Published by The Lawfare Institute
in Cooperation With
Human rights advocates and nongovernmental organizations (NGOs) have called on the Pentagon to improve how it handles civilian harm in war for the past 20 years. In January, Defense Secretary Lloyd Austin promised change, though how and when was not clear. On Monday, Aug. 22, in these pages, former judge advocate (JAG) Todd Huntley called on the Department of Defense to prioritize “explicitly designating reduction of civilian harm as a commander’s objective.” Three days after Huntley’s timely post, the Pentagon answered with a comprehensive action plan to do just that when it released the long-awaited Civilian Harm Mitigation and Response Action Plan. The plan provides a phased timeline to create the first ever Defense Department-wide policy on civilian harm by fiscal year 2025. Up until now, each combatant command (COCOM) dealt with civilian casualties and efforts to protect civilians in their own ways. Unsurprisingly, without a standard or doctrinal requirements, none did the job particularly well.
So, how does the Defense Department’s new plan stack up to its own prior investigations and subsequent recommendations, calls for action by NGOs, and Huntley’s recent post? How will the plan compel the Pentagon and the COCOMs to improve civilian protection? How will the plan be staffed and resourced? Finally, will the plan save lives or just add another layer of bureaucracy?
I have spent the past two decades working in various conflict zones as a targeting professional and war crimes investigator. There has been one unfortunate thread through each of these conflicts—civilian harm. This plan does not mean civilians will no longer die in America’s wars—they will. If properly implemented and resourced, fewer civilians will die, and the U.S. military will have the ability to properly respond to those incidents where they do.
A Brief History of the Inadequate Civilian Harm Mitigation Infrastructure
In 2002, I was the chief of high-value targeting, a Defense Intelligence Agency (DIA) civilian intelligence officer working on the Pentagon’s Joint Staff in support of CENTCOM as we planned Operation Iraqi Freedom (OIF). In January of that year, targeting professionals, which included intelligence officers from the CIA, the DIA, the National Security Agency, and the services, structural engineers, and specialists in weaponeering gathered at Shaw Air Force Base in South Carolina to plan the deliberate strikes that would open the war. Once the deliberate targets were taken down, we would switch to dynamic strikes against time-sensitive targets. In his post, Huntley effectively explains the differences in and concerns of both types of strikes, particularly from the view of the JAG. One thing that isn’t clear is the relationship between the JAG and targeting professionals. While some hold that lawyers unduly constrain operations, I found them to be a critical check that saved lives. As Huntley points out, the JAG adds value and has a relationship with the targeting team; if the JAG comes into the picture only moments before weapons release, you have a problem because a JAG informs the team and the commander as life-and-death decisions are made.
Some 20 years ago, the military had very limited tools to protect civilians apart from JAGs, relying on flawed collateral damage estimates (CDEs) to tell us how many civilians might die in a strike. For OIF, the cutoff for anticipated civilian deaths was 30, meaning we had to get higher authority only for those strikes anticipated to cause “high collateral damage.” But the CDEs had serious flaws—most notably that they were never validated. If a building was struck, and the CDE said 20 civilians would die, no one ever checked if the CDE got it right. They still don’t. So the main tool for estimating civilian deaths was and still is problematic. U.S. airstrikes killed untold thousands of civilians in Iraq. This also happened in Afghanistan, but there the NATO mission, led by the United States, started to apply civilian harm mitigation (CHM). While compliance with international humanitarian law (IHL) is foundational to the protection of civilians, CHM is not simply a matter of avoiding violations of the law. Rather, as CNA’s Larry Lewis writes in a forthcoming article not yet publicly available, CHM is a systematic approach to identify and reduce risks to civilians from military operations to the maximum extent feasible.
In 2007, as the U.N. Assistance Mission in Afghanistan (UNAMA) reported that civilian casualties in Afghanistan were on the rise, the NATO mission International Security Assistance Force (ISAF) wasn’t tracking civilian casualties at all, let alone doing lessons learned. Gen. Dan McNeill issued the first tactical directive to mitigate civilian deaths by restricting airstrikes. But it wasn’t until a 2008 special operations forces raid in Azizabad, during which nearly 100 Afghan civilians died, that NATO took proactive measures that, taken together, would start to resemble what we now call civilian harm mitigation and response. ISAF created a Civilian Casualty Mitigation (CIVCAS) Team to track civilian harm incidents, conducted investigations at incident sites, analyzed root causes, and made recommendations for how best to mitigate and respond. The result was impressive—by 2010, civilian casualties in Afghanistan dropped by 20 percent across the board between 2008 and 2010, and deaths from airstrikes were down over 60 percent over that same time period. The ISAF mission ended in December 2014, turning the reins over to the Resolute Support train and assist mission that focused on assisting the Afghan national defense and security forces with taking over the primary combat role in the fight against the Taliban.
Unfortunately, when Resolute Support took over from ISAF in 2015, they started to roll back CHM measures. There were myriad reasons: They were no longer a combat mission, so some expected the Afghan forces to take over both the primary combat and monitoring roles. And while they started to roll back protective measures under President Obama as he expanded the war against the Taliban, it was the Trump administration that removed most of the safeguards for protecting Afghan civilians, like ISAF’s Tactical Directives. By 2018, the Civilian Casualty Mitigation Team pared down from a dozen personnel to two. Unsurprisingly, civilian deaths in Afghanistan rose to the highest ever recorded just one year later, when airstrikes alone accounted for some 700 Afghan civilians deaths. While it was tragic to see deaths rise, it showed that CHM worked and could be used to lower civilian harm incidents dramatically.
A group of human rights and humanitarian NGOs, including AirWars, Amnesty, CIVIC, HRW, and PAX, coalesced under the umbrella of InterAction and continued to pressure the Pentagon to bring back CHM, but the needle didn’t move until a series of high-profile investigations brought to light incidents of civilian deaths. On Aug. 29, 2021, a U.S. drone strike in Kabul killed 10 civilians. Several months later, the New York Times reported on the dozens of civilians killed in Syria by U.S. airstrikes, and the newspaper’s Pulitzer-prize-winning series on other civilian deaths from U.S. airstrikes earlier this year continued to put pressure on the Pentagon. Congress also moved for more oversight, resulting in the creation of the action plan, which itself was a response to Austin’s January memo directing the Defense Department to create such a plan.
So, What’s in the Action Plan?
The Pentagon’s action plan is a comprehensive, phased, 11-objective blueprint for the new Defense Department Instruction on Civilian Harm policy. Notably, the action plan doesn’t limit itself to civilian deaths but recognizes there is a spectrum of harm from injury and loss of life through to destruction of critical infrastructure, homes, and livelihoods that negatively affect civilian life.
In the past, the Pentagon has dealt with civilian casualties as a strategic imperative—kill civilians and you risk turning the population against you. Austin recognizes that imperative but also notes the moral imperative of protecting civilians. In the memo releasing the plan, he states, “Our efforts to mitigate and respond to civilian harm directly reflect our values and also directly contribute to mission success.” As Huntley suggested in his post, the defense secretary specifically calls on the Defense Department to take action “including by integrating civilian protection into our mission objectives from the start.” Critics have suggested this effort to protect civilians in conflict in excess of the bare minimum of the requirements of the laws of war is a relic of hated counterinsurgency (COIN) policies that handcuffed military operations. Others have noted a legal obligation to protect civilians and that this should not only be the realm of COIN. The plan addresses these critiques head on and notes that CHM is scalable and relevant to COIN and major combat operations. To test that theory, my organization, PAX, conducted a wargame with NATO last year. We simulated a large-scale tank-heavy European conflict and showed how units got bogged down in urban areas when they didn’t take protection of civilians seriously. When NATO reoriented and started to implement CHM, they markedly improved on the battlefield.
While NGOs have provided the Pentagon with their recommendations on how to craft the new policy, the final action plan mirrors most of the recommendations put forward in myriad Defense Department and other independent reporting. The landmark J7 report on reducing and mitigating civilian casualties in Afghanistan first put forth many of the points that were expanded in numerous independent investigations of how the U.S. military deals with civilian harm incidents.
What Are the Action Plan’s 11 Objectives?
Objective 1: Leadership
One of the core elements noted in almost every Defense Department study on civilian harm is the importance of leadership. When senior leaders treat civilian harm as a critical component of operations, they foster a protective atmosphere directly leading to lower incidents of civilian harm. Historically, when that focus drifted, civilian casualties rose. For example, when I led the UNAMA protection of civilians office in Afghanistan, I saw significant drops in civilian casualties after orders emphasized the need to minimize civilian casualties, but without sustained focus on them the numbers would eventually tick up again. To combat this ebb and flow, the action plan requires sustained senior leader emphasis and engagement. The plan will be Defense Department-wide, housed within the office of the Secretary of the Army, and will extend to the combatant commands and services and a new Center of Excellence.
Assessment: There is nothing but an upside in having top-level leadership ensure that civilians will be considered in operations from the beginning.
Objective 2: Center of Excellence
One of the topline recommendations from RAND was to create a Civilian Protection Center of Excellence as the Pentagon’s one-stop shop for CHM. Centers of excellence are used by the Defense Department as places to bring together experts to research problems, provide best practices, and support training. Designed as an operational center rather than an academic or research center, the proposed Center of Excellence will support operational commands with standard operating procedures (like the core functions of how to track civilian harm), tools (like databases), and guidance (like how to best protect civilians during combat operations). Core to the center will be the establishment of a deployable roster of certified personnel to respond to operational surge requests, though how it will do that has not been spelled out. It will also have a research and analysis function to share lessons and foster interoperability with allies and partners.
Assessment: Having a single entry point to Defense for civilian harm is a critical requirement. The current distributed nature of how the military deals with civilian harm is confusing and archaic. Too often, when working in the field, I have had to rely on personal contacts to get me to the right person. Even when I finally reached the “right person,” it didn’t mean he or she had any answers. The Center of Excellence will finally create a single portal for all to navigate. However, it’s still unclear where the center will be housed, and it won’t be cheap. Congress has already included language for the Center of Excellence into the National Defense Authorization Act, but money will need to be appropriated. The action plan also says “do this” but doesn’t say how—for example, we don’t yet understand how to create a roster of specialists in CHM when there currently isn’t one.
Objective 3: Put CHM into doctrine and operationalize it
This objective seeks to define the civilian environment and enshrine it in doctrine, making sure the civilian environment becomes part of the operational environment.
Assessment: Though this objective is a bit dry, nothing happens in the military unless it is rooted in doctrine, so it’s a necessary step. Just as important is better understanding the civilian environment. The collateral damage assessments used by the Pentagon, for example, rely on historical population data. When I was working on targeting during OIF, we had to use decades-old Iraqi census numbers that were clearly inaccurate. By learning more about the civilian environment, planners should have a clearer understanding of risks to civilians—not just from dropping bombs but from long-term effects like loss of access to medical care from dropping a key bridge in a city.
Objective 4: Put CHM into the joint targeting process
The joint targeting process is how targets are selected and prioritized in accordance with the commander’s objectives and the force’s capabilities—like matching the right bomb to the right building to destroy a key facility while trying to minimize civilian casualties. One of the criticisms of the joint targeting process is the lack of the civilian environment in it. The U.S. military is adept at identifying targets, carrying out strikes, and conducting operations. But the U.S. military does a poor job understanding the civilian sphere in that targeting environment, as evidenced by the Kabul strike—not to mention 20 years of civilian deaths in conflict. This objective will create “civilian environment teams” at operational commands to better assess how offensive operations will affect civilians, thus informing the targeting process and reducing civilian casualties.
Assessment: The intelligence community spends significant time and resources on target identification. Extending that level of effort to improve how civilians are considered within the joint targeting cycle seems like a no-brainer. When I was on my first deployment on a battle damage assessment team in Kosovo in 1999 to determine if our bombs hit the right targets, I assessed how well the military identified targets and how well the weapons worked. But when I asked how to incorporate civilian casualties assessments, I was told we don’t do that. It is time we did that.
Objective 5: Red Teaming
The J7 report, RAND, and others have identified target misidentification as the primary contributor to civilian harm. Confirmation bias led to the misidentification found to be at the heart of the mistaken Kabul drone strike that killed 10 civilians. To address this, the action plan will incorporate red teaming from planning to execution, throughout the targeting process, to combat biases and help mitigate misidentification errors. Red teams are groups brought together to challenge assumptions, fight against biases, and adopt an adversarial approach to stress test a system—in this case, a red team might play the enemy so that the military can test how the enemy might use civilians as shields, or they might play civilians to see how they would cope with certain acts during combat.
Assessment: This is another case of “why haven’t we done this before?” It is a low-risk, high-reward answer to a problem that has vexed the military for decades. It may not fully solve the problem, but improvements are needed.
Objective 6: Standardize Data Management
It boggles the mind that current data management practices are ad hoc, as one would expect the military to have standardized methods of handling just about everything. Since civilian harm has never been a priority of the military, they have never put into place the basic tracking and information sharing elements. There are no central databases in the military to track civilian casualties, and each combatant command (think AFRICOM, CENTCOM) has its own proprietary system that hampers one learning lessons from another. The new plan will create a requirement for an enterprise-wide data management platform. But this objective doesn’t stop there—it also creates a mechanism for the public and others to submit civilian harm reports.
Assessment: Such an objective is desperately needed, but it will require a serious investment. When I was in Afghanistan investigating U.S. airstrikes for the United Nations, I regularly worked at ISAF headquarters to deconflict data between the U.N. and ISAF. I physically walked across the street from U.N. headquarters to ISAF headquarters with spreadsheets and compared them to the NATO data so that we could better refine, or deconflict, our information. That wouldn’t have been possible without the dedicated databases and information management tools used by both organizations. Unfortunately, the U.S. has not continued to support such developments in the realm of civilian harm. Hopefully this will change. While the plan states that the Defense Department will create a massive, enterprise-scale system to track and manage civilian harm, it doesn’t give any clue how the department will do this. Imagine what had to be done to make Amazon Prime track customer orders, billing, and shipping, and now do it from scratch without a clear sense of cost or where the funds will come from. Trying to get the services, commands, and Pentagon to do anything in a uniform matter is a big ask—creating a data management system from scratch is truly ambitious.
Another new area in the plan is the creation of a mechanism for civilians in conflict, NGOs, and the press to report information on incidents directly to the military. While NGOs have long called for better ways for outsiders to report to the Defense Department, how this will be accomplished remains to be seen. My organization, PAX, recently worked with AFRICOM when we put out a paper on reporting mechanisms and how the U.S. military gets information on civilian harm incidents. We found current systems either inaccessible to the public in war-torn nations or of little utility due to lack of awareness. The desire to fix this shortcoming is laudable, but how it will be done isn’t clear.
Objective 7: Investigations
This is the big one. Investigations into civilian harm by the U.S. military are completely inadequate, relying solely on intelligence information that supports biases. In a landmark report, the NGO Civilians in Conflict detailed many of the shortcomings of U.S. military investigations into civilian harm: The U.S. never interviews victims and witnesses and doesn’t follow many of the best practices used by organizations like the U.N., such as conducting investigations where they happened and creating nonpermissive work-arounds when access is not possible. The U.S. used to conduct investigations of civilian harm in the field. That stopped when ISAF switched to Resolute Support. That also marked a massive increase in civilian harm incidents from U.S. operations. The plan notes a need to take steps to reform how investigations are done and creates a senior official to oversee such assessments. It creates investigation coordinators at the combatant commands to oversee investigations and “assessment cells” staffed with trained personnel to interpret data and conduct investigations, but gives few specifics.
Assessment: Investigative reform is desperately needed, and while the action plan says the military will reform investigations, it is unclear how it will do that. For example, we don’t know what best practices these cells will adopt, how they will interact to share lessons learned, and how they will use that information. While the plan has some mentions of accountability in cases of war crimes, it doesn’t give any specifics on what accountability mechanisms will be available for violations short of war crimes. For instance, if the Kabul strike had happened after this plan was instituted, how would things be different? Would people involved in such a botched strike face sanctions, lose their jobs, or get reprimands? Also, accountability is a spectrum—beyond personal accountability, how would the U.S. be accountable to those harmed? Would investigations lead to substantive changes to make sure this doesn’t happen again?
While I am heartened to see a recognition of the importance to reform investigations, this objective in particular needs more details.
Objective 8: Amends
In 2001, my dear friend Marla Ruzicka set out to help the U.S. create a system to provide amends to those harmed in U.S. operations. Amends are ways militaries can help civilian victims of lawful combat operations and can take many forms, from public apologies to financial assistance. Though she was killed in a suicide bombing in Iraq, she was able to get the U.S. to earmark $3 million annually for civilian victims. Last year, not a single dollar was paid out. The action plan recognizes the need for a uniform method to administer monetary or other appropriate amends to victims and provides commanders with the ability to acknowledge and respond when civilians are harmed by U.S. actions.
Assessment: This one is another no-brainer. But again, although this objective is critically needed, the steps on how to get there in the plan are unclear.
Objective 9: Security Cooperation
This objective recognizes the fact that sometimes harm to civilians is caused not by the U.S. military, but by its allies. To that end, this objective sets out to implement a “tailored conditionality” to those relationships, so that security cooperation may be tied to the protection of civilians. This will leverage the office at the Defense Security Assistance Agency (DSCA) to coordinate CHM in U.S. security assistance programs.
Assessment: This is a solid effort, and the plan has a long list of arcane actions planned to implement it.
Objective 10: Multinational Operations
These days, the U.S. doesn’t do anything alone. This objective will ensure that U.S. allies and partners have common policies so that they can operate together. Standards across militaries came up often when I was in Libya in 2012, conducting an assessment of NATO and coalition airstrikes for the U.N. There were non-NATO allies conducting offensive operations that didn’t always have the same standards as the alliance. This will ensure a harmonization of tactics, techniques, and procedures.
Assessment: NATO is looking closely at this objective. Last month, I briefed the Dutch defense minister, and she was keen to learn about the action plan and what it would mean for the Dutch military. As the alliance has adopted a new protection of civilians handbook, we should expect to see some work on getting CHM embedded into NATO operations. This is an eminently logical step, one with wide-reaching implications.
Objective 11: Staffing
The final objective calls for the creation of dedicated CHM professionals with appropriate staffing throughout the Defense Department, including at the commands, in various subdepartments, and in the intelligence community.
Assessment: Without people, this plan is just paper. The U.S. will need to train a cadre of people, who will need dedicated staff, just as the U.N. has dedicated protection of civilians professionals. This is likely to be one of the more costly aspects of the plan, but sufficient resource allocation will be essential to its success.
Resourcing this ambitious plan is an issue, but on Aug. 26 some members of Congress started the “caucus to prevent and reduce civilian harm,” which will hopefully commit the needed funds, as well as ensure implementation.
Huntley didn’t know the Defense Department would release the action plan the same week as his clarion call for the protection of civilians to be a commander’s objective. But, timing aside, he was right, and this plan is a recognition of the shortfalls in how the U.S. has historically dealt with civilians in conflict. Many of us in the NGO community have pushed for these reforms for the past two decades. The plan is finally here, and it is good. The Defense Department must implement it and resource it as soon as possible so that lives are spared.