Avoiding Civilian Casualties: the U.S. Army Lays Out its Guidelines
By Jonathan Horowitz
This month, Lawfareblog.com posted the U.S. Army’s new manual on Civilian Casualty Mitigation (ATTP 3-37.31), which has the self-described purpose of providing “doctrinal guidance for minimizing CIVCAS [army short-hand for ‘civilian casualties’] incidents and managing their consequences.” In many ways, the manual elaborates on aspects of civilian protection priorities that U.S. counterinsurgency doctrine has been advancing for years.
Overall ATTP 3-37.31 is an impressive document, but there are a few drawbacks.
First, the positive:
The manual covers situations of armed conflict and noncombat operations, and it incorporates important lessons learned from mistakes the military has made in the past—such as trying to avoid faulty intelligence that can lead to civilian casualties, recognizing that enemies co-mingle with civilians, and, to be more specific, warning that a person working at night may simply be a farmer avoiding the heat of the sun rather than a person laying an IED. Some of the guidance tracks remarkably well with the findings of the Open Society Foundations’ 2010 report on Afghan perceptions of international military forces.
The manual contains a number of statements that reflect fundamental principles on civilian protection, which is good to see at a time when there are concerns about whether the U.S. is categorizing all military-aged-males in a strike zone as combatants. On the issue of distinguishing who is who, the manual states: “If there is any doubt, Army forces consider a person to be a civilian.” On the issue of preventing casualties: “Civilians concerned about their property may choose to remain in conflict areas and resist efforts to remove them. Consequently, Army units should not assume that an operational area is devoid of civilians.” In these situations, the guidance notes that “Although the enemies are still legitimate targets…the civilians retain their right of protection.”
The manual is also forward looking: “CIVCASs that occur during conflict can become a serious issue in post-conflict societies. Future instability can occur when the citizens or groups demand justice or retribution, and long-term stability may not be possible until grievances are addressed.” I was also glad to see that the manual instructs commanders to think about civilian protection alongside their other imperatives, such as defeating the enemy and their own force protection: “When army units are establishing and maintaining wide area security, it may be more important to minimize CIVCASs than to defeat the enemy.” ATTP 3-37.31 also promotes investigating civilian casualty incidents, transparency, making amends for civilian harm, and informing the population of outcomes of civilian casualty investigations.
Now, the not so good:
The guidance talks about civilian casualty mitigation (CCM) primarily as a strategic consideration, rather than as a legal obligation that soldiers must obey. Certainly, there is mention of the law (“Commanders and leaders are responsible for ensuring their subordinates abide by the law of armed conflict”), but the main message to commanders is, to paraphrase, “you should think about whether civilian casualties will have a negative impact on your military objectives, and act accordingly.” That’s clearly an important consideration, and in many ways framing the issue in this manner allows the manual to provide guidance that is more protective than what the law requires. But my ultimate fear is that CCM will be seen more as an optional doctrine rather than being seen as a doctrine that contains certain omnipresent obligations. To avoid this, the manual should have provided corresponding legal redlines and been more forceful and descriptive in making the point that precautionary civilian protection measures are part of the laws of war, and not simply discretionary or contingent upon a military goal. Granted, this is not an easy task since not all civilian harm is in breach of the law, and taking the legally required steps to prevent civilian harm can usually only be described on a case-by-case basis.
I was also disappointed in how the manual dealt with the issue of accountability (i.e. administrative or criminal accountability). Don’t get me wrong. The guidance does not shy away from pointing out that investigations, including criminal investigations, may be warranted (i.e. “If a criminal investigation is warranted, it should be….”) But the issue of accountability is part of ATTP 3-37.31’s discussion on how commanders should respond or appease local anger and feelings of injustice due to civilian casualties (along with making amends through apologies and ex gratia payments). Accountability should also have been part of the manual’s discussion on preventing civilian casualties. In failing to do so, the manual fails to sufficiently emphasize that punitive measures, such as demotions and convictions, are vital for ensuring that individuals within the military take seriously their duty to not intentionally kill civilians and to take precautionary measures to prevent civilian harm. I doubt that an apology or an ex gratia payment of a few hundred or thousands of dollars is enough of a disincentive. That’s not to say that U.S. service members are never held accountable for their actions; rather, that ATTP 3-37.31 missed the opportunity to make the important linkage between CCM and accountability.
All-in-all, however, the manual is a positive step and the issue of CCM, both as a legal obligation and as a strategic priority, should be incorporated into all relevant military manuals. It’s to the Army’s credit that it took the time to reflect on the past 10-plus years of war to publish this manual. The manual’s existence is also a tribute to the persistence of human rights groups, civil society and journalists for raising the problems that civilians face during conflict.
Until January 2019, Jonathan Horowitz was a senior legal officer for the Open Society Justice Initiative.