Col. Ted Richard “On the Legal Presumptions of Civilian Status: A Rebuttal In Support of the DoD Manual” (Part I)
Today I am extremely pleased to welcome a new Lawfire® contributor, Air Force Col Ted Richard. He is taking on the rebuttal of an effort among some academics and others to characterize as a matter of customary international law, a legal presumption of civilian status on persons and objects in situations of armed conflict–even in the absence of any supporting evidence.
The advocates seem to think that such a presumption might somehow better protect civilians in the targeting process, but that simply is untrue. As Ted details in his essay below, creating a presumption would add no value because of what the law already requires, and would only serve to burden U.S. warfighters.
For example, he points out that under the U.S. Department of Defense’s Law of War Manual, in order to lawfully target a person or object as a legitimate military objective (as defined in ¶ 5.6), the propriety of that action cannot be based on “merely hypothetical or speculative considerations.”
Instead, what is required is a “good faith” determination of lawful targetability of the person(s) or object(s) “based on the information available to [the commander] in light of the circumstances ruling at the time.”
I would add that in practical, military terms it can be extraordinarily dangerous in hostile situations to automatically presume any person or object is a civilian, non-threat. Wariness and circumspection as status is sorted out can keep soldiers alive.
Of course, this certainly does not permit any sort of “shoot first, ask questions later,” approach, but rather counsels a prudent exercise of caution before assigning a status, one way or another.
To reiterate, it is one thing to affirmatively require a good faith, fact-based determination of lawful targetability before every attack, but quite another to tell troops to simply presume–without any real information or investigation–civilian status for persons or objects found in combat zones. Doing so would be especially perilous in the complex, urban battlespaces we are seeing today.
Colonel Richard is the right expert to fully unpack this issue. I’ve long admired Ted’s extraordinarily scholarly work; his article – a monograph really – on Nuclear Weapons Targeting: The Evolution of Law and U.S. Policy is the seminal work on the topic, and his Unofficial United States Guide to the First Additional Protocol to the Geneva Conventions of 12 August 1949 is likewise an essential reference for any serious practitioner or academic in this area.
I invite you to read Part I of this exceptional three-part series.
On the Legal Presumptions of Civilian Status: A Rebuttal In Support of the DoD Manual (Part I)
by Colonel Theodore Richard, USAF*
In a recent post on Just Security, Professor Ryan Goodman joined the chorus of those who argue that a customary international law rule has arisen creating a legal presumption of civilian status of people and objects in war. If true, the provisions of the DoD Law of War Manual stating otherwise would be erroneous. But the rule in question is largely pedantic, and its adoption risks burdening US warfighters while further undermining faith in the law of war without widespread adherence by their adversaries.
Part I of my rebuttal is focused on the flawed source treaty for the rule in question and explains why the proposed rule adds no meaningful value to recognized norms of customary international law.
Part II examines other problematic sources for the civilian status presumption rule: an Air Force pamphlet that did not promulgate official US Government policy; a treaty of limited application; and other sources claiming to establish the rule as customary international law.
Part III of the series looks at purported policy guidance and has concluding thoughts on the detrimental effect of recognizing a new legal presumption as a customary international law rule.
Part I
The Text
The First Additional Protocol to the Geneva Conventions of 12 August 1949 (hereinafter “AP I”) is may be a treaty, but the United States is not a party to it. Nonetheless, it represents the culmination of the first international effort at a comprehensive update to the law of war since the 1949 Geneva Conventions. AP I has two provisions creating the legal presumption at issue:
Article 50(1): [First defining civilians as not being combatants as (controversially[1]) defined elsewhere.] “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
Article 52(3): “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”
Both of the articles are contained within AP I’s section on protecting the civilian population and civilian objects from the effects of hostilities. While Article 48 reiterates the rule that all Parties to a conflict shall distinguish civilian populations from combatants and civilian objects from military objectives, most of the subsequent articles only impose specific duties on the State Party engaging in an attack.
On the other hand, the DoD Law of War Manual ¶ 5.4.3.2 states, “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.”
The Flawed Source of the Proposed Rule
Although the US initially signed AP I, President Ronald Reagan ultimately rejected it for ratification because it was “fundamentally and irreconcilably flawed.”
AP I represents a challenge to US law-of-war practitioners because certain of its “meritorious elements” have been expressly recognized by senior officials in the US Executive Branch as customary international law, while the US has been a persistent objector to other rules. In the case of the specific AP I rules in question, the US has provided little, if any, official commentary until publication of the Manual.
President Reagan’s public statement against ratification of AP I was centered on guerrilla warfare. He called out a provision granting “combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war.” As the President explained, “This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.”
In other words, AP I’s cardinal defect preventing US ratification was in permitting irregulars to blend in with civilians. The US does not believe a defender should lawfully be able to create a case of doubt as to whether a person is a civilian or a combatant; or as to whether an object is a civilian or military one.
This has been at the core of the principle of distinction since Lieber provided his famous Code. Well before AP I was negotiated to protect insurgents, President Kennedy warned about a Cold War adversary using “guerrillas by night instead of armies by day.” Despite US concerns over these aspects of AP I, the leaders of the so-called “Third World” countries found these new protections appealing, as did European nations with experience using partisans against the Nazis.[2]
It is impossible to detangle AP I’s civilian presumption rules with the overall concerns regarding its elimination of law-of-war burdens on irregulars. The case in point for the civilian presumption in AP I Article 50(1) follows the sentence confirming the controversial definition of combatants through citation to Article 44.
The US has been a persistent objector to the effort to legalize “farmers by day, fighters by night.”[3] So while the US might not have commented on the civilian presumption rules within AP I, it is easy to view them as among the problems with AP I that have been expressed as “so fundamental in character that they cannot be remedied through reservations.”
Indeed, this rationale is expressed in the DoD Law of War Manual ¶ 5.4.3.2: “Affording such a presumption [of civilian status] 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.”
A Rule Presuming Civilian Status Adds No Value
Simply stated, US adherence to its understanding of customary international law and AP I’s “meritorious elements” make the need for a civilian status presumption irrelevant. This is clearly articulated in the DoD Law of War Manual ¶ 5.4.3.2, which explains:
“Attacks … may not be directed against civilians or civilian objects based on merely hypothetical or speculative considerations regarding their possible current status as a military objective. In assessing whether a person or object that normally does not have any military purpose or use is a military objective, commanders and other decision-makers must make the decision in good faith based on the information available to them in light of the circumstances ruling at the time.”
From a targeting law perspective, the US targets legitimate military objectives. Period. It has long embraced AP I Article 52(2)’s targeting standard:
“Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”[4]
It has also generally adopted the precautions in attack found in Article 57, which includes the duty to take feasible measures “…to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them[.]”[5]
This is not only reflected in ¶ 5.2.3 of the Manual. The requirement to take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack is also contained in Executive Order 13732.
It has been part of joint doctrine for years as well: “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.”
A new legal presumption of civilian status adds nothing other than confusion to these meritorious standards already in place. American commanders deciding whether or not to conduct an attack currently must make good faith decisions based on the information available to them in light of the circumstances ruling at the time.
Therefore, at ¶ 5.4.3.2, the Manual correctly identifies a problem of introducing a new legal presumption into the decision matrix: it “may demand a degree of certainty that would not account for the realities of war.” For example, the use of “doubt” within the text of the legal presumption certainly and unhelpfully echoes the high criminal law standard of “beyond a reasonable doubt.”
Given these concerns, unless there is legal standard identified for the proposed presumption, it adds nothing to current practice. Right now, US commanders must act in good faith based on the information available to them in light of the circumstances ruling at the time to strictly limit attacks to military objectives while taking feasible measures to verify that the objectives to be attacked are neither civilians nor civilian objects. If a commander has little or no reason to think that a person is part of enemy forces, a decision to attack would not be legally justified because it fails to meet current standards.
Examples Demonstrating the Lack of Need for the New Rule
To further demonstrate the irrelevance of this proposal, one need only compare the rules found in some other manuals with a restated version using the current guidance from DoD Law of War Manual while omitting the AP I civilian status presumptions.
First, here is the Humanitarian Policy and Conflict Research Manual on International Law Applicable to Air and Missile Warfare rule as it relates to civilian objects:
Rule 12(b): “In case of doubt as to whether an object which is ordinarily dedicated to civilian purposes is being used for military purposes, it may only be attacked if, based on all the information reasonably available to the commander at the time, there are reasonable grounds to believe that it has become and remains a military objective.”
Here is a proposed restatement using the rules in that manual without the legal presumption:
An object ordinarily dedicated to civilian purposes, which is being used for military purposes, may only be attacked if, based on all the information reasonably available to the commander at the time, there is a good faith belief that it has become and remains a military objective.
Similarly, here is the rule as expressed in the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea:
“58. In case of doubt whether a vessel or aircraft exempt from attack is being used to make an effective contribution to military action, it shall be presumed not to be so used.”
It, too, can be restated without the presumption:
A vessel or aircraft otherwise exempt from attack may only be attacked if, based on all the information reasonably available to the commander at the time, there is a good faith belief that the vessel or aircraft is being used to make an effective contribution to military action.
The concern is that creating a new legal presumption implies that “good faith” and reasonableness is insufficient. If the US suddenly decides that customary international law requires a legal presumption, then there would need to be a legal standard to overcome the presumption.
Goodman cites options for a preponderance of evidence standard and for a reasonable certainty standard. (The commentary to the San Remo Manual also proposes a “balance of probabilities” standard.) However, there is scant evidence of an agreed-upon standard in customary international law.
Notes
[1] DoD Law of War Manual ¶ 4.18.3, ¶ 5.4.8, ¶ 19.20.1.5
[2] W. Hays Parks, Air War and the Law of War, 32 Air Force L. Rev 1, 119 n. 371 (1990).
[3] Theodore T. Richard, Unofficial United States Guide to the First Additional Protocol to the Geneva Conventions of 12 August 1949, n. 84 (2019).
[4] Theodore T. Richard, Unofficial United States Guide to the First Additional Protocol to the Geneva Conventions of 12 August 1949, n. 108 (2019).
[5] Theodore T. Richard, Unofficial United States Guide to the First Additional Protocol to the Geneva Conventions of 12 August 1949, n. 122 (2019).
About the Author
Colonel Theodore Richard is a United States Air Force Judge Advocate and is currently serving as the Staff Judge Advocate at Space Operations Command. He has served in multiple assignments focused on operations law matters to include at the Combined Air Operations Center at Al Udeid Air Base in Qatar, the 603d Air Operations Center at Ramstein Air Base in Germany, and at United States Strategic Command.
Disclaimers:
*The views expressed in this article are solely those of the author and do not necessarily reflect the official policy or position of the U.S. Department of Defense, the U.S. Air Force, or any part of the US Government.
The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
(Be sure to watch for Parts II and III in coming days!)
