Here’s What the New DoD Policy on Civilian Harm Should Include

For the first time in two decades of post-9/11 wars that have cost countless civilian lives, the U.S. military is finally developing a uniform policy for minimizing and responding to civilian harm in conflict. The forthcoming DOD Instruction (DOD-I) on Minimizing and Responding to Civilian Harm in Military Operations is the Pentagon’s response to a congressional requirement in the FY 2019 National Defense Authorization Act. The policy, expected by the end of this year, presents a welcome opportunity for the United States to strengthen and systematize efforts to improve outcomes for civilians caught in the crossfire of armed conflict. As colleagues outlined yesterday in a Just Security analysis of the DOD’s latest annual report on civilian casualties, the department has made some progress in transparency; however, a significant revision of policy and procedures is necessary to improve outcomes for civilians on the ground.

Over the last year and a half, the Center for Civilians in Conflict (CIVIC) and 11 other humanitarian and human rights NGOs, part of a coalition convened by InterAction, have developed a series of concrete recommendations for what DOD must include in the impending policy in order to better safeguard civilian lives in U.S. military operations and security partnerships. Our recommendations tackle the tracking and investigation of civilian casualty incidents; processes for addressing harm caused, including ex-gratia payments; the protection of civilian objects, including critical infrastructure; civilian harm in U.S. partnered operations; protection from and during displacement; and more proactive and transparent DOD engagement with civil society on civilian harm concerns.

This article highlights our overarching expectations and some of our key recommendations for the forthcoming policy.

Baseline Requirements

First and foremost, the Defense Department must explicitly articulate that minimizing and responding to civilian harm caused by U.S. military operations is a legal, moral, and strategic priority. Beyond a simple statement of intent, this requires integrating considerations related to the protection of civilians across the range of military operations: from planning, training, and intelligence preparation; through targeting and execution of operations; to post-harm response and lessons-learned processes. It also requires candidly assessing necessary resources and staffing for implementing the policy, clearly delegating roles and responsibilities across the department, and ensuring standardization is balanced with some flexibility to pioneer new approaches. Lastly, the instruction must continually emphasize the value of proactively engaging with external actors on civilian harm issues – including, most importantly, listening to affected civilian communities.

The development of the instruction also presents a unique opportunity to standardize and systematically implement good practice that has emerged in specific theaters – for example, civilian harm tracking and response – and raise the bar on issues that have traditionally been under-represented in U.S. policy, such as the risks of civilian harm in partnered operations, protection of civilian structures, and forced displacement. These are discussed in detail below.

Replicating Good Practice 

While the U.S. military has developed some good practices to track, assess, and respond to civilian harm, these have tended to be ad-hoc and operation-specific, seldom replicated in other theaters. In Afghanistan, for example, the U.S.-led International Security Assistance Force (ISAF) established in 2011 a Civilian Casualty Mitigation Team (CCMT) responsible for implementing civilian protection practices across the cycle of operations, from civilian harm prevention and mitigation measures, to tracking, investigating, and responding to harm, to learning from that harm and adopting effective measures to minimize civilian casualties in the future. The CCMT also liaised directly with United Nations agencies and civil society organizations; facilitated the receipt of civilian harm reports from civilian communities, including through site visits and interviews; and documented and institutionalized best practices in the protection of civilians.

At the same time, a fully staffed CCMT was not established until nearly 10 years into the conflict, and was not maintained under Resolute Support, ISAF’s successor mission. The new DOD instruction should standardize such good practices throughout a mission’s life cycle with steps including:

  • Explicitly stating the purpose and value of civilian harm tracking, assessments, and investigations;
  • Requiring the establishment of civilian casualty “cells” and ensuring that they are adequately resourced and staffed with technical expertise;
  • Facilitating the receipt of external information on civilian harm incidents, including through civilian complaints mechanisms;
  • Ensuring that witness interviews and direct engagement with survivors and witnesses are part of civilian casualty assessments and investigations, and establishing parameters for when site visits should be conducted;
  • Disclosing the status and results of assessments and investigations to victims and the public, in real time and in local languages; and
  • Ensuring that civilian casualty tracking and assessments feed into lessons-learned processes during and after operations, and that lessons are widely disseminated.

The DOD instruction can similarly introduce much-needed consistency and clarity to DOD policy on post-harm amends, including acknowledgment of harm and the provision of ex-gratia payments. While the United States regularly provided ex-gratia payments to civilian victims of U.S. operations in Afghanistan, such payments have been rare in Iraq and Syria, despite repeated and expanded authorization for them by Congress and the recent expansion of the authority to cover multinational coalition operations.

While amends processes must be culturally appropriate and locally sensitive, the new DOD instruction should establish acknowledgement of harm as a baseline requirement, whether it is done in private, with victims’ families, at the community level, or publicly. The instruction should also establish guidance for the use of other forms of amends by laying out a range of contextually-appropriate condolence options, including but not limited to financial remuneration, and developing administrative mechanisms to facilitate amends processes, such as means for claimants to initiate and track cases, and procedures for the U.S. military to investigate and act on those claims. (In the interim, we hope many of these inconsistencies will be addressed in the forthcoming DOD-wide regulation to implement the expanded funding authority, noted in the department’s recently published annual report on civilian casualties.)

Filling Gaps for Partnered Operations, Civilian Property, and Displacement

Beyond standardizing good practice, the DOD instruction can and should set a higher bar for addressing civilian harm risks that have traditionally been under-represented in U.S. military policies. For example, no comprehensive policy exists to mitigate the wide range of civilian harm risks that arise through U.S. partnered operations, including train and equip programs; advise, assist, and accompany missions; and fully combined and coalition operations.

Our recommendations identified a number of measures the policy could lay out to reduce the risk of civilian harm through partnered operations, such as:

  • Comprehensive assessments of partners’ capacities to prevent and minimize harm to civilians;
  • Conditioning assistance and undertaking periodic reviews of all partnerships to ensure the continued prioritization of concrete measures to minimize civilian harm;
  • Working with partner governments to develop national policies and procedures on the protection of civilians; and
  • Ensuring interoperability of procedures to minimize and respond to civilian harm during combined operations, including joint training and clarity around processes for tracking and investigating harm.

With many of our organizations intimately familiar with the wartime devastation of urban environments, seen recently in places like Mosul and Raqqa, our recommendations also emphasized the importance of safeguarding civilian property, public services, and infrastructure during hostilities and minimizing the second- and third-order, or “knock-on,” effects that arise from their damage or destruction. Knock-on effects can include loss of essential services, disease outbreaks or other public health concerns, loss of livelihoods, food insecurity, displacement, trauma, and other mental-health impacts.

To minimize civilian harm, the DOD-I should therefore anticipate risks to civilian objects across the targeting cycle by:

  • Developing processes to consistently analyze the value and significance of civilian objects in relation to civilian life;
  • Evaluating and integrating potential knock-on effects during military planning and intelligence preparation;
  • Anticipating and avoiding harm resulting from the damage or destruction of civilian objects during target development; and
  • Assessing and learning from observed knock-on effects.

Finally, U.S. military and partnered operations have contributed significantly to the displacement of civilian populations. Displaced civilians are subject to extraordinary risk, including dangerous evacuations and exit routes, the lack of access to emergency medical care or a safe destination to flee to, gender-based violence and other abuses in transit, loss of personal property and livelihoods, and other long-term impacts leading to protracted displacement and human suffering. A comprehensive Defense Department policy on civilian harm must incorporate measures to ensure protection from and during displacement by:

  • Incorporating guidance for avoiding forced displacement while ensuring safety and protection for voluntary civilian movements, and minimizing harm across the displacement cycle;
  • Requiring robust engagement with civilian populations and humanitarian and human rights organizations to better avoid forced displacement and protect civilians during displacement; and
  • Incorporating information about displacement in post-facto assessments of civilian harm and lessons-learned processes.

It is well past time that the U.S. government had a comprehensive policy on civilian harm applicable to a range of contingencies and operations. The policy should not only standardize good practice, but also explicitly set the bar where it belongs: a proactive and strategic posture to safeguard civilian life from the effects of U.S. military operations. Successful implementation of the policy will in turn depend on strong technical guidance and the sustained commitment of civilian and uniformed leadership at the Pentagon.

IMAGE: Afghan men gather near the road as a military convoy by soldiers from the 1st Platoon, 1-64 Armoured Batallion, US Army – operating under NATO – roll-past security patrols at Morghan-Kecha village in Daman district, Kandahar on September 6, 2012.  (Photo by TONY KARUMBA/AFP/GettyImages)

 

About the Author(s)

Annie Shiel

Senior Advisor for U.S. Policy & Advocacy, Center for Civilians in Conflict (CIVIC). Research Program Manager, Stanford University. Follow her on Twitter (@annieshiel).

Archibald Henry

Policy Coordinator, InterAction. Follow him on Twitter (@ArchieSHenry)