The U.S. DoD Civilian Harm Mitigation and Response Action Plan on Future Battlefields
On August 25, 2022, the U.S. Department of Defense (DoD) released the Civilian Harm Mitigation and Response Action Plan (CHMR-AP). In a previous post, Dan E. Stigall and Anna Williams provided a useful snapshot of the report, with the rationale underscoring the proposed action plans.
It is a product months in the making and significantly motivated by the problematic Afghanistan airstrike of August 29, 2021 and subsequent reports into the matter and civilian casualties overall (see here, here, and here). Defense Secretary Lloyd Austin, in his memo introducing the CHMR-AP to senior DoD leaders, highlights protection of civilians as “a strategic priority as well as a moral imperative,” describing the action plan as identifying “how DoD will systematically improve our approach to civilian harm mitigation and response,” and “integrat[ing] CHMR considerations…[in] how we plan and conduct operations.”
Secretary Austin asserts the action plan is “scalable and relevant to both counterterrorism operations and large-scale conflicts against peer adversaries.” The action plan itself purports to preserve decision space for commanders while still being able to prioritize civilian considerations in military operations and mitigate harm overall.
In an effort to respond directly to the impact of the CHMR-AP on U.S. military operations from a legal perspective, this post addresses two important claims within the Action Plan. First, in a footnote to its introductory section, the drafters claim the Plan is not meant to suggest existing DoD policies and practices are legally deficient or that anticipated changes are required by law. The Plan’s authors further claim that these new standards cannot create new legal obligations. However, we will emphasize that policy decisions could, in fact, alter existing legal requirements under customary international law.
Second, though more important from a practical perspective, the CHMR-AP reiterates that proposed changes are scalable to mission requirements, to include large-scale combat operations (LSCO). However, four of the listed objectives of the plan imply otherwise. Commanders and leaders will face a more complicated battlespace with less ability to tailor operations, particularly in the type of armed conflict that is foreseeably on the horizon.
Interplay Between LOAC and National Policy
The character of counterterrorism and counterinsurgency operations over the past two decades – in their objectives and in the weapons used – generated a specific mindset for commanders. Protecting civilians and civilian objects on the battlefield was not only a fundamental legal requirement. It was also both strategically wise and publicly expected. The United States developed and implemented precision strike capabilities which drastically reduced collateral damage estimates and actual impacts on civilians. Beyond the precautionary tools developed to ensure the United States complies with LOAC principles, civilian and military leaders layered policy restrictions and limitations via mechanisms like the rules of engagement or heightened targeting procedures.
Although such efforts are prudent as policy considerations enacted appropriately for specific types of military operations, they are not required under the law of war. It is important to recall the difference between law and policy in every situation and to recognize the basis on which legal requirements exist in international law. The collective mindset of military and national leaders cannot remain static. It must evolve with the nature of conflict while being rooted in fundamental principles. An application of restrictive policies in an inflexible manner, even when noble in intent, only serves to increase friction and inhibit success in the next anticipated conflict with peer-level adversaries.
LTG (Ret.) Charles Pede cautioned in his article The 18th Gap, “[s]urvival and victory on the battlefield with a near-peer demands adherence to the law in a construct that recognizes the necessities of war.” LTG (Ret.) Pede is correct to emphasize in this statement the realities of the future conflict environment, where violence may occur at levels and a tempo unseen for decades, and while wholly undesirable, may be necessary to succeed. Unduly burdensome policy positions cut directly against the necessities of war that are likely to emerge, to the detriment of those engaged in combat. What the law actually requires must dictate actions in combat in order to place the right authority with the right person at the right time and place, when time will be of the essence. As LTG Pede (Ret.) aptly states, “[w]e simply cannot afford for our lawyers or leaders to be confused about the rules in warfighting. Clarity in the law, in standards, is a precious commodity.”
The law of war, often referred to as the law of armed conflict (LOAC), consists of treaties and customary international law considered to bind States as to the use of armed force and the conduct of hostilities during any type of armed conflict or belligerent occupation scenario. Within LOAC exist universally accepted fundamental principles (military necessity, distinction, proportionality, humanity, and honor) which act as a guide for conduct during war and form the core considerations in any decision to attack an adversary.
The LOAC principles require commanders to justify the use of force in military operations, direct attacks at enemy combatants and military objects, assess whether incidental civilian harm is excessive in relation to the concrete military advantage to be gained, mitigate the incidental harm through feasible precautions, and avoid using weapons calculated to cause unnecessary suffering of the enemy (See DoD Law of War Manual, Paragraphs 2.2 through 2.6). In addition, commanders must act reasonably and in good faith under the circumstances ruling at the time. What is considered reasonable must account for the context in which military decisions are made and evolve as needed. The character of an armed conflict – whether it be counterinsurgency (COIN), peacekeeping, or LSCO – is the relevant context for establishing what is or is not “reasonable.” Of note, military and humanitarian interests are not always at odds with each other under the current LOAC framework. They are often complimentary, with civilian considerations baked into the principles while still allowing for mission accomplishment and a hasty end to hostilities. These concepts are straightforward, easily understood, and applied without difficulty by commanders. They represent the sole framework truly needed in a LSCO environment.
Dynamics of Customary International Law
An important consideration with respect to commanders’ obligations is that multiple entities in the international community attempt to influence the law (see here and here), via the creation of new treaty obligations or, more problematic for the United States, modifying what is considered customary international law. The assertion within the CHMR-AP that new policy standards and processes cannot and will not alter or create new legal obligations is a false safety net beneath the high wire of increased focus on protection of civilians. In reality, customary international law is much more fluid than the CHMR-AP position acknowledges and the DoD may be unwittingly providing support to those who have advocated for decades that heightened protection obligations do or should exist within customary international law practice.
Customary international law is developed through consistent and uniform State practice followed from a perceivedlegal obligation (opinio juris). The argument the United States repeatedly puts forth, as it has in the CHMR-AP, claims that consistent and uniform practice cannot be converted to customary law if conducted without a sense of legal obligation and instead motivated by moral, ethical, or policy-driven considerations. Even accepting the premise that the United States could continue to deny the impact on customary international legal obligations because it has always disclaimed its legal significance even while engaging in consistent practice (which is, of course, debatable and also malleable based on the position of the United States in the international community), obligations can be converted over time and over objections. Conflict between State practice and claimed persistent objections could instead nullify an excepted status. The International Law Commission has even suggested that statements (written or oral) can constitute “practice” and a consensus belief of States can potentially override an individual State’s opinio juris (see paragraphs 37, 48, and 64 here).
Any effort to adopt new policy positions or practices with respect to the conduct of military operations carries with it an inherent risk not only of building a record of State practice, but also of creating conditions where such policies can “ripen” into legal obligations. Although the United States does not consider that a particular policy is reflective of customary international law, the adoption of that policy assists in creating an environment where other States adopt specific guidelines related to civilian protections. The legal landscape then begins to shift. At the very least, over time, other States are likely to consider such guidelines as expressions of opinio juris. The greater the ratio of the world holding such an opinion, the more tenuous of an argument it becomes. The bottom line is that the idea that policy considerations do not impact customary international law is not as solid as implied. The more State practice extends above what is required by LOAC, the more likely that position is whittled away.
Practical Challenges to the Implementation of CHMR-AP
Beyond the risk of transforming a policy decision into customary international law against stated intentions, there are also significant practical impacts to consider. Scalability to multi-domain, large-scale operations and preserving decision space for commanders are explicit goals of the new plan, but pursuing these goals on future LSCO battlefields is likely to cause practical challenges.
Although noble in its goal, the CHMR-AP’s purported scalability to LSCO has the potential to create a false assumption about what reasonable commanders are expected to do. Implementing policy that aims to reduce civilian harm on the future battlefield against a near-peer enemy, when a commander needs to use all lawful measures required to defeat the enemy as quickly and efficiently as possible, carries the risk of defying the delicate equilibrium sustained in LOAC and is a misapplication of the law. While the United States must always maintain balance between military necessity and humanitarian considerations on future LSCO battlefields, contorting this balance toward one extreme creates a false narrative of what the law requires.
CHMR-AP Objective 3: Incorporate Civilian Harm Guidance Across Full Spectrum of Operations
Objective 3 of the CHMR-AP aims to elevate the consideration of civilian harm by incorporating civilian harm mitigation priorities “across the full spectrum of operations into strategy, doctrine, plans, PME, training, and exercises … .” While LOAC certainly forbids targeting civilians and civilian objects, such extensive indoctrination could lead to the notion that collateral damage is always intolerable and risks reinforcing the “internal threat” of U.S. forces’ collective wiring and muscle memory. For instance, counterinsurgency/counterterrorism (COIN/CT) rules of engagement appear to have both constrained and persistently reprogrammed the mindset of U.S forces over the last decade. Planning for future LCSO requires commanders to confidently and nimbly shed the COIN/CT fighting mindset toward full conventional warfighting against a declared near-peer enemy where every domain (land, sea, air, space, and cyberspace) is highly contested.
To swiftly and decisively win the next large-scale war, commanders must understand that LOAC does not necessarily forbid an attack on a legitimate military target, and thereby thwart mission accomplishment, even when large numbers of civilians and/or civilian objects may (or will) be harmed in the process. Such harm simply might not be consideredexcessive in proportion to the concrete and direct military advantage expected to be gained. As LTG (Ret.) Pede warns, distorting LOAC by creating the unrealistic perception that no collateral damage is permissible in war is extremely dangerous and can cause debilitating effects on U.S. armed forces’ ability to fight and win the nation’s wars. Ending the next conflict quickly and efficiently, despite the tragic certainty of collateral damage, may prove to be more humane in the long run.
CHMR-AP Objective 4: Improve Knowledge of the Civilian Environment in Joint Targeting
Objective 4 of the CHMR-AP calls for the establishment of Civilian Environment Teams to be integrated into operational commands and the targeting process. Consisting of intelligence professionals, civil engineers, and experts in human terrain, civilian infrastructure, and urban systems, the Civilian Environment Teams are meant to “assist commanders in understanding the effects [of military operations] . . . on the civilian environment.” It also appears that the Civilian Environment Teams may have a prioritized position in the joint targeting process, providing assessments that could have a chilling effect on proposed military actions.
Of concern is the sustainability of such a role or process in the context of state-on-state, large-scale combat. Recent conflicts were exceptional in that military forces were able to engage in an elaborate process of assessing incidental civilian harm and tailoring the conduct of military operations without significant impact to the safety of troops or the efficacy of operations. Future commanders are not likely to be similarly situated; the pace, size, and severity of a fight with a peer adversary will require swift action, which could be thwarted by complicated efforts to enforce rules that go beyond LOAC obligations. Adding new teams to a commander’s staff, and creating new, more complex processes to address the “problems” of target misidentification and assessments/investigations, has the potential to produce friction and delay at a time when many lives, both military and civilian, are at stake.
That is not to say civilian environment considerations should be ignored (indeed, doing so is a violation of the distinction and proportionality principles), but they must be properly balanced with the reality of heightened and urgent military necessity. It must not be forgotten that using military force efficiently is likely the best method to truly protect the civilian population and reduce the likelihood of incidental harm to the civilian environment (consider the Battle of Mosul as discussed here and here).
CHMR-AP Objective 5: Incorporate Measures to Mitigate Risk of Target Misidentification
Likewise, CHMR-AP Objective 5 poses significant risk of muddling decision-making by commanders and impeding efficient mission accomplishment. This objective calls for reworking existing policies and processes to mitigate target misidentification and address cognitive biases present within the system. The Joint Staff and Combatant Commanders are tasked with reviewing and modifying doctrine, policy, and processes for targeting and positive identification requirements (PID), specifically by incorporating efforts to combat cognitive bias in targeting.
Addressing cognitive bias in any system is a worthwhile endeavor, but the DoD must be wary of altering existing targeting requirements meant to apply across the entire range of military operations versus only in precision strike scenarios. Such policies must be consistent with LOAC requirements, otherwise they will not provide sufficient flexibility to commanders that properly accounts for the nature and complexity of hostilities. In a real-world operational setting, it has been our experience that positive identification (PID) policy requirements, where the rubber meets the road in terms of addressing cognitive bias in targeting, are already significantly burdensome, particularly in a dynamic setting. PID policy changes requiring higher certainty levels or additional amounts of data to mitigate the impact of cognitive bias will only exacerbate that burden. A commander who would normally be permitted under LOAC to authorize a strike from a reasonableness perspective may find her hands tied in an environment where the sheer number of potential targets renders such requirements impossible to satisfy.
CHMR-AP Objective 7: Establish DoD-Wide Procedures for Assessing and Investigating Civilian Harm
Finally, consistent with the theme of claimed scalability of the CHMR-AP to LSCO, Objective 7 of the plan calls for improvement on post-action assessments/investigations of alleged civilian harm. In the future complex, peer-on-peer conflict environment, the speed and scale of warfighting could quickly make in-depth post-strike assessment impossible. This is especially true when the battlefield is much more likely to remain inaccessible to investigators. While the CHMR-AP claims the assessment framework “will be applied at a scale appropriate to the operating environment,” it fails to explain how the objective increase in assessment requirements listed can be applied effectively across the full spectrum of operations. This could be an unattainable expectation which places commanders in a position to ultimately fail in this regard. Assessment requirements and timelines must be made sufficiently flexible to fit into operational realities and there is no indication from the CHMR-AP that this is feasible in a LSCO conflict.
Of concern regarding assessment and investigation of civilian harm is the recent development of “lawfare” – a method of influence by peer adversaries as a further tool of conflict in the future. As a type of information operations, United States adversaries already engage in lawfare tactics (see here and here) and will likely only increase such behavior as its effectiveness grows. Having seen the impact of negative press coverage of civilian casualties and harm on U.S. operations in the past, adversaries will look to exploit any opportunity to create or increase such negative perception in future engagements. This includes holding the United States to heightened assessment and investigation processes regardless of the character of a specific conflict. When such standards of investigation become impractical or disadvantageous to maintain in a complex conflict environment, the United States must anticipate, and be prepared to effectively counter, the inevitable lawfare efforts perpetrated by adversaries trying to degrade public sentiment and support for U.S. operations.
Wars must always be regulated by law, and the existing LOAC provides a sufficient legal framework for balancing humanitarian considerations against military necessities of war. Considering that future wars will not be limited to isolated battlefields far from the civilian populace, but rather the ever-increasing urban sprawl, collateral damage will certainly be an unavoidable necessity for defeating the enemy. As admirable as it is for the CHMR-AP to attempt to push beyond what the law requires, commanders must always be guided by LOAC in conducting military operations. If it is not implemented with great caution, the CHMR-AP could very well impede U.S. armed forces from prevailing in future armed conflict.
MAJ Justin MacDonald currently serves as an Associate Professor in the National Security Law Department at The Judge Advocate General’s Legal Center and School.
MAJ Ryan M. McCormick currently serves as an Associate Professor in the National Security Law Department at The Judge Advocate General’s Legal Center and School.
The views expressed in this article are those of the authors and do not necessarily reflect the official policy or position of the Department of the Army, DoD, or U.S. Government.
Photo credit: Cpl. Grace Gerlach, U.S. Marine Corps