Col. Ted Richard “On the Legal Presumptions of Civilian Status: A Rebuttal In Support of the DoD Manual (Part II)
Today’s post is the second of a three-part series by Air Force Colonel Ted Richard. He expertly rebuts 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.
I elaborated on my view in the intro to Part 1 (found here ), but suffice to say, I fully support Colonel Richard’s perspective. I invite you to read Part II of this exceptional three-part series.
On the Legal Presumptions of Civilian Status: A Rebuttal In Support of the DoD Manual (Part II)
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.
Part I of my rebuttal focused on the flawed source treaty for the rule in question and explained 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 will look at purported policy guidance and has concluding thoughts on the detrimental effect of recognizing a new legal presumption as a customary international law rule.
1976 US Air Force Pamphlet
To support the argument that the DoD Law of War Manual is wrong about the customary international law status of a civilian status presumption rule, Goodman cites the 1976 US Air Force Pamphlet 110-31, “International Law—The Conduct of Armed Conflict and Air Operations”, which contains the rule as it relates to objects. It says:
“Civilian objects shall not be made the object of attack. Civilian objects are all objects which are not military objectives. In case of doubt whether an object which is normally dedicated to civilian purposes, such as 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.”
The pamphlet’s discussion of the rule provides no legal standard, but does give guidance:
“Objects normally dedicated to civilian purposes, such as a house, dwelling or school are in case of doubt presumed not to be military objectives. Location as well as prior uses are important factors in determining whether objects are military objectives. Thus, dwellings located within a heavily contested contact zone need not be presumed to be civilian objects. Traditionally, sophisticated transportation systems are used heavily for military purposes in intense conflicts. Their status as military objectives is readily apparent. This general protection of civilian objects is entirely consistent with traditional military doctrine since civilian objects are not, by definition, making an effective contribution to enemy military action, and their destruction or neutralization offers no definite military advantage.”
Based on the dates, the 1976 Air Force pamphlet was likely written in anticipation of AP I. However, its value as a source of official US policy and understanding of customary international law is extremely limited. It represents the understanding of one branch within the US Department of Defense.
Furthermore, the Legal Adviser for the US State Department and the DoD General Counsel co-wrote to the International Committee of the Red Cross (ICRC) to explain the US position on a Customary International Law study. Relevant to a discussion of the 1976 Air Force Pamphlet, they wrote:
“Reliance on provisions of military manuals designed to implement treaty rules provides only weak evidence that those treaty rules apply as a matter of customary international law in nontreaty contexts. Moreover, States often include guidance in their military manuals for policy, rather than legal, reasons.”
Military manuals are not necessarily reviewed by senior government officials and do not necessarily reflect official State positions on the law. For example, the 1976 Air Force Pamphlet’s initial paragraph of text emphasizes that “it does not promulgate official US Government policy” and that it is “not directive in nature.”
Other references call into doubt the value of the 1976 Air Force pamphlet’s statement on the presumption of civilian status for objects in cases of doubt. First, the US Army’s 1956 Field Manual 27-10, “The Law of Land Warfare,” was also updated in 1976 to include language appearing in AP I (i.e., defining military objectives by mirroring AP I Article 52(2)), but importantly did not add in language regarding a presumption of civilian status in cases of doubt.
Moreover, US Air Force Pamphlet 110-31 was revised and reissued in 1980, omitting the language on the presumption civilian status for objects in cases of doubt. Understanding the limits in relying on military manuals described above, the omission speaks directly to the US Air Force belief in the customary law status of AP I’s rule at that time.
It is also enlightening to put this within the context of the DoD’s 1992 report to Congress on the Persian Gulf War, dismissed by Goodman, but clearly asserting the department’s position that AP I Article 52(3) “is not a codification of the customary practice of nations.”
Applicability of Amended Protocol II to the Convention on Certain Conventional Weapons
Goodman also bases his critique on the DoD Manual’s failure to reference Amended Protocol II to the Convention on Certain Conventional Weapons (CCW), a treaty to which the US is a party. The protocol restricts the use of mines, booby traps, and other similar devices (i.e., “improvised explosive devices”). Article 3, ¶8 includes a provision requiring a presumption of civilian status in case of doubt for objects:
“The indiscriminate use of weapons to which this Article applies is prohibited. Indiscriminate use is any placement of such weapons:
(a) which is not on, or directed against, a military objective. In case of doubt as to 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 an effective contribution to military action, it shall presumed not to be so used[.]”
First, however, the language as to “doubt” within this protocol is not found in the other CCW protocols, so rules therein would be limited in scope to the object and purpose of the treaty – mines, booby traps, and other similar devices. This is a basic rule of treaty interpretation. CCW provisions relying upon the DoD Law of War Manual, like the definition of “military objective,” are also found in CCW Protocol III and are less controversial.
Second, and contrary to Goodman’s conclusion, the US reservation to CCW Amended Protocol II does appear to address the language on a commander’s decision relating to use. The relevant language in the reservation says:
“[A]ny decision by any military commander, military personnel, or any other person responsible for planning, authorizing, or executing military action shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.”
While the reservation does not specifically reference Article 3(8) of the Protocol or the express question of doubt, it clearly affirms the basic rules for targeting and omits legal presumption of civilian status.
Customary International Law Generally
Practitioners should be skeptical of claims of treaties or their provisions having achieved customary international law status. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation (opinio juris). The examples supporting the customary international law status of the AP I rules in question remain unconvincing.
While the ICRC undertook major efforts in its customary international law study to determine what laws of war had achieved customary international law status, the US State Department Legal Adviser and DoD General Counsel disagreed with many of the conclusions and the overall methodology.
They noted concerns over an insufficient density of state practice relating to many of the rules; the aforementioned overreliance on manuals; an undue weight on statements from non-governmental organizations; and a treatment of practices by states with little participation in armed conflicts as equivalent to those with a great deal of experience.
For example, the ICRC’s database lacks details on Russian and Syrian practice on this question. How do Houthis in Yemen apply AP I? How have Iraq and Iran resolved targeting issues? The ICRC database offers no answers to these questions.
The ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law has also been criticized by legal experts from the US, Canada, and the United Kingdom.
The ICRC practice database cites judgments from the International Criminal Tribunal for the former Yugoslavia (ICTY) in support of a customary international law rule for a presumption of civilian status of people and objects in war. Yet, the support is not as strong as the ICRC asserts.
The Trial Chamber judgment in the Galić case, as one demonstration, explains that parties to the armed conflict in question “clearly agreed to abide by the relevant provisions of Additional Protocol I protecting civilians from hostilities.” This makes it difficult to view the case as applying the treaty provisions as arising through customary rules.
Furthermore, the Galić judgment does little to explain the relevance of the rule beyond mere citation. It quotes the rule – “In case of doubt as to the status of a person, that person shall be considered to be a civilian” – but in applying the rule, the judgment returns to the basic targeting standards of making decisions in good faith under the circumstances: “However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant.”
In other words, the court was not focused on AP I Article 50(1)’s “doubt” language that is of concern in the DoD Law of War Manual and others, but instead applied a reasonable person standard without regard to any presumption of civilian status of the target.
The Dragomir Milošević judgment used a similar analysis, but appears to have more expressly inverted the rule in question. Rather than finding a presumption of civilian status in cases of doubt, the court explained the offense required the perpetrator to have been “aware or should have been aware of the civilian status of the persons attacked.” This renders hollow any argument forwarding recognition of a customary international law rule for the presumption of civilian status.
If anything, the cases in question confirm the non-existence, beyond dicta, of a civilian status presumption rule. The important rule, recognizably extant, is for commanders to make their good faith decisions to attack people believed to be lawful targets, or places believed to be military objectives, based on the information available to them in light of the circumstances ruling at the time.
 Restatement (Third) of Foreign Relations § 325.
 Restatement (Third) of Foreign Relations § 102.
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.
*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 Part III in coming days!)