Minimizing the potential for civilian casualties is a noble and moral endeavor. But future conflicts will not be risk free. Conflicts never were.
One must admire the intent behind Defense Secretary Lloyd Austin’s new Department of Defense (DOD) Civilian Harm Mitigation and Response Action Plan (CHMR-AP). Yet the recommendations in this plan threaten to undermine U.S. combatant forces and their commanders, limiting America’s ability to wage war and potentially increasing the risk of civilian casualties in the future.
American political leaders have done our nation a disservice by failing to explain to the public that civilian casualties are an unfortunate reality in war. Instead of reiterating that important fact, the Austin report’s recommendations perpetuate an unrealistic expectation: that the U.S. can apply lethal force with great omniscience, in a fully informed environment with little—if any—risk.
The plan provides 11 objectives aimed at the prevention of civilian harm and responses if it occurs. These include, among others, the creation of defense-wide procedures to assess civilian harm; updated guidance on the DOD’s public responses to civilian harm; and the integration of processes to limit the potential for “target misidentification,” including a focus on psychological biases. It requires no further review as it is a directive from the defense secretary.
Austin’s report and its recommendations are shaped by recent history. They look backward at an era of counterinsurgency and counterterrorism in a permissive aerospace environment that dominated U.S. military actions over the past two decades. It has little relevance to the conduct of operations in a major regional conflict, where the magnitude of threats, rapid execution timelines and distributed and decentralized nature of combat will not allow for the studied review this report imagines.
That does not mean that civilian harm should not be minimized. On the contrary, it reaffirms the importance of the training all U.S. military personnel undergo to ensure that when American military forces take lethal actions, they do so legally under the laws of armed conflict.
Given the growth in capability and capacity of peer competitors, which today are equal to or greater than the U.S., the Pentagon is counting on winning future conflicts by achieving an advantage in information assimilation and making decisions at all levels at a rate exceeding that of our adversary. That is the whole point behind DOD’s effort to develop joint all-domain command and control (JADC2) and is at the heart of the U.S. military’s joint warfighting concept. Fundamental to this concept is the realization that U.S. personnel need to be empowered to operate in a distributed mode, executing under mission command in a decentralized fashion.
In other words, the DOD is counting on our military personnel to be better at handling the fog and friction of war than our adversaries.
Instituting Austin’s action plan has the potential of negating whatever advantage these technologies achieve by adding centralized bureaucratic and political decision layers at every U.S. warfighting echelon. Not only would such additional layers slow down decision cycles, but they could also act as a deterrent, steering some military members to choose not to engage rather than be denied. Even more likely, the additional approvals would act to reinforce adversaries already frequent use of human, religious and humanitarian shields to protect their forces from direct attack.
Austin’s plan will prolong conflicts and endanger civilians
Today’s military personnel are well trained on the laws of armed conflict and understand the implications of inflicting civilian casualties more than what’s needed to accomplish the mission. They undertake extraordinary actions to assure unnecessary civilian casualties do not occur in the conduct of operations.
Mistakes do occur, but the responsibility for the tragic and unfortunate loss of civilian life in operations in which the U.S. are involved overwhelmingly rests with the adversary. In the case of Operation Inherent Resolve (OIR)—operations against the Islamic State in Iraq and Syria—the cause of civilian casualties rested overwhelmingly with the Islamic State.
For too long during OIR the U.S. operated under a zero civilian casualty standard—and today, it appears Austin’s intent is to drive U.S. military policy back toward that goal. In doing so, he is instituting restrictions that far exceed the standards of international law.
We know from experience that this policy can prolong conflicts, rather than end them, and that longer wars inevitably cause greater civilian pain. During Operation Inherent Resolve, this policy backfired. It extended the time needed to secure military objectives, which granted Islamic State forces more time to commit atrocities and more radical Islamists to emerge out of Syria.
The Geneva Conventions, to which the United States is a signatory, hold that attacks are prohibited if they “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
As explained by retired Air Force Maj, Gen. Charlie Dunlap, executive director of the Center on Law, Ethics and National Security at Duke Law School, the law of armed conflict is not intended to give advantages to enemies like the Islamic State by allowing them to manipulate the public narrative about civilian casualties to create false impressions about what the law permits and what ethical warfighting requires.
For example, contrary to what many might understandably assume, because the Department of Defense has done such a poor job of explaining to the public just what the laws of armed conflict allow, it is perfectly legal to execute an otherwise lawful attack notwithstanding the knowledge that, in fact, civilian casualties will inevitably occur. Unfortunately, many members of the public may believe that the occurrence of any civilian casualties means something illegal has happened when that typically is not the case.
What international law says about civilian casualties
Gen. Dunlap explains what the law allows: “Put another way…under international law you can have a ‘near certainty’ that civilians will be killed and still launch the strike. If civilian casualties do occur in an attack, the strike is not necessarily illegal under international law, even if the casualties are not the result of ’mistakes’ or ‘errors’ as you see so often speculated in the press.”
Dunlap believes that strict compliance with the law as it exists is a far better way of protecting civilians than adding well-meaning policy measures. He explains the logic of international law unencumbered by the policy restrictions CHMR-AP invites: “Why is the law this way? If it wasn’t legal to conduct an attack even when you are certain that civilians will be killed, belligerents would be incentivized to surround themselves with civilians in order to create a legal sanctuary from attack.”
Of course, we can and must minimize unintended casualties. Moral peoples never want to kill civilians. Some of our adversaries do, as we have seen with Russia’s intentional targeting of civilians in Ukraine, but that is not the American way of war. We must therefore question the morality of any policy that restricts the use of the military—and airpower in particular—to avoid the possibility of collateral damage if it also enables or increases the likelihood of our adversaries committing crimes against humanity.
While unintended casualties of war must be avoided to the extent possible, those associated with airstrikes pale in comparison to the savage and wanton killing of civilians by terrorists in Syria, for example, or Vladimir Putin’s Russian army in Ukraine.
U.S. military personnel should do all that they can to prevent civilian casualties. They are already trained to do so. The DOD could save more civilian lives by devising ways to effectively deter war, or win them quickly when deterrence fails, than by piling new constraints onto America’s combat forces.