Gary Solis reviews “Reducing Civilian Harm in Urban Warfare: A Commander’s Handbook”
When a reference on the law of war touts itself as a “Commander’s Handbook” it gets my attention, especially when it come with an imprimatur from the International Committee of the Red Cross (ICRC). After all, the ICRC is often a great source of information on the topic. “Often,” however, is not “always.” When I looked at the ICRC’s new volume, Reducing Civilian Harm in Urban Warfare: A Commander’s Handbook, all kinds of alarm bells began ringing.
I quickly came to the conclusion that this was not something I would recommend to any commander. However, I wanted a second opinion, so I consulted one of world’s top experts, Professor Gary Solis who kindly agreed to write a review.
As his bio found below amply illustrates, Gary is no ordinary law professor: he is a retired Marine officer who served two tours in Vietnam. Beyond his JD, he holds an LLM and a PhD, and is the author of the superb textbook we use here at Duke Law: The Law of Armed Conflict: International Humanitarian Law in War (the third edition has just been published). He is a brilliant scholar whose work is informed by a ‘real world’ perspective few have.
In his review of the Commander’s Handbook, Gary finds it tries to do “too much” in some areas and “too little” in others. Moreover, some parts are simply wrong, inadequately cited, or represent what the ICRC would like the law to be rather than what it actually is.
While Gary generously says that it is not “without value,” he nevertheless concludes that “this ICRC Handbook is poorly conceived and lacks trustworthy guidance appropriate to its subject.” As you will see below, Gary carefully and very specifically illustrates why he regretfully came to that finding.
I find myself in board agreement with him, especially with respect to his ultimate conclusion. I do differ on a few points: for example, I am less askance than he seems to be about using “pattern of life” analysis in drone targeting, and I am less bothered about the fact that in some strikes the name of the target may not be known.
The idea that attackers would actually know the name of their target is very much the exception in the history of warfare. Of course, while I believe that more information is always better, the observable conduct of individuals can nevertheless be an adequate basis for lawful targeting even if other desirable information isn’t available. (I think Gary would subscribe to that in general, but is concerned about the interpretation and sufficiency of the observable “pattern of life ” conduct in certain instances; in essence, the specific facts do matter, and that’s an axiom with which I thoroughly concur.)
Yet we should keep in mind that warfighters operate in an environment where hesitation can be lethal for friendly forces and civilians alike. As the Department of Defense (DoD) treatise, the Law of War Manual, puts it (para 5.3.2):
The requirement that military commanders and other decision-makers make decisions in good faith based on the information available to them recognizes that decisions may be made when information is imperfect or lacking, which will often be the case during armed conflict.
Still, I appreciate Gary’s concern in the context of recent operations, but I do worry that the post-9/11counterterrosim (CT) and counterinsurgency (COIN) efforts have acclimatized the public to expect more than what the law requires.
Looking to the future, in a ‘hyperwar’ with a peer competitor like Russia or China, commanders will have to rely on reasonable albeit imperfect information to very rapidly make use of force decisions – as the law permits them to do – or face battlefield catastrophe. There may be little or no opportunity to wait for supporting signals or human intelligence, even assuming such sources would actually exist in a given situation.
In truth, the complex politics of CT and COIN operations can create narratives that make it too easy to misread what the law actually requires versus what are really policy restrictions which are not dictated by law. This is why now-retired LTG Chuck Pede’s and Colonel Pete Hayden’s article, The Eighteenth Gap Preserving the Commander’s Legal Maneuver Space on “Battlefield Next,” is such essential reading for military commanders and their lawyers.
That said, I agree with Gary that there are elements of the ICRC Handbook that might be useful, and skilled military lawyers could productively extract parts of it. But I would never give it to commanders and expect them to distill what is and is not accurate.
Moreover, it is unnecessary as reliable sources already exist for commanders. The Marine Corps and the Army collaborated on their recently revised Commander’s Handbook on the Law of Land Warfare Field Manual 6-27/MCTP 11-10C (2019); the Navy has The Commander’s Handbook on the Law of Naval Operations;, and the Air Force has its Air Force Operations and the Law manual (2020). All of these are backed by the very detailed and well-documented treatise, the DoD Law of War Manual (2016).
I urge your to read Gary’s review, as I think this ICRC document has real potential to cause confusion and misunderstandings…but draw your own conclusions.
A Review: Reducing Civilian Harm in Urban Warfare: A Commander’s Handbook*
No author attribution (Geneva: Int’l Committee of the Red Cross, 2021) 83 pp.
by Professor Gary Solis, United States Military Academy (Ret.)
Since the 1949 Geneva Conventions were first published, the International Committee of the Red Cross (ICRC) has written and published books, handbooks, booklets and pamphlets on issues related to what they refer to as International Humanitarian Law, also known as the law of war, and the law of armed conflict (LOAC).
Most ICRC editions are excellent guides and references. A few are outstanding, sometimes groundbreaking publications: The 92-page Report of a 2013 meeting of experts, The Use of Force in Armed Conflicts, is an instructive summary of that vital subject. The 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities, by Melzer, is brief (85 pp.), clear, and groundbreaking, and should be read by anyone interested in unprivileged belligerents, aka, “unlawful combatants,” in non-international armed conflicts.
The Handbook reviewed here cannot compete with those two in terms of scope or, regretfully, content. The handbook attempts to encompass too much while offering too little that is pertinent to the Handbook’s subject.
It is not a law text, but a combatant’s guide. Indeed, the terms, “distinction,” “international armed conflict,” and “non-international armed conflict” do not appear in the text. There are a mere thirty-two footnotes, fifteen of which simply cite other ICRC publications or websites. Surprisingly, no footnote or textual content makes reference to any 1949 Geneva Convention (GC) article, or 1977 Additional Protocol (AP) article. Even the Handbook’s two-page “Legal Framework” for urban warfare (p.8) makes no mention of the GCs or APs, or offers a citation to any other legal source or authority.
The ICRC authors of the Handbook note (p.4) that, “[this text] is written specifically for military audiences: for officers in operational or training appointments and, in particular, for those who have a role in urban warfare.” It is presumed (p.7) that readers have a “general understanding of LOAC fundamentals,” although the Handbook is informative for those with merely an academic interest in modern warfare.
What is the importance of urban warfare today? Think of Hue (1978), Fallujah II (2004), Mosul (2016-17), or Syria (2011-?), all of them deadly chaotic urban battles in which civilians were the principal victims. Countless other less publicized urban battlefields litter history’s military ledger. With such a background the Handbook has the potential of scholarly interest as well as military instruction.
For military readers the Handbook’s perspective and guidance seem best-suited to leaders of large military units: division, or even corps commanders and their headquarters’ staffs. But it is smaller-sized units, infantry companies, battalions and regiments that are usually tasked with executing urban missions while minimizing harm to civilians at the same time they are combatting an entrenched enemy.
Like the ICRC’s 2009 Interpretive Guidance on Direct Participation in Hostilities, this Handbook attempts to educate warfighters and academic readers in a complex battlefield circumstance. But, in stripping away references to applicable GC and AP articles – the recognized authorities for required or prohibited battlefield actions – the Handbook’s reader is left with unnamed ICRC writers’ interpretations of the LOAC involved. That often is sufficient, but not always.
The Handbook includes numerous statements that may cause a military reader to shake his or her head and wonder, “Is this a requirement of the law of armed conflict that they’re writing about, or is it a reflection of the ICRC author’s wish for a more humane battlefield?”[1] Without source references or citations to authority, readers cannot be sure.
This is not to suggest that the Handbook is without value, or is for the use of combatants to the exclusion of civilian readers. “Much of what is included is a reminder of ‘standard’ good [battlefield] practice and procedures that will be familiar to many…” (p.7) Chapter 1, for example, provides brief summaries of LOAC, focusing on distinction, proportionality and precautions in an attack.
Distinction and proportionality, the two most significant of the four core principles of LOAC, are always crucial when kinetic force is employed. Proportionality merits only seven lines, however, less than necessary for even a rudimentary knowledge of that core principle. In my opinion, this is an instance of the Handbook’s “too little” coverage.
Today, antipersonnel land mines and cluster munitions are controlled by multinational treaties ratified by many states. The U.S. straddles the “lawfulness” line, agreeing to limitations on their use[2] while continuing to employ antipersonnel mines on the Korean DMZ and reserving the right to deploy them in other combat circumstances. The U.S. declines to sign, let alone ratify, the 2008 Dublin Convention on Cluster Munitions. There is U.S. movement toward greater limitations of both weapons, however. The Handbook (p.10) merely notes that the ICRC is against any use of either weapon. More “too little.”
Sieges, not directly mentioned in the GCs or APs, are given more than a page, a welcome coverage, however brief, given the numerous urban areas commonly besieged in today’s non-international armed conflicts. (p.12)
In the ICRC’s excellent handbook on direct participation in hostilities, there appears a statement that is unsupported in LOAC: “[T]he kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose…”[3] This translates to a duty to use only that degree of force necessary to neutralize a threatening enemy fighter.
That is, whenever possible, attempt to capture the individual(s) rather than take them under fire; and if it is necessary fire, attempt to wound, rather than kill. There is no support whatever in LOAC for that assertion.
Lawful combatants may shoot-to-kill the moment an enemy combatant or enemy fighter can be positively identified. Similarly, lawful combatants may shoot-to-kill sleeping enemy fighters and may also target enemy fighters who are running away – even if they have thrown down their weapons.[4] “Shoot-to-kill” is not a requirement by any means, but doing so is lawful in LOAC. (Note that unlawful combatants do not have this so-called “combatant’s privilege.”)
“Shoot to wound” is a noble but uninformed humanitarian thought not usefully discussed here.
The Handbook suffers from similar ICRC wishful thinking in at least two places; that is, it sometimes confuses “law to be proposed” with “ratified law,” often described by lawyers as the law as you wish it were (lex ferenda), as opposed to the law that is (lex lata). On page 11, the Handbook avers, “[W]henever the military is executing an attack, the LOAC imposes additional obligations specific to those planning, deciding on or carrying out attacks.”
That is incorrect. LOAC holds the commander liable for culpably negligent or erroneous command decisions and directions. Not the operations officer, nor the intelligence officer, nor the legal advisor, but the commander. (Those combatants who carry out objectively unlawful orders are also liable to prosecution, of course, along with the commander who issued those orders.) Were culpable LOAC violations as fungible as the Handbook would have it, we might expect culpability to roll downhill, smacking down unknowing and guiltless subordinates with some frequency.
A similar Handbook phrasing (p.51) notes that commanders “must own” their decisions in planning and executing urban warfare operations. Actually, more than “owning” their decisions, commanders may be held criminally liable for LOAC violations they order, commit, incite, or acquiesce in, whether or not they “own” them. Yes, there may be instances in which a subordinate planner undertakes a wrongful battlefield action on his or her own, thus incriminating themselves rather than their unknowing commander, but that is a rare event.[5]
Similarly, the environmental responsibilities of the parties to armed conflicts are given an unduly expansive reading (p.14), calling for them to “regulate the protection of the natural environment.” Requiring the regulation of the environment appears a different and greater obligation than that specified in LOAC. (See AP I, Articles 35 and 55.) This is not a major point, certainly, but one may expect the ICRC to interpret its own mandates with attention to wording and without embellishment.
Surprisingly, the Handbook includes a “pattern of life” analysis for targeting civilians (p.20), a legally debatable and unsettled means of identifying civilians through drone observations. Is a civilian who is seen to enter and leave the house of a suspected terrorist himself a terrorist? Follow him, via drones, to determine if his “pattern of life” indicates terrorist activity. Does he enter structures know to be frequented by identified terrorists? Does he exit carrying what appear to be multiple weapons, or IEDs? Does he engage in other activity associated with terrorists or terrorist activity? If so, target and kill him.
I find it surprising that an ICRC publication suggests the lawfulness of killing a civilian whose name is unknown, without signals intelligence or human intelligence to confirm the target’s enemy fighter status before he is targeted, or the ability to make an on-the-ground after-action assessment to confirm the pattern of life targeting. Does “pattern of life” targeting not seem a violation of distinction; a violation here condoned by the ICRC?
A very brief Handbook inclusion that students of LOAC, if they note it at all, will find uncomfortable is the mention (p.49) of “protecting the force,” more often referred to as “force protection” – the concept that allows deviation from a planned military action in order to avoid the risk of death or wounding of the involved unit’s own personnel.
In recent years, too often force protection is evidenced by saying, “I did it to save American lives.” Too often that phrase is uttered after a friendly force war crime is discovered. Any time the phrase “force protection” is heard, it should be followed by: “…violations of LOAC are never excused on the basis of force protection.” One wishes the Handbook made that point when mentioning “protecting the force.”
Chapter 2 covers doctrine for urban combat. In a brief seven pages it discusses doctrine that, from its broad content, appears suited to an infantry division – large military units of roughly 14,000 combatants. Written operation orders, tailored to such large units, are standard procedure when planning an urban combat operation. They contain “doctrine” in the form of “annexes” and “tabs” that provide instruction on how different elements of the attacking force are to meet anticipated contingencies.
If an urban assault is conducted by a smaller-sized unit, a company, for example (roughly 150 personnel), “doctrine” is communicated through verbal orders and directions. The Handbook, throughout, seems to presume urban warfare is conducted by regiments, divisions, even corps-sized units, but it is smaller units – battalions and regiments – that more often undertake such missions.
On the positive side, Chapter 2 includes an excellent operational checklist for planning an assault on an urban area with civilians to be considered. A military-experienced reader will notice, however, that the checklist is rather expansive to be implemented in real life. On page 19: Make an “assessment of the capacity of partners or allies to ensure the protection of civilians will not be overlooked or underemphasized …” On the same page, ensure “clear guidance on responsibilities with respect to post-hostilities operations (including reconstruction efforts) and on how the legal framework governing the use of force might change to the more restrictive framework governing the use of force in law-enforcement operations.”
Those instructions may be appropriate for large units, entire divisions, if not a grouping of divisions – a corps. But as noted above, units typically assigned urban clearing missions involving civilian inhabitants are most often battalion or regiment-sized; if a large city, perhaps a division. Instructions involving “partners or allies,” “law enforcement operations,” and “reconstruction efforts” sound more appropriate for a Normandy-sized operation with General Eisenhower in command. This is a case of the Handbook’s “too much.”
Law students may be interested in reviewing Chapter 2, Annex A: Model Targeting Checklist (p.23), the content of which indicates LOAC-permitted and prohibited artillery and aviation targets through a “go/no go” list. Negligent targeting often leads to court-martial charges of distinction and proportionality violations. Annex A provides excellent guidance.
An issue not addressed by the Handbook is advice for dealing with densely inhabited non-urban areas in which heavy combat is occurring, such as those areas throughout South Vietnam in the 1970s-‘80s, and more recently, throughout Iraq and, particularly, Afghanistan. The issues and problems in attacking enemy forces in such non-urban areas are much the same and nearly as difficult.
Chapter 3 addresses training for urban combat operations, noting that such instruction to combatant troops should include legal and difficult moral dilemmas, such as human shields, and the intermingling of lawful human targets – enemy soldiers and unlawful combatants – in “civilian” crowds. In U.S. military practice this instruction is usually given by judge advocates assigned to the unit or units involved. Such instruction, the text correctly advises, should include headquarters staff personnel and junior commanders, as well as junior combatants. The chapter embraces training regimes for a very broad range of combatants – infantrymen, aviators, combat engineers, and artillerymen, as well as training for the return of electrical, water, and sewage facilities to full operation.
In my opinion, Chapter 3 attempts to encompass all hands in all scenarios, to the point of exceeding any urban warfare footprint and approaching a version of nation re-building. In six pages. It is both “too much” and “too little” – too many significant missions with too little recognition of required logistic support to be realistic. Surely it is too much for an infantry battalion or regiment to carry out.
Subsequent chapters continue similar “too much” and “too little” advice, encouraging the use of anthropologists, sociologists, municipal advisors, religious leaders and more, in planning civilian-populated urban assaults (p.38); and the employment of “…engineers, geospatial imaging officers and civil affairs staff…(p. 40) Two pages are devoted to providing health care to civilians, including post-mortem care (pp.41-42), and seven pages (57-63) to security screening of civilians. General Eisenhower would have been jealous of such capabilities.
A time or two the reader may suddenly pause and think that a different author has suddenly come aboard. In Chapter 6, “Conduct of Urban Operations” (p.75) “Avoiding or Mitigating Civilian Harm” is the concern that is addressed. Thirteen actions are recommended to meet the ephemeral goal of civilian well-being in urban warfare. The first of them is, “Avoid or limit combat…” Two of the twelve other recommended actions are: “Engage in dialogue with enemy commanders…,” and “Use, create, or enhance defensive terrain…”
The ten remaining recommendations are not as glaringly out of place as the quoted three but are similar in tone. Together, they evidence the writers’ confusion in applying the term, “urban warfare” in the Handbook’s title. Otherwise, the authors would recognize that, when the mission is urban warfare, with civilians in the mix, attacking units can neither “avoid or limit combat,” nor sit down to chat with enemy commanders, any more than they can abandon the assault to go on the defensive. Such advice is inimical with all that has gone before.
Even with the occasional discordant note, there are points to admire and learn from, in the Handbook. The brief discussion of the “knock-on” effect of weapons employed in urban assaults, (p.39) for example. Call an artillery mission down on an electric power plant to take off-line an enemy anti-aircraft radar unit – but you may inadvertently cut power to the areas’ largest children’s hospital, as well. A drone-fired Hellfire missile will destroy the enemy’s tactical operations center, but it will also take down a four-hundred-year-old church a block away, that is on UNESCO’s Register of Cultural Property. Different weapons have different secondary “knock-on” effects to be considered by an attacking force.
There is helpful and insightful LOAC advice in this Handbook. Its several checklists are excellent for planning any assault. It’s guidance on targeting – the selection of appropriate lawful urban targets – is particularly useful.
In my opinion, however, overall, the Handbook materially errs in addressing too many roles for too many combatants with too many military specialties, while also attempting to cover too much military dogma, tactical doctrine, and LOAC, in a mere seventy-five pages of text.
The Handbook attempts to cover too much in too little space. In doing so it also urges the use of military resources and specially-trained personnel which/who in the real world are not available to the battalion-sized – or even division-sized – infantry units that are usually tasked with attacking bunkered-up enemies in civilian-populated urban areas. One suspects that this lack of appreciation for the resources available to commonly employed infantry battalions and regiments may reflect the writers’ lack of “hands-on” military experience.
The total lack of supporting citations, even to the Geneva Conventions, is puzzling. That vacuum cannot help but raise questions regarding sourcing and authority. The Interpretive Guidance to Direct Participation in Hostilities, another ICRC publication of virtually the same page-count, provides 232 footnotes. It is not a matter of footnote numbers. Rather, a lack of supporting certification materially detracts from a text’s authority and credibility, particularly one that involves so many situations in which the law may be determinative of legal fault.
As either an authority on civilian protections in urban warfare, or as a commander’s reference for conducting such operations, I regret to report that, in my opinion, this ICRC Handbook is poorly conceived and lacks trustworthy guidance appropriate to its subject.
Notes
* This review uses the terms “combatant” and “enemy fighter” in their legal senses. In this usage, a combatant is the legally defined individual (AP I, Art. 43.2) who enjoys the “combatant’s privilege” (p. 36 of my 3rd edition) in both international armed conflicts (IACs) and non-international armed conflicts (NIACs). An “enemy fighter” or “fighter” refers to unprivileged belligerents, more commonly called “unlawful combatants,” usually in NIACs, but in IACs, as well. Significantly, enemy fighters never have the combatant’s privilege.
[1] The handbook does reference (p.7) “a series of consultant groups with serving and retired military officers from around the world.
[2] 1980 Certain Conventional Weapons Convention, Protocol II, Concerning Mines, Booby-Traps, and IEDs.
[3] Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (Geneva: ICRC, 2009), 77. There is an effort to dilute, or “walk-back,” that statement on the following page.
[4] Enemy combatants or fighters who are overcome by an opposing force of lawful combatants remain lawful targets, even if unarmed, until they indicate a desire to surrender.
[5] Historically informed readers may ask, “What about Calley, at My Lai, in Vietnam? He was convicted of murder but his commander, Capt. Medina, who was present while Calley and his men were killing innocents, walked away clean?” Too right. Medina’s acquittal, I believe, was a case of prosecutorial inadequacy, resulting in an unjust outcome and a LOAC miscarriage.
About the author
Gary Solis is a retired U.S. Marine with 26 years active duty, twice serving in Vietnam as a platoon and company commander. After Vietnam he earned his J.D. from the University of California, Davis, and was a Marine judge advocate for 17 years, prosecuting or judging 763 courts-martial. His LL.M. (criminal law) is from George Washington Law, his Ph.D. (law of war) from The London School of Economics & Political Science.
He taught in the LSE’s Department of Law for three years, moving to the United States Military Academy in 1996, where he directed West Point’s law of war program for six years, receiving the 2006 Apgar Award as West Point’s outstanding professor. After West Point retirement he was a 2007 Library of Congress scholar in residence. For 12 years he was an adjunct professor at Georgetown University Law Center, teaching the law of armed conflict.
He remains a West Point adjunct professor. He was on the editorial board of the ICRC’s journal, International Review of the Red Cross (2010-15), and was a contributing writer for the ICRC’s new Commentaries to the Geneva Conventions (2013-20). He has been a law of war expert witness in nine Guantánamo military commissions, is on the Board of Advisors of West Point’s Lieber Institute for Law and Land Warfare, a member of the American Law Institute, and a member (inactive) of the bars of Virginia, Maryland, Pennsylvania, Texas, the District of Columbia, the U.S. Court of Appeals for the Armed Forces, and the Supreme Court of the United States. His books are Marines and Military Law in Vietnam, and Son Thang: An American War Crime, and The Law of Armed Conflict (3rd ed.), awarded the American Society of International Law’s 2011 Certificate of Merit.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
