2023 DoD Manual Revision – The Civilian Presumption’s Durability
The revised U.S. Department of Defense (DoD) Law of War Manual recognizes a presumption of civilian status for decision-making in targeting operations. In this post, I explore the implications of a civilian presumption by examining the nature of legal presumptions generally, as well as their relationship with the related concepts of legal burdens, particularly burdens of persuasion and proof.
This exploration reveals a special characteristic of the law-of-war presumption of civilian status: its capacity to accommodate the varying epistemic circumstances in which targeting decision-makers act. This attribute can be understood in terms of the presumption’s relative durability, that is, its resistance or endurance against a targeting decision-maker’s efforts to overcome the presumption. The presumption’s durability takes its precise form relative to the battlefield circumstances in which a decision-maker determines targetability under the law of war.
The civilian presumption’s durability negotiates persistent disagreements about the advisability of a law-of-war presumption of civilian status. At the same time, it raises questions about the prudence of incorporating highly formal legal concepts into the law governing the conduct of hostilities.
Legal Presumptions and Legal Burdens
Legal presumptions are a regular feature of law, particularly in formal settings such as litigation and investigations. Presumptions take different forms and perform varying functions. For example, a “rebuttable presumption” dictates, as a legal matter, the adoption of a factual premise, until sufficient evidence is presented to overcome it.
Legal presumptions are accompanied by legal burdens, in particular burdens of persuasion and proof. A burden of persuasion refers to the “duty to prove a fact in issue, assigned to one or another party.” A burden of persuasion “is allocated according to express or implied presumptions” and must be overcome by the individual to whom it is assigned. Thus, the concept of burden of persuasion is closely related to that of legal presumption.
A burden of proof refers to the “level of confidence with which a fact must be proven” in a legal proceeding. It establishes the “degree of certitude that must be engendered by the evidence . . . to prove the truth of any fact that is in dispute.” A burden of proof provides a legal standard by which the associated presumption may be overcome. For this reason, burdens of proof are often referred to as standards of proof (and, as we will see, by other names as well).
These descriptions suggest that specification of a legal presumption entails corresponding burdens of persuasion and proof. Indeed, the definition of burden of persuasion above explicitly links it with legal presumption. Furthermore, once a legal presumption has been specified, the individual to whom the burden of persuasion is assigned must determine—and is entitled to be notified of—the burden of proof. A burden of proof is the standard by which the individual bearing the burden of persuasion may overcome the legal presumption.
A well-known example is the criminal law presumption of innocence in favor of the accused. In a criminal case, the prosecution bears the burden of persuasion and, therefore, must present sufficient evidence to overcome the presumption of innocence. In doing so, the prosecution must meet the burden of proof, which in U.S. criminal law is proof beyond a reasonable doubt.
It is with caution that I give the criminal law presumption of innocence as an example. Analogizing from the presumption of innocence—or legal presumptions found elsewhere in law—to the law-of-war presumption of civilian status is risky. As I will discuss below, these legal presumptions serve various functions and operate differently in practice. I raise the presumption of innocence here only to illustrate the link between legal presumptions and legal burdens of persuasion and proof.
Civilian Presumption and Corresponding Burdens
If the presumption of civilian status is part of international law, and if legal presumptions entail corresponding legal burdens, then the revised Manual’s acknowledgement of a civilian presumption in targeting inescapably raises questions about corresponding burdens of persuasion and proof.
While the Manual does not explicitly acknowledge a legal burden of persuasion as such, it describes the presumption of civilian status as “the starting point for the commander or other decision-maker” for the proposed attack. It also emphasizes the attack decision-maker’s legal responsibility to “assess whether persons or objects are military objectives.” As a result, the Manual seems implicitly to acknowledge a burden of persuasion on the attack decision-maker that corresponds to the presumption.
Likewise, the Manual gestures toward the concept of burden of proof in explaining the presumption of civilian status. It declares that—according to the presumption—a person or object may not be attacked “unless the available information evaluated in good faith indicates” lawful targetability. It goes on to explain that an assessment of targetability must rest upon “an honest and genuine belief” that the proposed target is a military objective. Possibly signaling an objective element to the standard, the Manual goes on to assert that “what is reasonable in making [the targeting] assessment depends on the circumstances” (emphasis added). Thus, the Manual establishes a standard for the quality of the attack decision-maker’s certainty about the legal status of the proposed target.
There has been some debate about precisely what standard the Manual sets out as the burden of proof associated with the presumption of civilian status. On one view, the Manual is “incomplete” insofar as it establishes a “purely subjective” standard, thus failing to clarify a corresponding objective element. Others argue the Manual sufficiently establishes an objective element. This latter view may find support in the Manual’s incorporation of reasonableness, as quoted above.
This debate notwithstanding, the Manual’s adoption of a civilian presumption necessarily raises questions about associated burdens of persuasion and proof. Tellingly, scholarly discussion of the Manual’s adoption of the presumption has focused substantially on its corresponding legal burdens, particularly the burden of proof.
This is true despite the wide range of terminology used to describe the targeting burden of proof. Writers have used terms such as “quantum,” “standard of rebuttal,” “doubt threshold,” and “certainty requirement,” among others. As noted, even the revised Manual largely avoids directly confronting the legal burdens of persuasion and proof associated with the presumption of civilian status. The closest it comes is a disclaimer against any “fixed standard of evidence or proof” in targeting. Nonetheless, the terms of reference all refer to the concept of burden of proof, which is the standard by which the individual bearing the burden of persuasion may overcome the legal presumption.
Burdens of Proof and the Dimension of Weight
There appears to be broad agreement that the burden of proof for targeting decision-making accommodates the realities of war. The Manual stresses the importance of the context in which attack decision-makers assess law-of-war targetability. Indeed, the Manual asserts that “the law of war does not require that commanders and other decision-makers apply a fixed standard of evidence or proof” (emphasis added). Rather, decision-makers must “exercise professional judgment” in assessing targetability, “and what is reasonable in making that assessment depends on the circumstances” (emphasis added). These circumstances include, for example, “the available information that is relevant” to the targeting decision and the “time and resources” at hand.
Developing this idea further, one prominent view rejects a “static, quantifiable threshold” of uncertainty in targeting. Instead, certainty and doubt are resolved through “a multifaceted situational assessment” in which “the certainty requirement” (i.e., the burden of proof) “must reflect the level of certainty that can reasonably be achieved in the circumstances.” Relevant contextual factors may include, for example, “the intelligence available to the decision maker, the urgency of the situation, and the harm likely to result to the operating forces or to persons and objects against direct attack from an erroneous decision.”
The recognized contextuality of the burden of proof for targeting decisions may be understood as a dimension of weight. In non-legal terms, burdens are described as being carried. They may be heavy or light. Likewise, the extent of a legal burden is often understood as a characterization of its weight. Weight is a representation of how demanding the standard is to overcome the corresponding legal presumption.
On this view, the burden of proof in any given targeting scenario will depend on a wide range of circumstantial facts, including the risk of misidentifying the target, the likelihood that the attack will successfully neutralize the target, the quality and quantity of the intelligence at hand, the time constraints of the decision, and the risk of harm to the targeting force and its mission. This means that the level of tolerable doubt about the legality of a proposed attack varies circumstantially. In other words, the burden of proof has a dimension of weight, the threshold of which fluctuates to conform to the circumstances in which the targeting decision is made.
The Civilian Presumption’s Durability (or Brittleness)
Given the connection between the concepts of legal burden and legal presumption, it should not be surprising to find that the former’s dimension of weight necessarily impacts the character of the latter. Indeed, close inspection reveals this is the case for the presumption of civilian status. The burden of proof’s dimension of weight corresponds directly with what I call the civilian presumption’s characteristic of durability.
Recall that discussions of the burden of proof in targeting emphasize its flexibility regarding the circumstances of war. Consider, for example, a targeting decision made by a squad leader in an intense and high-tempo battlefield situation. The squad leader’s targeting decision may entail a relatively light burden of proof. In effect, this means that—given the circumstances—the squad leader may carry the burden of proof and thus determine the lawful targetability of a person or object despite possessing a relatively high degree of uncertainty or doubt. Indeed, the revised Manual suggests that the burden in particularly intense armed conflict situations must be light enough to permit combatants to “react immediately.” Thus, the law must allow military personnel to act “at the speed of relevance.”
Notice the impact that a lightweight burden of proof—such as that in the squad leader example—has on the civilian presumption. The relative light weight of the burden of proof in the scenario described above necessarily and correspondingly weakens the civilian presumption’s durability. That is, a relatively light burden of proof in a particular case entails a correspondingly brittle civilian presumption.
We can change the targeting scenario to examine the civilian presumption on the other side of the spectrum, that is, when the presumption is relatively durable. Consider a counter-terrorism targeting operation in which a State armed force uses aerial reconnaissance and short-range fires to target a high-ranking member of a non-State armed group during a non-international armed conflict. Typically, in such scenarios combat resources favor the State armed force, operational tempo permits deliberation about intelligence and other aspects of the strike, and risk to the military force’s personnel and mission is relatively low. The circumstances thus give rise to a relatively heavy burden of proof. Correspondingly, the civilian presumption may be characterized as quite durable. It is relatively robust or enduring against the decision-maker’s efforts to overcome it.
Hopefully, this makes clear that the characteristic of durability (or brittleness, as the case may be) represents a measure of the civilian presumption’s resistance against a decision-maker’s efforts to overcome it when making a law-of-war targeting assessment.
There are innumerable variations on these and other targeting scenarios, each lying on a spectrum of circumstantial factors (what we could call a “multifaceted situation”). The burden of proof in each targeting decision takes its character—its doubt threshold, its certainty requirement—from the circumstances presented. We may also describe the circumstances as bestowing a corresponding character of durability upon the civilian presumption.
So What?
What follows from the identification of the civilian presumption’s durability, which corresponds with the targeting burden of proof’s weight? Is this just a conceptual exercise for law of war scholars? I do not think so. Rather, recognizing this aspect of the civilian presumption reveals important considerations about the presumption in action, as well as how lawyers, scholars, and practitioners think about it. I sketch a few of these considerations below.
First, appreciating the civilian presumption’s durability helps us better understand its character. As the preceding discussion demonstrates, law-of-war scholars and practitioners seem attuned to the flexibility of the targeting burden of proof. But there is a tendency, perhaps, to see the civilian presumption as being particularly rigid or imposing (it is tempting to say “burdensome”). Recognizing the presumption’s varying durability reveals its dynamic character, a capability to form to the circumstances of armed conflict. The civilian presumption’s durability—which varies circumstantially—reveals something important about it conceptually, but also about how it may operate in practice.
Second and relatedly, the civilian presumption’s characteristic of durability goes a long way toward explaining seemingly entrenched disagreement about the practical impact of the revised Manual. For many, DoD’s adoption of a civilian presumption is “unremarkable,” in part because “it already reflects U.S. practice.” Often, those who find the presumption unobjectionable emphasize easy cases. On the one hand, targeting situations in which decision-makers have “little or no information that a person or object is a combatant or military objective” seem easy insofar as they offer no means for overcoming the presumption. On the other hand, circumstances in which the decision-maker is, say, “95 percent certain that the person or object is a legitimate military target” are likewise easy in that they signal situations in which decision-makers attain virtual certainty about targetability.
In hard cases—for example, the squad leader example above—these commentators typically appeal to the targeting burden of proof’s dimension of weight. They emphasize the flexibility of the doubt threshold and the burden’s capacity to accommodate the epistemically challenging circumstances of war. However, these commentators need not appeal to the targeting burden of proof in hard cases. Rather, the presumption itself has a characteristic of relative durability that allows it to accommodate hard cases.
In contrast, those who tend toward caution about the presumption often focus on the challenges of implementing it in hard cases, that is, the most epistemically challenging situations of warfare. These typically involve significant uncertainty about the character of the battlespace and potential targets, and yet also seem to demand immediate action to avoid further risk to the decision-maker’s force or mission. The revised Manual’s adoption of the presumption provokes questions about its workability against situations involving surprise, deception, and other characteristics of contemporary warfare. For those worried by these questions, imposition of a presumption of civilian status may be “problematic for both civilians and warfighters” and “operationally [in]advisable.”
Yet, the civilian presumption’s characteristic of durability mediates the debate by revealing the presumption’s reflexive character. In so-called easy cases, the presumption takes a relatively durable character, precisely because the decision-maker stands in an epistemically advantageous position (for example, due to the sufficiency of time or resources in which he or she can assess targetability). In contrast, the presumption becomes relatively brittle in so-called hard cases—again, precisely in response to the decision-maker’s position of epistemic disadvantage (for example, because of the insufficiency of time or resources available).
Notably, the presumption’s durability is particularly relevant with respect to the role of “soldier intuition” in warfare. As noted elsewhere, the revised Manual’s adoption of a civilian presumption fuels compelling questions about the proper role of intuition on the battlefield (which has somewhat provocatively been called a “warfighter’s cognitive bias mindset”). To the extent that the law of war accommodates battlefield intuition, the civilian presumption could accommodate such a mindset by taking on a particularly brittle character when appropriate under the circumstances.
This last point leads to a third consideration, namely that the presumption’s durability may give reason for hesitancy about the prudence of the Manual’s adoption of a civilian presumption. Given the character of contemporary warfare—and forecasts about the future battlefield—it seems that to remain workable, the presumption must have capacity to take on an especially weak character when appropriately demanded by the circumstances. Indeed, given predictions about the tempo, complexity, and intensity of the future battlefield, it would seem that in some situations the presumption’s particular brittleness would entail practical insubstantiality. In such circumstances, it may be fair to ask whether the presumption of civilian status can properly be said to maintain the character of a legal presumption at all.
More generally, these considerations suggest it may be worth reconsidering the increasing tendency to incorporate legal terms of art—normally used in highly formal legal settings—into the law governing the conduct of hostilities. In this vein, recall the most prominent example of legal presumption: the criminal law presumption of innocence. It is worth noting that the circumstances in which a jury is asked to consider and apply the presumption of innocence in many ways could not be further from targeting decision-making during armed conflict.
Conclusion
In this post, I offer a description of one aspect of the law-of-war presumption of civilian status, namely its durability. I argue that the presumption’s characteristic of relative durability explains how it can accommodate the varying degrees of epistemic difficulty inherent in targeting decision-making during armed conflict. Hopefully, this discussion sheds light on an aspect of the presumption that may be overlooked in debates about the advisability of the revised Manual’s adoption of a civilian presumption in targeting.
This discussion suggests other avenues of exploration. For example, although I explain in general terms the relationship between legal presumptions and burdens of persuasion, I largely set aside the potentially significant implications for the civilian presumption of a corresponding burden of persuasion on attack decision-makers. Additionally, further examination is warranted of how notions of soldier intuition, training, and combat experience interact with the civilian presumption’s capacity to take a particularly brittle or insubstantial character.
I do not take a particular position here on the wisdom or prudence of the Manual’s adoption of the civilian presumption. In my view, the defensibility of the revised Manual’s position depends on its implementation, including the ability of commanders, decision-makers, and advising attorneys to appreciate its characteristic of durability.
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Robert Lawless is an Assistant Professor in the Department of Law and Managing Director of the Lieber Institute for Law & Land Warfare at the United States Military Academy, West Point.
Photo credit: Spc. Jensen Guillory
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