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

(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.)

Part I of this post analyzed relevant provisions of international law to assess whether a presumption of civilian status must necessarily be the starting point for implementing the distinction rule in the applied context. Part II continues the analysis of practical concerns related to the presumption of civilian status by assessing whether the guidance in the updated Manual reflects current DoD practice.

Current DoD Practice

In a contribution to this series on Articles of War, Mr. Michael Meier makes the point that the presumption of civilian status reflected in the most recent update to the Manual “already reflects U.S. practice.” However, the language he relies upon as evidence of current joint doctrine, involving “positive steps and precautions” and ensuring “military objectives, and not civilian objects, are prosecuted,” does not require a presumption of civilian status. In fact, a search for the words “presume” and “presumption” in the cited reference, Joint Publication 3-60, returns no results.

It should be noted that the current edition of JP 3-60 is not available to the public, but general targeting guidance reflected in the version published in January 2013 is still fairly current. Although the 2013 version makes no mention of a presumption of civilian status, the publication does indicate, “Purely civilian/protected objects or locations may not be intentionally targeted.” This approach is consistent with the formulation reflected in the Rome Statute examined in Part I.

Another source, U.S. Army Field Manual 6-27, The Commander’s Handbook on the Law of Land Warfare, does directly refer to a presumption of civilian status. It states that “in cases of doubt whether a person or object is a military objective, Soldiers and Marines should consider that person or object as a civilian or civilian object.” However, this assertion must be put in its proper context. It is drawn from paragraph 2-54, which engages in a fairly lengthy analysis of the interplay between language reflected in AP I and the 3^rd edition of the Manual (which was current at the time FM 6-27 was published). The last two sentences of this paragraph must be read in tandem.

Those final two sentences establish:

The Army and Marine Corps, as a matter of practice due to operational and policy reasons, generally take a more restrictive view than required under LOAC. In cases of doubt whether a person or object is a military objective, Soldiers and Marines should consider that person or object as a civilian or civilian object.

This reference acknowledges that the presumption of civilian status is not required by LOAC. The “matter of practice” reflected in this passage is a stark example of the oft-mentioned “COIN hangover” about which practitioners have routinely raised the alarm as the U.S. military shifts focus away from purely counterinsurgency operations (for example: here, here, here, and here). While the quoted provision of FM 6-27is an example of current military practice, it illustrates a practice that needs to be fixed, not promoted. Unfortunately, the latest Manual revision seeks to institutionalize across the DoD a practice the current version of FM 6-27 acknowledges to be “more restrictive” than LOAC requires.

Additionally, there are numerous other relevant examples of current military practice that do not include any presumption of civilian status. The most recent (2022) edition of the Operational Law Handbook published by the U.S. Army Legal Center and School (TJAGLCS), for example, cites the 3^rd edition of the Manual while noting that “the United States has rejected” the view that a presumption of civilian status applies to civilian objects. According to guidance reflected in the Handbook, “The United States applies the same test to all targets, requiring commanders to act in good faith based on the information available at the time.”

From as early as 2007 until 2015 (the last edition of the Handbook published after the Manual was initially released), the guidance reflected in the Operational Law Handbook accepted the presumption of civilian status for civilian objects but made no reference to a presumption for civilian persons. From 2016 until now, however, the Handbook has cited the Manual to reject the presumption of civilian status for persons and objects while describing, instead, the requirement to apply “the same test to all targets” and to “act in good faith based on the information available at the time.”

As an example of a doctrinal publication that addresses the topic of targeting with no mention of the presumption of civilian status at all, the Commander’s Handbook, also published by TJAGLCS, articulates the LOAC distinction rule by noting the requirement to “distinguish between combatants and the civilian population (i.e., protected persons), and to “distinguish between military objectives and civilian objects (i.e., protected property and places).” This reference describes the requirement to direct “operations only against military objectives” and does not differentiate between people and objects.

Finally, the Commander’s Handbook also copies the Soldier’s Rules that are published in Army Regulation (AR) 350-1, Army Training and Leader Development. According to AR 350-1, the Soldier’s Rules are categorized as “Level A training,” designed to provide “the minimum knowledge required for all members of the Army.” At the most basic possible level, Rule 1 of the Soldier’s Rules articulates the LOAC distinction rule as: “Soldiers fight only enemy combatants.” From this elemental formulation to the basic but more comprehensive guidance presented in the Commander’s Handbook to the more nuanced treatment presented in the (2016 to 2022) Operational Law Handbook, each of these resources offers some version of the LOAC distinction rule while either not mentioning or outright rejecting the presumption of civilian status.

Ambiguous Guidance

The language now presented in the updated Manual captures all the guidance reflected above regarding acting in good faith based on available information while now adding the ostensive requirement to presume civilian status. Close scrutiny of the precise wording gives the distinct impression that the word “presumption” was actually selected to convey this general “good faith” and “available information” guidance.

If this is indeed the case, it is worth considering whether the presumption guidance is redundant and, consequently, whether it should be, or will be, heeded in practice. This inquiry begins by noting that the first paragraph of the (new) Section 5.4.3.2 provides a useful overview of the LOAC distinction rule and the corresponding requirements for targeting decisions to “be made in good faith based on the information available at the time” and to “be consistent with the obligation to take feasible precautions to verify that the objects of attack are military objectives.”

The second paragraph of the same section introduces guidance related to the presumption. It asserts, “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.” When considered in conjunction with guidance from the first paragraph of the section, it seems that the drafters of the updated language intend to convey, essentially: “Consider all persons and objects to hold civilian status unless available information indicates otherwise.”

The second sentence corroborates this interpretation by claiming, “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.” It seems, then, that the operative guidance so far is consistent with my summarized interpretation immediately above such that the presumption language is interchangeable with potential synonyms such as “consider” (the verb I use in my summary) or “believe” or “assume” or “suppose” and so on.

If “presume” and “presumption” are indeed interchangeable with other words and the underlying guidance is controlling, it is possible that the update is simply a well-meaning attempt to provide enhanced clarity regarding the application of the distinction rule that (perhaps) inadvertently adopts language that conveys a higher degree of certainty than is actually necessary.

Indeed, the explanation included in the footnote to the second sentence indicates a deliberate effort by the drafters to convey a more colloquial, interchangeable, version of “presume” than the formal definition may express. As the footnote suggests, “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.”

Two such rules that apply in legal proceedings are the presumption of innocence and a rebuttable presumption. The former is particularly troubling in the current context because it must be overcome in criminal proceedings to a standard of beyond reasonable doubt. Even the latter, less exacting meaning is concerning in the targeting context given that the updated Manual provides no guidance regarding the standard that is necessary to overcome such a presumption.

The third sentence of this paragraph renders the entire “presumption” enterprise even more questionable. This sentence asserts, “For example, if there is no information indicating that a person is a combatant or a non-combatant member of the armed forces, then commanders or other decision-makers must presume that person is a civilian.”

If the language related to the presumption is removed, this guidance that is intended to provide an example of how to apply the LOAC distinction rule in practice simply reiterates the definition of a civilian. To illustrate this point, here is the same sentence with the relevant text lined through: For example, if there is no information indicating that a person is a combatant or a non-combatant member of the armed forces, then commanders or other decision makers must presume that person is a civilian.

Now compare the resulting sentence to the definition of civilian, which is drawn from AP I, Article 50(1): “A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol.” The cited references, taken together, establish the categories of persons that qualify for combatant status in an IAC. In the applied context, there is only one way to operationalize this definition of “civilian”: that is, to gather information. This is a point repeatedly emphasized in the Manual, including in Section 5.4.3.2.

So, if there is literally no “information indicating that a person is a combatant or a non-combatant” (such as a chaplain or a doctor), by definition and by negative implication that person is considered to be a civilian. If the portion of the third sentence, which provides an apparent example of how to apply the presumption in practice, is lined through in the manner above, all that remains is the doctrinal definition of civilian.

Based on this analysis, it doesn’t seem that the apparent presumption of civilian status incorporated in the update to the Manual adds any useful guidance related to the distinction rule. The intended guidance is clear: only military objectives can “be made the object of attack” and decision makers must exercise “military judgment based on information available at the time.”

If language regarding the presumption of civilian status doesn’t add much (if anything) of substantive value while introducing the potential for confusion (as footnote 92 acknowledges), perhaps the best course of action will be for practitioners in the field to ignore the presumption language altogether and to focus, instead, on the unambiguous guidance related to applying the LOAC distinction rule the Manual update provides.

Approach and Perspective

Views on targeting practices vary significantly at the strategic, operational, and tactical levels. The cause of the divide seems intuitive enough. The further removed an observer is from military action, the wider the lens that is necessary. At the strategic level, an observer cannot be nearly as focused on granular details as those situated in a targeting cell or joint operations center. The strategic level plays a vital role in resourcing and synchronizing general use of force policies, but the guidance provided at the policy level must clarify and enable effective targeting practices at the operational and tactical levels, rather than hindering or complicating them.

The guiding principle in support of this outcome must be a steadfast commitment to maintain the law’s balance between military necessity and humanity. Maintaining this balance can be incredibly challenging at the strategic level, far removed from training grounds or actual combat maneuvers at the operational and tactical levels where general guidance is operationalized in simulated or live targeting processes.

To that end, the latest Manual update must be considered in the broader context of continual efforts by external civilian protection organizations and advocates seeking to modify military use of force practices in support of their institutional or personal objectives. As I noted in a different context, “Bringing focus to the divergence in approaches” between civil society organizations and the DoD “is necessary to fully appreciate the reluctance by the Defense Department to implement various civil society recommendations.” Presumption of civilian status has long been among the brightest stars in the constellation of recommendations advanced by organizations and advocates that focus on protection of civilians (for example, see here, here, here, and here).

If all the various recommendations taken together were implemented by the DoD, the result would be an implausibly constrictive use of force policy framework in which effective targeting operations would be difficult to achieve even in the most sensitive counterinsurgency context, let alone in full spectrum combat operations. For policy makers within the DoD, it is imperative that strategic level guidance aligns with the mission of the Department of Defense: “to provide the military forces needed to deter war and ensure our nation’s security.”

To do so successfully, a steadfast commitment to maintaining the delicate balance between military necessity and humanity must be the guiding principle. Vigilantly maintaining this balance can quite literally mean the difference between life and death for warfighters at all echelons of command, and this is the primary audience that publication of the Manual by the DoD General Counsel is intended to serve.

Conclusion

Whatever the merits or deficiencies of the Manual’s revisions with respect to the level of certainty required to resort to lethal force in cases of doubt, the more controversial issue the revisions present is whether it is appropriate to convey this guidance as a presumption of civilian status. It is also debatable whether such a presumption genuinely reflects a legally and tactically appropriate “starting point for the commander or other decision-maker’s good faith exercise of military judgment based on information available at the time.”

Based on the above analysis, this assertion is doubtful. Even if the presumption of civilian status is superfluous and ill-advised, as I and the military practitioners I have consulted assess it to be, the general guidance reflected in this particular Manual update is useful and intuitive. Still, the notion that interpretation and training can mitigate the risk of hesitation, which has been raised by Hitoshi Nasu and Sean Watts, would undoubtedly represent a best-case scenario. It is worth pondering whether the potential need for careful training and operational safeguards could be avoided by maintaining the useful guidance related to practical implementation of the distinction rule while choosing a word other than “presumption” or omitting this term altogether. That appears to be the preferred solution in practice: keep the useful general guidance but ignore the superfluous presumption.

If this sentiment on the presumption revision is widely shared among military practitioners, it is safe to assume this reception is not what the drafters had in mind as the Manual update went through the staffing process. The real test will come as military practitioners training for or conducting combat operations implement the new guidance in practice. Based on initial impressions from the field I have received so far, the outlook does not seem particularly favorable.

***

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: Staff Sgt. Lawrence Sena, U.S. Air Force