2023 DoD Manual Revision – The Civilian Presumption Misnomer

(Editor’s note: This post is part of a series analyzing the 2023 revisions to the U.S. Department of Defense’s Law of War Manual.)

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The changes made to the U.S. Department of Defense (DoD) Law of War Manual published yesterday have given U.S. military lawyers and their clients a great deal to consider. In addition to the introductory posts by DoD General Counsel, the Honorable Caroline Krass, and by COL (ret.) Michael Meier, Special Assistant to the Army Judge Advocate General for Law of War Matters, Articles of War will offer a series of posts addressing these changes.

This post considers the reversal of the longstanding U.S. DoD position that a presumption of civilian status is neither legally required nor operationally advisable in the context of attacks against persons and objects during armed conflict. After sharing details of the prior policy and the revision, we briefly examine the presumption’s roots in Additional Protocol I (AP I) to the 1949 Geneva Conventions. We then assess the revision’s conclusion regarding the presumption’s status as customary international law. Finally, we pose a series of questions to explore the revision’s prudence as a measure of legal policy making and warfighting.

The Change

Since its initial publication in 2015, the U.S. DoD Law of War Manual had rejected any legal duty to presume civilian status during attacks. The Manual had read in relevant part,

Under customary international law, no presumption of civilian status exists for persons or objects, nor is there any rule inhibiting commanders or other military personnel from acting on the information available to him or her in doubtful cases. Attacks, however, may not be directed against civilians or civilian objects based on merely hypothetical or speculative considerations regarding their possible current status as a military objective. § 5.4.3.2.

The Manual had also questioned the presumption’s compatibility with conditions of combat. It noted,

A legal presumption of civilian status in cases of doubt would demand a degree of certainty that would not account for the realities of war. § 5.4.3.2.

The late Col. (ret.) W. Hays Parks, former Special Assistant to the Judge Advocate General of the Army for Law of War Matters and formerly with the International Affairs Division of the DoD Office of the General Counsel, no doubt informed this position. A combat veteran and significant contributor to drafts of the Manual, Col. Parks had, in personal writing, characterized the AP I presumption as a “[r]efusal to recognize the realities of combat . . .” (Parks, p. 137). Col. Parks had argued, “The presumption shifts the burden entirely onto a force engaged in offensive operations” (Parks, p. 137).

In that vein, the Manual had noted that a presumption could further incentivize adversaries to exploit U.S. forces’ efforts to comply with the law of war. Essentially, the presumption would broadcast doctrinally prescribed hesitation on the part of U.S. forces during attack. The Manual observed,

Affording such a presumption could also encourage a defender to ignore its obligation to separate military objectives from civilians and civilian objects. For example, unprivileged belligerents may seek to take advantage of a legal presumption of civilian status. Thus, there is concern that affording a presumption likely would increase the risk of harm to the civilian population and tend to undermine respect for the law of war. § 5.4.3.2.

Under the 2023 revision, the Law of War Manual now addresses a presumption of civilian status as follows,

Under the principle of distinction, commanders and other decision-makers must presume that persons or objects are protected from being made the object of attack unless the information available at the time indicates that the persons or objects are military objectives. This presumption is the starting point for the commander or other decision-maker’s good faith exercise of military judgment based on information available at the time.  § 5.4.3.2.

A footnote to the section demurs, however, explaining,

This presumption should not be misunderstood to indicate that combat operations are governed by complex rules of evidence such as those applied in legal proceedings. § 5.4.3.2, n. 92.

The “Presumption” under Additional Protocol I

Ratified by 177 States, though not by the United States and other militarily significant States, AP I regulates the conduct of hostilities by its States Parties during international armed conflict. The AP I obligation to presume civilian status for targeting persons and certain objects derives from Articles 50 and 52 respectively. Article 50(1) concerning persons states in relevant part,

In case of doubt whether a person is a civilian, that person shall be considered to be a civilian (emphasis added).

Meanwhile, Article 52(3) concerning objects provides,

In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used (emphasis added).

While these articles are often discussed together, attentive readers will have noticed they express distinct approaches to doubt. Persons are “considered” civilians in cases of doubt. Whereas certain objects are “presumed” not to be used for military purposes in cases of doubt. Careful interpretation usually commends assigning discrete meaning to distinct treaty terms. This is especially so when they appear within a single legal instrument.

Persons

Records of the preparatory work to AP I indicate that the diplomatic conference deliberately substituted the term “considered” for the term “presumed” in the case of Article 50(1) (Official Records Vol. 15, p. 239). The recorded purpose of the substitution was to avoid conflict or confusion with the use of a presumption in favor of prisoner of war (POW) status after capture. Although the 1949 Third Geneva Convention relative to Prisoners of War prescribes no such presumption, Article 45(1) of AP I requires that captured persons who have taken direct part in hostilities and claim POW status “be presumed to be a prisoner of war” by States Parties. When such individuals are captured, the AP I POW presumption operates as a starting point or presupposition that prevails until a “competent tribunal” ultimately resolves POW status.

To give effect to the diplomatic conference’s textual change, to “be considered” a civilian for purposes of Article 50(1) should be distinct from being “presumed” to be a POW for the purposes of Article 45(1). If the POW presumption refers to an initially adopted assumption, a procedural predetermination intended to precede the eventual adjudicative processes of a competent tribunal, to “be considered” should be understood distinctly. The POW presupposition is the sort of legal presumption with which lawyers are practiced and that envisions formalized burdens of proof, shifting of burdens, and standards of proof. Such an understanding may well be suited to the comparatively controlled setting of detentions and perhaps even appropriate to the adjudicative work envisioned by Article 45 (though we prefer to withhold judgment on this point).

By contrast, the Article 50(1) reference to persons being “considered” civilians seems to have anticipated a distinct and far less formal, frankly less legalistic approach to resolving doubt. It is an approach for which the term “presumption” would have been (and remains) a misnomer. Indeed, the substitution was partly a response to the view expressed by several delegations that the provision should be redrafted in such a way to make it more readily understandable to the soldier (Official Records Vol. 15, p. 239). Article 50 often applies outside the controlled settings of detention and adjudication, where the opportunity to deliberate may be greatly limited or even minimal. As distinct from POW classification processes, soldiers are most often called upon to make an Article 50 civilian/combatant determination in the stressful, hurried, and chaotic conditions of combat. And the overwhelming majority of these persons will have no training or experience with presumptions of the legal sort.

The record of the diplomatic convention suggests recognition by the diplomatic conference that a legalistic presumption would be unwieldy, impractical, and ill-suited to most battlefield contexts. Reference to a presumption was simply inapt. The intention behind the final Article 50 doubt rule was more modest than to require a starting point or rebuttable predetermination. It was simply to “preclude unscrupulous belligerents from denying the protection of the Protocol to civilians” in an attempt to shift away from the practice of “shooting first and asking questions later” (Kalshoven, pp. 111-12). In their detailed commentary on AP I, Professors Bothe and Partsch, and COL Solf, understood its practical impact as requiring military decision-makers to act honestly on the basis of information available, not on the basis of mere speculation (Bothe et al., p. 336). And it was not meant to operate as a universal default determination to be overcome by rebuttal and debate. Only when faced with doubt about the civilian status of a person, must armed forces of an AP I State Party act as though the person is a civilian.

Objects

As noted above, the AP I diplomatic conference retained the term “presumed” for Article 52(3) concerning use of certain objects. Under AP I (and for that matter with respect to mines and booby traps under Amended Mines Protocol II to which the U.S. is a Party), certain objects are presumed to be used for their civilian purposes in cases of doubt. Careful readers will notice that whereas all persons enjoy consideration as civilians in cases of doubt, the Article 52(3) presumption only applies to objects ordinarily dedicated to civilian purposes. Categories of objects that are not ordinarily devoted solely to civilian purposes, such as installations and means of transport as well as communication facilities, are not subject to the presumption. Moreover, the presumption only applies with respect to their qualification as military objectives by virtue of use. Qualification as a military objective by virtue of location and purpose does not trigger the Article 52(3) presumption.

But even in relation to this limited category of objects, it is questionable whether the presumption would be workable in practice. Use of civilian buildings on the front lines of the battlefield is a widely accepted defensive tactic. Although an attempt to exclude the presumption from “objects in the contact zone” was ultimately unsuccessful at the diplomatic conference, the Rapporteur to the conference had warned, “It would be unfortunate to draft the provision so that it requires something we know in advance is unlikely to be lived up to” (Kalshoven, p. 112). The U.S. delegation also raised concerns about the practical application of this provision, warning that “a soldier risking his [or her] life on the battlefield could not be expected to take a decision in the circumstances of the moment, and grant a presumption in favour of doubtful objects, as distinguished from people, being immune from attack” (Official Records Vol. 14, p. 119). This concern about impracticality was indeed one of the reasons why the U.S. decided not to become a party to AP I (Joint Chiefs of Staff Review of AP I, pp. 51-53).

The Threshold of the Civilian Status Presumption

Perhaps most importantly for purposes of this post, both the AP I presumption for use of certain objects and the obligation to consider persons as civilians only apply in cases of doubt. The presumption is not triggered when there is no reason to doubt the target as a legitimate military objective. It is not, even for AP I States Parties, a general obligation under the law of war. For instance, the 2016 Danish Military Manual includes a targeting section addressing separately, “cases in which the presumption of civilian status is not used” (Ch. 8, § 4.1.3). As Bothe, Partsch, and Solf noted, “Combatants are not likely to entertain any doubt about the military use of buildings located in an area on land where the forward elements of opposing forces are in contact with each other, especially where they are exposed to direct fire from the ground” (Bothe et al., p. 368). The presumption is triggered only when there are mixed indications which create doubt about their targetability.

Moreover, even in cases of doubt, AP I States Parties have indicated that persons should simply be accorded a benefit of the doubt in determinations of their targetability (Australian Manual, para. 5.33; Danish Manual, p. 320). This assessment, and how much more information is needed to rebut the presumption is necessarily contextual. The degree of doubt that sustains a “presumption” is weighed up against the consequences of not attacking and how important it is to carry out the attack under the circumstances ruling at the time (Norwegian Manual, §2.5). And it is worth recalling that the UK has long limited the scope of the presumption only in cases of “substantial doubt” (UK Manual § 5.3.4; UK Reservations upon Ratification para. h). As Bill Boothby observes, “the mere fact that an object’s status appears dubious may not be sufficient to justify an attack on it, but the context is critical. Against surprise attacks, an object’s dubious character may well be sufficient to justify its attack” (p. 71). These and other AP I States’ legal doctrinal refinements had essentially rendered the civilian presumption the misnomer that even its authors had originally recognized it to be.

It is curious then, that the 2023 revisions to Manual would so deliberately adopt that misnomer for instruction of U.S. forces. And it is all the more curious that the revised Manual embraces the presumption as broadly couched and untethered from doubt as it does. The revision does not include the unequivocal restriction to cases of doubt that AP I and its States Parties do. Rather than a means to resolve doubt, the Manual’s presumption almost seems a universal “going in” proposition. It instructs soldiers to apprehend their environment as entirely civilian. Only after disproving that initial presumption may a solider carry out an attack. Adopting a presumption in such broad terms goes beyond the standards to which even AP I countries have committed themselves.

Finally, the revised Manual also departs from AP I and its States Parties by explicitly characterizing the presumption as an aspect of the principle of distinction. That principle is a foundational element of the law of war and the regulation of combat. By expressing the presumption as required by such a broadly applicable principle, rather than as a precaution applicable to a discrete category of attacks as does AP I, the Manual greatly expands the reach of the AP I presumption. Further, embracing the civilian presumption as an integral part of this fundamental principle may mean that U.S. troops will be more readily exposed to the accusation of unlawful killing of civilians, or at least lend credence to such claims for propaganda purposes.

Customary International Law

The legal and factual basis for the Manual’s reversal concerning presumptions is not apparent from the revision. However, DoD now seems to consider the civilian presumption as legally required under customary international law (§ 5.4.3.4). As a non-AP I State, the U.S. DoD position could have significant implications for the rule’s status under customary international law including its applicability in non-international armed conflict where the presumption is not adopted in codified rules.

Discerning the nearly universal and consistent State practice as well as the sense of legal obligation (opinio juris) required to support a conclusion of customary law status is notoriously challenging. It is particularly difficult with respect to the law of war and all-the-more difficult with respect to targeting law. States rarely make their wartime targeting practices fully available even to allies. And the precise legal reasoning behind those practices can be especially elusive to civil society and outsiders. That so many States have ratified AP I must have further complicated the task of the revision’s authors. Even if the required critical mass of States could have been said to have practiced the presumption in combat, whether they did so because they were AP I States Parties or whether they did so as a matter of custom would have been extraordinarily difficulty for those behind the Manual’s revision to sort out.

Whether the duty to presume civilian status exists as a matter of customary international law is probably best characterized as unsettled. Some academic sources have claimed the civilian presumption reflects custom. But none has done so with any empirical rigor. Others have questioned whether the customary laws of war can really be considered so refined as to include any presumptions at all (Sassòli, p. 374). Even the International Committee of the Red Cross seems to hedge on the question. Its Customary International Humanitarian Law study does not include the presumption as a blackletter rule. However, it expresses sympathy for the presumption with respect to persons and objects in the commentary (Rule 6 and Rule 10 respectively).

The adoption of the presumption in the revised Manual will no doubt feed debate about the customary status of the presumption of civilian status. It is worth recalling the previous work of experts who wisely avoided the presumption issue in characterizing the customary international law obligation in targeting with respect to situations of doubt. For example, the Harvard Humanitarian Policy and Conflict Research Manual on International Law Applicable to Air and Missile Warfare expressed the doubt rule as follows:

Rule 12(b): “In case of doubt as to whether an object which is ordinarily dedicated to civilian purposes is being used for military purposes, it may only be attacked if, based on all the information reasonably available to the commander at the time, there are reasonable grounds to believe that it has become and remains a military objective.”

The Air and Missile Manual dropped any reference to a presumption, likely in acknowledgment that AP I States actually did not apply it as such or that significant non-States Parties had objected to the presumption. In that vein, Colonel Ted Richard of the U.S. Air Force has previously proposed an expression based on the Air and Missile Manual that avoids the presumption with respect to certain objects:

An object ordinarily dedicated to civilian purposes, which is being used for military purposes, may only be attacked if, based on all the information reasonably available to the commander at the time, there is a good faith belief that it has become and remains a military objective.

Ultimately, the revised Manual might simply have followed the same approach of avoiding resort to the term altogether, rather than adopting an AP I misnomer only to explain in a footnote that the term as it appears in the Manual does not carry its plain meaning.

Concluding Questions

At the most basic level, the Manual’s new presumptions passage instructs U.S. armed forces to do something they had previously been deliberately and persistently insulated from doing for convincing legal and practical reasons. The reversal’s significance should not be underestimated. The Department’s services will soon undertake the fraught task of putting the presumption into effect across the force. As they do, DoD can no doubt expect questions from operational, legal, and perhaps political quarters.

First, how will the DoD reversal on the presumption change training of and instructions to armed forces? If the change stemmed from dissatisfaction with previous operational practices and results, what practices will replace them? Is the Department confident that no undue hesitation will result from applying the presumption? Was the operation of the presumption tested in training that accurately replicates modern combat conditions? Does the presumption preclude forces from carrying out the actions that often precede attack such as pre-planning an indirect fire mission, orienting or aiming a direct fire weapon, lasing to determine range, preparing to fire, or releasing a safety mechanism? What is a commander’s authority, if any, to free their forces from the presumption? Can the presumption be applied at a command level in lieu of its application by individual soldiers? For instance, can it be overcome or rebutted at higher levels of authority on behalf of individual soldiers? And how will the presumption be integrated into DoD efforts to better prepare for Large-Scale Combat Operations? For instance, how will commanders and soldiers apply the presumption consistently with drastically increased pace and scale of ongoing and future targeting operations?

Second, how will the presumption affect civil society’s increasing scrutiny of U.S. targeting operations? Other free-standing legal obligations, such as the ex ante duty to minimize civilian casualties, have already fueled highly criticized and dubious, post hoc public scrutiny of military operations. The mere fact of civilian casualties or revelations of errors in targeting operations have already led many to conclude that failures of feasible precautions must have contributed. Will the presumption similarly feed speculation and criticism that U.S. forces have not applied the law of war and DoD legal policies in good faith? Will the presumption merely prove to be, as Professor Geoffrey Best put it, yet another “aid to vilification?”

Third, if the reversal of the position means that the DoD now considers the presumption as legally binding under customary international law, will the U.S. regard other States that have not adopted it or do not apply it as having breached the law of war? Would other U.S. institutions, such as the Congress which the U.S. Constitution charges with authority to “define and punish the Law of Nations,” have come to the same conclusion?

The answers to these and other questions will surely shed light on the wisdom of this important legal reversal. We look forward to others’ reactions, particularly those who will be charged with implementing the presumption both in training and in combat.

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Hitoshi Nasu is a Professor of Law in the Department of Law at the United States Military Academy.

Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.

 

 

Photo credit: U.S. Army Staff Sgt. Effie Mahugh

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