2023 DOD Manual Revision – Practical Concerns Related to the Presumption of Civilian Status – Part I

(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.)

Since the 3rd edition of the U.S. Department of Defense (DoD) Law of War Manual was released at the end of 2016, a slew of suggested revisions has been proposed. A letter published last February to DoD General Counsel Caroline Krass by Representative Sara Jacobs (D-Cal.) and Senator Dick Durbin (D-Ill.) captured a catalog of suggestions. The eight substantive suggestions in the letter are based on an assortment of public commentary primarily drawn from recent media reporting and various Just Security blog posts. In an article forthcoming in the next volume of the Cornell Journal of Law and Public Policy, I am unreservedly critical not only of the substantive suggestions but also of what I describe as “an objectionable attempt” by legislators “to encroach upon existing executive authority.”

In the end, only two of the eight substantive suggestions presented by the pair of lawmakers were incorporated into the most recent update to the Manual. This detail alone is commendable. Additionally, one of the two major revisions that was adopted, involving the “treatment of precautions,” was incorporated only to a limited extent. The update presents expanded guidance regarding the law of armed conflict (LOAC) requirement to take feasible precautions in the attack, including useful examples of what the requirement “may include.” Wisely, though, the DoD declined the suggestion to adopt the purportedly “accepted requirement” under LOAC “to take all feasible precautions to prevent civilian harm” proposed in the Jacobs-Durbin letter (emphasis in original).

Taken as a whole, the revisions to the Manual are commendable not only for the changes that were adopted but, as importantly, for a number of suggested modifications that were not implemented. The one conspicuous exception to that endorsement, however, involves updated guidance related to the presumption of civilian status.

Civilian Persons and Objects under AP I

As Hitoshi Nasu and Sean Watts highlight in a previous Articles of War post, the relevant text of Additional Protocol I (AP I) uses different terminology for people and for objects when describing what is required in cases of doubt as to civilian status. For people who are prospective targets, the text of the treaty establishes, “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian” (emphasis added). In contrast, for objects the text establishes, “In case of doubt whether an object which is normally dedicated to civilian purposes…it shall be presumed not to be so used” (emphasis added). It is clear from the official records of the diplomatic conference leading to the adoption of the 1977 Additional Protocols that the relevant working group deliberately substituted the term “considered” for the term “presumed” in the provision relating to civilian persons.

A different view is offered in a contribution to the Articles of War series, insisting that the “Department of Defense’s recognition of a presumption of civilian status is appropriate.” At the most fundamental level, this divergence in perspectives comes down to whether there is a semantic difference between the words “consider” and “presume.”

 “Consider” v. “Presume”

To address this divergence in views, it is useful to assess whether there is any difference in the meaning of the words “consider” and “presume” and, if so, to assess what effect such a difference may have on targeting operations in practice.

According to the Cambridge English Dictionary, the most relevant definition of “consider” is: “to believe to be; to think of as.” Turning next to “presume,” the first entry from the definition is most relevant for present purposes: “to believe something to be true because it is very likely, although you are not certain.” Commonly, the difference between the two words may seem negligible. The distinction really comes down to the degree of certainty. For example, if I presume that the world is round, I also consider it to be so. The difference, according to these definitions, is that I believe the world is “very likely” round if I presume it to be, while I just believe it “to be”—without such a strong conviction—if I consider the world round.

In a context where the degree of certainty doesn’t matter much (if at all), “consider” and “presume” may well be thought of as nearly interchangeable. But in the context of resolving doubt regarding whether a person or object qualifies as a military objective, the degree of certainty matters a great deal.

Uncertainty in Targeting

Others have astutely recognized the potential for uncertainty that adopting an ambiguous presumption standard may generate. Near the conclusion of his analysis, Professor Michael Schmitt notes that “the question attackers ask themselves in practice, and correctly so, is whether they are attacking lawful targets, not whether they have ‘rebutted a presumption,’ a particularly legalistic notion.” In his contribution to this series, Geoff Corn raises a similar concern. Professor Corn insists (and I enthusiastically concur), “If commanders are required to apply a presumption of civilian status ‘when in doubt,’ they are entitled to some indication of what is sufficient to rebut that presumption.”

Although the updated guidance in the Manual claims that the presumption of civilian status “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,” no direction is provided regarding what quantum of information is necessary to overcome that presumption (emphasis added). This is precisely why the previous version of the Manual—and long-standing DoD guidance—rejected the presumption. As the previous edition of the Manual noted on the topic, “A legal presumption of civilian status in cases of doubt may demand a degree of certainty that would not account for the realities of war.” Building on the “degree of certainty” observation, a reference cited by a footnote to this sentence asserts that the presumption “ignores the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat.”

Concern related to the potential for uncertainty that is introduced by insisting on a presumption of civilian status as the “starting point” for targeting decisions resonates both with my experience as a combat arms soldier and a military lawyer advising on operational law. This is especially the case given that the Manual update fails to describe a precise standard for overcoming such a presumption.

Overcoming the Presumption

Like many military lawyers, I have spent many hours advising decision makers on targeting decisions in combat and providing use of force training to troops in preparation for combat. Advising that a person could be attacked in the complete absence of any information indicating that the target is a combatant or a civilian taking a direct part in hostilities would, of course, be unthinkable.

So too, though, would be advising a decision maker that the proposed target must be presumed to be a civilian (not taking a direct part in hostilities) in case of doubt (which almost always exists in targeting operations) without being able to articulate what degree of certainty is required to overcome that presumption. In accordance with the DoD guidance that existed prior to July 31, 2023, thankfully that is a scenario I never had to encounter.

The same can no longer be said for national security law attorneys in the DoD today. While the revisions to the Manual seem generally well received, those military practitioners I have spoken to reacted unfavorably, without exception, to the change in the guidance related to the presumption of civilian status. Generally, the opposition I’ve encountered aligns with my own concern regarding the ambiguous standard required to overcome the presumption.

One contact, who currently works at the Pentagon and has extensive operational experience, noted, “In practice, I think in the absence of information that someone is a combatant, even if we don’t presume they’re a civilian, we have difficulty articulating military necessity” by engaging in an attack. The same contact goes on to note, “I also think more (or maybe as) important than the presumption is the standard necessary to overcome it.”

The issue whether “presume” must be selected as the term to connote a requirement not to engage in an attack in the absence of information indicating that a person is a target is an important detail that is at the very core of the current controversy.

The Distinction Rule

In introducing the revised requirement to presume civilian status, the updated Manual claims, “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.” However, this assertion does not withstand critical scrutiny.

As an initial matter, the purpose of the presumption in the relevant legal text must be addressed. Although the United States has not ratified AP I, this is the treaty that designates the standard. As DoD General Counsel Caroline Krass notes, the relevant revision to the Manual now “describes the legal duty to presume that persons or objects are protected from being targeted for attack unless the available information indicates that they are military objectives” (emphasis added).

However, as examined above, AP I uses different terminology for people (considered) and objects (presumed). Additionally, it is not clear that either provision of AP I constitutes a conventional or customary legal duty. The provision of AP I describing that a “person shall be considered to be a civilian” in case of doubt is part of Article 50, labeled “Definition of civilians and civilian population.” The corresponding provision requiring an object to “be presumed not to be” used as a military objective in case of doubt is part of Article 52, labeled “General protection of civilian objects.”

It is not clear that a component of a treaty provision merely establishing a definition for civilians or a corresponding provision describing the general protection of civilian objects is an adequate basis by which to claim a legal duty exists in the applied targeting context. Fortunately, there is a persuasive source of international law that helps to ascertain the precise nature of a legal duty for personnel engaged in the conduct of hostilities: the Rome Statute of the International Criminal Court.

The Rome Statute

It should be emphasized at the outset that the United States has not ratified the Rome Statute. However, the concern that stimulated suspicion of the International Criminal Court is jurisdictional rather than substantive. Indeed, the United States was deeply involved in the diplomatic negotiations that led to the adoption of the Rome Statute. While conveying regret that some concerns related to jurisdiction and the definition of aggression were not adequately addressed during the Rome Conference, the U.S. delegation nevertheless expressed the hope that the “contributions of the United States to the Statute would stand.”

The provisions of the treaty related to war crimes (Article 8) and the mental element relevant for all crimes (Article 30) were chief among those contributions. As I have previously described in an article exploring the connections between recklessness, intent, and war crimes, participants in the Rome Conference—including the U.S. delegation—met with the intent “to design a formulation of existing customary law that would be applied by the tribunal being established.”

In the same article, I note, “Salient prescriptions of customary international law are reflected in the progression of the statutes for international criminal tribunals, with the Rome Statute being at the apex of this progression.” As such, relevant text from the Rome Statute should be the go-to reference for ascertaining widely recognized standards for grave breaches or serious violations of international law.

Distinction and the Accompanying Mental Element

The Manual revision under examination relates primarily to the LOAC distinction rule. Although there are subtle but important differences between the war crime provisions that pertain to international armed conflicts (IAC) and those that apply to non-international armed conflicts, I address here only the relevant provisions reflected in the IAC section, simply to avoid unnecessary complication. This means that Article 8(2)(b), relating to other serious violations of the laws and customs applicable in IAC, is the focal point of the analysis.

The updated guidance in the revised Manual is limited to the categories reflected in sub-paragraphs (i) and (ii) of Article 8(2)(b). According to these provisions of the Rome Statute, a person commits a serious LOAC violation by “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” (emphasis added). Likewise, in relation to objects, a serious violation is committed by “intentionally directing attacks against civilian objects, that is, objects which are not military objectives” (emphasis added).

In both instances, I’ve emphasized “intentionally” because it is a defined term. According to Article 30 of the treaty, all elements of all crimes must be committed “with intent and knowledge” unless otherwise provided (the “otherwise provided” exception doesn’t apply to the rules outlined above). According to Article 30, “‘knowledge’ means awareness that a circumstance exists … .” This means an attacker or decision maker must be aware that the target is a civilian person (who is not taking a direct part in hostilities) or a civilian object because civilian status is the “circumstance” that must exist to violate the relevant rules.

As both violations involve conduct (directing attacks) rather than circumstances, “intent” requires that the accused “means to engage in the conduct.” This means, for example, that killing a civilian by accidentally firing a projectile from a rifle would not qualify as a violation. Article 32 of the Rome Statute establishes that a mistake of fact excludes criminal liability “if it negates the mental element required by the crime.” The relevant mental element for both violations is “intentional” conduct, and this requires knowledge that the circumstance exists, namely the civilian status of the target.

Practical Application

When applying the relevant provisions of the Rome Statute, positive knowledge of civilian status is required to establish a violation of the distinction rule. This is a definitive and unambiguous legal standard, rather than an amorphous presumption that must be overcome by an undefined quantum of information.

Of course, it is true that the war crimes provisions of the Rome Statute are limited to grave breaches or serious violations and that military personnel can commit other, less severe, LOAC violations, such as failure to take feasible precautions in the attack. Failing to overcome a presumption of civilian status and nevertheless launching an attack could potentially be counted among the less severe infractions.

Even so, applying the relevant provisions of the Rome Statute demonstrates that the presumption of civilian status doesn’t necessarily need to be the “starting point” for complying with the distinction rule, as the latest Manual update suggests. Many U.S. partners and allies have ratified AP I, but most have also ratified the Rome Statute. In the current context, it is the Rome Statute rather than AP I that establishes, with precision, the international legal standards by which each State Party agrees to hold their own service members accountable.

Notwithstanding general guidance presented in AP I, practical application of the distinction rule does not necessarily require a presumption of civilian status. The Rome Statute confirms this to be the case, and the starting point for this approach is, in essence, a requirement not to attack civilian persons or objects with “awareness that” they do not qualify as military objectives.

The analysis in Part I is centered on the issue of whether a presumption of civilian status is necessarily the “starting point” for implementing the distinction rule in the applied context as a matter of law. Part II continues the analysis by assessing whether the presumption of civilian status reflects current DoD practice before situating the presumption issue in the broader context of public discourse related to civilian protection practices.

***

Brian L. Cox is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School, a visiting scholar at the University of Ottawa Faculty of Law (Common Law Section) in Ontario, and a retired U.S. Army judge advocate.

Photo credit: Sgt. Kwan-Young Hong