Civilian Risk Mitigation: Why Context Matters
The proverbial dust is now settling on the blast that was the publication of the new Civilian Mitigation Response and Action Plan (CHMR-AP). The reaction to this “response” plan has been mixed to say the least, with some commentators raising concerns that the Plan will inhibit combat effectiveness in future mid to high intensity conflicts. For example, two commentators recently noted that, “unduly burdensome policy positions cut directly against the necessities of war that are likely to emerge, to the detriment of those engaged in combat” and that
[i]mplementing 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.
Perhaps unsurprisingly (as I have been stomping on the Soap Box of precautionary measures since 2014 when I wrote this article), I have already expressed strong support for the Plan. Others, as reflected above, have raised concerns that the Plan reflects a counter-insurgency mindset that will undermine combat effectiveness in future peer-to-peer or near-peer conflicts, a concern elevated by the increasing shift to preparing for such conflicts.
What seems lost in these critiques is one critical word and how it relates to one equally critical aspect of ex ante decision-making. That word is feasible, and the aspect is context. If properly understood, I believe that feasibility coupled with the context within which attack decisions are made substantially mitigates (no pun intended) the concerns expressed in criticisms of the Plan.
At its core, the CHMR-AP seeks to enhance strategic, operational, and tactical legitimacy of U.S. military operations by enhancing compliance with the law of armed conflict’s attack decision-making framework. To this end, it is important to acknowledge two undeniable facts. First, the Plan is focused on civilian risk mitigation, not civilian casualty prevention. This might seem semantic to some; not to me. As I have often argued, risk mitigation is focused on decision-making prior to the attack; casualty prevention shifts that focus to attack effects (see here). This shift distorts the true focus of LOAC obligations in relation to the conduct of hostilities, which are almost exclusively conduct, and not result oriented obligations focused on decision-making judgment, not actual outcomes.
Indeed, this is why I coined the phrase “effects-based condemnations” to criticize the tendency to focus exclusively on attack effects as the touchstone of LOAC compliance. Effects are certainly probative of such compliance but are rarely dispositive. And for good reason: the law’s targeting regime is focused on attack judgments. Even the proportionality rule, which is often framed in terms of effects, is in fact focused on anticipated, and not actual attack effects. A key part of that judgment includes the process of implementing civilian risk mitigation measures – to include maximizing information related to the anticipated consequences of attack and assessing such consequences. Enhancing this judgment process is accordingly a proper focus of the Plan.
The second undeniable fact is that efforts to mitigate civilian risk during the conduct of hostilities have become an important touchstone for assessing the legitimacy of military operations. Establishing and preserving such legitimacy, in turn, is increasingly recognized as critical to successful military operations. I have written on this a number of times, but one need only consider the fact that joint U.S. operational doctrine now includes legitimacy among the more traditional principles of effective military operations.
This leads to three conclusions. First, the relationship between the perceived respect for the law of armed conflict and the legitimacy of U.S. military operations will continue to be a reality of strategic success. Second, the focal point for assessing that respect will continue to be the perceived U.S. commitment to mitigating the risk to civilians and civilian property, especially during the conduct of hostilities. Third, these considerations will in no way dissipate based on the nature of the hostilities at issue.
So, it seems at least to me that enhancing the capacity of commanders to implement the basic obligation to take “constant care” to mitigate civilian suffering in war and to implement all “feasible” civilian risk mitigation measures in relation to attack decisions is eminently logical. Of course, it is equally illogical to assume that this means measures implemented during counter-insurgency operations are equally obligatory in the context of mid to high intensity combat operations against peer or near-peer enemies. I suspect that most critics of the Plan would agree with both these assertions. Indeed, critics seem to rely on this as the foundation for their concerns about the Plan. Hence the critical importance of focusing on the two considerations proposed at the beginning of this post.
As I addressed with my co-author James Schoettler in this article, the law of armed conflict imposes a singular obligation on all attack decision-makers no matter the operational context of those decisions: reasonableness. Reasonableness in implementing attack related obligations is both an objective and ex ante standard. What the law demands is decisions that are within the range of objective reason based on the circumstances ruling at the time. Accordingly, a commander may make a reasonable attack decision that results in civilian casualties or make an unreasonable attack decision that does not produce such a result. Because the focus of the law is the decision, and not the result, the first decision complies with the law whereas the second does not. In other words, like in other contexts where assessing legal compliance requires focus on the reasonableness of judgments that set into motion actions (such as the use of force in self-defense), an attack decision may be reasonable but be wrong.
Reasonableness, in turn, requires assessment of the situation – or context – that the decision-maker confronted at the time of the attack decision (see here). This means that what is reasonable in one operational context is not necessarily (or even commonly) reasonable in a different context (see here). Indeed, this has been a central theme in a number of assessments of Israeli Defense Force operations I have been involved in along with retired U.S. flag officers. A constant theme of these assessments has been an effort to highlight the danger of assuming that civilian risk mitigation measures implemented in one operation are legally obligatory in future operations, for the simple reason that context matters (see here). What is reasonable today may not be reasonable tomorrow. For example, this report from an assessment of a potential future conflict against Hezbollah on Israel’s northern border noted that,
Moreover, the IDF’s operational challenges in the next conflict likely will limit its ability to avoid civilian casualties through precautionary measures that exceed LOAC requirements. Israel’s additional warning measures above and beyond the standard set by the LOAC, though morally admirable, may prove incompatible with operational and tactical requirements in a future conflict with Hezbollah.
The scale and intensity of the next conflict between Israel and Hezbollah will be unprecedented for either combatant in many respects, whether strategic, operational or tactical. What will be unchanged is Israel’s commitment to the lawful conduct of operations, even as its adversaries continue to abuse the law to their own advantage on the battlefield and exploit its misunderstandings in pursuit of victory in the court of public opinion.
This task force has no doubt the IDF commanders and forces thrust into these operations will implement their obligations to follow international law in good faith. But we also know from our own experience that how the law is implemented in the context of rapid combined-arms operations involving air, ground and naval power, against an adaptable, competent and lethal adversary, will involve very different processes and outcomes than counterterrorism operations where commanders have the luxury of time, information awareness and tactical dominance. Understanding the true nature of this type of operation is the essential first step to understanding how the law functions in this operational context, and the equally essential foundation for any credible critique of legal compliance and strategic legitimacy.
In relation to civilian risk mitigation measures, the law of armed conflict integrates this reality with one word: feasible. The law always requires that commanders and other attack decision-makers consider and implement feasible precautionary measures to mitigate civilian risk. This means that the force has the ability to implement the measure (for example, it is not feasible to warn civilians of a pending attack by text message as the IDF does routinely in Gaza if the command does not have a phone number data base) and implementing the measure will not degrade the military advantage anticipated from the attack. Thus, no one would expect a commander to drop leaflets over enemy territory to warn of a pending attack when doing so would both expose the warning aircraft to genuine risk of being shot down and/or alert the enemy to an attack that relied on surprise. Thus, the assumption that what is required in terms of civilian risk mitigation in the context of counter-insurgency operations will be demanded of commanders in other operational contexts is deeply flawed.
What is not flawed, however, is the desire to enhance the commander’s capacity to assess both anticipated civilian risk resulting from attack decisions and what mitigation measures are operationally and tactically feasible under the circumstances. Nor is it flawed to seek to enhance the quality of such judgments at every level of command, based on the recognition that such enhancement can only contribute to both operational success and strategic legitimacy. Indeed, it feels somewhat contradictory to criticize a Plan which seeks to enhance the understanding of these obligations and considerations among commanders and other attack decision-makers by arguing that it will undermine the effectiveness of mid to high intensity combat operations. To the contrary, it is precisely because these operations will impose immensely impactful attack decisions on commanders who lack the deliberation time and extensive access to operational legal advice they enjoyed during counter-insurgency operations that enhancing their understanding of these considerations is both logical and important.
Concerns about unintended consequences are understandable, but if properly implemented there should be nothing “hobbling” inherent in this Plan. No one can dispute the fact that the obligation to implement feasible civilian risk mitigation measures during combat operations is a constant obligation that is in no way suspended because of the intensity of those operations or the capacity of the enemy. Instead, because this obligation is qualified by what is feasible, and because what is reasonably feasible is dictated by operational and tactical context, developing more effective processes to make these critical judgments and developing combat leaders who genuinely understand these obligations makes good sense.
Ultimately, this Plan seems to me to aspire to provide commanders more information, better processes to assess this information, enhanced capabilities to facilitate the use of decisive combat power in a way that mitigates civilian risk, and ultimately effective and legitimate attack judgments. We should demand nothing less from our armed forces no matter what type of “fight” they are engaged in.
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Geoffrey S. Corn is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy at Texas Tech University School of Law.
Photo credit: Spc. Scott Davis, U.S. Army