Civilian Casualty Aversion and the Potential Nullification of “Shock”
In recent years, there has been a growing critical focus on the infliction of civilian casualties during hostilities, especially during counter-insurgency operations. But U.S. and NATO armed forces are not myopically focused on this domain of operations. Indeed, they are now substantially focused on preparing for high-intensity near-peer or peer to peer combat. If this unfortunate risk comes to fruition, commanders will have to contend with the legally, operationally, and morally difficult question of where the right balance between military necessity and humanitarian constraints lies. In particular, they will face the question of how to balance the operational challenge of seizing and retaining the initiative and dictating the terms of battle utilizing the full range of combat power entrusted to them with the humanitarian imperative of mitigating, to the extent feasible, the risk of civilian suffering. This post looks at the specific operational concept of shock and how it fits into this equation.
U.S. and other NATO commanders are pivoting from nearly two decades of counter-insurgency operations (COIN) to what NATO characterizes as “Maximum Level of Effort,” or MLE operations. This pivot is driven by a perceived need to enhance capabilities to engage in a near-peer or peer to peer conflict. NATO nations bordering or close to Russia do not consider this risk fanciful, and the alliance seems to slowly be coming to terms with the reality that “what is old is new again,” and that NATO must be capable and ready to respond to Russian aggression against member States.
But no one should think that NATO need only dust off Airland Battle doctrine and have its leaders freshen up by reading Red Storm Rising; while the source of the threat may be “old becoming new again,” the nature of it is anything but. Were the concerns over a peer to peer conflict to unfortunately become reality, the enemy NATO will face will be nothing like the predictable and largely conventional enemy that loomed on the eastern side of the Iron Curtain previously. Instead, NATO is preparing to be challenged in every conceivable domain by a much more cunning threat than it faced three decades ago: an enemy that will seek to exploit every vulnerability to cultivate seeds of division among the allies and sow discontent among the respective member States’ populations and their governments.
There can be little doubt, however, that NATO forces must be prepared to meet and defeat a robust (and increasingly experienced) conventional military threat. In so doing, NATO forces will inevitably engage in high-intensity combined arms maneuver warfare, with commanders at all levels employing types and quantities of combat power that will seem shocking to a public and political class that has become used to the far more restrained combat operations associated with counter-insurgency. But shock, albeit directed at a different recipient, will actually be one of the principal reasons why these commanders fully leverage the immense destructive power their forces are entrusted with. That different recipient will be the enemy.
Shock is one of the objectives of effective offensive operations. It is often a desired outcome of principles of effective military operations such as offensive, mass, and surprise. When properly executed, offensive operations will produce a shock effect on the enemy, both physical and psychological. As the U.K. Army Field Manual for Land Warfare explains,
The Manoeuvrist Approach is the Army’s fighting doctrine for the tactical level. It determines the way we fight enemies across the different types of operation, and because fighting can have extremely significant consequences, it is set in the broader context of the audience and Integrated Action. It is an indirect approach which emphasises effects on the will of the enemy. It blends lethal and nonlethal actions to achieve objectives which shape the enemy’s understanding, undermine their will and break their cohesion. It aims to apply strength against vulnerabilities. Significant features are momentum, tempo and agility, which in combination lead to shock and surprise. It entails doing the unexpected, using initiative and seeking originality, combined with a relentless determination to succeed. [emphasis added]
Shock is referenced multiple times throughout this Field Manual. Importantly, it emphasizes how shock is achieved and its intended outcome:
The tools of seizing the initiative, shaping understanding and attacking will and cohesion are means to an end. By holding the initiative and operating at higher tempo than the enemy, we aim to impose multiple, simultaneous dilemmas, forcing the enemy to make decisions favourable to us or, when necessary, to induce shock and so render the enemy incapable of rational decision making. The classic physiological and psychological symptoms of shock are numbness and irrational behaviour, preventing the enemy from responding effectively to a developing situation. It is most debilitating when the full range of the force’s capabilities, lethal and non-lethal, is applied against enemy vulnerabilities. As an effect, shock is both unpredictable and temporary, so its effects must be rapidly exploited before the enemy can respond effectively.
Setting the tempo of battle and compelling an enemy to conduct operations in an inherently responsive mode as the result of seizing and exploiting initiative can often be the decisive element in battlefield success. History is replete with numerically inferior forces achieving remarkable outcomes by leveraging these aspects of effective military operations. Shock, as noted above, is central to achieving these outcomes.
Shock is also consistent with time-tested principles of operations, such as mass, surprise, and economy of force. Indeed, the art of battle command involves synchronizing finite combat assets consistently with these principles. Doing so will ideally produce outcomes fully consistent with the basic law of armed conflict principle of military necessity, which justifies all measures not otherwise forbidden by international law necessary to bring about the prompt submission of the enemy as efficiently as possible.
The prospect of peer to peer engagements involving combined arms maneuver undoubtedly has commanders planning and training to employ their assets to achieve the efficient defeat of highly capable and lethal opponents as efficiently as possible. For NATO forces, a key aspect of such operations will be the employment of a wide array of lethal and destructive combat power, to include the use of what some humanitarian focused critics have labelled “wide area effects” weapons, what commanders would simply characterize as fire-support assets.
Employing the full range of combat capabilities in such a conflict will inevitably produce a level of destruction on an order of magnitude different from that associated with COIN operations. Were it reasonable to expect that the outcome of that destruction would be confined to belligerents and their assets, it would be equally reasonable to expect little in the way of humanitarian based objections to such tactics. But it is almost certain that should such conflict occur, its destructive effects will not be so confined. Instead, civilians and civilian property will be adversely impacted by the conduct of hostilities to an extent NATO forces have (thankfully) never experienced.
This expectation of widespread death and injury to civilians and destruction to civilian property has injected substantial complexity into the potential scope of tactical and operational authority to employ combat resources to produce the shock so central to achieving battlefield success. Because of what seems to be an ever-increasing aversion to civilian casualties—or CIVCAS—commanders are now grappling with questions of whether a legal framework intended to strike a rational balance between military necessity and humanitarian constraint will tilt so heavily in favor of civilian protection that it will nullify the opportunity to achieve mission accomplishment.
Military necessity is certainly not a license to inflict death or injury to civilians or destruction to civilian property. Inherent in the concept of military necessity is the limitation that necessity never justifies measures that violate other provisions of international law (“Military necessity does not justify actions that are prohibited by the law of war.” DOD Law of War Manual 188.8.131.52). In this sense, it is erroneous to view military necessity as a “trump card,” or a reflection that “all is fair in war.” Perhaps so in love, but in war States have decided through the formation of international law that certain measures are unlawful and therefore not necessary under any circumstance.
Where civilian casualties fit into this equation is in some ways quite simple and in others quite complex. At the simplest level, the principle of distinction—labelled The Basic Rule by the 1977 Additional Protocol I to the four Geneva Conventions of 1949 (perhaps the most significant enumeration of rules related to the conduct of hostilities)—categorically prohibits making civilians or civilian property the object of attack. This means that under no circumstances can it ever be claimed as necessary to deliberately attack civilians or civilian property. Of course, engaging in such deliberate attacks could not be reconciled with time-tested principles of military operations because it would amount to focusing attack effects on targets other than the enemy.
What is far more complicated is the permissibility of inflicting CIVCAS as an incidental or collateral consequence of an attack directed against a permissible enemy target, what the law labels a “military objective.” With the exception of the increasingly rare situation of a force on force engagement with no civilians or civilian property proximate to the hostilities, incidental or collateral damage is almost always a risk inherent in combat engagements. In this context, what the law prohibits is not infliction of CIVCAS but attacks that fall within the definition of indiscriminate. This would include attacks that are not directed at a specific target; attacks that employ a weapon or tactic that cannot be directed at a target; attacks that treat as a single target a number of distinct targets in a civilian population center; or most importantly for this discussion attacks that are expected to cause incidental injury to civilians and/or collateral damage to civilian property that is assessed as excessive in relation to the concrete and direct military advantage expected to result from the attack, the so-called proportionality rule (see here).
What qualifies as excessive CIVCAS within the meaning of the law is inherently contextual, and there is no way to quantify this term. Two things are, however, clear. This rule imposes an ex ante obligation; a requirement to make a predictive judgment as to both the anticipated civilian risk and military advantage resulting from an attack. Accordingly, it is invalid and illogical to assess compliance by simply focusing on the post hoc effects of an attack, by simply counting civilian casualties, injury to civilians, and destruction to civilian property. While such effects may be indicia of compliance or non-compliance with this rule, they are rarely (if ever) dispositive on that question. Second, the rule implicitly acknowledges the legality of inflicting CIVCAS, because so long as a commander makes a good-faith judgment that those casualties will not be excessive pursuant to the rule, the attack is lawful. In this sense, the common assumption that “collateral damage” is inadvertent is erroneous. Quite the contrary, the law imposes an obligation on the attacking commander to assess the risk of the incidental and collateral effects of an attack, which means that in most cases these effects (death and injury to civilians and destruction to civilian property) are both calculated and ultimately authorized.
For nearly two decades, NATO forces engaged primarily in COIN operations have adopted increasingly restrictive policy constraints intended to limit if not eliminate altogether the CIVCAS risk. These restrictions have almost always nullified the assessment of compliance with the proportionality rule because the CIVCAS tolerance was so low that the threshold of legality was never reached. In the context of COIN, this was a logical additional layer of CIVCAS restraint. Indeed, as former Judge Advocate General of the Canadian Armed Forces argued persuasively (see Kenneth Watkin, Military Advantage: A Matter of “Value,” Strategy and Tactics), preventing CIVCAS in the context of COIN quite often produces an inherent military advantage. But this practice is also arguably influencing the perception of CIVCAS tolerance in the context of peer to peer high intensity combined arms warfare, which poses a genuine risk of not only distorting the balance of operational and humanitarian interests inherent in the proportionality rule, but also of substantially diluting the ability of commanders to employ combat resources to produce the shock effect that they will perceive as so vital to operational and tactical success.
While it may be an unpleasant reality to confront, an overly-restrictive CIVCAS policy may be both legally overbroad—as LOAC does not prohibit civilian casualties but instead the intentional or indiscriminate infliction of such—and operationally illogical. From a legal perspective, imposing CIVCAS restrictions that are attenuated from the reality of the nature of operations to which they apply distorts the balance inherent in the proportionality rule. What is or is not a tolerable CIVCAS level must be defined in relation to the impact on the overall military advantage of any given operation. In the context of combined arms maneuver operations, the “military” side of this equation must account for the speed and lethality commanders will seek to unleash in order to seize and retain the initiative and bring the enemy into submission as promptly as possible. Furthermore, the characteristics of the operational area must also factor into this equation. In the type of peer to peer fight NATO must prepare for, this means a densely populated operational area. It is highly unlikely that the execution of such operations will be able to avoid built-up civilian centers. Indeed, the armed forces on both sides of the contest will almost certainly assume that their opponents will utilize such areas whenever doing so will produce some tactical or operational advantage.
History is replete with examples of armed forces seeking to exploit built-up areas to gain operational advantage, especially when defending against a superior opponent. But what makes this factor even more complicated is the very real likelihood that NATO’s opponent will seek to exploit civilian casualties and destruction of civilian property in support of its strategic information campaign. NATO itself may be incentivizing such exploitation by emphasizing its consternation over any civilian casualties. This may very well be perceived as an issue that can be exploited to sow discord among alliance members and to alienate alliance populations from their nation’s policies. Thus, NATO forces must be prepared not only for an enemy who will follow time-tested tactics of exploiting built-up areas for tactical and operational advantage, but also one that may actually seek to force NATO to conduct operations that put civilians at risk in order to exploit the inevitable casualties and destruction those operations will produce.
All of this suggests that NATO and its member-State armed forces are at an important tipping point: will they uncritically extend a restrictive COIN CIVCAS methodology to combined arms maneuver operations? Or, will they recognize that doing so will negate one of the most significant advantages their forces will bring to such operations: the ability to exploit shock? To date, the indicators are troubling. While the actual approach to CIVCAS is probably classified, nothing in NATO’s statements or posturing suggests the alliance is attempting to prepare the populations it represents for a reality of combat operations producing substantial civilian casualties which the alliance will treat as unfortunate, but lawful.
The potential negative consequences of engaging in willful blindness as to the risk to civilians associated with combined arms maneuver warfare are substantial. The first possible outcome seems relatively obvious: pretending such operations can be effectively executed consistently with the type of CIVCAS constraints associated with COIN operations will produce a material disconnect between alliance strategic expectations and operational and tactical realities. This will either result in a loss of operational and tactical initiative that will risk disaster for NATO forces, or the widespread defiance of NATO-level mandates by subordinate field commanders. Either one of these consequences risks corroding both the unity and effectiveness of the alliance.
The second consequence may be more subtle, but is equally troubling. A strategic aversion to civilian casualties can very quickly distort the balance between military necessity and humanity so substantially that it negates the ability of NATO forces to inflict shock on their opponent. If this happens, it may ultimately accrue to the detriment of the very civilians restrictive CIVCAS policies are intended to protect. In the conduct of military operations—and especially high intensity combined arms maneuver operations—producing shock effect through the careful and deliberate leveraging of the full range of combat capabilities is intended to contribute to the prompt and efficient defeat of the enemy. Achieving this objective promptly and efficiently is completely consistent with the principle of military necessity. Shock is intended to break the enemy’s will. It is meant to avert the need to perpetuate confrontation with the enemy and thereby avoid needless enlargement of the scope, duration, and intensity of hostilities.
Mitigating civilian risk is therefore not necessarily inconsistent with the use of combat power to achieve shock effect. Indeed, when properly understood as an operational concept, shock is, in a sense, a measure that holds the potential to mitigate overall civilian risk by speeding the termination of hostilities. As a result, imposition of unrealistic CIVCAS constraints on NATO commanders should be recognized for what it is: a misguided attempt to achieve an outcome that may very well be undermined by the constraint. If NATO forces are compelled to engage in high intensity combined arms maneuver warfare against an enemy adept at employing hybrid tactics to break its opponents will, NATO strategic decision-makers must trust their field commanders to execute operations consistent with the balance of interests central to the LOAC, and not saddle them with arbitrary and unrealistic CIVCAS policy constraints. That trust is the essential foundation of mission command, the type of decentralized initiative-oriented operational concept that will be decisive to the success of NATO forces. In terms of CIVCAS, that trust involves two critical components. First, the expectation that NATO commanders at every level will act in good faith to advance the humanitarian objectives of LOAC and will fully embrace their obligation to “take constant care” to mitigate civilian risk consistently with the interests of mission accomplishment. Second, that the almost inevitable resulting civilian casualties will be consistent with that commitment.
If NATO’s strategic leadership is wise enough to recognize this aspect of effective mission command, it will enable its subordinate commanders to leverage their combat power to produce the shock effect that will ideally rapidly defeat their enemies in depth. In the short run, this will almost certainly result in civilian casualty levels that will seem shocking compared to NATO’s COIN experience. But in the long run, NATO States’ ability to achieve shock effect will not only contribute to defeat of whatever threat the enemy presents, but in many situations may also contribute to the protection of civilians—who will be spared a needless prolongation of the conflict.
Geoffrey S. Corn is The Presidential Research Professor of Law at South Texas College of Law Houston in Houston Texas.