2023 DoD Manual Revision – A Welcome Change to the Presumption of Civilian Status
(Editor’s note: This is the first in a series of posts that will analyze and assess the 2023 revisions to the U.S. Department of Defense’s Law of War Manual.)
On 11 July, the Department of Defense (DoD) General Counsel, the Honorable Caroline Krass, promulgated the most recent revision to one of the DoD Law of War Manual’s most debated provisions, section 5.4.3.2, which deals with the presumption of civilian status. Since its publication in 2015, the U.S. Manual’s position that under customary international law (CIL) no legal presumption of civilian status exists for persons or objects has been described by leading experts as a “clear error,” an “important error,” or “clearly mistaken” in its interpretation of the Law of Armed Conflict (LOAC) (Goodman, Hathaway, Lederman, and Schmitt, and Marguiles).
In March 2022, during a House Foreign Affairs Committee hearing, Ms. Krass agreed to review the Manual’s treatment of the presumption of civilian status (here and here). A series of posts will address details of the revision, so I don’t intend to cover them here. This post identifies two reasons why this welcome revision is an important change to the Manual: (1) it more accurately reflects U.S. practice concerning the treatment of civilians and civilian objects; (2) it clarifies that section 5.4.3.2 reflects the DoD view of customary international law applicable to cases of doubt when planning and conducting attacks and brings the U.S. interpretation in line with our closest allies and partners.
What Has Changed
Working at the direction of the General Counsel, attorneys within the Office of the General Counsel, with the participation of the DoD Law of War Working Group, revised section 5.4.3.2 of the DoD Law of War Manual regarding the presumption of civilian status along with other provisions of the Manual (not further discussed in this post). The previous December 2016 version of the Manual section 5.4.3.2 read, in part:
Under customary international law, no legal presumption of civilian status exists for persons or objects, nor is there any rule inhibiting commanders or other military personnel from acting based on the information available to him or her in doubtful cases.
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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. Affording such a presumption could also encourage a defender to ignore its obligation to separate military objectives from civilians and civilian objects. For example, unprivileged belligerents may seek to take advantage of a legal presumption of civilian status. Thus, there is concern that affording such a presumption likely would increase the risk of harm to the civilian population and tend to undermine respect for the law of war (emphasis added).
Section 5.4.3.2 as revised now reads, in part:
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. 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. 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. Under such a presumption, the person may not be made the object of attack unless the available information evaluated in good faith indicates that the person has forfeited protection from being made the object of attack. Similarly, an object dedicated to civilian purposes (such as a place of worship, a house or other dwelling, or a civilian school) is a civilian object and may not be made the object of attack, unless the available information evaluated in good faith indicates it is a military objective in the circumstances (emphasis added).
This revision corrects the misstatement of international law that no legal presumption for civilian status exists for persons or objects. It now sets forth that the principle of distinction requires persons or objects are presumed to be protected from being made the object of attack unless information is available that indicates they are military objectives. It reinforces that the presumption is the starting point for commanders and decision makers to begin to make good faith determinations on whether a person or object is a military objective as required under customary international law.
Why the Revision Is Important
The DoD Law of War Manual is an outstanding document that has proven to be an invaluable resource for U.S. military practitioners since its initial publication in 2015. The most recent version, which was updated in December 2016, consists of 1,193 pages and approximately 7,000 footnotes. However, as one author noted much of the hard work that has been put into the Manual “will be for naught” where there are important sections, especially involving the protection of civilians, that do not accurately reflect the law (here). Accordingly, when the Manual gets it wrong or is merely imprecise, it is important to make revisions to ensure that the DoD’s view is accurate and understood not only by U.S. military practitioners, but also the international community.
A Better Reflection of U.S. Practice
The revised language, which already reflects U.S. practice, returns the analysis to the fundamental requirement of the principle of distinction that persons or objects are protected from attack unless they are military objectives. The language makes clear that this is the starting point and there must be reasonable information to indicate a person or object can be made the object of attack.
Commanders and decision makers are always required to act in good faith based on the information available to them in light of the circumstances ruling at the time to limit attacks to military objectives. Commanders are also required to take feasible precautions to ensure that an object of attack is a military objective. If a commander decides with little or no information that a person or object is a combatant or military objective, that decision would not be legally supportable.
Further language found in Section 5.4.3.2 of Manual, clearly states this good faith requirement:
“Attacks, however, may not be directed against persons or objects based on mere speculation regarding their possible current status as a military objective. For example, although an individual’s age and gender may be relevant in determining whether a person is a military objective, the mere fact that a person is a military-aged male with no additional information would be speculative and insufficient to determine that person to be a military objective.”
This has been part of joint doctrine with respect to targeting, which states: “When conducting military operations, positive steps and precautions must be taken to avoid excessive incidental civilian casualties and damage to civilian property[;]” and “Planners should ensure that military objectives, and not civilian objects, are prosecuted.”
Finally, U.S. Army Field Manual 6-27, The Commander’s Handbook on the Law of Land Warfare, notes 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.”
One author suggested that a “new legal presumption of civilian status adds nothing other than confusion to these meritorious standards already in place.” I disagree with this assessment. First, it is not new. This has always been the legal presumption under the principle of distinction. Second, instead of confusion, it reminds commanders and decision makers that the presumption is the starting point for any good faith exercise of military judgment based on information available at the time.
Clarifies the DoD View of Customary International Law
The final sentence of revised Section 5.4.3.4 states, “The discussion in § 5.4.3.2 (Classifying Persons or Objects as Military Objectives When Planning and Conducting Attacks) reflects the DoD view of customary international law applicable to assessing whether persons or objects are military objectives, including in cases of doubt, when planning and conducting attacks.” In discussing the Additional Protocol I rules that provide for civilian status in cases of doubt or objects (Article 52(3)) or persons (Article 50(1)), the Manual notes that there has been a range of interpretations regarding how “doubt” has been interpreted by States Parties. Further, although some have understood these articles to promulgate a new norm, the United States (or at least DoD) interprets these provisions to be consistent with customary international law. As set forth in section 5.4.3.4,
For example, the United States has accepted the language in the CCW Amended Mines Protocol, which is identical to Article 52(3) of AP I, and interpreted that language as part of a prohibition that is “already a feature” of customary international law. DoD has previously expressed concerns with interpretations of Article 50(1) that would depart from customary international law.
No one is arguing (at least not serious commentators) that CIL requires a presumption of civilian status whenever there is any doubt, but eliminating the argument that there is no legal presumption of civilian status accurately reflects CIL on how to treat persons or objects in cases of doubt about their status. Commanders and other decision makers make these assessments based on good faith and reasonableness based on the information available to them at the time. Finally, decision makers must take feasible precautions to verify that the person or object is a military objective. This revision, as discussed above, reflects long-standing DoD targeting practices.
Conclusion
This most recent revision corrects what many have called an “error” in the DoD Law of War Manual. Making this change eliminates one of major points of criticism that has detracted from the otherwise outstanding aspects of the Manual. Although the United States’ practice has always been and will remain that the fundamental requirement of the principle of distinction is that persons or objects are protected from attack unless they are military objectives, this revision strengthens the protection of civilians. The language makes clear that this is the starting point and there must be reasonable information to indicate a person or object can be made the object of attack. In doing so, the United States can further reduce the unintended harm to civilians and civilian objects.
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Michael W. Meier currently serves as the Special Assistant to the Army Judge Advocate General for Law of War Matters. As the senior civilian adviser, he advises on legal and policy issues involving the law of war, reviews proposed new weapons and weapons systems, serves as a member of the DoD Law of War Working Group, and provides assistance on detainee and Enemy Prisoner of War affairs.
Photo credit: Daniel Malta, U.S. Army
