Several revisions in the amended U.S. Department of Defense’s Law of War Manual address what military objects might be excluded from a strike list, and what investigations should take place post-strike. It is important to understand the language in the Manual that may cause some to believe that the mere presence of a civilian at or near a military object could automatically render a target “exempt” from attack. After examining those issues, let’s consider related, but distinct, issues of no-strike lists and post-strike investigations.
[Although I address proportionality at some length, I do not deal with the question whether certain civilians near military objectives should be considered in the proportionality analysis or the wisdom of adopting a sliding scale of “value” for such persons. These latter two topics have been well covered here, here, here and here.]
At ¶ 188.8.131.52, the amended Manual clarifies that the principle of proportionality requires consideration of expected harm only to civilians and civilian objects and not to “protected military personnel,” that is to say, military personnel who may not be lawfully targeted. The Manual includes in this latter category “military medical personnel, the military wounded and sick, and hospital ships.” Though not noted in this section, this category presumably includes military religious personnel and military personnel placed hors de combat (the definition of “noncombatant” found at ¶ 184.108.40.206 includes these categories of persons). Whether such personnel should be included in the proportionality calculation precisely addresses the discussion in Just Security between Lieutenant Colonel John Merriam and Marty Lederman (here, here, and here).
To illustrate this discussion, the Manual explains that “the expected incidental harm to a sick-bay on a warship would not serve to exempt that warship from being made the object of attack.” (emphasis added). Similarly, several additional passages in the Manual’s revision contain language noting that the presence of certain individuals does “not serve to exempt nearby military objectives from attack.” This includes the presence of “wounded, sick, or shipwrecked” (¶ 220.127.116.11 and ¶18.104.22.168), “military medical units and facilities” (¶ 22.214.171.124), “hospital ships or coastal rescue” (¶126.96.36.199), “medical and religious personnel” (¶188.8.131.52), and “medical units and transports” (¶184.108.40.206).
Read carefully and in context; there is no reason to believe the manual misstates the law. That said, a casual reading of these examples may give the impression that there may be circumstances in which the presence of civilians or protected military personnel would “exempt” an object from attack. That of course would be inaccurate. The presence of civilians or protected military personnel does not automatically “exempt” any object from attack. Instead, the situation would simply require consideration of their presence (or not, in the DoD view with regard to protected military personnel) in the classic proportionality analysis: Is the expected harm to civilians and civilian objects excessive in relation to the concrete and direct military advantage anticipated? Thus the presence of a civilian object or civilians on or near a military objective may render the military objective “exempt” from attack, but not necessarily so.
It is also worth noting the new reference in the amended manual to “no-strike lists” (¶5.10.3). Mention of “no-strike lists” was also made in this recent speech by Jennifer O’Connor, the DoD General Counsel. As detailed in the Chairman of the Joint Chiefs of Staff Instruction, such lists reflect the decision of a commander to restrict or prohibit attacks on certain objects as a matter of international law or as a function of the Rules of Engagement. The Rules of Engagement include policy and military aspects beyond the scope of the Law of Armed Conflict. Thus, for policy or military reasons, commanders may choose to restrict attacks on lawful objects. By way of example, the Joint Publication includes objects such as “agricultural processing and storage facilities” as potential no-strike objects. Inclusion on the no-strike list would have the practical effect of rendering a target exempt from attack. The presence of civilians (or protected military personnel) has no bearing on this determination.
A related policy concept—addressed in the same joint manual—which does address civilians near military objectives is the Collateral Damage Estimation (CDE) Methodology. The CDE is an analytical tool which allows commanders to estimate the risk and extent of collateral damage for a given munition in a given application. For example, using the geographic coordinates of a target, analysts examine satellite imagery and calculate the anticipated collateral damage based on the known blast effects of a particular weapon. The CDE takes into account both civilians and civilian objects. As brief aside, the Joint Publication (at Enclosure D) requires consideration of both civilians and noncombatants in the proportionality calculation. This passage, at least with regards to noncombatants, may be revised in light of the amended Manual. If there is any risk of collateral damage, the CDE Methodology triggers mitigation measures, and other weapon use-restrictions designed to minimize the potential collateral damage. Interestingly, other new sections of the Manual (¶ 5.11) reflect mitigation measures found in the CDE regulation.
The resulting analysis generates a “CDE Level” based on the risk of collateral damage: the greater the risk of collateral damage, the higher the CDE Level. The Rules of Engagement then establish which level commander can approve which CDE Level targets. The higher the probability of collateral damage, the more senior the commander required to approve the attack. The CDE analysis, however, does not replace a legal analysis of proportionality, distinction, and other applicable legal requirements.
The new amendments to the Manual merit discussion on one further related point. Section 220.127.116.11 addresses After-Action Assessments and Investigations. At first glance, this topic in a proportionality chapter may be puzzling given that the proportionality analysis is made with the information available to the commander at the time of the attack. In the context of U.S. targeting practice, however, it makes sense. The U.S. military utilizes a six-step targeting cycle, which includes both target development (including a legal review), capabilities analysis (including the CDE analysis), and target assessment—see here, for a good discussion of the process. The assessment phase considers the efficacy of the action and informs commander’s decisions regarding the nature of future attacks. Thus information from a previous attack might be relevant in the proportionality context to future strikes, particularly with regard to information on previous attacks that inadvertently resulted in civilian casualties or damage to civilian objects; or, under the current CDE guidance, noncombatant casualties. This process may be thought of as a positive feedback loop.
Importantly, the scope of the new language at ¶ 18.104.22.168 goes beyond that found in ¶ 18.4.3, which reflects the well-accepted requirement to investigate alleged law of armed conflict violations. Instead, ¶ 22.214.171.124 encourages investigations of “incidents involving civilian casualties” as well as those “‘close call’ incidents that do not cause civilian casualties but in which post-incident reporting reveals that a high risk of causing such casualties was not fully understood when relevant decisions were made.” Other recent policy documents adopt a similar approach. Section 6 of the Presidential Policy Guidance (PPG) on the Use of Force in Counterterrorism, for example, mandates an after action report that includes “[a] description of any collateral damage that resulted from the operation.” Similarly, Executive Order 13,732 (July 1, 2016) requires appropriate government agencies to “review or investigate incidents involving civilian casualties.” The President’s recent report on the use of force reiterates these directives.
There are many reasons—including relevant law of armed conflict considerations—why senior policy makers would want to know the existence and scope of collateral damage in military actions. Consider, for example, a situation where there is an attack on the enemy’s military headquarters. Assume after the attack is complete, an after-action report indicates involuntary human shields were in the building. Alternatively, perhaps the report identifies issues in the method or means of warfare employed in the attack (e.g., a finding that a particular bomb is less accurate in an urban environment because radio waves from cellphone towers distort the bomb’s guidance system). Findings such as these are directly related to the LOAC analysis for future attacks. For this reason, the drafters of the amended Manual are to be commended for the inclusion of language encouraging the investigation of actions which implicate injury or death of civilians and/or damage or destruction of civilian objects.