In December 2023, the Department of Defense (DOD) quietly released its Instruction on Civilian Harm Mitigation and Response (CHMR DOD-I), which was mandated by Section 936 of the 2019 National Defense Authorization Act (NDAA) in response to nearly two decades of devastating civilian harm from U.S. counterterrorism operations. In the years since this mandate, civil society organizations have consistently engaged with the DOD to provide recommendations for the new policy. Civil society groups largely welcomed the long-awaited release of the CHMR DOD-I, albeit with some caveats, including questions about whether and how the policy applies to U.S. support to Israel amid civilian harm in Gaza or U.S. strikes against Iranian-backed militant groups in the region. The analysis below reviews the strengths and weaknesses of the Pentagon’s new policy, as well as potential implementation challenges.

Mitigating Civilian Harm 

Like the DOD’s 2022 Civilian Harm Mitigation and Response Action Plan (CHMR-AP), which provided a blueprint for overhauling the Pentagon’s civilian protection policies, the fifty-page instruction opens by emphasizing the moral, strategic, and legal imperative of mitigating and responding to civilian harm across the entire spectrum of U.S. military operations. The DOD-I defines civilian harm as “civilian casualties and damage to or destruction of civilian objects…resulting from military operations.” However, other “adverse effects on the civilian population and the personnel, organizations, resources, infrastructure, essential services, and systems on which civilian life depends resulting from military operations” will also be considered  “to the extent practicable” and will exclude what DOD describes as “mere inconveniences.” The definition is noteworthy, as it speaks to the extent to which the U.S. military will consider harms beyond direct deaths and injuries, such as the reverberating effects of harm to civilian objects that are critical to the civilian population’s health and wellbeing.

The policy requires all DOD components to incorporate civilian harm mitigation and response (CHMR) considerations throughout the entire joint planning process and to comply with the law of war requirements laid out in the updated DOD Law of War Manual. The instruction rightly notes that mitigating civilian harm goes beyond mere compliance with the law of war and encourages commanders to “take additional protective measures not required by the law of war as they deem appropriate” (3.2.b), such as considering alternatives to a law of war-compliant attack that still poses risks of civilian harm, issuing higher standards for identifying targets than the law of war requires, and employing weapons systems or munitions that “may help mitigate civilian harm,” among other practices.

Working with Allies and Partners

The new policy guidance includes operations conducted alongside U.S. allies and partners. For example, when U.S. forces operate with or in support of ally and partner forces, the DOD-I instructs DOD components to include CHMR outcomes in the overall mission objectives, facilitate shared awareness of the civilian environment through joint information collection and sharing, and develop shared assessment of and responsibilities for responding to civilian harm.

The Defense Security Cooperation Agency (DSCA), the DOD agency responsible for directing and overseeing security cooperation programs such as training services for and the transfer of defense materiel to allies and partners, is charged with coordinating the integration of CHMR across the “security cooperation enterprise.” In this role, DSCA will work with the Department of State to evaluate allies’ and partners’ willingness and ability to mitigate civilian harm by conducting the “Civilian Harm Baseline Assessments of Allies and Partners” (CBAPs) required by the CHMR-AP. Allies and partners assessed to have met this threshold for receiving security cooperation and assistance must provide pre-transfer assurances documenting their willingness to apply effective CHMR practices, including when using U.S. origin defense articles and services.

The DOD-I requires DSCA to ensure processes for DOD security cooperation programs to monitor allies’ and partners’ ability and willingness to implement CHMR practices. However, it includes no mention of the “tailored conditionality” proposed in the CHMR-AP, namely the setting of “expectations with partners that security cooperation programs can be modified in response to partners’ CHMR outcomes.” Instead, the DOD-I discusses security assistance in a solely additive sense, meaning that the DOD will provide additional capabilities to allies and partners to improve their ability to protect civilians, as opposed to modifying or halting assistance based on poor conduct. While this may be an appropriate approach in cases where forces lack the training or capabilities needed to effectively avoid civilian harm, it is unlikely to address the many other cases in which the problem is one of political will or lack of accountability.

Given the DOD-I’s lack of guidance on conditionality, significant questions remain about how the policy will address U.S. support to Israel amid catastrophic civilian harm in Gaza, for example, as well as how the policy will interact with the DOD’s obligations under the Biden administration’s Conventional Arms Transfer policy, also released in 2023.

Assessing and Investigating Civilian Harm

A joint study conducted by Center for Civilians in Conflict (CIVIC), where this author works, and Columbia University’s Human Rights Institute in 2020 revealed inconsistencies in when and how the U.S. military conducts civilian harm assessments and investigations. The DOD-I seeks to remedy those inconsistencies with a standardized framework for tracking, assessing, and investigating civilian harm resulting from U.S. military operations overseas. Notably, the DOD-I adopts and standardizes across DOD the “more likely than not” standard for determining whether civilian harm resulted from U.S. operations. This standard stipulates that if “civilian casualties or damage to or destruction of civilian objects more likely than not resulted from U.S. military operation,” then the incident will be considered credible and will “enable acknowledgements and other appropriate responses” to the harm inflicted (these assessments and investigations generally are focused on whether and how civilian harm occurred, rather than a legal investigation focused on the laws of war, criminal activity, or other misconduct).

The DOD-I solidifies the CHMR-AP’s instruction to appoint a Civilian Harm Assessment & Investigation Coordinator at operational combatant commands (CCMDs) and details the Coordinator’s responsibility to oversee the assessment and investigation processes, ensure recommendations of assessments and investigations feed back into the CCMD’s learning processes, and ensures deadlines and reporting requirements associated with assessments and investigations are met. It also solidifies the CHMR-AP’s requirement to create civilian harm assessment cells (CHACs) at operational CCMDs to identify, receive, and compile information related to civilian harm and analyze the patterns and trends contributing to civilian harm during operations.

The policy guidance addresses two major problems highlighted by civil society groups in the DOD’s approach to assessments and investigations: (1) the sources considered in assessments and investigations and (2) the DOD’s refusal to re-examine past reports of civilian harm. DOD investigations historically have relied on internal military records and rarely sought information from civil society or from civilian witnesses or survivors of attacks. As a result, a DOD-commissioned RAND study found that “the military’s data and records that support assessments of civilian harm can be incomplete.” The DOD-I addresses this weakness by incorporating the consideration of reports of civilian harm and information related to ongoing assessments and investigations from non-U.S. government sources such as civil society organizations, non-governmental organizations, social media, and local sources.

Reporting by civil society and the media has identified numerous issues with past assessments. For example, investigative reporting by the New York Times identified numerous errors in DOD assessments, such as using inaccurate strike log coordinates to corroborate allegations, misreading town names, and misinterpreting allegations written in Arabic. The new policy states that assessments can be reopened if new information becomes available that could change the assessment’s previous outcome or if other issues arise that cast significant doubt on the accuracy of the previously approved result.  This change raises the possibility that amends may finally be made to past survivors and victims of unacknowledged civilian harm.

Responding to Civilian Harm

The DOD-I’s guidance on responding to civilian harm from U.S. military operations incorporates civil society recommendations for developing an overarching framework for making amends to survivors and victims of civilian harm. With the stated aim of acknowledging harm suffered by civilians, expressing condolences, and helping to address the harm suffered, the DOD-I instructs that civilian harm responses may take the following forms, depending on what is best aligned with U.S. strategy and applicable law, as well as contextually and culturally appropriate:

  • Written or spoken acknowledgements
  • Condolence or ex gratia payments
  • Medical care
  • Repairs to damaged structures or infrastructure
  • Ordinance removal
  • Commemorative events and memorials

As reflected in the CHMR-AP, the DOD-I includes reference to community-level responses, particularly in situations where individual-level responses are not “practicable.” However, the DOD should ensure that community-level responses do not displace individual responses such as ex gratia payments, which consultations with victims and survivors of civilian harm have shown to be a foundational step in seeking justice and healing. Further civilian and community consultation will also be instrumental in understanding what community-level initiatives would be the most appropriate or responsive to civilian survivors’ needs and preferences. For example, following 70 civilian deaths from a Dutch F-16 airstrike on a car bomb factory in Hawija, the Dutch military attempted to provide amends to the wider community given the strike’s significant reverberating effects. Unfortunately, their response ultimately failed to assist the families most harmed by the attack. The infrastructure and employment projects implemented by the United Nations Development Programme and the International Organization for Migration did not reach affected community members who had been displaced, were subject to delays and mismanagement of funds, and did not provide much needed relief from burdensome medical bills, lifelong deformities, or post-traumatic and ongoing emotional distress. While community-level responses can certainly play an important role in response to harm, DOD should ensure intentional and ongoing consultation with the affected community to ensure community needs and preferences are understood and are met by the responses implemented.

Moreover, the DOD-I has maintained the commander’s discretion to determine whether, how, and when to respond to civilian harm. This means that, in the absence of clear guidance from the Pentagon, the provision of amends in cases of civilian harm may be implemented inconsistently. For example, through the NDAA, Congress has allocated $3 million annually for  DOD to make ex gratia payments to civilian survivors and victims of harm, yet the DOD has only reported making one payment since 2020. The DOD should start its implementation of the DOD-I’s commitments by utilizing this funding, including for the many past cases of civilian harm it has already deemed credible.

The DOD-I also requires combatant commands to publish quarterly reports providing information on the status and results of reviews, assessments, and investigations on the combatant command’s unclassified, publicly accessible website. The requirement is one of several efforts in the DOD-I to close the feedback loop between DOD, Congress, the public, and the communities in which the U.S. military operates. However, more work remains to ensure that civilians can easily report harm and receive a timely response to their reports.

The Real Test: Implementation

Ultimately, the new DOD-I will only protect civilians if it is implemented consistently and properly resourced. Both the DOD-I and CHMR-AP lay out next steps for putting the policy into practice. For example, the release of the DOD-I triggers a multi-year process of incorporating CHMR considerations and practices into existing joint doctrine and operational planning procedures. The DOD has begun and will continue recruiting the personnel who will oversee the implementation of those practices, as well as building the organizational infrastructure and expertise necessary for continuous learning, training, and research. Congress should ensure adequate resourcing for and robust oversight of the DOD-I’s implementation.

Notably, the release of the DOD-I comes as the civilian death toll in Gaza surpasses 28,000. This has overshadowed the policy’s unveiling with skepticism about the DOD’s own willingness and ability to implement the instruction. Just two weeks prior to its release, a group of civil society organizations sent a letter to U.S. Secretary of Defense Lloyd Austin, calling for him to live up to the commitments of the CHMR-AP and take substantive action to protect civilians in Gaza. Regarding the aspects of the policy on security cooperation, and the spirit of the DOD-I more broadly, how the Pentagon addresses the catastrophic civilian harm unfolding in Gaza and the continued question of U.S. support represents one critical test of the policy and its underpinnings.

As the United States enters a presidential election year and the country’s involvement in the escalating Middle East conflict deepens, the credibility and potential of the DOD-I and related efforts hang in the balance. DOD officials and the Biden administration must ensure swift implementation of this critical policy in order to protect civilian lives now and in the future.

IMAGE: Men walk along a street ravaged by Israeli bombing in Rafah in the southern Gaza Strip on February 9, 2024, amid the ongoing conflict between Israel and the Palestinian militant group Hamas. (Photo by MOHAMMED ABED/AFP via Getty Images)