International Law: LOAC

CIVCAS Reporting, Responsible Command and Feasibility

By Geoffrey S. Corn, Rachel E. VanLandingham
Wednesday, August 7, 2019, 9:57 AM

The post below is the latest installment in Lawfare’s tradition of posting short pieces inspired by the annual Transatlantic Dialogues on International Law and Armed Conflict. This year, that event was organized and sponsored jointly by the Oxford Institute for Ethics, Law and Armed Conflict (directed by Dapo Akande), the South Texas College of Law (through the good offices of Geoff Corn), West Point’s Lieber Institute for Law and Land Warfare (directed by LTC Shane Reeves), and the Robert Strauss Center for International Security and Law at the University of Texas (directed by Lawfare’s Bobby Chesney).

Despite high-tech weaponry and advanced intelligence-gathering capabilities, civilian casualties are and will continue to be an unfortunate consequence of modern warfare. While it is true that today’s military technology may help reduce civilian casualties during armed conflict, such deaths definitely won’t be eliminated; the notion of “zero casualty” warfare is a myth. Instead, grave risk to civilians seems to be increasing as armed conflicts gravitate towards  urban environments where  armed groups exploit the presence of civilians to shield their personnel and assets. This increased risk exists in growing tension with the legal imperative of civilian risk mitigation, one of the primary objectives of the law of armed conflict (LOAC), also known as international humanitarian law (IHL).

To advance this humanitarian objective, the law imposes on those responsible for deciding on attacks an obligation to take all feasible precautions to mitigate civilian risk. This risk mitigation obligation does not solely reflect a desire to preserve humanity for humanity’s sake; it advances an equally vital military interest. Civilian harm mitigation reflects the fundamental military operational logic of focusing attack effects on targets that will maximize the contribution to defeating an enemy, while simultaneously minimizing death and destruction wreaked on civilian populations inevitably caught up in the literal and proverbial blast radius. The mitigation of civilian risk makes strong military sense: It enhances discipline by reinforcing the bright line between justified and unjustified violence among subordinates; it deprives the enemy of greater motivation to fight (attacking civilians almost always increases an enemy’s will to resist); and contributes to a more lasting peace.

Furthermore, the constant effort by professional militaries like that of the United States to reduce harm to civilians is integrally linked to the concept of responsible command. This legal concept encompasses commanders’ fundamental obligation to comply with IHL and, thereby, preserve their soldiers’ sense of moral right and wrong, as well as maintain a disciplined fighting force. Military operational and tactical doctrine converges with LOAC rules and principles regulating the conduct of hostilities to mutually advance the critically important goal of reducing civilian harm. This goal is central to strategic military success and is critical for humanity’s sake—that is, the humanity of all those affected by warfare, both civilian and military.

During our most recent annual Transatlantic Dialogue on International Humanitarian Law—a gathering of military, academic and policy experts on the law applicable to armed conflicts held this year at the U.S. Military Academy at West Point—we debated the extent to which the LOAC requires civilian casualty  (CIVCAS) reporting and investigation as a method of civilian risk mitigation. The gathered experts discussed the function and impact of CIVCAS assessments on the humanitarian and operational imperative of limiting harm to civilians during war. The ensuing discussion mirrored the broader issue itself as it searched for some consensus as to the value and the limits of such assessments, their concomitant resource-intensive investigations, and surrounding publicity. The bottomline of our discussions was that fostering greater awareness of civilian casualties caused by combat operations is generally a normative good and may possibly lead to reduced risk of harm to civilians (despite the lack of empirical data supporting such aspiration). However, such internal and external accounting of civilian casualties must be accompanied by both a feasibility acknowledgment—an appreciation that the extent of such accounting will be based on battlefield practicality, and hence can differ from one operation to the next—as well as by strong contextual checks and balances to avoid unintended perverse consequences.

Perhaps unsurprisingly, some of the event’s military legal experts expressed concern over both the feasibility of engaging in such assessments and the unintended consequences they may produce. With U.S. and closely aligned armed forces focused increasingly on preparing for “near peer” or “peer to peer” combined arms maneuver warfare, such comments reflected deep concern that the counterinsurgency “model” of the past two decades of U.S. and NATO combat operations has created an unrealistic expectation regarding the feasibility—that is, the mundane but real practicality—of such assessments in the fundamentally different types of warfare that may be looming on the horizon. Even strong proponents of rigorous combat CIVCAS investigations and reports seemingly acknowledged that feasibility must play a role in decisions by civilian leaders and military commanders to require such assessments, which will necessarily affect related decisions regarding the appropriate levels of resources to allocate in support of such assessments. That is, different operations should be resourced differently when it comes to CIVCAS investigations, because the feasibility of conducting such assessments will differ.

In other words, all agreed that context matters. Common sense seemed to prevail, with widespread consensus that commanders should approach this process as they do any other postattack assessment designed to better inform future action: Do what is feasible under the circumstances (not surprisingly, that is the IHL legal requirement as well). That is, IHL requires all reasonable precautions to mitigate civilian risk, and CIVCAS assessments will often contribute to this risk mitigation by providing commanders with a better understanding of how to most effectively achieve this outcome. But like other precautionary measures, these assessments must always be framed by operational considerations of feasibility. Failing to acknowledge this limitation creates an unrealistic expectation that commanders must conduct such assessments in every instance in which military action results in civilian casualties.

Other conference participants expressed a different concern: that even when CIVCAS assessments are feasibly implemented, the public focus on regular military reports tallying CIVCAS rates gravely distorts (or at least risks distorting) public understanding of what the LOACactually demands of military commanders and how LOAC compliance should be assessed. This is a concern we have written on previously: specifically, the pernicious consequences of “effects-based” critiques and condemnations. As we have noted before, it is understandable that observers gravitate toward unfortunate attack effects when assessing compliance with LOAC targeting rules. Pictures of dead children are hard to ignore and understand. However, what is usually missing from effects-based analyses is the understanding that while attack effects may (or may not) be probative of legal compliance, depending on the circumstances, they are rarely if ever dispositive as to whether or not the law has been violated (with the notable exception of attacks that cannot plausibly be viewed as ever directed against a military target or objective). Yet time after time, human rights bodies and the media leap to conclusions of IHL compliance based purely on CIVCAS counts, without appropriate contextualization and analysis of what the law actually demands.

We strongly believe, as articulated at our recent experts’ meeting, that this analytical failure creates a number of dangers. First, it rewards a commander whose reckless or illicit conduct fortuitously fails to produce adverse effects on civilians. Second, it penalizes commanders whose good faith efforts to comply with IHL targeting obligations are simply unable to avert civilian casualties because of the nature of the conflict. Third, and perhaps most troubling, this analytically and operationally invalid effects-based assessment of IHL compliance may often undermine the goal of civilian protection. This is because nonstate armed groups (and potentially other illicit parties to armed conflicts) will see civilian casualties as proverbial ammunition to use in support of their information operations to delegitimize their opponent. Accordingly, the failure to assign appropriate probative weight to CIVCAS numbers and place them within a totality assessment of ex ante reasonableness (as opposed to treating these numbers as conclusive evidence of war crimes) incentivizes the deliberate exacerbation of civilian risk by opponents who exploit civilian casualties to advance their strategic information objectives.

Human shielding wouldn’t be effective if the professional forces facing such illicit, immoral tactics didn’t care about minimization of civilian harm. Furthermore, such shielding and exploitation wouldn’t be as effective if the public understood that the responsibility for much civilian death in today’s struggles against nonstate armed groups lies with the groups’ blatant use of civilians as pawns in their broader delegitimization campaigns. And at the end of the day, effects-based judging based largely on pure CIVCAS numbers—without proper contextual and legal analysis—facilitates and encourages this utter perversion of international humanitarian law.

None of these concerns suggest that CIVCAS assessments have no value to the legal, moral, and professional execution of combat operations or to individual commanders seeking to both comply with their LOAC obligations, and signal to their subordinates the imperative of constantly improving compliance measures. To the contrary, responsible, reasonable commanders will always seek to identify the effects of their attacks to learn whether the military objective was destroyed. Furthermore, they will seek to determine whether the precautions taken in the attack to minimize harm to civilians were effective or not, so that they can improve the processes implemented to mitigate civilian risk in future attacks. Hence, CIVCAS reports can help enhance IHL compliance—they feed into whether doctrine, training and processes can be enhanced to further mitigate such unfortunate effects of modern combat.

Accordingly, responsible commanders and their civilian leaders should approach this issue with a voracious appetite for more information, not less. As stated, information related to civilian casualties often plays an important role in helping commanders and their staffs to identify how future attacks might be adjusted to further mitigate risk. Thus, gathering such information should be understood as falling within the scope of the LOAC’s overarching obligation to “take constant care” to mitigate risk to civilians during the conduct of military operations.

However, while such CIVCAS assessments are tactically and operationally useful, those who advocate for greater inclusion of such assessments during military operations must avoid the tendency to accord legally unjustified weight to the outcomes of these assessments. Such products shouldn’t be divorced from the operational and legal context and used by themselves to judge combat lawfulness and legitimacy. Indeed, even the increasingly common characterization of these assessments as “investigations” reveals a subtle slide toward effects-based compliance analysis: Commanders conduct assessments to improve process; investigations are conducted in response to potential error or misconduct. Furthermore, like the IHL/LOAC targeting regime itself, these advocates must understand and acknowledge that what is feasible in terms of such assessments in the context of counterinsurgency operations will be unrealistic in the context of different types of military operations.

Indeed, one of the dangers of failing to approach the issue with this type of pragmatic and judicious perspective is that it will incentivize armed forces that engage in such assessments to simply bypass the issue by characterizing all casualties as enemy belligerents or civilians directly participating in hostilities. Several of the participants pointed to examples they believe bear this out, such as the recent claim that the United Kingdom killed only one civilian in more than 1,700 bombing missions in Iraq and Syria. This type of avoidance (seemingly by definition of who constitutes a civilian) risks expanding the gulf between the military and those critical of its operations, which in the long run will only dilute the value of such assessments as useful civilian risk mitigation measures.

Ironically, this dilution is not only bad for civilians, it is also bad for commanders and the units they lead in combat. As one of the authors has argued previously, IHL’s notion of responsible command means far more than a theory of vicarious criminal responsibility for war crimes. First and foremost, it captures the command obligation, at every level, to prepare soldiers to enter the moral abyss of mortal combat. Commanders have a duty to preserve each soldier’s innate sense of humanity in the midst of combat’s brutality. Pretending that every death caused during war is of an enemy fighter, or ignoring the informational value of CIVCAS data, creates a genuine risk of undermining that goal. Paradoxically, this risk is more profound in the context of fast-paced, decentralized combat operations where rigorous such assessments will rarely be practical. Yet even when the situation makes it unreasonable to expect rigorous CIVCAS assessments, it is the commander’s effort to do what can be done that reinforces for subordinates the fundamental obligation to constantly balance the decisive and aggressive violence of combat with an effort to mitigate civilian risk. That produces lesser harm to civilians and the strategic effects that flow from such risk mitigation, more disciplined forces, and forces with their moral compasses intact.

In our view, no nation that cares about the rule of law and the moral integrity of the men and women it sends to war should or would want commanders who fail to appreciate that reducing harm to civilians to the maximum extent feasible is the sine qua non of how such nations fight. The responsibility they are entrusted with extends well beyond the efficient and effective leverage of combat power to achieve the nation’s strategic ends; it includes protecting both civilians and the commander’s own subordinates from the harmful effects of war. For the subordinate, that includes developing a capacity to walk a moral tightrope. This tightrope exists because warfare—particularly modern combat operations in complex, urban environments in which nonstate armed groups often fail to distinguish themselves from civilians, intentionally hide their military assets amongst civilians, and use civilians as part of their combat operations themselves—involves necessary, lawful and legitimate civilian casualties and destruction of civilian property. That is the reality of today’s warfare. Civilians will die, they will die at the hands of service members, and service members have to live with that knowledge for the rest of their lives.

The continued drumbeat of reports of civilian casualties following many U.S. and allied military engagements today, with the concomitant media criticisms such numbers bring, distorts the reality that civilian casualties are part and parcel of complex urban warfare of the type commonly waged by professional armed forces over the past twenty years. If all civilian casualties are viewed as somehow illegitimate and unlawful, the moral tightrope that troops walk becomes thinner, and the peril to the morality of warfighters and nations could be grave indeed. Civilian casualty reports, while often worthwhile, need greater contextualization and intellectual rigor—analytical depth of the type various human rights bodies frequently neglect to consider in their adamant calls for more data. Such contextualization must include analyses of tactical precautionary measures, their feasibility and their effectiveness if feasible.

When CIVCAS tracking efforts contribute to enhanced civilian risk mitigation, responsible commanders should embrace those efforts. But all those interested in tracking civilian casualties should be careful to avoid letting the perfect become the enemy of the good. They should acknowledge that operational context profoundly impacts feasibility, and that while CIVCAS numbers may be probative of legal compliance, they are rarely dispositive.