Does the law of war protect only “innocent” civilians?
In January of 2022, Secretary of Defense (SecDef) Lloyd Austin announced that he was directing the Department of Defense (DoD) to develop a Civilian Harm Mitigation and Response Action Plan (CHMR-AP). In August of that year, the plan was delivered. Though no doubt well-intentioned, the more one examines it, the more concerns emerge.
Lawfire® has—and will be—examining a number of aspects of the CHMR-AP, but today we’ll explore the wording in the SecDef’s initial directive (and mirrored in the accompanying press release) that says the “protection of innocent civilians” is “vital” to operational success and a “significant strategic and moral imperative.”
The obvious question is this: are only “innocent” civilians to be protected by the CHMR-AP ?
“Innocent civilians” and the SecDef’s directive
You are invited to read the SecDef’s full directive, but the concerning part is highlighted in the screen catch below:
Seemingly to re-emphasize the point, the DoD press release which accompanied the release of the SecDef’s directive also used the “innocent civilian” language by stating that the “protection of innocent civilians in the conduct of operations remains vital to the ultimate success of our operations and as a significant strategic and moral imperative.” (Emphasis added).
There is nothing to suggest that this was simply an off-hand misstatement by a senior official; rather, it seems to be a conscious but unwise use of a public relations’ colloquialism in documents where precision, accuracy, and strict legality ought to be paramount given their potential to influence the force and beyond.
Attorneys could say the issue the wording raises relates to the legal axiom, expressio unius est exclusio alterius which essentially means “the expression of one thing is the exclusion of the other.” In this case the application of the axiom to the SecDef’s “expression” about the protection of “innocent” civilians operates to exclude any civilians who are not deemed “innocent.”
If a military member read the wording in the SecDef’s directive (and the DoD news release), isn’t it reasonably foreseeable that the soldier could conclude there are “innocent” civilians who must be protected, but there are also civilians who need not be protected because they are not “innocent” by some measure? Such an interpretation could put military members in legal jeopardy and civilians in physical peril.
Does the law of war (LoW) say only “innocent” civilians are protected?
Regardless of the implications of the “innocent civilians” wording in the SecDef’s directive, the LoW doesn’t work that way. Perhaps the most basic rule of the LoW is the principle of distinction, and here’s how the International Committee of the Red Cross (ICRC) describes it:
As you can see, it doesn’t say “innocent” civilians, but simply “civilians.” Under the LoW, protection against being targeted extends to “civilians” unless, as discussed below, they are taking a direct part in hostilities.
To be clear, there is no requirement, per se, that civilians be found “innocent” to be protected; indeed, many people who are entitled to LoW protection as “civilians” may in fact be evil persons, to include criminals.
The “innocent civilian” narrative
Several years ago, I wrote an essay about the narrative—now reinforced by the mistaken language of the SecDef—about “innocent” civilians:
Americans instinctively want to think that all civilians are “innocent” even when logically that may not be true. As the late historian Daniel Boorstin pointed out, Americans suffer from “Myths of Popular Innocence” which he characterized as “a touching … unwillingness to believe ill of human majorities.” Boorstin said it tends to lead Americans to “exonerate the populace from the horrors in which they must have collaborated.” He cited the complicit citizenry of Nazi Germany as an example of such an evil collaboration yet who have been treated as if they were “innocent bystanders” or simply victims of an “unopposable master.”
In reference to the Kosovo war of the late 1990s, New York Times columnist Anthony Lewis similarly argued that Slobodan Milosevic was “not the only author of the war crimes in Kosovo” as “hundreds of thousands more back in Serbia proper were fixed in the belief that the Serbs had done no wrong” despite irrefutable evidence.
In short, while the vast majority of the populations of Nazi Germany and Milosevic’s Serbia would today be considered “civilians” legally protected from being directly targeted, one can hardly say that those among them who embraced the loathsome ideologies are morally innocent. The same can be said of the supporters of terrorist extremism today.
In some or perhaps many contemporary situations it is quite possible that a civilian killed in an attack may not only be morally blameworthy, but also legally culpable of a crime, including material support to terrorism. These supporting activities, while illegal, do not necessarily amount to “direct participation in hostilities,” which is the level of involvement that international law requires to make civilians (as opposed to other non-state actors) properly targetable. Still, such persons are hardly “innocents.”
This is not to suggest that they ought to be kinetically targeted, but rather merely to make the point that one cannot assume — as the [media] seems to do — that all civilians killed in airstrikes are moral or legal “innocents.”
Put another way, we should not want troops to think that morally bankrupt (and maybe even legally culpable under domestic U.S. law) civilians are outside LoW protections because they are not deemed “innocent” by some standard. That is a formula for all kinds of problems, particularly if troops in combat try to make their own judgement as to who is “innocent” and who is not.
Other explanations?
Organized armed groups
Could the SecDef be thinking that non-state actors organized into armed groups are civilians who do not enjoy the “innocent” status and who can, therefore, be targeted?
Apart from the fact that adjudicating who is, or is not, a targetable member of such a group is complex and controversial, the DoD LoW Manual (¶ 5.8.2.1) says that the “U.S. approach has generally been to refrain from classifying [such persons] as ‘civilians.’” It adds that “[t]he U.S. approach has been to treat the status of belonging to a hostile, non-State armed group as a separate basis upon which a person is liable to attack, apart from whether he or she has taken a direct part in hostilities.”
In short, it appears that from the U.S. perspective, determining who is, or is not, an “innocent” civilian in such situations is simply irrelevant as the U.S. does not use the “civilian” designator one way or another with respect to membership in armed groups, and does not attempt to parse guilt to innocence as to any specific acts.
Direct participation
Or could the SecDef be thinking about civilians who directly participate in hostilities and are, therefore, targetable as not being “innocent”? Like the determination as to who is a targetable member of an organized armed group, assessing exactly what acts are sufficient to constitute “direct participation in hostilities” is complicated and contentious.
Regardless, as the ICRC puts it, the LoW “neither prohibits nor privileges civilian direct participation in hostilities. Therefore, such participation does not in itself constitute a war crime.” (Emphasis added).
While direct participation may constitute a crime under domestic law, it is hard to see how the “innocent civilian” rhetoric can logically fit into a discussion of targetability (or not) under the international LoW.
Concluding observations
A plan centered on the protection of “civilians” obviously needs to get the law expressed correctly. If the SecDef directing the development of the plan considers that it is only “the protection of innocent civilians in the conduct of our operations [that] is vital to our ultimate success,” then the effort may already be off the rails. (Emphasis added).
Personally, I want to believe that the SecDef was neither aware of the interpretation that his words could be given nor the legal problems that introducing a phrase like “innocent civilians” can occasion. But targeting is a law-intense matter, and the words have got to be right.
Words coming from a senior leader really do matter. As professional leadership coaches have put it:
“All words matter, but the words of leaders carry additional weight and responsibility. Especially in challenging times, a leader’s words are relied upon for guidance…If their words are unclear or inconsistent, leaders can cause confusion.”
In the complex, super-politicized world in which we live today, “confusion” is the last thing we need, especially in the context of lethal targeting.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
