DoD’s law of war about-face is problematic for both civilians and warfighters

In the first update of its Law of War (LoW) Manual since 2016, the Department of Defense (DoD) reversed itself on a key interpretation of international law.  This post contends that while it may be well-intended, the change is a mistake as it is problematic for both civilians and warfighters.  Indeed, it has the potential to imperil both groups.

The about-face: a new “legal duty” to “presume” civilian status

On July 31 DoD declared that henceforth there is a “legal duty” to presume that all persons or objects in a conflict area have civilian status “unless the available information indicates that they are military objectives.” The presumption, the update says, must be the “starting point” for the exercise of “military judgement.”

The now-abandoned position: a “presumption likely would increase the risk of harm to the civilian population”

Up until about week ago DoD’s view of the law was quite different.  The Obama-era DoD LoW Manual insisted that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects…”  (Emphasis added).

The rationale provided made sense:

“A legal presumption of civilian status in cases of doubt may demand a degree of certainty that would not account for the realities of war.  Affording such a presumption 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. Thus, there is concern that affording such a presumption likely would increase the risk of harm to the civilian population and tend to undermine respect for the law of war.”  (Emphasis added).

Among the citations supporting its conclusion was a reference from the DoD’s Final Report of the Persian Gulf War which noted:

[Such a presumption] “is not a codification of the customary practice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burden for determining the precise use of an object from the party controlling that object (and therefore in possession of the facts as to its use) to the party lacking such control and facts, i.e., from defender to attacker.”

Unfortunately, it appears that DoD yielded to the view of some academics, human rights advocates and others to not only create a new “legal duty” but to also add thousands of words detailing how warfighters are to implement this new “duty.” 

Colonel Richard’s analytical trilogy

Obviously, the previous version of the LoW Manual position was steeped in the realities of combat.  Still, over the years there were those who objected to the 2016 LoW Manual’s analysis of the presumption or, more accurately, the lack of one. 

Accordingly, in the spring of 2022 Colonel Ted Richard, USAF, writing in his unofficial capacity to express his personal views, produced a magnificent three-part evaluation for Lawfire® supporting the then-existing interpretation. 

Here’s how I introduced the series of Ted’s essays:

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.

I strongly urge you to read each installment of Colonel Richard’s very thorough work (Part I here, Part II, here, and Part III here).  Suffice to say, Ted countered the arguments of many of those who were urging the change that DoD has now adopted in the new update. 

Allow me to share with you part of his concluding analysis:

So, what is the harm in acknowledging the civilian presumption language in The First Additional Protocol to the Genevea Conventions of 12 August 1949 (hereinafter “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. Possessing 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.  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.  (Emphasis added; citations omitted).

Unfortunately, DoD does not address Colonel Richard’s analysis and concerns.

Concerns of other scholars

I hasten to add that others have reservations about the update.  I invite your attention to a thoughtful and very scholarly analysis just published on the Articles of War blog by professors Sean Watts and Hitoshi Nasu. 

Entitled 2023 DoD Manual Revision – The Civilian Presumption Misnomer” it is well worth reading not just for its legal analysis, but also for the practical implications of DoD’s about-face regarding the presumption of civilian status.

They conclude:

“At the most basic level, the Manual’s new presumptions passage instructs U.S. armed forces to do something they had previously been deliberately and persistently insulated from doing for convincing legal and practical reasons. The reversal’s significance should not be underestimated. The Department’s services will soon undertake the fraught task of putting the presumption into effect across the force.  As they do, DoD can no doubt expect questions from operational, legal, and perhaps political quarters.”

(Be sure to read their post so you can consider see some of the questions that will “no doubt” be raised.) 

The reason for the about-face? 

What seems to have driven DoD to do this flip-flop?  I really don’t know, but it may have something to do with its interpretation of “cognitive bias” which has recently become prominent in DoD LoW-related writings.

Specifically, as a result of an airstrike in Kabul that went tragically awry during the Afghanistan evacuation, the Pentagon said that its resulting Civilian Harm Mitigation and Responses Action Plan “provides for DoD to incorporate cognitive bias mitigation into guidance , education , training , and exercising…” (Emphasis added.)

Regrettably, DoD seems to only consider cognitive bias in the pejorative.  That is a too blinkered assessment.  As explained below, if correctly utilized a cognitive bias could be a lifesaver in combat.

Before discussing this further, allow me to reiterate that disagreeing with a mandated presumption of civilian status for the people and objects that warfighters encounter in combat situations is emphatically not to say that troops should presume everyone and everything they see is a targetable combatant and/or lawful military objective.

Rather, it is to simply say that warfighters should make reasoned, fact-based determinations before assigning any legal status under the LoW.

That said, permit me to offer a theory as to what might be one of the goals of DoD’s about-face: to mitigate (purge?) the warfighter’s cognitive bias mindset, and to replace it with a generic, law-imposed bias in the form of a required presumption.  If true, we may be seeing something of a throwing-the-baby-out-with-the-bathwater situation as cognitive biases have constructive aspects.

In fact, cognitive biases–if properly understood and appropriately cabined–can serve an important and positive role in dangerous or threatening situations such as combat.  Even though not discussing the phenomena in a military context, a recent article pointed out that Cognitive biases are not all bad.”  It explains:

“Cognitive biases are mental shortcuts (known as heuristics) and they actually make a lot of sense: they’re designed to help us survive in the hunter-gatherer sense. Our brains have evolved over two hundred thousand years and they operate in much the same way today, despite our enormously different and fast-changing environment. The World is vastly complex and humans have never before been bombarded by so much information on a daily basis. We cannot process all the information around us, therefore we must resort to mental shortcuts to make decisions quickly and effectively.” (Emphasis added).

Another article (also not in a military context, per se) made this interesting observation:

“[C]ognitive biases are not necessarily all bad. Psychologists believe that many of these biases serve an adaptive purpose: They allow us to reach decisions quickly. This can be vital if we are facing a dangerous or threatening situation.” (Emphasis added).

Further, it says that “relying on mental shortcuts can often get you out of the way of danger in situations where decisions need to be made quickly.”  (Emphasis added).  I think it is apparent how useful this can be to soldiers in combat.

To be clear, though cognitive bias could not alone establish targetable “combatant/military objective” status as to a person or object, couldn’t it possibly be sufficient to warrant suspending the presumption of civilian status–at least for enough time to ascertain some facts?  Must the new presumption always be the “starting point” for “military judgement”?

Decide for yourself:  should a cognitive bias that calls for caution and alertness to danger be allowed to be eroded by a diktat that obliges soldiers as a matter of “legal duty” to presume everyone is a civilian—a supposedly nonthreatening status—before they have a chance to acquire any facts? 

Unintended consequences

As professors Watts and Nasu suggest, DoD’s LoW reversal could have unintended and undesired consequences.  Among other things, it can invite confusion, particularly among the troops in the field who must execute it.

Here’s just one scenario, and it involves the not-impossible-to-imagine situation of U.S. troops advancing deep in hostile territory.  Envision a young Army sergeant, trying her best to comply with what she was told was her “legal duty,” makes (despite her intuition that has her sensing danger) the “starting point” of her “military judgement” a presumption that the crowd of people milling about in the town she is entering are civilians not directly participating in hostilities.

What might the soldier think about the credibility of the LoW if reliance on the presumption dictated by her superiors turns out to be a lethal mistake, and she and her unit are ambushed by some of the presumptive “civilians” who are actually enemy fighters in plain clothes disguise? 

Sure, DoD could argue that a presumption of civilian status does not foreclose treating civilians with suspicion, but given that international law also says that “merely hypothetical or speculative considerations” are inadequate when it comes to justifying the use of force, it would not be difficult to see how confusion could arise in the soldier’s mind as to what exactly she can or cannot do. 

After all, the sergeant is an an infantry solider not a knowledgeable lawyer able to parse the legal technicalities as to which kinds of considerations are or are not permissible factors to rebut a status presumption. 

Thus, if it is only her soldier’s intuition that is telling her that danger is lurking, would (should?) that be enough not to use force against anyone, but to merely suspend the presumption of civilian status for just the period she and her troops are gathering facts about the crowd in order to make a reasoned determination of everyone’s status?  Does the recent DoD LoW Manual update permit her to do that? 

DoD seems to say no: she must have “available evidence indicating they are military objectives” or the presumption of civilian status stands.  But is intuition “merely [a] hypothetical or speculative consideration” unworthy of being included in the sergeant’s assessment of the situation?  What if there is science behind the concept?  The Harvard Business Review says:

Intuition is frequently dismissed as mystical or unreliable — but there’s a deep neurological basis for it. When you approach a decision intuitively, your brain works in tandem with your gut to quickly assess all your memories, past learnings, personal needs, and preferences and then makes the wisest decision given the context.” (Emphasis added).

It adds:

“In fact, surveys of top executives show that a majority of leaders leverage feelings and experience when handling crises. Even the U.S. Navy has invested millions of dollars into helping sailors and Marines refine their sixth sense, precisely because intuition can supersede intellect in high-stakes situations like the battlefield.”  (Emphasis added).

Additionally, a 2021 article titled “The Science of Intuition” in Psychology Today asserts:

“Neuroscientist Antonio Damasio theorized that we evolved to use these bodily cues such as muscle tone, heart rate, and endocrine activity in order to make rapid decisions about how to navigate the physical and social worlds. These “somatic markers” translate unconscious emotions and sensations into felt instinct. This evolutionary strategy allows us to make quick decisions that require minimal thought to enhance survival.”  (Emphasis added).

Again, no one is suggesting that intuition alone is sufficient basis for shooting someone, but what about other measures short of doing so but which could involve the threat of force?  Should it be sufficient to allow the sergeant to, for example, legally point her rifle (and those of the rest of her unit) at the crowd to intimidate them for at least for as long as she needs to sort out the status of those comprising it? 

But if she does, is it possible she could be held criminally liable for simple assault for leveling a weapon against people who she has a “legal duty” to consider to be “civilians” knowing it will create intimidating fear in their minds?  Does it matter if it is later determined that they are, if fact, bonafide civilians who were traumatized by having guns pointed at them?

Since the U.S. now presumes the crowd enjoys the legal protections of civilian status, could that give allegations of impropriety more gravitas? 

For example, could the new presumption facilitate an allegation that holding a crowd of “civilians” at gunpoint as the sergeant tries to gather facts amounts to “humiliating and degrading treatment” contrary to Common Article 3 of the Geneva Conventions?  Or that they were subject to a “threat” of violence contrary to Article 75 of Protocol 1?   Moreover, will it be easier it assert that other human rights laws or treaties apply in such instances?

Is the sergeant now only permitted to aim her weapon at the crowd once she has sufficient (whatever quantum that might be) information “indicat[ing] that they are military objectives”?

Yes, a seasoned LoW lawyer might be able to walk through this scenario and emerge legally unscathed (though international criminal law is getting ever more aggressive in armed conflict settings). 

But is that really the issue?  Isn’t it actually whether troops in complex combat situations should be required to try to make nuanced, lawyerly judgements about presumptions, legal fictions, sufficiency of rebuttal evidence, texts of international agreements, permissible actions towards “presumptive” civilians, and more?

And is it really necessary?  Wasn’t DoD’s previous view more practical, that is, to not presume civilian (or, for that matter, combatant) status but rather acquire facts before making any status determination?  And, in any event, follow established targeting rules before any use of force?

Ponder this as well: could imprinting the new presumption on the minds of soldiers at the same time resort to cognitive biases is being discouraged possibly put troops at risk? 

Isn’t it possible that telling troops advancing in a dynamic and rapidly changing combat situation that they are legally required to assume every unknown person and every unvetted object has civilian status might lull them into easing the wariness and caution that can keep them alive in combat to accomplish their mission?  Couldn’t even a moment’s loss of focus be fatal? 

Rather than demonizing cognitive bias, shouldn’t DoD be exploring how its proper use can help keep troops out of peril in tricky situations?   General Mattis illustrated the importance of avoiding presumptions and to value wariness in his famous combat-tested axiom: “Be polite, be professional…and have a plan to kill everyone you meet.”

An alternative that can protect civilians

Is there an alternative that could protect civilians?  Colonel Richard suggests it: Instead of getting tangled up with presuming one status or another, emphasize to warfighters at every level the legal obligation to observe the long-accepted targeting principles before conducting any sort of attack. 

These require facts to establish the status of a person or object as a proper military objective (to include status as an enemy combatant), adherence to the proportionality mandate, as well as other targeting rules. If troops are trained to strictly follow the targeting directives, the risk to civilians can be minimized without the necessity of resorting to confusing presumptions.

The “speed of relevance”?

Another issue: In an era when the pace of warfare is accelerating, DoD’s LoW reversal also invites confusion among commanders and their judge advocates as they try to divine the proper responses to the new “duty” at the very time when simplicity and clarity are needed.  The risk here is that the new “duty” could trigger the emergence of what the renowned military theorist Carl von Clausewitz would call “friction” in the form of bureaucratic processes which can have a deleterious effect on military decision-making.

Ironically, in at least two places in the updated LoW Manual, seems to kind of recognize this danger.  It says:

In any event, the law of war does not forestall commanders and other decision-makers from making decisions and taking actions at the speed of relevance, including in high-intensity conflict, based on their good faith assessment of the information that is available to them at the time, as explained in this subsection.”

Questions, however, remain: what, exactly, does the reference to “speed of relevance” mean in this context?  Here’s an explanation of the origin of the term:

“The National Defense Strategy, signed by Mattis in January 2018, refers to the delivery of performance at the speed of relevance. He challenged the Department of Defense to throw off the shackles of inertia created by unwieldy approval chains, wasteful use of resources, and an aversion to risk to deliver faster adaptations to new ways of war.”

How does adding another 3,000+ words to a LoW Manual already weighing in at an unwieldy 1200+ pages possibly help accomplish any of the ends the phrase is supposed to achieve? 

What is more, is the suggestion supposed to be that the necessity for the “speed of relevance” could obviate the need to adhere to what DoD is now claiming to be a “legal duty”?  Are the “legal dut[ies]” as to the presumption of civilian status different in “high intensity conflict?  Doesn’t this passage—particularly with its catchy-but-unclear-in-this-context phrasing–raise more questions than answers?

(Though beyond the scope of this post, understanding the true implications of “speed of relevance” in military decision-making is complex, and I recommend to you Joe Dransfield’s 2020 article How Relevant is Speed of Relevance? Unity of Effort Towards Decision Superiority is Critical to Future U.S. Military Dominance)

Concluding thoughts

The complexity of implementing DoD’s new position on this issue invites a larger discussion as to how to get legal expertise to warfighters at the proverbial ‘pointy end of the stick’ in 21st century conflicts.  DoD’s current plan now seems to be to deploy “expertise” to field commands (despite the presence of the command’s own military lawyers, intelligence personnel, and operations officers schooled in the LoW).

Even if this ill-advised DoD approach is doable in low-intensity counterinsurgency operations where the adversary has limited warfighting means, it is unlikely to succeed at the high end of the spectrum of conflict. 

As the Ukraine war is amply demonstrating, the era of large, fixed headquarters able to support sizeable staffs may be over as their physical and electrical footprint makes them discoverable—and lucrative—targets in large scale combat operations (LSCO) against peer and near-peer competitors.

Deploying additional personnel to what are already command centers that are too large and too vulnerable just doesn’t make sense.  Accordingly, today’s military strategists are thinking in terms of dispersing forces into smaller, less vulnerable units with compact command elements.  These will have little room for traditional staffs, let alone added deployers from the Pentagon who would duplicate organic capabilities.

To make these smaller, dispersed warfighting elements effective, leaders are embracing the concept of “mission command.”  The Economist explains how it works: “Commanders issue their intent—the principles and objectives of a mission—and delegate responsibility for achieving it to more junior officers, allowing them to exercise their own initiative and judgment.”

The Economist also describes the asymmetric military advantage mission command can yield:

“This speeds up decision-making and allows armies to respond flexibly, and even to surprise enemies who may expect them to stick to textbook procedures. As long as troops respect the commander’s intent, forces with mission command can be creative, altering tactics and seizing opportunities that arise. Its cultural foundations include trust, individualism, innovation and entrepreneurial spirit—qualities often associated with liberal democracy.”

Obviously, mission command requires military leaders to make many of their own decisions, and this would include those in the LoW area.  There is clearly work to be done to ready them for this role.

In their iconic article “The Eighteenth Gap: Preserving the Commander’s Legal Maneuver Space on ‘Battlefield Next’” now retired LTG Chuck Pede and Colonel Peter Hayden argue that the years of policy-constrained counterinsurgency (COIN) rules of engagement (ROE) have left many commanders with an overly restrictive idea of what the law actually requires. 

Such misunderstandings could unnecessarily—and dangerously–limit a commander’s warfighting prerogatives.  Pede and Hayden insist that in the future,

Commanders will need to intuitively know and confidently apply the actual rules of war, unhindered by the lingering hangover of constrained COIN ROE. Mastery of the law of war may very well mean the difference between victory and defeat. (Emphasis added.)

In short, leaders at many levels (and especially those executing “mission command” at remote sites) may not have ready access to legal advisors, or the time and inclination to work their way through all the legalities and nuances in the hundreds of pages of the LoW Manual’s text.  As a result, commanders must internalize the key LoW principles they need to carry out their duties so they can carry out operations in the absence of legal expertise.

Consequently,  it is imperative that we look for ways to simplify the warfighters ability to comply with the LoW.  Adding problematic provisions of questionable necessity (and about which even legal experts still have honest disagreements) does not seem to be the way to do it.

Of course, trying to minimize civilian losses is now and will always be a noble task.  There are however, cautions to consider.  After citing the above passage from LTG Pede’s and Colonel Hayden’s article, Dr. Camilla Cooper made this astute observation in her really superb essay Curing the COIN Hangover”:

“Policy developers need to understand that introducing more and more restrictions on the use of military force may end up causing even more civilian harm or cause our forces to lose the battle. And as policy makers are responding to the expectations of civil society, civil society too needs to understand that wars will not always be fought using high precision weapons and methods designed to cause zero civilian harm. The Russian operations in Ukraine are a painful reminder of the true character of inter-State, large scale wars.”

Though worthy of a longer and wider discussion, the point to be made at this stage is that it is hard to see how adding girth to DoD’s LoW Manual without, as Colonel Richard points out, discernible benefit, could be productive.

Finally, as I said in the beginning, DoD’s LoW about-face was no doubt the product of honorable people wanting to better protect civilians in war.  However, if the approach to doing so is mainly aimed at restricting and complicating the lawful use of force against those most responsible for civilian harm, in the long run it is civilians who may suffer the most.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

Current as of 6 Aug 23 at 10:11 am DST














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