Preventing and Responding to Civilian Casualties: An Upcoming Discussion on Law, Policy, and Progress

Civilian casualties are inevitable in armed conflict. Nonetheless, international law requires armed forces to distinguish between civilians and lawful military objectives, and prohibits attacks that are expected to result in excessive damage, injury, or loss of civilian life in relation to the anticipated military advantage. U.S. domestic law and policy supports this framework, and continues to grow. For example, the National Defense Authorization Act (NDAA) for Fiscal Year 2018 increased DoD’s civilian casualty reporting requirements, while the FY2019 NDAA required the designation of a senior DoD civilian to oversee the department’s civilian casualty policies. More recently, the Army and Marine Corps replaced the 1956 Law of Land Warfare Field Manual (FM 27-10), with the Commander’s Handbook on the Law of Land Warfare, described as a “tool to help guide land forces in conducting disciplined military operations in accordance with the Law of Armed Conflict (LOAC),” including provisions on the law of civilian protection.

Questions remain, however, whether this legal and policy framework is sufficient to prevent incidents such as the U.S. airstrike that killed 42 at a Medecins sans Frontieres clinic in Kunduz, Afghanistan in 2015, the targeting of ISIS snipers in Mosul, Iraq that resulted in more than 100 civilian casualties in 2017, or the Saudi-led (and U.S. supported) coalition strike in Yemen that killed 51 people including 40 children in August 2018. Moreover, a recently released report by the Center for Civilians in Conflict (CIVIC) and the Columbia Law School Human Right Institute suggests that U.S. efforts to effectively investigate civilian deaths in its operations often fall short.

On Friday, March 13, 2020, these questions and more will be addressed by leading experts in government, military, civil society, and academia at the symposium, Civilian Casualties: The Law of Prevention and Response, at the American Red Cross National Headquarters in Washington, D.C. This day-long event is a part of the American Society of International Law’s Signature Topic, Atrocity Prevention: The Role of International Law and Justice, and is co-sponsored by ASIL, the Lieber Society for the Law of Armed Conflict, the American Red Cross, the Stockton Center for International Law at the U.S. Naval War College, and the International Committee of the Red Cross.

The objective of the Signature Topic initiative is to concentrate attention on especially important areas or developments in the field of international law, and to address those areas or developments with broader communities. This symposium is intended to promote this objective and will focus on a specific subset of atrocities—war crimes.

More specifically, the intent is to advance discourse on the law and policies related to civilian casualties in armed conflict. The day is highlighted by two keynote speakers: Lieutenant General Charles N. Pede, The Judge Advocate General, U.S. Army, and Daniel Mahanty, Director, Center for Civilians in Conflict (CIVIC), U.S. Program. Four expert panels will also grapple with the following topics: civilian casualty prevention measures in urban warfare and near peer conflict, civilian casualty response measures (reports, investigations, and accountability), leveraging emerging technologies for prevention and investigation of civilian casualty incidents, and the role of legal and non-governmental actors to advise leaders and shape operations.

Although civilian harm in conflict is inevitable, combatants bear the responsibility to take appropriate prevention and response measures. In armed conflict, the commander’s legitimate need to accomplish the mission, taking measures out of military necessity, must be balanced with the principles of humanity. This is not an easy balancing act, and, in the fog of war, it is far easier to confuse appropriate action with ill intent. Hopefully, the discussion on March 13th in Washington will bring these issues to light and provide motivation for further study and action by all participants. Interested participants may register here until March 11, 2020.

Image: SANA’A, YEMEN – JULY 07: A Yemeni girl walks on rubble of a building destroyed in an airstrike carried out by the Saudi-led coalition, at the Old City of Sana’a, on July 07, 2019 in Sana’a, Yemen. (Photo by Mohammed Hamoud/Getty Images)

 

About the Author(s)

Keith Petty

Major in the U.S. Army Judge Advocate General’s Corps, currently serving as Legal Liaison Officer for U.S. Army Europe at the U.S. Embassy, Berlin. Keith writes in his personal capacity and his views do not necessarily reflect the official policy or position of the U.S. Army, Department of Defense, or U.S. Government. Follow him on Twitter (@Petty_KeithA).