U.S. Army General Counsel: Speech to the International Society for Military Law and the Law of War

Editor’s note: The Honorable Carrie Ricci, General Counsel of the U.S. Army, offered the following remarks to the International Society for Military Law and the Law of War at the “Silent Leges inter Arma?” Conference VII on September 20, 2024, in Bruges, Belgium.

As the General Counsel of the United States Army, I am the chief lawyer of an organization whose purpose remains timeless and clear: To fight and win our nation’s wars.

At the same time, the Army is providing critical support within the Department of Defense [(DoD)] to a nascent program of institutions and processes designed to mitigate and respond to civilian harm on the battlefield. My remarks will highlight a few aspects of that program, the Civilian Harm Mitigation and Response Action Plan, or CHMRAP.

In January 2022, the U.S. Secretary of Defense Lloyd Austin recognized the need and opportunity for the U.S. military to improve our ability to mitigate and respond to civilian harm. In addition to reaffirming the Department’s commitment to complying with legal requirements, he has also emphasized that there are important moral and strategic imperatives associated with civilian harm mitigation and response after tragedy strikes. To further strengthen the Department’s ability to mitigate and respond to civilian harm, Secretary Austin approved the Civilian Harm Mitigation and Response Action Plan. The CHMRAP reflects the Department’s new approach, which is to meet the challenge of civilian harm through a comprehensive, systematic, and adaptive approach in which the force identifies and mitigates risks to civilians during planning, captures and analyzes information on civilian harm during operations, and continually seeks to improve its operational and institutional approaches.

To implement this plan, the United States military created new institutions and positions. In total, there will be approximately 166 new positions throughout the Department, notably, Civilian Harm Mitigation Response Officers, who are embedded in the appropriate Combatant Command and other operational billets. We are creating Civilian Harm Assessment Cells which will better investigate and assess whether civilian harm may have been caused by military operations and what lessons might be learned. We have also established positions for Civilian Harm Assessment and Investigation Officers who will improve and standardize DoD efforts on this front. We are in the process of creating Civilian Environmental Teams that will illuminate the non-adversarial aspects of the battlefield for commanders.

Importantly, we are also incorporating guidance for addressing civilian harm across the full spectrum of operations into strategy, doctrine, plans, professional military education, training, and exercises, so the DoD is more effectively prepared to mitigate and respond to civilian harm, and to achieve strategic success in any operating environment.

In December 2023, the Secretary of Defense also approved an Instruction addressing Civilian Harm Mitigation and Response. Where the action plan laid out a series of major steps to improve DoD’s approach to CHMR, the new Instruction sets out policies, responsibilities, and procedures that will serve as an enduring framework for these Department-wide efforts. The Instruction assigns clear responsibilities to the Secretaries of the Military Departments. The Services are 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.

The Instruction provides direction to identify capability improvements that will increase situational awareness for commanders and their units, including the presence of civilians and civilian objects that may be at risk. Additionally, the CHMR Instruction directs relevant components to provide guidance relating to the development and fielding of intelligence sensors and other battlespace awareness capabilities to enable enhanced understanding of civilian and civilian objects throughout the joint targeting process.

The Instruction also directs leaders of key force development organizations to identify capability needs for weapons, weapon systems, and other technical systems relevant to CHMR and identify relevant potential capability improvements that further enable the discriminate use of force in different operational contexts, including reducing the risk to civilians and civilian objects while enabling the same or superior combat effectiveness.

Furthermore, the Instruction 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 the force. It articulates the purpose of initial review, 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 manner and archived in a common data platform that is now being developed by my very own Department of the Army.

All of these changes will improve the quality of our assessments, enhance our ability to understand the causes of civilian harm and enable us to continuously improve because we are a learning organization.

Other progress we have made includes a recent update to the Joint Doctrine to include (for the first time) a definition of the civilian environment. This is important because it will, among other doctrinal modifications, focus military decision-makers’ attention on both civilian structures and the interdependence of civilian infrastructure in ways that will lead to a better understanding of the civilian environment, better discrimination of military targets, and an enhanced ability to mitigate potential collateral damage.

In August 2022, the Department of the Army was designated as the Joint Proponent for Civilian Harm Mitigation and Response, so my institution has a special role in implementing some of the most critical pieces of the CHMRAP.

In terms of the Army’s role, the Army bears the responsibility to prepare the land forces of the United States to mitigate and respond to civilian harm, which requires a holistic approach across all of our organize, man, train, equip, and sustain responsibilities.

As the Joint Proponent for CHMR, the Army has established the Civilian Protection Center of Excellence, and—as noted—we are now working on developing a data management platform and repository of civilian harm information needed to support operational and institutional learning across the force. We are also advancing key activities such as “Red Teaming” to assist our operators with countering confirmation bias and to minimize the likelihood of target misidentification.

As this audience suggests, nations do not fight alone. We fight side by side with allies and partners to achieve shared national security objectives. Fighting together requires interoperability, and DoD is making civilian harm mitigation and response a core component of our engagements with allies and partners, including through security cooperation programs and during multinational or partnered operations. We also seek to enhance information-sharing capabilities for use during multinational operations, that support understanding of the civilian environment, assessing, and responding to civilian harm.

Thank you again to the Society and the Belgian Group for what has been a terrific conference and for this opportunity to share our work with this esteemed audience.

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Carrie F. Ricci was confirmed by the United States Senate on December 14, 2021 and was sworn in as the 23rd General Counsel of the United States Army on January 3, 2022.

Photo credit: U.S. Army photo, Spc. Brandon Vasquez