The New U.S. Department of Defense Instruction on Civilian Harm Mitigation and Response

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| Dec 21, 2023

Harm

On August 25, 2022, Secretary of Defense Lloyd J. Austin III approved and released the Civilian Harm Mitigation and Response Action Plan (CHMR-AP)—an action plan that creates new institutions and processes to strengthen the Department of Defense’s (DoD) ability to mitigate civilian harm during military operations, thereby optimizing aspects of military operations and improving strategic outcomes. Since that time, DoD has been steadily implementing the initial phases of that action plan. On December 21, 2023, a key element of CHMR-AP implementation was achieved when Secretary Austin approved Department of Defense Instruction (DoDI) 3000.17 on Civilian Harm Mitigation and Response.

The CHMR DoDI represents a significant step toward achieving the objectives set forth in the CHMR-AP. Where the action plan laid out a series of major steps to improve DoD’s approach to CHMR, consistent with national-level policy (including Executive Order 13732) and legislation (including Section 936 of the NDAA for FY 2019, as amended (10 USC 134 note), the CHMR DoDI sets out Department-wide policies, responsibilities, and procedures, and will serve as an enduring framework for DoD efforts for many years to come. Notably, we believe this is the first policy issuance by any military in the world to take such a comprehensive approach to CHMR.

What is a DoD Instruction and Why Is the Issuance of This DoD Instruction Important? 

A DoD Instruction is one of the internal issuances that the DoD uses to establish Department-wide policy and assign responsibilities to specific DoD components. Formalizing policy in a DoDI ensures policy guidance is clear, authoritative, and consistent across the Department and through personnel changes. The Office of the Under Secretary of Defense for Policy has led the drafting and coordination of this DoDI, a lengthy and thorough process that allowed us to socialize this complex and nuanced subject matter and responsibilities across the Department.

That coordination process with individual DoD components (e.g., the Combatant Commands, Military Departments) that will be implementing it allowed them to bring their expertise to bear in developing the policy guidance. This DoDI had been in the process of development for several years before Secretary Austin issued the CHMR-AP. The final round of internal DoD review of the document included a focus on ensuring that the DoDI fully aligned with the actions and objectives set forth in the CHMR-AP. Although Office of the Secretary of Defense Component Heads (e.g., Under Secretary of Defense for Policy) usually issue DoDIs, Secretary Austin decided to personally approve this instruction.

Policy Direction

The issuance of the CHMR DoDI will ensure that ongoing CHMR efforts endure by formally establishing appropriate policies and responsibilities within DoD associated with civilian harm mitigation and response. On that score, a principal element of DoD’s CHMR policy, as articulated in the DoDI, “is to support commanders with institutional resources, tools, and capabilities to effectively implement law of war protections of civilians and civilian objects, and to enable further steps to protect civilians and civilian objects and to respond appropriately when civilian harm occurs.”

At the direction of Secretary Austin, the DoDI adopts a comprehensive approach, reinforcing that DoD’s efforts to protect civilians are the responsibility of all leaders throughout the Department. It confirms that DoD’s CHMR policy—one that “is based on strategic, moral, policy, operational, legal and other considerations”—is designed to advance “U.S. national security interests, including by furthering strategic objectives to achieve long-term strategic success, enhancing the effectiveness and legitimacy of military operations, and demonstrating moral leadership.” While DoD has always sought to mitigate the risk of civilian harm, this is the first formalization of a Department-wide institutional approach that prioritizes CHMR, as a matter of policy, across military operations.

Leadership

The CHMR DoDI institutionalizes a leadership framework that is largely derived from the CHMR-AP but goes beyond that action plan to further guide executive direction across the force on CHMR. The DoDI institutionalizes the CHMR Steering Committee—the senior-level implementation forum that is tri-chaired by the Under Secretary of Defense for Policy (USD(P)), the Vice Chairman of the Joint Chiefs, and the Comptroller. It also formalizes the responsibilities of the Secretary of the Army as the Joint Proponent for CHMR and designates the Under Secretary of Defense for Policy (USD(P)) as “the Principal Staff Assistant to oversee the activities of the Joint Proponent for CHMR on the Secretary of Defense’s behalf.”

In addition, to confirm sustained senior level attention, the DoDI also requires the Under Secretary of Defense for Research and Engineering (USD(R&E)), the Under Secretary of Defense for Acquisition and Sustainment (USD(A&S)), the Under Secretary of Defense for Intelligence and Security (USD(I&S)), the Secretaries of the Military Departments, the Chairman of the Joint Chiefs of Staff, and the Combatant Commanders to identify a lead general officer, flag officer, or senior executive service (SES) official under their authority, direction, and control to coordinate their respective organization’s CHMR-related efforts. The DoDI further emphasizes that “Commanders at all levels have a great responsibility to exercise the leadership necessary to reduce the risk of harm to civilians and civilian objects during military operations involving the use of force.”

Force Development

A fundamental aspect of the CHMR DoDI is the effort to strengthen the capability, capacity, and readiness of the force to mitigate and respond to civilian harm. This includes responsibilities for leaders of key force development organizations, including USD(R&E), USD(A&S), and the Secretaries of the Military Departments, related to:

– identifying capability needs for weapons, weapon systems, and other technical systems relevant to CHMR;

– developing, acquiring, and fielding weapons, weapon systems, and other technical systems; and

– identifying relevant potential capability improvements that further enable the discriminate use of force in different operational contexts, including by reducing risk to civilians and civilian objects while enabling the same or superior combat effectiveness.

Notably, it also requires USD(A&S) and USD(R&E) to incorporate CHMR into policies, guidance, and processes for system safety, and to provide advice to the CHMR Steering Committee regarding options for weapons system and other technologies to enhance DoD’s ability to mitigate and respond to civilian harm. This catalyzes DoD’s efforts to explore and potentially harness emerging technologies (potentially including artificial intelligence, machine learning, augmented reality technologies and other technologies) to enhance battlefield awareness, improve target identification, and maximize the efficacy of military operations.

Likewise, the CHMR DoDI makes clear that the Secretaries of the Military Departments’ responsibilities include organizing, manning, training, equipping, and sustaining forces; tracking military forces’ readiness; developing doctrine and operating concepts to help mitigate and respond to civilian harm resulting from U.S. military operations, and incorporating CHMR objectives into exercises, training, and professional military education.

Reflecting a recognition that capability development must be informed by the requirements of operational commanders, the DoDI directs Combatant Commanders to identify capability requirements for mitigating and responding to civilian harm when developing integrated priority lists, including capabilities that improve commanders’ and their units’ situational awareness of the operational environment with respect to the presence of civilians and civilian objects. Moreover, it provides for the development of professional tracks, skill identifiers, and certification requirements for key CHMR personnel and functions (e.g., Civilian Harm Mitigation and Response Officers) which will further support CHMR personnel actions ongoing across the Department consistent with the CHMR-AP. Through these and related efforts, the Department will improve its capabilities, capacity, and readiness to mitigate and respond to civilian harm.

Planning and Operations

Consistent with the CHMR-AP, the CHMR DoDI requires incorporation of CHMR considerations throughout all steps of the joint planning process and the joint targeting process. It requires the Chairman of the Joint Staff to incorporate across joint doctrine a clear definition of the “civilian environment;” to incorporate CHMR into doctrine and guidance, including as relates to joint planning, joint operations, and joint targeting (including both deliberate and dynamic targeting); and to ensure that efforts to mitigate civilian harm are considered when planning military operations, developing and reviewing plans and orders, within the Joint Staff’s purview, and when communicating guidance related to operations. Likewise, the DoDI directs Combatant Commanders to identify and integrate approaches for mitigating and responding to civilian harm across all levels of command into plans, operations, exercises, and training, including by incorporating clear end-state objectives with respect to the protection of civilians and civilian objects as part of overall mission objectives. It further dedicates a procedural section to mitigating civilian harm, providing Department-wide direction that will inform future planning and conduct of operations. In doing so, it makes clear that this direction applies to U.S. forces regardless of whether U.S. forces are operating alone or in coordination with allies and partners.

Intelligence and Awareness

A key conceptual underpinning of the CHMR-AP is a focus on the “civilian environment,” including the civilian population and the personnel, organizations, resources, infrastructure, essential services, and systems on which civilian life depends. This is because DoD can better protect civilians during armed conflict by enhancing commanders’ awareness and understanding of the civilian environment and elevating the importance of civilian protection throughout planning and operations.

Consistent with the CHMR-AP, the CHMR DoDI provides direction to identify capability improvements that will improve situational awareness for commanders and their units, including the presence of civilians and civilian objects that may be at risk, and implement information collection and dissemination processes to enhance awareness of civilian population density, demographics, and dynamics, and the locations and functions of civilian objects. It specifies responsibilities for the leaders of force development organizations, including USD(R&E), USD(A&S), and the Secretaries of the Military Departments, related to their role in developing, acquiring, sustaining, and fielding capabilities that will improve situational awareness of the operational environment for commanders and their units, including the presence of civilians and civilian objects that may be at risk.

Additionally, the CHMR DoDI includes responsibilities for USD(A&S) and USD(I&S) to provide guidance related to the development and fielding of intelligence sensors and other battlespace awareness capabilities to enable enhanced understanding of civilians and civilian objects throughout the joint targeting process.

Critically, it encourages DoD components to seek out external information regarding civilians, civilian objects, and civilian harm, including by working with other USG departments and agencies and maintaining channels for engagement with civil society organizations. And, perhaps most importantly, it formalizes a number of critical enduring responsibilities for USD(I&S), which together will improve DoD’s understanding of the civilian population—including population density, dynamics, and demographics, patterns of life, and cultural norms and practice—and civilian objects, including as relate to programs and resources within the Defense Intelligence Enterprise, information collection, and processes for disseminating information to support military operations. Together, this direction will serve to expand DoD’s knowledge of the civilian environment and support DoD’s ability to mitigate civilian harm.

Assessments and Investigations

The DoDI for the first time formalizes in DoD policy a requirement to assess civilian harm resulting from military operations and standardizes civilian harm assessment processes across DoD. As RAND’s Congressionally-directed independent assessment of U.S. Department of Defense Civilian Casualty Policies and Procedures noted, prior to 2014, administrative investigations, such as those conducted under Army Regulation 15-6, were the primary tool used to investigate potential instances of civilian harm. A more expedient modality, Civilian Casualty Credibility Assessment Reports (CCARs), were later “developed in the context of OIR [Operation INHERENT RESOLVE] to allow the military to more quickly process—relative to investigations—reports of civilian casualties occurring in greater numbers and from a diverse array of external sources.”

While such assessment procedures have been used by various commands and described in annual DoD reports to Congress, DoD has never before issued standard procedures for assessing civilian harm across the force. The DoDI will enable DoD to more effectively assess the effects of military operations on civilians, and is consistent with the legislative requirement articulated in Section 1057 of the NDAA for FY2018, as amendedfor DoD to report annually on civilian casualties in connection with U.S. military operations.

The CHMR DoDI reflects a tripartite framework based on existing practice: (1) initial reviews; (2) civilian harm assessments; and (3) investigations. The DoDI requires that the results of civilian harm assessments indicate whether it was “more likely than not” that civilian harm occurred and provides guidance on the “more likely than not” standard, which reflects the command’s best understanding based on the information available at the time of the assessment and the reality that information during military operations including with respect to the outcomes of operations, is often lacking or incomplete. The DoDI specifically notes that “if there is reason to believe that civilians were injured or killed—or, when the scope of a civilian harm assessment includes damage or destruction of civilian objects, that civilian objects were damaged or destroyed—and that such harm resulted from U.S. military operations, and if other available information does not provide greater reason to believe that civilians were not killed or injured as a result of U.S. military operations, then the “more likely than not” standard would be met. This and other guidance in the DoDI will address concerns that DoD has not clearly communicated its standards for assessing reports of civilian harm.

Additionally, consistent with RAND’s recommendation to “use a range of estimates of civilian casualties to improve the accuracy of assessments,” and a recommendation from the 2018 Joint Civilian Casualty Review conducted under then Chairman of the Joint Chiefs of Staff Dempsey, the CHMR DoDI specifies that “[i]f civilian casualties are assessed more likely than not to have resulted from U.S. military operations, the assessment’s results will include, to the extent practicable, an estimated number of civilian casualties with an upper and a lower bound, if there is insufficient information available to assess a particular number of civilian casualties,” and provides as an alternative that “the upper bound estimate may be reported.”

The CHMR DoDI articulates the purposes of initial reviews, civilian harm assessments, and investigations. It also provides guidance on the content of those mechanisms and requires that assessments and investigations into civilian harm are conducted in a timely matter and archived in a common data platform that is being developed by the Army.

As described in the DoDI, the first step of initiating a civilian harm assessment is to conduct an initial review to correlate reports of civilian harm with operational data to identify potential operations that may have resulted in civilian harm. If this initial review identifies U.S. military operations that may have resulted in civilian harm, the relevant command may then conduct a civilian harm assessment to ascertain whether civilian harm more likely than not resulted from U.S. military operations. Commands may instead initiate investigations of civilian harm to answer questions not sufficiently addressed by, or outside the scope of, a civilian harm assessment; to inquire into potential misconduct not within the purview of a military criminal investigative organization, or related matters that may have contributed to civilian harm; or to facilitate a more detailed inquiry into matters that a relevant authority deems to be sufficiently complex or significant as to warrant the use of command investigative mechanisms.

Supporting these procedures, the DoDI also requires the creation of new positions that have not previously existed in the Department. Consistent with the CHMR-AP, the DoDI calls for Combatant Commands to designate in preparation for crisis or conflict a senior Civilian Harm Assessment and Investigation Coordinator to oversee assessments and investigation processes, be responsible for civilian harm assessments conducted under their purview, and ensure recommendations of civilian harm assessments and investigations feed back into command learning processes. It also requires Combatant Commands to establish or maintain Civilian Harm Assessment Cells in preparation for and throughout the duration of a crisis or conflict, and provides specific details regarding the responsibilities and composition of these cells.

Critically, like the CHMR-AP, the CHMR DoDI provides needed flexibility to ensure its applicability across the spectrum of conflict. For instance, the DoDI recognizes that in large scale combat operations it will not be possible to conduct such civilian harm assessments for every incident of civilian harm, and instead directs that “Civilian harm assessments will be conducted at the most detailed scale practicable given mission requirements, the availability of resources, and other operational factors, consistent with CCDR [Combatant Commander] guidance.” Further the DoDI notes, “In many operational contexts, it may not be appropriate or practicable to conduct civilian harm assessments in response to all information indicating damage to or destruction of civilian objects may have occurred. Instead, CCDRs will provide guidance specifying the criteria under which they expect civilian harm assessments to be conducted for civilian objects.” Such flexibility provides Combatant Commanders the ability to adapt CHMR practices to different operational contexts.

Response and Acknowledgement

The CHMR DoDI states that DoD will acknowledge civilian harm resulting from U.S. military operations and respond to individuals and communities affected by U.S. military operations. The DoDI is fully consistent with the approach outlined in the CHMR-AP, which seeks to “ensure the availability of a diverse menu of response options to respond to individuals and communities affected by U.S. military operations.” The DoDI notes that, depending on available authorities, responses may take a wide range of forms, including responses at the individual or community level. It notes that responses may include but are not limited to: written or spoken acknowledgments and condolences; condolence payments in accordance with section 1213 of the NDAA for FY 2020, as amended (10 USC § 2731 note); medical care; repairs to damaged structures and infrastructure; ordnance removal; and/or locally held commemorative events or memorials. Such responses, when appropriate and permitted by applicable law, will help to address the direct impacts of civilian harm. Consistent with the CHMR-AP, DoD also continues to identify available authorities that can be used to respond to civilian harm and pursue new authorities where warranted.

The CHMR DoDI also establishes procedural guidance for publicly reporting information about civilian harm, requiring Combatant Commands to publish such reports on at least a quarterly basis, except as provided for (e.g., no incidents in which civilian casualties may have resulted were newly identified or reported) or where withholding information is warranted (e.g., to protect the integrity of ongoing investigations).

Learning and Analysis

The CHMR DoDI lays out a new Departmental approach to analyzing civilian harm and disseminating lessons learned, recommendations, and effective practices related to CHMR. The newly established Civilian Protection Center of Excellence will lead the effort to conduct this analysis, and it will work to incorporate and institutionalize such lessons, recommendations, and practices into doctrine; plans; capability requirements; operational processes; training; and tactics, techniques, and procedures to continuously improve the DoD’s ability to mitigate and respond to civilian harm. At the same time, the DoDI requires, for example, USD(P) and the military departments, to conduct studies and analyses to inform their respective CHMR efforts, and it includes analysis of civilian harm incidents, patterns, and trends among the list of tasks appropriate for civilian harm assessment cells.

Allies and Partners

The CHMR DoDI includes guidance for U.S. military forces to apply CHMR policies and practices in all phases of multinational operations and operations with non-state armed groups. Reflecting this guidance are a number of responsibilities for Combatant Commanders and other heads of DoD Components related to planning and conducting operations with allies and partners, and a dedicated subsection that identifies steps that DoD Components will take when U.S. forces are operating with ally and partner forces to incorporate CHMR considerations into planning and operations.

The CHMR DoDI further guides DoD efforts to shape and support efforts to help ally and partner forces in implementing effective CHMR practices, including by integrating such support into DoD security cooperation and security assistance. It includes among the responsibilities of USD(P) the responsibility to provide guidance that addresses the comprehensive integration of CHMR as a component of security cooperation. One aspect of this is the development of civilian harm baseline assessments of allies and partners (CBAPs). CBAPs will address the ability, willingness, norms, and practices of allies and partners to mitigate and respond to civilian harm.

The CHMR DoDI also directs the Director of the Defense Security Cooperation Agency (DSCA) to coordinate integration of CHMR into programs and activities across the security cooperation enterprise. This includes advising on integration of CHMR into security cooperation programs and identifying and analyzing relevant technology and training offerings to our partners and allies. The Director of DSCA also identifies arms transfers and activities within U.S. security cooperation and security assistance programs, including the transfer or sale of defense articles and services, that may warrant providing ancillary capabilities to further mitigate civilian harm.

Definition of Civilian Harm

Lastly, another important innovation in the CHMR DoDI is the articulation of a definition of civilian harm. For the purpose of the issuance, DoD defines civilian harm as follows:

Civilian casualties and damage to or destruction of civilian objects (which do not constitute military objectives under the law of war) resulting from military operations. As a matter of DoD policy, other adverse effects on the civilian population and the personnel, organizations, resources, infrastructure, essential services, and systems on which civilian life depends resulting from military operations are also considered in CHMR efforts to the extent practicable. These other adverse effects do not include mere inconveniences.

This definition is consistent with the DoD Law of War Manual which, in its discussion of proportionality and the prohibition on attacks expected to cause excessive incidental harm, states that “[t]he totality of the expected loss of civilian life, injury to civilians, and damage to civilian objects incidental to the attack must be considered,” but that “[m]ere inconveniences or temporary disruptions to civilian life need not be considered in applying this rule.” The DoDI’s definition of civilian harm, however, is notable in that it also reflects DoD’s policy to consider, to the extent practicable, a broad range of adverse effects on the civilian environment which may adversely affect civilians.

Conclusion

The DoD Instruction on Civilian Harm Mitigation and Response is an enduring policy issuance that institutionalizes the Department’s approach to mitigating and responding to civilian harm. It is also a critical element of CHMR-AP implementation. The new CHMR DoDI provides important policy guidance to shape how DoD conceptualizes, considers, assesses, investigates, and responds to civilian harm. Together with the CHMR-AP, the new CHMR DODI will formalize DoD policies, responsibilities, and procedures related to CHMR and create a reinforcing framework of processes and institutions specifically designed to improve DoD’s approach to mitigating and responding to civilian harm, which will also improve strategic outcomes and optimize military operations.

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Dan E. Stigall is the Director for Civilian Harm Mitigation and Response (CHMR) Policy in the Office of the Deputy Assistant Secretary of Defense for Irregular Warfare and Counterterrorism, Special Operations & Low-Intensity Conflict, OSD (Policy). From January – August 2022, he served as Team Lead for the Civilian Harm Mitigation and Response Action Plan (CHMR-AP) Tiger Team. The author would like to extend his sincere thanks to Anna Williams, Cara Negrette, and the other defense professionals who worked long hours contributing to the development of the CHMR DoDI.

 

 

Photo credit: Staff Sgt. Oscar Gollaz, U.S. Army