more accurately reflect customary law concerning how to treat individuals in cases of doubt about their status.  To be sure, it might be difficult to articulate precisely how much doubt is too much doubt to permit the use of force; even so, the Manual should, at a minimum, acknowledge that there is a “legal presumption of civilian status” when the commanding officer has little or no reason to think that a person is part of enemy forces (or a civilian directly participating in hostilities), where the preponderance of evidence points to civilian status, or where the officer is not fairly confident that the person is a lawful target.  We are confident such an amendment would reflect, not contradict, longstanding DoD practices. The recent DoD report on the 2015 airstrike of the Médicins Sans Frontières (MSF) hospital in Kunduz, Afghanistan, for example, explained that until the MSF Trauma Center was confirmed as a lawful target “it should have been presumed to be a civilian compound.”

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Once again, we deeply appreciate General Counsel O’Connor’s attention to these important issues.  Notwithstanding the concerns we’ve raised, we are very grateful for her decision to speak in such detail on difficult and contentious legal questions, for the Department’s manifest desire to grapple with outside critiques and concerns, and for its receptiveness to our earlier feedback on the Manual.