Clear Error in the Defense Department’s Law of War Manual: On Presumptions of Civilian Status

Editor’s note: This article is the first in a new project at Just Security that assesses the U.S. Department of Defense’s Law of War Manual with a goal of providing constructive suggestions to address concerns about the text of the Manual.

This article concerns the legal status of a rule applicable to military targeting operations. The rule states that in situations of doubt as to whether a person or an object is a civilian, they must be presumed to be civilian. The DoD Manual states that this rule is not binding international law (customary international law). The Manual reaches this conclusion based on fundamental legal errors, including improper citation of sources.

The United States is not party to Additional Protocol I, but this rule is widely recognized as customary international law binding on all states. The proposition in 5.4.3.2 of the DoD Law of War Manual is inconsistent with that rule of customary international law and is contradicted by the International Committee of the Red Cross (Handbook on International Rules Governing Military Operations; International Humanitarian Law and the challenges of contemporary armed conflicts (2015); Interpretive Guidance on Direct Participation in Hostilities (2009)), the decisions of international criminal tribunals; the military manuals of close U.S. allies (presumption for civilians; presumption for civilian objects), and other states not party to Additional Protocol I (see Israeli High Court decision; Government of Israel, The Operation in Gaza (2009). paras. 101, 115 & 223).

The DoD Manual’s position has been described as an “important error” by leading legal experts (Hathaway, Lederman, Schmitt 2017) (see also Lederman 2016; Haque 2019; Margulies 2019; Harvard HPCR Manual on International Law Applicable to Air and Missile Warfare (2009); San Remo Manual on International Law Applicable to Armed Conflicts at Sea art. 58 (1994)).

A. Sources Cited in the Manual

The DoD Manual cites two sources to support the proposition that “under customary international law, no legal presumption of civilian status exists for persons or objects.” It provides:

As Adil Haque writes with respect to the Manual’s citation to these two sources, “Even if the rule of doubt was not part of customary international law in 1977, 1982, or 1993, it is now widely accepted as part of customary international law.” (See also Lederman 2016’s strong criticisms of the sources of authority cited in 5.4.3.2).

What’s more, the sources cited do not, on close inspection, adequately support the proposition in 5.4.3.2 that there is no presumption of civilian status for persons or objects under customary international law.

1. Category Mistake: Cited sources concern presumption for civilian objects not for civilian persons

As an important threshold matter, both Greenwood’s and Bothe, Partsch & Solf’s analyses do not address the presumption of civilian status for persons (which is contained in article 50(1) of the Additional Protocol). The discussion in both sources is instead limited to the presumption for civilian objects (contained in article 52(3) of the Additional Protocol).

The analysis of both sources can also be traced back, in significant part, to the U.S. delegate’s stated concerns about a draft version of article 52(3) during the 1970s negotiations of the Additional Protocol. The U.S. delegation distinguished the presumption for civilian objects (for which it raised concerns) from the presumption for civilians (which it supported). The U.S. delegate stated:

“Moreover, whereas article 45 sought to define civilians, in the context under discussion it was a question of defining civilian objects, namely inanimate objects and not people. While he did not object to houses, churches and so forth being specifically mentioned, he thought that in the practical application of the provisions a soldier risking his life on the battlefield could not be expected to take a decision in the circumstances of the moment, and grant a presumption in favour of doubtful objects, as distinguished from people, being immune from attack.” (CDDH/III/SR.15 Vol. XIV p. 119; emphasis added).

In contrast, the U.S. delegation explicitly supported a presumption of civilian status for persons, the only discussion of which was about its exact formulation. The United Kingdom proposed language that its delegate described as having “tried to make the criteria as strict as possible to put a heavy burden of proof on the soldier” (CDDH/III/SR.6 Vol. XVI p. 47). The U.S. delegate, George Aldrich, stated that the United States supported the U.K. proposal (p. 39). The drafting committee ultimately submitted the language that mirrored the ICRC’s text, and the provision was adopted by consensus (CDDH/SR.41 Vol. VI p. 161), including, of course, the United States.

The Rapporteur’s discussion (cited in Bothe, Partsch and Solf) was only about the draft article for 52(3) covering civilian objects, and was also made in response to the concerns raised by the U.S. delegate about the presumption for objects (CDDH/III/222 Vol. XV p. 332). Notably, the United States did not ultimately vote against the final text on a presumption of civilian status for objects. The paragraph in Article 52(3) passed with 64 votes in favor, none against, and 6 abstentions.

Finally, the first source cited by the Manual provides additional support in favor of the presumption for civilian persons having the status of customary international law. Greenwood based his assessment that Article 52(3) – the presumption for civilian objects – was not customary international law on the fact that the presumption “was not in the original ICRC draft of the Protocol.” If inclusion in the original ICRC draft is a useful indicator, then it is important to observe: the presumption of civilian status for persons was in the original ICRC draft of the Protocol. Indeed, as the ICRC Commentary on civilian persons states: “This article reproduces almost word for word the provision contained in the 1973 draft.” That includes the paragraph on presumption of civilian status, which was adopted by consensus at the treaty conference in 1977.

2. Weaknesses in the Sources

Even if limited to civilian objects, the support of the sources cited by the Manual is lacking. Greenwood grounds his analysis on three claims: (1) he references only one state’s position as of 1993; (2) he writes that “the ICRC Commentary on Protocol I describes the provision as ‘an important step forward in the protection of the civilian population,’ which suggests that it was regarded as an innovation in 1977”; and (3) he writes, as mentioned, that the presumption for objects was not in the original ICRC draft of the Protocol.

First, Greenwood omits the full sentence in the ICRC Commentary on civilian objects. The complete sentence reads: “The presumption established here constitutes an important step forward in the protection of the civilian population, for in many conflicts the belligerents have ‘shot first and asked questions later.’” Surely the ICRC Commentary is not saying that it was previously lawful to shoot first and ask questions later. (See also the Commentary’s statement: “In any case an essential step forward has been taken in that belligerents can no longer arbitrarily and unilaterally declare as a military objective any civilian object, as happened all too often in the past.”)

Second, it is dubious how new the codification for civilian objects was in 1977. The 1976 US Air Force Pamphlet AFP 110-31 already stated: “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.”

But what about Greenwood’s discussion of one state’s practice? That state was the United States, and the documents he cites were more specifically from the Department of Defense plus a statement by Lt. Col. Burrus Carnahan in 1987. For more on the Department’s position (and Carnahan’s) at the time, see the discussion below (“C. Foundational Misunderstanding”).

B. Sources Omitted in the Manual

The DoD Manual fails to reference a treaty to which the United States is a party: Amended Protocol II to the Convention on Certain Conventional Weapons. The treaty includes a provision requiring a presumption of civilian status in case of doubt for objects (Article 3(8)(a)). The United States ratified the Protocol in 1999 with no reservation to this provision. The Defense Department relies on Protocols to the Convention on Certain Conventional Weapons in other sections of the DoD Manual.

The Manual also omits the 1976 U.S. Air Force Pamphlet 110-31, which includes, almost verbatim, the language of the Geneva Conventions Additional Protocol I rule of doubt for civilian objects and a discussion of the rule’s application (pp. 5-7 & 5-8). The Defense Department relies on the U.S. Air Force pamphlets and other U.S. military manuals in other sections of the DoD Manual.

The Manual selects one secondary source (Greenwood’s essay) and does not include other secondary sources of similar or greater relevance and authority.

C. Foundational Misunderstanding

A fundamental misunderstanding of the rule of doubt may be responsible for the Defense Department’s position. The foundation for the Department’s views appeared in the Joint Chiefs of Staff (JCS) classified reviews of Additional Protocol I in 1982 and 1985. In these (now-declassified) reviews, the JCS interpreted the rule as essentially requiring proof beyond any doubt that an object is a legitimate military target, and opposed the rule on that basis. Understood in that way, the rule is of course unreasonable. But that’s not what the rule means. It is a rule of doubt that creates a rebuttable presumption that can be overcome by some additional amount of information (see, e.g., ICRC Interpretive Guidance p. 76; Hathaway, Lederman, and Schmitt 2017; Commentary to Harvard HPCR Manual on International Law Applicable to Air and Missile Warfare rules 12(a) and (b) (2009); Commentary to the San Remo Manual on International Law Applicable to Armed Conflicts at Sea art. 58 (1994)).

Mistakenly, JCS’s preliminary review in 1982 understood the rule to mean it would prohibit an attack “when an individual combatant has reason to believe, but no absolute conviction, that a ‘civilian’ is in fact a combatant” (p. 31). The JCS’s 1985 final review elaborated further. “Commanders and other military personnel … make decisions in the fog of war” and “[s]uch decisions will almost never be free of ‘doubt,’ either subjective or objective,” the JCS wrote in opposition to the rule (p. 52). The 1985 review also described the rule as “a requirement that there be no ‘doubt’ that the persons and objects attacked were military” (pp. 52-53). (See also Burrus Carnahan 1987: “Military personnel will be unable to implement this presumption in many combat situations because survival often depends on decisions based on inadequate information that is never free from ‘doubt.’”)

As an aside, this error appears to be reflected in DoD’s 1992 report to Congress on the Persian Gulf War in its discussion of civilian objects (describing the rule as “demanding a degree of certainty of an attacker that seldom exists in combat”).

The DoD Manual repeats general concerns raised by the JCS – that the rule is “unrealistic” in the “fog of war” (in the words of the JCS 1985 review); and that the rule would “demand a degree of certainty that would not account for the realities of war” referencing the “fog of war” (in the words of the DoD Manual). But the Manual does not mention the basis of the JCS’s concerns. The basis of the JCS’s concerns was its erroneous understanding of the standard of proof that the rule requires.

D. Policy Practice

The Manual posits policy reasons why the standard of doubt would not work well in practice. It states that the legal presumption “may demand a degree of certainty that would not account for the realities of war.” But as Peter Margulies (p. 216) explains in reference to the Manual, the rule can be interpreted in accord with what’s required by a reasonable commander (as the United Kingdom and other states have done). (See also Commentary to Harvard HPCR Manual on International Law Applicable to Air and Missile Warfare (2009).)

Most fundamentally, the presumption of civilian status for persons and objects has long been accepted and applied as a matter of U.S. policy – defying the claim that the presumption is unworkable in practice. As Hathaway, Lederman, and Schmitt explained in 2017, “We are confident such an amendment [to revise this provision in the DOD Manual] would reflect, not contradict, longstanding DoD practices.” Indeed, the 2019 Commander’s Handbook on the Law of Land Warfare (FM 6-27 & MCTP 11-10C) states: “The Army and Marine Corps, as a matter of practice due to operational and policy reasons” maintains that “[i]n 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.” (See also Investigation Report of the Airstrike on the Medecins Sans Frontieres I Doctors Without Borders Trauma Center in Kunduz, Afghanistan (2015), pp. 59, 61.)

Finally, the Manual itself accepts that the law of armed conflict requires that “[a]ttacks … may not be directed against civilians or civilian objects based on merely hypothetical or speculative considerations regarding their possible current status as a military objective” (5.4.3.2). As Haque explains, that proposition is tantamount to accepting a presumption of civilian status. He writes:

“[T]o prohibit attacking persons based on merely hypothetical or speculative considerations regarding their possible current status is simply to prohibit attacking persons without evidence that they are lawful targets. So, the Manual, in its own way, entails that a legal presumption of civilian status exists for both persons and objects.”

The acceptance of a presumption admittedly does not resolve the level of certainty required to rebut it. But it is acceptance of a rule requiring presumption of civilian status nonetheless.

In short, in addition to no sound legal basis, there is no good policy reason for the Defense Department to maintain the proposition in section 5.4.3.2.

What’s worse, the maintenance of the proposition risks undermining the interests of the United States. As Lederman wrote, “It is statements such as this one [in 5.4.3.2] that give fuel to the unfortunate and inaccurate (see the footnote), but oft-stated, belief that the United States treats all military-aged males in the vicinity of al Qaeda operatives as ‘combatants.’” The Manual’s highly anomalous rejection of the presumption of civilian status as legally binding also undercuts the United States when U.S. officials have to answer for military operations that result in significant civilian casualties. What’s more, by denying the rule’s customary status, the United States misses an opportunity to shape the rule’s content. The United States may, for example, want to put its weight behind understandings of the rule advanced by the United Kingdom and others.

E. Proposed Amendment

To correct the error, the United States should announce that it regards the presumption of civilian status for both persons and objects to reflect customary international law as it has previously done with other targeting rules.

For its part, DoD’s Law of War Manual should be amended to state:

“Under customary international law, in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”

“Under customary international law, in case of doubt whether an object which is normally dedicated to civilian purposes is being used to make an effective contribution to military action, it shall be presumed not to be so used.”

Further elaboration might borrow from multiple sources including:

“The presumption is only applicable in case of doubt and is rebuttable. If a party to the conflict is able to establish on a balance of probabilities that [the object] is making an effective contribution to military action, it may act accordingly.”

– Commentary to the San Remo Manual:

“[T]he Manual should, at a minimum, acknowledge that there is a ‘legal presumption of civilian status’ when the commanding officer has little or no reason to think that a person is part of enemy forces (or a civilian directly participating in hostilities), where the preponderance of evidence points to civilian status, or where the officer is not fairly confident that the person is a lawful target.”

– Hathaway, Lederman and Schmitt

“Military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.
…
The rule applies only in cases of substantial doubt still remaining after the assessment referred to … above has been made, and not as overriding a commander’s duty to protect the safety of troops under his command or to preserve his military situation.”

– United Kingdom reservations to Additional Protocol I

“Obviously, the standard of doubt applicable to targeting decisions cannot be compared to the strict standard of doubt applicable in criminal proceedings but rather must reflect the level of certainty that can reasonably be achieved in the circumstances. In practice, this determination will have to take into account, inter alia, the intelligence available to the decision maker, the urgency of the situation, and the harm likely to result to the operating forces or to persons and objects protected against direct attack from an erroneous decision.”

– International Committee of the Red Cross, Interpretive Guidance

The proposition in 5.4.3.2 boils down to an important but easily fixable mistake.