2023 DoD Manual Revision – What’s In a Presumption?

(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.)

One of the most notable—if not the most notable—changes to the Department of Defense Law of War Manual (the Manual) is inclusion of the “presumptive civilian status” rule analogous to that found in Additional Protocol I to the Geneva Conventions. Specifically, the Manual now provides in Paragraph 5.4.3.2 that,

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 takes a direct part in hostilities. 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.

While long a subject of debate, the express incorporation this rule of presumption is arguably unremarkable. Why? Because in practice it is almost certain that this is exactly how credible and moral attack decision-makers at all levels of operations assessed targets. Is there really much doubt that commanders and others entrusted with these decisions merely assumed targets were legitimate without information to support that judgment in good faith? That certainly was never my experience as a Brigade and Battalion tactical intelligence officer. And I suspect that experience has been shared by countless others who will read this post.

Perhaps there were outliers. But let’s hope that such indifference to the risk of killing or seriously injuring someone without some objectively verifiable information—proverbial “good cause” for the attack—has and will continue to be the rare outlier among U.S. armed forces. In short, tactical and operational attack decisions have likely always been made based on reasonably available information indicating that the intended target was in fact not a person, place, or thing legally protected from attack.

Hopefully, implementing this new rule will therefore be much ado about nothing; commanders and others who conduct attacks will do what they have always done: act with appropriate caution before pulling a trigger.

The Quantum of Rebuttal

But there is another aspect of this rule that has always been somewhat perplexing: what is the quantum of information needed to rebut this presumption? As all lawyers know, presumptions are legal start points, just as the cited paragraph indicates in this context. But the value of a presumption is almost always directly linked to the quantum of proof required to rebut it.

The criminal adjudication process provides the quintessential example. A criminal defendant is legally presumed innocent when a trial begins. This imposes a burden of production and persuasion on the party seeking to rebut that presumption: the prosecution. Evidence must be produced that supports a rational finding of guilt. Failure to satisfy that burden of production results in an acquittal as a matter of law. If, as is the normal case, that burden is met, the fact-finder must be persuaded that the evidence supports only one rational conclusion: guilt. Thus, to say a defendant is presumed innocent has virtually no meaning to a jury without educating that jury on what is needed to rebut the presumption.

From inception, the presumption of civilian status has been undermined by the absence of any indication of what level of information is necessary to rebut the presumption. And the use of the term information is deliberate, because although using a term normally associated with legal proceedings, it is information—not evidence—that attack decision-makers must rely on.

The Manual’s answer to this is a “good faith” requirement. Specifically, the same paragraph cited above provides,

Commanders and other decision-makers must assess whether persons or objects are military objectives in good faith. They must have an honest and genuine belief that a person or object to be attacked is a military objective. The law of war does not require that commanders and other decision-makers apply a fixed standard of evidence or proof. Rather, as elaborated below, the law of war requires commanders and other decision-makers to exercise professional judgment in making any assessment that a person or object is a military objective, and what is reasonable in making that assessment depends on the circumstances. Relevant circumstances may include the time and resources reasonably available, the risks to civilians from an erroneous decision, risks to friendly forces, and the military advantage expected from the attack. Attacks, however, may not be directed against persons or objects based on mere speculation regarding their possible current status as a military objective.

It is laudable that this paragraph emphasizes the range of operational circumstances that would contribute to a “good faith” attack judgment. Indeed, the variables of combat operations demand recognition that lawful attack judgments are inherently context dependent.

But adopting “good faith” as the rebuttal standard is an arguably incomplete solution to the rebuttal equation. Good faith is normally associated with subjective judgment: in this context an honest belief that the attack is justified. But how is a commander supposed to be guided in this regard? The common response is that the commander must make a “reasonable” judgment, but unlike good faith, “reasonable” is normally considered an objective term, meaning there are facts and circumstances that would justify the decision the same decision by any other “reasonable” commander.

Imagine a commander who makes a “good faith” but erroneous judgment that he is attacking a military objective. Now imagine that the objective facts and circumstances indicate that it was a judgment no reasonable commander would have made under the circumstances. Has the commander violated the LOAC as the result of an unreasonable, albeit good faith attack decision? If the attack resulted in death, has he committed manslaughter in violation of the UCMJ as the result of creating an unjustifiable risk that a reasonable commander would not have created? Or did his good faith belief negate any culpability?

But wait, there is more. While the Manual seems to define the rebuttal requirements in purely subjective terms, it then adds a new layer of uncertainty by indicating that the decision may not be made on speculation. But this suggests there does have to be some objective justification for the decision, as speculation is by definition a purely subjective judgment.

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. Demanding that they make a “good faith” decision is logical—what else would we demand from our warfighters? Is “good faith” sufficient? Perhaps. But the enormous range of discretion provided by this definition arguably negates the presumption the Manual has just adopted.

As some readers may know, I sought to address this quantum issue here. This article is cited in the Manual in relation to the obligation to take feasible precautions to verify the nature of a target. It emphasizes that what amounts to a “good faith” attack judgment is inherently context contingent. As the Manual indicates, operational context may dictate attack decisions based on a paucity of information, which in certain contexts may be legitimate. The cited article asserted that the quanta of information needed to render an attack judgment reasonable is contingent on the nature of the operational context. Others criticized the effort to define specific quanta for reasonable attack judgments, arguing that “reasonableness” is the best clarity we can hope to provide. But one thing that connected this disagreement was the belief that attack judgments must be justified by objective facts and circumstances, not merely by a commander’s “good faith” belief.

Perhaps the drafters intended the term “good faith” as a synonym for reasonable. If so, they could have avoided uncertainty by simply indicating that reasonableness is the standard for assessing when the presumption of civilian status is rebutted.

Concluding Thoughts

Ultimately, only time will tell if this new provision has any significant impact on attack decision-making, or if this “good faith” standard provides meaningful and necessary guidance for those entrusted with difficult attack judgments. Let’s hope that commanders and others making these judgments will embrace the basic premise: that caution in moments of uncertainty—when tactically feasible—is a virtue and not a vice. Beyond that, we should continue to ponder if and how a legal presumption has meaning absent some objective standard of rebuttal.

***

Geoffrey S. Corn is the George R. Killam, Jr. Chair of Criminal Law and Director of the Center for Military Law and Policy at Texas Tech University School of Law.

​

Photo credit: Marine Corps photo by Sgt. Averi Coppa