The United States Department of Defense’s (DOD) Civilian Harm Mitigation and Response Action Plan (CHMR-AP), released in August, ambitiously attempts to reform efforts to prevent, mitigate, and respond to civilian harm in U.S. military operations. Sec. of Defense Lloyd J. Austin III mandated the CHMR-AP in January 2022. It directs the DOD to incorporate civilian harm guidance into strategy, doctrine, plans, and training; address the risk of misidentification and cognitive bias in targeting; improves and standardizes investigations into civilian harm; establishes a comprehensive framework for responding to allegations of civilian harm; addresses civilian harm risks in partnered operations and security cooperation; and creates dedicated positions for civilian harm mitigation and response across the DOD.
The Action Plan is considered a serious response to civil society calls for urgent reforms “after more than 20 years of repeated civilian harm without meaningful accountability, learning, or policy change.” Among others, CIVIC commended the DOD “for the level of ambition that is evident in this unprecedented action plan” and the opportunities it offers “to address longstanding structural flaws in U.S. policy and practice, prevent future harm, and provide civilians harmed by U.S. operations with the recognition and response they deserve.” But as much as the release of the Action Plan shines a light on U.S. policy and practice in preventing and mitigating civilian harm, it’s also an important reminder of the need for the armed forces of other states, including key U.S. allies, to come clean regarding their own efforts to protect civilians.
Canada and the Protection of Civilians
Canada is one such state. As I’ve written previously, Canada is widely recognized, historically at least, as a forceful advocate for the protection of civilians in armed conflict. In 1999, Canada, as president of the U.N. Security Council, was instrumental in establishing the protection of civilians as a thematic item on the Council’s agenda. Canada also led the drafting and adoption of the first Council resolution on the protection of civilians in September 1999. This set in motion the adoption of further resolutions on this theme, as well as wide-ranging initiatives within and outside the Council to promote and strengthen the protection of civilians that continue to this day. But as important as these efforts have been, Canada’s approach to the protection of civilians is primarily outward facing. Its focus consistently promotes and ensures the protection of civilians by others: by other states and parties to conflict. Far less attention is paid to how the Canadian Armed Forces (CAF) prevent and mitigate civilian harm from their own actions.
This is not to say that Canada has done nothing to protect civilians from the actions of its own armed forces. Canada has ratified the key international humanitarian and human rights law treaties and is a party to the Statute of the International Criminal Court. It was the first country to incorporate the Statute’s obligations into its national law through the Crimes Against Humanity and War Crimes Act, under which CAF personnel can be prosecuted for these crimes. Canada has also endorsed international political declarations relevant to the protection of civilians in the conduct of military operations, such as the Safe Schools Declaration. Moreover, the importance of compliance with the Law of Armed Conflict is firmly embedded in CAF doctrine and training.
What remains unclear, however, is how these legal, doctrinal, training, and other commitments are incorporated into military operations in practice. How are they followed on the ground, in the heat of battle? There’s an 11-rule Code of Conduct for Canadian Forces Personnel – described as a “simple and understandable list of rules” that “quickly points to the right choice of conduct when a soldier is faced with an unusual or doubtful situation” and “helps to ensure that split-second decisions are consistent with the [Law of Armed Conflict] and Canadian law.” But beyond the Code of Conduct, what policies, processes, and tools exist at the operational and tactical levels to ensure implementation of the law and support the protection of civilians in the conduct of CAF operations?
The Need for Transparency
Answering this question is not straightforward. Unlike the U.S. DOD and branches of the U.S. armed forces, which seem relatively transparent in posting doctrine and policy online, there is a dearth of publicly available information on the guidance, policies, processes or tools which may exist to support the implementation of IHL and the protection of civilians during the CAF’s military operations.
For example, it is unclear whether and to what extent the protection of civilians is prioritized in operational planning. It is unclear to what extent the protection of civilians is reflected in CAF targeting doctrine (which is classified, unlike U.S. and NATO doctrines) and what sort of methodology exists within the CAF to assess and reduce anticipated collateral damage during the planning of attacks. It is also unclear what steps are taken by the CAF after an attack to assess possible civilian casualties and damage to civilian objects and whether the CAF has established capacity to track, receive, understand, and learn from such incidents. Earlier this year on Just Security, I drew attention to Canada’s troubling lack of transparency with regard to the domestic and international legal and policy frameworks that would apply to Canada’s future use of armed drones.
The author’s repeated efforts to engage the Judge Advocate General’s office on these questions have not resulted in any substantive response. This could indicate that guidance and policy on these issues is classified. Or, it could mean that it does not exist. A study last year on the implementation of NATO’s 2016 Policy for the Protection of Civilians revealed that Canada was among a number of NATO members that did not have explicit policies, guidance, and doctrine on the protection of civilians – indicative of a broader problem regarding the lack of clarity about how the NATO protection policy connects with different understandings and approaches to the protection of civilians of individual NATO member states.
Why Transparency Matters
Greater transparency from the CAF concerning policies to prevent, mitigate, and respond to civilian harm is crucial for a number of reasons.
First, as indicated, the lack of transparency could suggest that guidance and policies on or relevant to the protection of civilians do not actually exist. If that is the case, this gap urgently needs to be rectified.
Second, if such guidance and policy does indeed exist, it is important to ask whether it is appropriate for contemporary conflicts, such as hostilities in densely populated urban settings. Is the guidance sufficiently comprehensive in scope, addressing the prevention and mitigation of civilian harm and responses to harm when they occur? And is it effective for ensuring the implementation of IHL or for protecting civilians to a standard that exceeds IHL–which is, after all, a minimum standard?
Understanding how the CAF works to protect civilians today and in the future also matters because of past allegations of civilian harm leveled against the CAF (for example, here, here); and concerns over the extent to which the CAF has properly investigated and responded to such allegations (for example, here, here). In 2019, widespread allegations of civilian harm in Afghanistan, Iraq, and Syria– where the CAF was operational along with the armed forces of other states – prompted the United Nations Secretary-General to question the ability of the armed forces operating in these contexts to properly anticipate, mitigate, understand, and learn from the impact of their operations on civilian populations. Several years later, it’s important to ask and understand what the CAF has learned from those experiences and what steps have been taken to improve their handling and response to incidents of civilian harm.
After all, the CAF will engage in armed conflicts in the future. Moreover, these conflicts will likely involve military operations in urban areas where the risks to civilians and the infrastructure on which they depend are particularly pronounced – again underscoring the need to ensure that the CAF’s policies, guidance and processes for preventing, mitigating, and responding to civilian harm are up to the task. Canada’s current defense policy Strong, Secure, Engaged, issued in 2017, envisages a future combat role for the CAF to deter, detect, and defend against threats to, or attacks on, Canada and North America, as well as to support global stability by leading or contributing forces to NATO and coalition efforts “to deter and defeat adversaries.” It also envisages expanding the operational capacity and investing in the capabilities of Canadian Special Operations Forces and investing in armed drones capable of conducting precision strikes. The defense policy is much less forthcoming on the protection of civilians. It provides for enhancing the CAF’s joint intelligence, surveillance, and reconnaissance capabilities, rightly noting that reliable intelligence is crucial to effective targeting and minimizing collateral damage and civilian casualties. Beyond this, however, the policy states only in passing that in all cases, “CAF activities will comply with domestic and international law.” But what policies and processes exist to ensure that they do – and how is accountability ensured when they don’t?
More open discussion and consideration of the CAF approach to protecting civilians is also pertinent in the light of the government’s decision in April 2022 to increase defense spending by $8 billion Canadian dollars (roughly $5.8 billion USD) over five years, even if the specific details of where the additional funding will be allocated remain unclear. The increase was prompted by Russia’s invasion of Ukraine which, according to Deputy Prime Minister Freedland, served as a reminder that Canada’s “own peaceful democracy … depends ultimately on the defense of hard power.” The proposed budget increase would provide “the fiscal and the physical firepower we need to meet any threat that may rise to confront us.” The use of physical fire power to defend hard power cannot come at the expense of ensuring compliance with IHL and the protection of civilians. Increases in defense spending should be matched with commitments to greater transparency about existing approaches to the protection of civilians.
Following the U.S. Lead
The U.S. DOD has set important precedents concerning the prevention and mitigation of civilian harm. The CHMR-AP is the latest in a line of DOD, Congressional, and other initiatives intended to strengthen the capacity of U.S. armed forces to protect civilians. It will inform the completion of a DOD Instruction (DODI) on Civilian Harm Mitigation and Response that was initially ordered in January 2020. The CHMR-AP also includes provisions that will have a direct bearing on the CAF when they are involved in U.S.-led operations. According to CHMR-AP Objective 10, such operations will involve the application of CHMR policies and practices and U.S. allies and partners “will be encouraged and supported to do the same.”
The CHMR-AP reflects the U.S. military’s understanding that it is always possible to improve. As the U.S. Defense Chief noted in January 2022: “DOD has built a strong foundation of compliance with the law of armed conflict. We strive diligently to minimize the harm that armed conflict visits upon civilian populations, but we can and will improve upon our efforts to protect civilians.” The need to improve on efforts to protect civilians should resonate as much with the CAF as it does with the U.S. armed forces. It’s time the CAF and Canada’s Department of National Defense followed the U.S. lead, beginning with greater transparency and discussion about what does and does not exist in terms of policies, guidance, and tools for preventing, mitigating, and responding to harm in CAF operations.