2023 DoD Manual Revision – Redefining Doubt

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| Nov 6, 2023

Doubt

The third edition of the U.S. Department of Defense (DoD) Law of War Manual, updated in December 2016, rejected the customary international law status of the legal presumption of civilian status for persons and objects in instances of doubt. The 2023 revised U.S. Manual has now been promulgated with a presumption of civilian status for persons and objects. There are diverse opinions on whether this revision was appropriate and realistic. This post proposes an alternative solution to the formulation of the doubt rule after briefly considering the motives for the revision and summarizing the associated debate.

Distinction, Constant Care, and Doubt

Parties to an armed conflict are required to direct military operations only against military objectives and to take constant care to spare the civilian population, civilians, and civilian objects. Mixed indications may, however, create doubt about the status of a person or object. Additional Protocol I (AP I), Article 50(1), therefore, states that doubt as to whether a person qualifies as a legitimate target will require a “consideration” of civilian status for those persons. AP I, Article 52(3), in contrast, states that doubt whether an object “normally dedicated to civilian purposes” (certain objects) is used “to make an effective contribution to military action” triggers a “presumption” of civilian status.

These distinct approaches to doubt resulted from an agreement at the AP I Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts in 1978. There, States determined that a presumption regarding the status of a person would cause “difficulties.” As a result, the term “presume” was replaced with “considered” to ensure that the provisions are “readily understandable to the soldier.” The International Committee of the Red Cross Commentary on AP I confirms that persons whose “status seems doubtful because of the circumstances . . . should be considered to be civilians until further information is available, and should therefore not be attacked” (para. 1920).

The 2015 and 2023 DoD Manuals

The United States elected not to become a State party to AP I because it had considered the treaty “fundamentally and irreconcilably flawed” to the point that it could not be “remedied through reservations.” With respect to the presumption rule, the 2015 Manual, stated that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects.” The 2015 Manual received general support, but some experts believed that rejecting the customary international law (CIL) status of the presumption of civilian status in instances of doubt was a mistake.

In February 2023, U.S. Congress members demanded that the DoD create a “clear statement of the legally required presumption of civilian status” to correct, “clarify,” and “emphasize the importance of the presumption of civilian status.” Brian Cox describes the Jacobs-Durbin letter as “an unwarranted attempt by legislators with no actual authority or apparent individual expertise to infringe upon commander in chief authority vested in the executive by virtue of Article II of the U.S. Constitution”. Nevertheless, the General Counsel of the DoD confirmed in March 2022 that the approach to civilian status in instances of doubt, as articulated in the 2015 Manual, would be reviewed.

The 2023 Manual, as a result, now incorporates an obligation whereby those responsible for targeting, in compliance with the principle of distinction and the good faith principle, must (“shall” in AP I) “presume that persons or objects are protected from being made the object of attack unless the information available at the time indicates that those persons or objects are military objectives.”

Commentary and Criticism of the 2023 Manual Revision

Several authors have criticized or raised questions about the Manual’s adoption of a civilian presumption. In his unofficial capacity, Colonel Ted Richard of the U.S. Air Force states, “[T]he advocates seem to think that such a presumption might better protect civilians in the targeting process, but that simply is untrue.” Professors Nasu and Watts argue it is unsettled whether the presumptive civilian status exists under CIL. The authors describe the revisions regarding the presumption of civilian status in the 2023 Manual as a “misnomer” that “goes beyond the standards to which even AP I countries have committed themselves.”

Cox states that the revisions in the 2023 Manual are “commendable” except for the “updated guidance related to the presumption of civilian status.” He argues that it would be inconceivable to advise a person responsible for targeting decisions “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.” Relatedly, Professor Corn reasons that the value of the presumptive civilian status has been “undermined” as the standard of proof (“quantum of information”) to rebut the presumption has not been established.

Meanwhile, Air Commodore (ret.) Boothby observes that the notion of available information is still not qualified by the term “reasonable.” Subsubsection 5.4.3.2 “could be misunderstood as seeking to combine what are, in law, two distinct rules, namely the doubt rules and the rules regarding the definition of civilians and civilian objects. It is the use of the word ‘presume’ that causes the potential ambiguity.” Professor Lawless argues that the presumption has a “reflexive character” in easy cases while it is “relatively brittle” in hard cases. The nature of the presumption may create some “hesitancy about the prudence of the Manual’s adoption” of legal terms into military manuals, especially when considering the tempo, complexity, and intensity of armed conflict.

The 2023 Manual’s acceptance of the presumption also has its supporters. Writing prior to the amendments, Professor Haque argued that the doubt rule might not have been part of CIL in the past, but it is now “widely accepted” as such. Colonel (ret.) Meier welcomes the revision as correcting the “misstatement of international law that no legal presumption for civilian status exists for persons or objects.” DoD General Counsel Caroline Krass claims that the revision facilitates timely decisions during targeting by confirming that the presumptive civilian status is applicable unless the available information allows for a conclusion that they are military objectives.

For his part, Professor Schmitt states that the revision is a positive development as its approach to targeting is consistent with CIL and the actual practice of those responsible for targeting decisions. He reasons that “there is an affirmative obligation to conclude the target is a military objective,” but “some uncertainty does not (permanently) preclude” an attack. The main operational question concerning the doubt rule thus relates to the obligation to identify and verify the target as a military objective. The practical challenge is determining the threshold of uncertainty that will render an attack unlawfully indiscriminate in cases of doubt (the “continuum of certainty as to the target’s” status).

Doubt Regarding the Nature of Persons

The provisions regarding the doubt rule in the military manuals of most States follow an adapted version of the AP I formulation of the rule. AP I states that a person, in instances of doubt, “shall be considered to be a civilian.” Kenya and Madagascar’s manuals include the nearly identical phrasing, “shall be considered as civilian.” Argentina and Colombia stipulate that a person “must be considered a civilian” in cases of doubt. Croatia and Hungary used the phrase “have to be considered as civilian.” The Russian Federation, Ukraine, South Africa, and Sweden’s manuals incorporate the formulation of the doubt rule to include the words “shall be considered a civilian.” Colombia is the only State that states that an individual “will be considered as a civilian” where doubt exists and, therefore, “it must also be presumed that the person is a civilian.” Canada uses “presumed” and “shall be considered” in different manuals. Spain incorporated the phrase “must be presumed to be a civilian.”

Some States, such as Côte d’Ivoire, elected to use “must be treated” as a civilian. The United Kingdom requires substantial doubt, after which the person “should be given the benefit of the doubt and treated as a civilian.” The Netherlands uses “is considered to be civilian and “is treated as a civilian,” “must be treated as” civilian and “this person is given the benefit of the doubt pending proof to the contrary, and must be treated as a civilian.” Ireland prefers “shall be assumed to be civilian.” Australia merely requires that a person must be given the “benefit of the doubt” should that person’s character be undecided. Egypt believes that “in case of doubt as to whether a person is a civilian, he or she shall be deemed to be so.”

The International Criminal Court (Pre-Trial Chamber I), in the Mbarushimana case, stated, “in case of doubt, the person shall be considered to be a civilian.” The International Criminal Tribunal for the former Yugoslavia, in the Galić case, reasoned that persons whose status seems doubtful “should be considered to be civilians until further information is available.” The Special Court for Sierra Leone, in the Fofana and Kondewa case, stated: “[I]f there is any doubt as to whether an individual is a civilian he should be presumed to be a civilian . . . .”

Doubt Regarding the Character of Certain Objects

The military manuals of the Philippines, Canada, and Sweden state that certain objects “shall be considered as a civilian object” in cases of doubt. However, the manuals of most States, such as Argentina, Benin, Colombia, and France, require that certain objects “must be considered” civilian objects when doubt exists concerning the possible military use of those objects. Some States, including Australia, New Zealand, South Africa, and Spain, use the phrase “must” or “should be presumed” to be a civilian object. Amended Protocol II to the Convention on Certain Conventional Weapons, to which the United States is a State party (with no reservations), includes a provision that imposes a presumption of civilian status (“it shall be presumed not to be so used”) in case of doubt as to whether an object is being used to make an effective contribution to military action. The 1976 U.S. Air Force Pamphlet 110-31 also contains a paragraph virtually identical to the language of the presumption in AP I concerning certain objects. A few States, such as Germany and Ireland, specify that a doubtful object “shall be assumed” not to be a military target. The Netherlands uses “must be assumed” while Israel articulates the rule as it “should be assumed that it is not a military target.” Côte d’Ivoire uses the term “regarded” as a civilian object until proven otherwise. Nigeria believes that an object’s “dubious” character may be resolved by stopping and searching the object “to establish its status.”

What is in a Word?

The Vienna Convention on the Law of Treaties, Article 31(1), which reflects CIL, declares that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and the light of their object and purpose.” Military manuals should also be drafted to provide comprehensive, practical, and realistic guidelines and information on various aspects of military operations. The terms used in formulating the doubt rule by States should thus be evaluated based on the above requirements.

The Cambridge English Dictionary defines “presume” as “to believe something to be true because it is very likely, although you are not certain” or an inference drawn from facts. The exclusion of this term at the Diplomatic Conference for persons was thus sensible as the burden to rebut a “very likely” standard is unrealistic in all targeting decisions. The term “consider” refers to an “opinion” or “decision that someone has reached after much thought.” Many States prefer this term, but the reality of armed conflict, especially when dealing with dynamic time-sensitive targets, does not always allow for reasoned judgments after “much thought.” Assumed, on the other hand, means to accept something to be true without question or proof. This term is clearly inappropriate as it requires no proof. Including a benefit of doubt when doubt exists is awkward as there is no indication of the benefit’s nature or extent.

The term remaining for possible inclusion in the doubt rule is “treated as” (a civilian or civilian object in instances of doubt). The meaning of this term is clear. It reminds the person responsible for the targeting decisions to behave in a certain way towards doubtful targets, i.e. by treating them as civilian and to refrain from intentionally targeting those targets while a good faith exercise of military judgment based on information available at the time is done. Those involved in armed conflict must take constant care to protect the civilian population, civilians and civilian objects. This ongoing obligation cannot be satisfied by imposing an onus on a party to rebut a presumption. Constant care implies an ongoing duty, which in turn suggest a requirement to treat a potential target as civilian in instances of doubt. This approach has the added advantage that it is a much less complicated way to resolve doubt than the legal onus to rebut a presumption.

Concluding Thoughts

The 2023 Manual confirms that “information is often limited and unreliable” during armed conflict. The potential lack of intelligence, especially regarding the character of persons, renders the rebuttal of a static, quantifiable threshold before an attack may commence unrealistic. The complexity of applying an ambiguous legal presumption is thus, from a practical, military, moral and legal perspective, impractical and unnecessary. The same may be said, in varying degrees, for the terms “consider” and “assumed” where they may appear. It may thus have been prudent for the drafters of the 2023 Manual to have used the term “treated as” to provide practical and clear guidance where the character of a person or the nature of an object is in doubt until a good faith determination is possible to remove or lessen the doubt.

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Arthur van Coller is an Associate Professor in the Faculty of Law, University of Fort Hare.

 

 

Photo credit: U.S. Army, 1st Lt. David Block