Col. Ted Richard “On the Legal Presumptions of Civilian Status:  A Rebuttal In Support of the DoD Manual (Part III)”

Today’s post is the final essay 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.

Of course, be sure to read Part I (found here ) and Part II (found here)

I elaborated on my view in the intro to Part I, but suffice to say, I fully support Colonel Richard’s perspective.  What is especially interesting about today’s post is that Ted adds his “concluding thoughts on the detrimental effect of recognizing a new legal presumption as a customary international law rule.” 

Ted also quotes at some length the legendary Hays Parks.  Though he passed away last year, Hays’ towering intellect still speaks to us, and is as relevant (or more) as ever.  So let’s read Part III of this exceptional three-part series.

On the Legal Presumptions of Civilian Status:

A Rebuttal In Support of the DoD Manual (Part III)

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 examined 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 III

US Army and US Marine Corps Policy Application of the Civilian Presumption Rule

Goodman cites the US Army and US Marine Corps FM 6-27 and MCTP 11-10C, “The Commander’s Handbook on the Law of Land Warfare,” to argue that the legal presumption of civilian status of people and objects in war exists as a policy and is therefore not as concerning as critics fear. 

Those critics have written the rule is unworkable because there will always be doubt.  Goodman cites both the 1982 preliminary study of AP I by the Joint Chiefs of Staff and its 1985 final review; US Air Force Lieutenant Colonel Burrus Carnahan’s remarks when he appeared on a panel with the US State Department Legal Adviser and Deputy Legal Adviser to provide the US views on AP I as Customary International Law; and the DoD’s 1992 report to Congress on the Persian Gulf War.  All of these criticisms recognize that doubt will always exist, so a textual reading of AP I would demand that every object be presumed to be civilian.

The US Army and US Marine Corps Handbook states:

“The Army and Marine Corps, as a matter of practice due to operational and policy reasons, generally take a more restrictive view than required under LOAC.  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.”

The Handbook goes on to explain “[d]oubt frequently exists in combat, often induced by lawful acts of enemy deception,” and that “doubt is seldom removed entirely.”   Therefore, commanders are directed to make “a measured decision, in good faith based upon information available and the prevailing circumstances ruling at that time.”

As explained above, the US Army and US Marine Corps policy guidance adds nothing to the rules the US otherwise applies.  It does not establish a legal standard to overcome doubt, but reiterates the basic good faith approach to determining lawful military objectives.  The better reading is that the policy guidance simply reinforces the principle of positive target identification.

I should note, too, that I have personal experience working in joint and coalition operations where the presumption of civilian status existed as part of rules of engagement.  My observation is that the presumption rule was not relevant when determining whether a person or object was a military object. 

Instead, it was used when assessing clearly military objectives where the nature of the objective implied possible secondary civilian uses or presence.  When there was is no intelligence supporting an absence of civilian use or presence at such locations, we presumed some civilians may remain and then the commander took reasonable precautions to avoid or minimize possible civilian casualties based on the military significance of the objective.

In other words, my experience is that the policy of presumption of civilian status has nothing to do with doubt as to whether an object is “used to make an effective contribution to military actions.”  Instead, that policy bears on whether such an object may also have ancillary civilian uses that trigger precautions in attack.  The policy in execution, then, is not what is stated in AP I and would not benefit from the changes proposed by critics of the DoD Law of War Manual.

Burden Shifting and Erosion of Distinction

So, what is the harm in acknowledging the civilian presumption language in AP I Articles 50(1) and 52(3) as customary international law if the change is so pedantic?  If one or more of the US military services once or currently express a policy preference for it?  If courts don’t really apply it?

To me, the risk is that future lawyers will read the words of these expansive rules and decide that terms like “doubt” and “presume” hold their familiar meanings.  This, in turn, may drive advisors to articulate higher and higher legal standards for target identification that will not assist US military operations.  Of course, this doesn’t mean positive target identification can’t be improved. 

Rules of engagement can easily – and often do – require specific types of sources or systems to confirm a target.  Those rules are straightforward to operators.  However, introducing legal jargon to say “targets must be identified beyond a reasonable doubt” (or even by a preponderance of the evidence) shifts the key responsibility for mission accomplishment from commanders to lawyers.  Operators often must make firing decisions quickly under the stress of combat, having clear, immediately executable rules is essential to both survival and mission accomplishment.

Finally, I fear that advocating for more legal restrictions on military decisions to conduct attacks during armed conflicts is part of a larger trend proving the early critics of AP I correct.  As W. Hays Parks emphasized, AP I appears to have shifted all law of war compliance burdens onto attacking forces.[1]  His point is worth quoting at length:

Customary law requires that an attacker exercise ordinary care to minimize collateral civilian casualties.  The provisions contained in articles 48 to 58 of Protocol I clearly were intended to raise the standard of care for the attacker while lowering it for the defender, thereby shifting the burden for minimization of collateral civilian casualties to the party to the conflict with the least control over the civilian population that may be near military objectives.  Protocol I exacerbates the problem by confusing the status of persons working within military objectives, commingling them with innocent civilians who have no connection whatever to the military effort of the defender.  Its attempt to establish an unrealistic form of accountability for civilian casualties that occur incidental to legitimate military operations is useful only as a propaganda tool.  It serves no humanitarian purpose, and endangers the already-tenuous credibility of the law of war.

Incorporating a new presumption for civilian status into the US-acknowledged body of customary international law would either add something meaningless, or, if misinterpreted, burden military operations with unnecessarily confusing legal standards.  In either event, it would do nothing to improve the credibility of the law of war itself.

Notes

[1] W. Hays Parks, Air War and the Law of War, 32 Air Force L. Rev 1, 201-02 (1990)

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!