The Lawfare Podcast: Protecting Civilians in Gaza and Beyond with Marc Garlasco and Emily Tripp

[Introduction]

Marc Garlasco: Very simply, the fact of the number of civilian deaths that we've seen in the past 20 years at the hands of the various governments and militaries that have been operating worldwide. I mean, we have in Gaza over 20,000 reasons to do this work. We have the many thousands of Iraqis and Afghans who were killed, the Yemenis. I mean, there may be laws in place, but international humanitarian law, the laws of armed conflict that we know from the Geneva Conventions is an incredibly low bar, right? It's don't purposefully kill civilians, right? That's it. Don't purposefully do it, but it doesn't mean that, that killing civilians is a war crime.

Tyler McBrien: I'm Tyler McBrien, managing editor of Lawfare, and this is the Lawfare Podcast, January 18, 2023. Last month, the Department of Defense released its first ever policy on civilian harm reduction. But as Marc Garlasco recently wrote in Lawfare, quote, the policy comes at an awkward time. The U.S. military has issued guidance on how to protect civilians during operations, just as its close ally Israel has reportedly killed thousands of Palestinians with American bombs, end quote.

And yet, many aspects of the new policy are nothing short of groundbreaking. I sat down with Marc, a former targeting professional and war crimes investigator and current military advisor at PAX, as well as Emily Tripp, the director of Air Wars, a transparency watchdog NGO which tracks, assesses, archives, and investigates civilian harm claims in conflict affected nations. We discussed the state of civilian harm worldwide, the good, the bad, and the ugly of the Pentagon's new policy, and recent efforts to get U.S. allies and partners to buy in. It's the Lawfare Podcast, January 18: Protecting Civilians in Gaza and Beyond with Marc Garlasco and Emily Tripp.

[Main Podcast]

So Marc and Emily, before we start, I wanted to do a bit of framing before we jump into the specifics of civilian casualties civilian protection, civilian harm mitigation and response.

And I want to start by reading something that you wrote, Marc, actually for Lawfare in your piece about the Israeli Air Force generals’ justifications for its air war in Gaza. And you write “each of these points deserve scrutiny, but before proceeding, I want to address one important aspect of this legalistic approach, I will be discussing the taking of human life in a clinical way. And while that is necessary when discussing the laws of war and the tactics, techniques and procedures of military applies in kinetic operations, I'm aware of this approach fails the victims of both sides.” So I wanted to open up the opportunity to both of you to, to frame the conversation in any way that you, you want before we, like I said, get into some of these specifics and Marc, I can start with you.

Marc Garlasco: Hey, thanks. I, and I appreciate you starting that way. So I've been, I've been working in this space for over 20 years now and started in the targeting world in the Pentagon and then transitioned very rapidly from working on targeting to investigating civilian harm on the ground in Iraq and then many other conflicts worldwide. And something that you don't get in, you know, in that very hermetically sealed, you know, building type way of looking at things is the reality on the ground, what it's like for civilians to experience war, to experience loss and conflict and all of the things that go with it. And I, I was very affected by that.

And so for the past 20 years, I've been complaining about the Department of Defense and, and other militaries and, and how they deal with civilian harm because I've seen it up close, right? And I've, I've spoken to witnesses and victims and, and tried to understand what their, what happened to them and how they experienced it.

And now with the, the U.S. going forward with this policy that we're going to speak about, I mean, I'm incredibly optimistic about it and I'm still have concerns, et cetera, but it's, for me, it's always very grounded in the reality that we are talking about the taking of human life. And, you know, we're going to discuss things like proportionality and distinction and be very legalistic and, you know, they have to have their data management in place and use the right bombs, don't use the wrong bombs.

And I feel like sometimes that just comes off the wrong way, right? Like you're saying, Marc, how can you tell Israel use these bombs instead of these other bombs when, you know, children are being slaughtered and what is the point of, of that? And so I, I think it's important for us to at least, frame it by saying that militaries can do a better job.

They have recognized that, and this policy moving forward is a result of that recognition. But let's never forget why it's happened. It's happened because of 20 years of failure, 20 years of civilian casualties at extremely high rates when we, we could have done better. And, and I'm hopeful that this is a step towards better protecting civilians in conflict.

Tyler McBrien: Thanks for that, yeah. Emily, did you have any reaction to that or any framing that you'd like to offer at the outset?

Emily Tripp: Yeah. I mean, I, just to echo what Marc was saying there. The big thing for me has always been the kind of dissonance between what the state says they do and kind of the narrative around the justifications for war and then the very real consequences of them.

I started my career in the humanitarian field, so I was in places like Raqqa and, and in Syria and Iraq and, and yeah, this kind of cognitive dissonance, I think, between, you know, the wars that were being fought in my name, essentially, by my government and then the reality around me of kind of chaos and civilian harm at levels that, you know, my friends and my family back home didn't know about at all.

And so I think it's important to acknowledge that, but also important to acknowledge, you know, at the outset, I myself have not lived through conflict and so when we talk through these conversations and when I talk about the policies, I'm talking about them kind of from the position of somebody who is looking really for accountability for my government, but also kind of driven by a sense of humanity and empathy for others. But I think something that in the NGO world and in the policy world, we're not very good at is making sure that we really include civilian voices and those affected by conflict in these discussions. And I think we'll, we'll talk a little bit about kind of the implications and how that could work and should work when it comes to military policy and practice. But, I think it's important, yeah, also to kind of recognize that up top. Something that we really try and do at Air Wars I mean, I will be talking a lot about kind of data and data points and indeed, every single data point is a life lost, and what we try and do is kind of capture the stories and biographies and, you know, richness of the human experience far beyond the marking point of somebody's death.

You know, I think it's important to recognize that we're really talking about the most lethal arm of the state here, which is not always the defining point of someone's experience, even though that's how they come to be defined when we talk about them as a kind of set of examples or, or, or data that could and should influence policy.

Tyler McBrien: Yeah. Thank you both for that. And I definitely do want to get into, you know, how, how to bring in the voices of civilians affected by conflict a bit later. But first Marc, I want to, I want to turn to you for a bit more framing. When we talk about civilian harm, mitigation response, can you break down those terms for the listeners? What does the DOD mean when they say civilian harm? What does some other governments mean? Is there a dissonance between some of those things? So yeah, Marc, Marc, I'll start with you and Emily, I would love to bring you in afterwards as well.

Marc Garlasco: Yeah, sure. At its most simplest, right, the difference between civilian casualties and civilian harm is that civilian casualties are the deaths and injuries that are caused in warfare. And civilian harm encompasses those deaths and injuries, but also more than that, right? It's the secondary effects and the long-term effects, so things like you've lost your home and now you are in a displaced person. And how does that affect your life? You no longer have an income. You have a mental, mental harm that's been, been caused. You can't get to the hospital because the bridge between where you live and, and the hospital is destroyed. And so you have all of these long term effects that occur. So, it's not just the deaths and injuries that you're taking, but it's all of these other things. And I think it's, it's remarkable how militaries and states have, have moved away from this civ-cas, right, civilian casualties, and are now using the term civilian harm that NGOs have been using for, for so long. Does not mean that they always use it in the same way. And, you know, when we look at the new Department of Defense Instruction on, on, on civilian harm mitigation and response, like, you know, I, I look at their definition and, you know, it's, it's, it's a little bit stilted, right?

So I look at their definition and, you know, they, they, they say, they have terms in there like other adverse effects which, which is, is kind of striking to me. So, here's the Department of Defense's rather hackneyed definition of civilian harm, right? It is civilian casualties and damage to, or destruction of civilian objects, and then they have parens, (which do not constitute ilitary objectives under the law of war), that are resulting from military operations. And, and they could stop right there and that would be fine. It'd be a good definition, right? So, the people who get harmed, but get hurt, and the damage caused by the military, boom. Real simple. But then they, I guess, gave it to the lawyers and they added, as a matter of Department of Defense policy, other adverse effects on the civilian population and the personnel, organizations, resources, infrastructure, essential services, and systems on which life depends resulting from military operations are also considered in civilian harm mitigation response efforts to the extent practical. These other effects do not include mere inconveniences.

And I think that is a point where Emily and I kind of roll our eyes back because the harm that's being meted out to people is not a mere inconvenience. So just to put a final dot on that. You know, yes, NGOs and militaries don't have perhaps the exact same definition of, of what civilian harm is. But it's heartening, I think, to see militaries move in the direction of including more things than just civilian deaths and injuries.

Tyler McBrien: Yeah, Marc. And if I'm not mistaken, I think you mentioned this other adverse effects something like lipstick applied by a lawyer to the proverbial pig when you wrote about it for us in Lawfare. But Emily, I want to go, go back to you, I'd love to get your take on, on Marc's definition. And then also if you could maybe give us the sort of state of civilian harm today. Air Wars, along with you know, the, this, the casualty reporting network that Air Wars is a part of doesn't only track, you know, the war in Gaza right now, for example, but has this sort of worldview. And I'm curious, yeah, your, your, your take on the state of civilian harm in the world today.

Emily Tripp: Yeah, definitely. I mean, I think just to pick up on what, what Marc was saying so much about, you know, so much of what these policies are about when it comes to the Department of Defense instruction or the civilian harm action plan or any kind of statement made by either Biden or, or the secretary of defense.

I mean, all of these are in some ways about kind of very clear policies and systems and practices that need to be put in place, but they're also about a kind of conceptual approach to civilian harm and a narrative, and they reflect a mindset and a mentality and a reshifting, perhaps, hopefully, of priorities. Except for when sentences are included like ‘mere inconveniences,’ and I think we shouldn't understate the kind of narrative importance of including caveats like that. Because, as Marc said, you know, it is insulting. I mean, the idea that you could live through a war and have the, you know, your whole world turned upside down and your life could be separated, you know, this experience could be separated into inconveniences and harms and objects and, you know, all of those kind of categorizations. I mean, I think it's removing the dignity of the victims of conflict. And I think when we lose sight of that, we do lose sight of what these policies and practices are meant to, to be about. And then to kind of reflect on the state of civilian harm, I mean, yes, I mean, we're, we're talking at, you know, one of the most deadly moments for civilians probably you know, in our lifetimes.

And it's difficult to kind of capture that and the weight of that in one breath. I will say, I mean, what, what we've been doing at Air Wars, we've been documenting harm, particularly from U.S. actions since 2014. So almost a decade now we really started by looking at the unreported harm events that were taking place, kind of unreported in international media, that is from US drone strikes. So, we have a huge archive, for example, of harms reported locally in Yemen. We've been documenting U.S. actions and the civilian consequences of those in Somalia, for example, for a long time. And, of course, the war against ISIS and these, you know, enormous urban battles of Raqqa and Mosul, the state of civilian harm as it is now.

I mean, thousands of those deaths have yet to be acknowledged by the US and allies. We estimate that, at minimum, there are about 8,000 civilians that we think were killed as a result of U.S. and allied actions in the war against ISIS. The Americans themselves have admitted to about 1,400 so really just a fraction of that total.  And when you reflect on the many, many cases that they've also rejected, we're talking about some, you know, more than 2,000 cases that they've rejected, we're really thinking of a state of civilian harm of questions, unresolved questions you know, unacknowledged deaths. We're talking about incremental changes and, you know, prospects of hope for civilians.

But there are certain things also I think it's important to highlight. I mean, the, the U.S. government has a system where they should be spending money essentially on compensating victims of conflict. There's $3 million annually that is kind of demarcated for this compensation process, but no payments have been made in 2020. I think one payment was made in 2021. You have organizations like the Zomia Center who are completely brilliant who are trying to kind of tirelessly bang at the doors of the U.S. government and say, look, you know, you've admitted to 1,400 deaths. Where's the compensation for it?

And, you know, it's a very, very difficult process that's really been driven by civil society. So just in a kind of nutshell, I think it's important to kind of acknowledge the weight of unresolved claims and also the efforts that are being made by others to try and make sure that those are acknowledged at this granular level, even as we talk about kind of policy change.

Tyler McBrien: Thanks for that. And Marc, before I turn to you, to walk us through the, the new DOD policy, Emily, could you just lay out quickly what international law dictates in terms of states obligations in reporting civilian harm, civilian casualties, and why maybe states have fallen short of that obligation?

Emily Tripp: Yeah, so I mean, under international law and the law of armed conflict, I mean, states, in order to show compliance, are meant to show that they're adding two principles of proportionality and distinction. So there has to be some element of understanding who they're killing in the targeting process to show compliance with the law of armed conflict. That's where you get language around kind of discrimination of you know, indiscriminate bombing and campaigns and things like that. Last year there was a really important move in the UN Human Rights Council, which essentially made the connection between the fulfillment of human rights obligations and casualty recording.

So this was the first time, and there were lots of states which kind of signed on to this and supported it, and a huge study that was released by OHCHR, which essentially said, look, casualty recording is an obligation among states who are looking to comply with various other human rights obligations, for example, the right to truth, the right to dignity. And so, being able to kind of track casualties that are kind of caused by your own militaries is an integral part of that new kind of Human Rights Council report, and also a norm. There's also a new declaration, this political declaration on the use of explosive weapons in populated areas, which was signed by 83 states, including the U.S. back in November 2022.

So this is a kind of political declaration, but it's, you know, UN backed process and certainly part of the kind of international order. And there's a significant part of that which says states are obliged to track casualties resulting from their actions. There are some nice caveats in there as always, such as the words where appropriate but if you're an organization like mine you always think it's appropriate.

So this is the kind of move in the, the casualty recording world. However, I think it's important to say that this is not normal practice. I mean, you have, as I said, the U.S. has admitted to a certain number, a certain proportion of incidents in the war against ISIS. It has not in others and other conflicts that it's involved in. For example, the reporting on civilian deaths in Somalia is very sparse and few and far between, and other states, such as where I'm from, the United Kingdom, has only ever admitted to killing one civilian in the war against ISIS. Which I think anybody thinking on or reflecting on even logically, given the fact that the U.K. was so involved in intense campaigns such as the battle for Raqqa, is a little ridiculous.

So, yeah, I think that's kind of where the international norms are. You have these declarations, you have Human Rights Council, you have parts of international humanitarian law, which are about proportionality, and then you have what the reality of states are doing, which is, I would say certainly not enough.

Tyler McBrien: So keeping in mind where states like the U.S. fall short of these realities, Marc, you're going to tell us why this is all about to change with the new DOD policy, and it's all about to improve. Can you walk us through the new, the new DOD policy, its development, you know, what motivated its development? If you have a sort of potted history, to walk us through how we got to this point when the DOD released its instruction last month.

Marc Garlasco: Yeah, sure, absolutely. So, a history of the civilian harm mitigation and response work for the U.S. in, you know, a real tight bullet here. So it grew out of the wars in Iraq, Afghanistan, and ISIS, where you had, you know, 20 years of, of failed U.S. policy on, on civilian harm, where there were very high numbers of civilian casualties, very poor understanding of how and why civilians were being harmed to, to try to mitigate and change those things. And there was a recognition of this. And it really started in, in 2007 in Afghanistan during the NATO mission, which is called ISAF, the International Security Assistance Force. And there was a U.S. general, General McNeil. And there were a number of very high civ-cas incidents, civilians being killed and injured in particularly in U.S. airstrikes. So a lot of this was driven initially by airstrikes, although there are a lot of other types of harm that happened on the ground that were also part of it.

But because of the high number of, of CIVCAS from airstrikes, he said, well, how many civilians are we killing? How many civilians have died? And the response was, we're not counting, we don't know. And so he said, okay, so we're going to start counting. And so they began tracking in 2008, ISAF began to do that. And there was again there was a big incident in Asadabad which is in Afghanistan. There was a special operations force, forces mission. And we, we see time and again, U.S. policy on this is, is very reactive, right? So there's an event, and then they, they try to course correct. And, and that's largely the history of this. So there was the Assadabad incident, special operations forces use a C-130, which is a, a slow flying aircraft with a, a howitzer sticking out the side, right, 105 millimeter cannon. And they were blowing away a village in Afghanistan and, and, about a hundred civilians were killed. And growing out of that, the civilian casualty tracking cell was created in NATO, where they started to actually count and account for how civilians were, were, were being killed.

And then they, they shifted that in 2011 to a mitigation team. So the idea that, well, we can't just count. We have to make changes, right? We, as these numbers go up, what is the point if we don't understand how and why civilians are being killed so that we can fix things? And they started to do that, and, and some of it worked very well. Some of it needed, needed some, some tweaking, but it was groundbreaking at the time. No one else was, was doing this and, and NATO had taken this on wholeheartedly. Then the NATO mission stood down at the end of 2014 and this work largely kind of took a side, right? It, it just got much more quiet. They downsized from over a dozen personnel just for Afghanistan down to two people for multiple conflicts covering Iraq and Afghanistan, for example. And really, we saw this moving, moving off to the side and it wasn't being focused on enough. So the Congress stepped in and in 2019, as part of the National Defense Authorization Act, the Congress mandated that the U.S. create some kind of a civilian harm mitigation plan, a  policy to deal with all of the U.S. military and this is really revolutionary.

So up until 2019 when this was put into the NDAA, it was each of the combatant commands and the way the U.S. military operates is you have combatant commands that deal with geographic and other areas that they work in and they determine how they're going to look at civilian casualties, how they're going to assess it, how they're going to investigate it and respond to it.

But this is saying, okay, we need a policy that goes across the entire U.S. military and it's going to deal with everyone at a, at a certain level. And there's going to be standardization. And yes, we understand that some of the combatant commands are going to have different needs because of the different geographies, the area of, of operations that they have. But there's gonna be standardization. So they began in 2019, under the Trump administration to start to work on the action plan. But it, it took a while and it really wasn't until then, as I said, you know, they become very reactive. We had some incidents again happen. And the one that really sparked things and sparked the, the CHMRAP as we call it, Civilian Harm Mitigation and Response Action Plan, to actually be built as strong and as vibrant as, as we see it now was an air strike in, in Afghanistan, in Kabul, the last day of the U.S. pullout, where a, a family was killed. You had a number of, of women, a number of children and a, an aid worker were killed in, you know, the very famous “Righteous Strike” which we then learned was, was a mistake. And was an example of how the U.S. needs to better learn from its mistakes in the past so that they don't happen again in the future. Now, Secretary Austin, to his great credit, took this on wholeheartedly and he really turned this into a legacy item for him, right? This is part of his legacy, this idea that the U.S. military needs to go above and beyond just the meager requirements of international humanitarian law and protect civilians at a, at a much higher level.

So Secretary Austin put in a requirement for the plan to be created. That requirement was put out in in 2022. The plan then moved forward, but needed what was called a DODI, a Department of Defense Instruction. And this is basically something that says, okay, you've got a plan and a plan is great, but a plan can go away. But a policy is something that is going to be lasting. And also an instruction tells the military, this is how you're going to implement it, right? It's an implementation document. And so that has just recently come out. And so now the military is moving forward with hiring over 160 specialists in the protection of civilians, in putting in place tactic techniques and procedures to improve its targeting, its data management, how it deals with amends, which is how you, you know, provide a recompense to people after a strike has happened.

Also, speaking of understanding the civilian environment and dealing with your allies because it's not just you. So, if the U.S. is operating in a multinational or in a, a bilateral operation, if the U.S. ally kills civilians, that is going to, you know, one come back on the us, which is a, a negative for them, but, you know, civilians have been killed. And, and so the U.S. needs to, as part of this plan, also deal with its allies. So it's a very all encompassing plan. It's very forward leaning, and it needs to be implemented. And we're going to see, you know, the devil's going to be in the details and how they implement it, but that's kind of a quick and dirty on how this plan came into being.

Tyler McBrien: Great. And one quick follow up on that plan-policy distinction, Marc, how easily you said, you know, an action plan is more ephemeral, I guess it could go away, but a policy is, is a bit more durable and sustainable. Say, you know, we're, we're in an election year in the United States here. Say, a Donald Trump administration comes in again next year. How easily could that administration, for example, ignore this policy or not?

Marc Garlasco: Yeah, that's a great question. And I think that the way that the U.S. Congress went about appropriating funds for this plan and for the policy, putting it into the, we like to say it's in the cement of the Pentagon now, and really making it part of what the different combatant commands are required to do. Could it be removed? Sure. It would be very painful. I think it would be very hard. You're talking about removing, you know, 160 positions, changing targeting policies and manuals, the way that you deal with harm, let alone you know, the backlash that they would get for removing such a very positive and, and, and, and forward thinking policy.

But that said, you know, things could be done beyond just removing the policy, right? So, you could have a degradation of importance, you could have a removal of funds, things like that. I think it's possible that a future administration could come in and make waves and make problems for this. But I, I have to say, this is something that, it's not that the NGOs have said, hey military, you guys need to create this.

This is a policy that the military wants. This is a policy they've asked for and that they have created. And so I don't see a Trump administration, a Republican administration, a Democrat administration. I don't think this is a Republican or a Democrat issue, right? This is how the U.S. military deals with the military, the actions that it takes in the field. Because let's, let's look at this from a military point of view real quick. If a weapon is dropped on a target and that target is missed and civilians are killed, right? That's a problem because you've got dead civilians. You've, you've caused harm and you've got, you know, potentially media effect, but you also have your target is still at large doing bad things.

And so you as a military want to engage your target and remove that target without unduly harming civilians. So this is a, a win-win for, for the military, I think, and a lot of the processes and procedures this is putting in place is going to lead to, I think, much more positive outcomes for the military.

Tyler McBrien: Emily, I want to get your reaction on the so-called DODI. When the new policy was released, I'm curious, what you found encouraging in it, where you think it still falls short, not to ask you to speak for the, the entire human rights NGO community. But yeah, I, you know, what you heard from, from Air Wars, your Air Wars colleagues and, and, you know, your, your initial impressions.

Emily Tripp: Yeah, I mean, it's a long document, firstly, so I think it's, it's still going to take some time for everybody to really go through it in a huge amount of detail, and as Marc said, I mean, the devil is really in the details, and how it's implemented, I think, is going to be the kind of key question. I think there were lots of things in here that we were really pleased to see.

I mean, purely kind of, from a civilian harm assessment perspective, these may seem a little granular and obsessive but I think they're really important is that as part of this instruction, for example, they've now committed to including specific codes per allegation that can then be shared and kind of disseminated amongst the publicly amongst the community.

And this may seem a kind of, yeah, as I said, like a very niche point but it's a really important one, because it essentially means that if an organization or an individual refers a civilian harm incident to the U.S. government or the U.S. military, that particular harm incident can then be tracked throughout the system.

And I think when you're dealing with, you know, we could be potentially looking into a world of very, you know, large scale combat operations, as they're called, potentially mass casualty incidents in very, you know, complex environments. Having this approach where actually you treat each potential allegation of harm as a single incident and you give it the kind of, you know, data management infrastructure essentially that you need, means that there is greater potential for accountability for each of those cases.

So these are kind of like small details within the Department of Defense Instruction that as, as you know, an organization that is kind of in the business of, of, of tracking casualties, I think is really important. There are also things which kind of align to best practice. So for example there's a, a, an admission in the, in the, or kind of commitment in the document of working towards casualty ranges, for example.

So this kind of, again, it seems like a small issue, but actually it's really important in that it's saying, you know, the U.S. themselves are saying, we may not always know exactly how many civilians we killed but when we start to admit civilian harm, we will do it in a range, so that we can show kind of, more likely than not, which has always been their commitment, ostensibly that they killed civilians.

So it's this kind of listening to the casualty recording community, as you mentioned kind of at the beginning, we're part of this casualty recorders network, understanding the kind of ranges, potentially, of casualties per incident is a really important detail that is included in the Department of Defense Instructions

I'm not going to go through all of these different things because, you know, yeah, I'm also following Marc's very succinct answer on the whole history of the civilian arm policy in the U.S. But these are kind of really small details that I think the DODI includes that's really important to kind of keep an eye on, essentially.

There are also some kind of things in here around the details around when civilian harm should be reported on and what would kind of account for a civilian harm allegation, which we've never actually had clarity on before. So there's a sentence in the DODI that says responses may be made after time has passed, which potentially means, for example, for organizations like the Zomia Center that I mentioned before, others who are trying to kind of seek accountability for individual allegations, it means potentially we could look back at past cases, and think through all of those, you know, unresolved harm questions that I mentioned before, and start to kind of figure out a way to get accountability in response to them.

But, of course this doesn't mean that there's a kind of rosy picture when it comes to the Department of Defense Instruction, and I think it's important to kind of consider some of these kind of key areas that we need to improve on and really see this as a kind of first step rather than a kind of be all end all policy that's going to change the world. I think, you know, one of the big things for me is that this is, you know, really a policy that is lacking in, you know, some, some details when it comes to, for example allegations around location specificity. As Marc said, you know, the definition of civilian harm has this kind of like arrogant language around inconveniences when it comes to civilians. I mean, these are all things that are not helpful.

There's also a lot in here I think when you really go into the details around, you know, the commitments to allies and partners that raise significant questions. I mean, as the DODI came out in, what was it, around Christmas, we're already in a situation where the UK and the U.S. are conducting joint operations and strikes in Yemen, and not once has there been a recognition or kind of commitment or recommitment to the kind of policy state in the DODI when it comes to ensuring that allies and partners have a kind of shared understanding of civilian harm.

You know, as I said, the British mentality and approach when it comes to admitting civilian harm from their actions is so far away from, from any of the language and commitments that are outlined in the DODI, and yet it seems not to really be a, an issue when it came to deciding to conduct joint operations.

So I think these are the kind of big questions that we're going to be starting to push into and say, okay, now you've made this commitment. What does it mean? What does it mean when you say you're going to accept a civilian harm allegation because of some kind of reference to where it happened? I mean, what does that actually mean when it comes to referral mechanisms, for example?

Or what does it mean when you say, okay, we're going to make sure that allies and partners kind of have the same approach to civilian harm tracking. And, and I think that's kind of, yeah, big things that, that we'll be looking out for this year.

Tyler McBrien: Yeah, thanks, Emily. And there's no need to apologize for, I think you said granular, obsessive, and niche. I think that's safe to say that's Lawfare's sweet spot, so we welcome those kinds of answers. Marc, I want to turn it over to you. Any reactions to what Emily said? And then, same question, you know, the good, the bad, the ugly of the DODI.

Marc Garlasco: Yeah, I just want to pick up on, on how Emily just ended that and the importance of how we deal with allies and partners and the awkward way, unfortunately, in which the DODI was issued. You know, instead of Secretary Austin coming out in a very public manner with some fanfare saying, hey, you know, we've put together this policy that's going to protect and save civilians in military operations, it was very quietly let out on a Thursday before Christmas. There's a reason for that. It's a quite awkward time when we're seeing a conflict that a U.S. ally is conducting in which thousands of civilians have been killed, in which over a million people have been internally displaced. You have a large percentage of Gaza that is now completely unlivable because all of the buildings and infrastructure are completely destroyed. And yet the U.S. is putting out this, this policy that is so forward leaning and they're going to improve the way they protect civilians.

And we're also going to ask our allies to do that. And yet one of the U.S.'s closest allies is using U.S. weapons to just decimate a civilian population. And I look at how the, the DODI, this instruction deals with that. And it's, it's unfortunate. And it's one of my big negatives for, for the document. It creates what are called CBAPs, right, the, the Civilian Harm Baseline Assessment of Allies and Partners. And so for each of your allies and partners that your military operates with, they're going to say, hey, do they have adequate civilian harm mitigation processes in place? You know, so for example, the U.S. military has recently sold AH-1 Zulu attack helicopters to Nigeria. And as part of that agreement, the Nigerians had to agree to have the U.S. come in and assist them with creating civilian harm mitigation processes, right? So these CBAPs create an additive, so, if our ally is not doing as good a job as they could be or should be doing, what do we as the U.S. have to do? What can we do to assist them to bring them up to snuff? But there is, there's nothing in there that says, hey, we're going to stop sending weapons or we're going to, we're going to put in some kind of a requirement of what they're going to have to do, how they're going to look at civilians. And so instead of being a reductive or take away, it's an additive policy. And I think that that's just unfortunate, and it's an opportunity missed because it's going to be difficult to see how, while yes, this has an important multinational and security cooperation section within both the Civilian Harm Mitigation and Response Action Plan and the instruction, it just doesn't really do it to the point where when we see a conflict where a U.S. ally is conducting offensive operations and just killing large swaths of civilians, you know, really not complying with international humanitarian law and it just doesn't have that kind of bite that I think that it should have.

Looking at it as, as a whole, you know, on another negative side, there are a lot of shoulds in there, not as many musts but you know, I'm, I'm splitting hairs and on, on the whole, if you would have told me three years ago when I started at PAX, which is the Dutch NGO where I'm working and said, hey Marc, you know, the U.S. is going to, is creating this policy and in three years this is the policy that they're going to have, I would have just been absolutely shocked. It's, it's groundbreaking. It's got an awful lot in there. I think the NGO community is a little worried because there's just so much in there that has to be done and implementation is going to be a huge issue, but we're also standing by to assist. And I think one of the really positive things about how the plan was created is that the Department of Defense turned to NGOs, turned to people like Emily and to myself and to others and other orgs, organizations like Civilians in Conflict, Human Rights Watch, Amnesty International, brought us all in and said, okay, what do we need to do? And really made us part of the process. And I think that that's reflective in, in the generally very high quality documents that we've been given.

Tyler McBrien: Now, Emily, looking outward now, what ripple effects have you seen the new DOD policy having among, especially among U.S. allies, NATO, the Dutch, the UK? Have these ripple effects been intentional or have some been unintentional?

Emily Tripp: I guess I would say I wish there would be more ripple effects in my country, in the UK. I think, I mean, the Dutch have been on their own journey with this in a, in a similar sense, you know. I mean, let's not forget that the impetus, I think, as Marc mentioned, for these policies rarely comes out of a kind of a brainwave that's happened in the middle of the night by, by a Minister of Defense or a, or a Secretary of Defense. I mean, they come on the back of often very awful mass casualties, civilian casualty events that are then raised in, in the media. And the same happened in, in the Netherlands. So the Netherlands were involved in a strike in, in Iraq on Hawija that killed about 70 civilians. And, and there was all sorts of kind of things that happened in response to that.

But I think what the, what we have seen in our, at least our advocacy with the Dutch in the last few years has been a real study of the CHMAP and understanding how if the Americans are doing it on this scale, and they're investing this many millions of dollars, and this, you know, this much personnel into this policy, what does that mean for potentially a smaller state like, the Netherlands, kind of comparatively that also has that kind of impetus?

And so I think that's been a kind of mindset that's been really helpful as we've gone in and said, look, you know, you were all part of the same coalition in the war against ISIS. The Americans admitted to all of these deaths. And we know proportionally some of those will be yours.

Now they're looking at it as a way of kind of, implementing systems. So that's been really helpful. I think the key takeaway that we're seeing amongst states is the importance of high level buy in when it comes to civilian protection, particularly within the military itself. I mean, as Marc was saying, you know, yeah, lots of what you see within these policies, when you go at that really granular level, are questions of military practice and military doctrine. And I think that's what's important, has always kind of, at least in Europe, been seen as a kind of political conversation or a kind of political, you know, commitment or a, maybe an ideological discussion, actually is then starting to be ingrained much more within the, the military community.

So I think that's been the kind of key, key ripple effect. But you know, I mean, NATO has had their Protection of Civilians policy for a while and, yeah, I won't go into all the details around that, but there are many elements of that policy which, you know, don't necessarily touch upon many of the things that the Civilian Harm Mitigation Action Plan, or the DODI, does.

One thing I will say is that over on this side of the pond many times the issues of civilian protection have been kind of segregated into slightly different areas. So here in the UK, often these come under what's called human security, or it might come under questions of women, peace and security, or kind of child protection, and those, that essentially means that, you know, the topics of civilian protection are kind of siloed into these thematic issues.

And I think what the CHMAP did and what the DODI has done is say, you know, those are all very well and they have to, you know, they're important and we should invest time into these kind of thematic areas, but you can talk about civilian protection as a whole issue that affects so many different levels whether that's training or practice or policy or whatever it is, that isn't just this kind of one thematic. And I hope that that's the kind of ripple effect that we'll see kind of across other states as they try and think through how to implement it. Marc and I just came back from a meeting in the Netherlands where there's a kind of contact group of, I think that the Netherlands and Americans are trying to kind of, you know, pull together like-minded states on this issue.

And to their credit, you know, they had a day as part of this kind of very early stage meetings where they invited, you know, independent experts to come in and say this is how we've been doing things with the Americans and with the Dutch. And this is, you know, a kind of roadmap potentially for, for how we could engage in other states, but we're always subject to the whims of states being either open to these conversations or willing to even enter into these conversations with civil society groups and third parties essentially.

Tyler McBrien: Marc, what have you seen in terms of the, the buy in or take up among U.S. allies and partners?

Marc Garlasco: Yeah. So it's, it's not just NATO nations, right? So this, this meeting that we got, we were at, had had mostly NATO nations and, and some, some non-NATO US allies as well. But we're also seeing a movement in the United Nations and that's something that's very new and exciting.

So, we were out Emily and I and others, we were all out in in Entebbe in Uganda a couple of years ago at the very first UN meeting on civilian harm mitigation, and they brought out all of the UN peacekeeping operations there. And something we have to, we have to recognize about civilian harm mitigation is, you're talking about protecting civilians from your own actions, right? That's what it's about. It's about, if I'm having military operations, I'm going to make sure that I don't unduly harm civilians. But that was a really hard sell within the, the United Nations system, right? You're trying, the UN is pushing back saying, hey, we are peacekeepers, we don't harm people. But the reality is they do, and they oftentimes don't see it.

And by bringing together all of the different peacekeeping operations under one roof for a week and really working through a lot of the issues in a, in a tough workshop where we also had some, some NATO militaries there as well. You know, you had them talking about how, hey, it's not just some, when you shoot somebody, right?

If we're flying a helicopter on, on a mission and that helicopter flies low and pulls the roof off of someone's house, that's harm. And we need to recognize that, and we have to deal with that, and there were a lot of very positive stories from different UN peacekeeping operations about how, hey, if we did this in this situation, we were able to protect civilians from our actions. And so, yes, we do need civilian harm, and it was just as we saw militaries saying, hey, we need to implement some of these civilian harm mitigation measures. and response policies. You now have UN peacekeeping operations reaching up to UN headquarters saying, hey, we need this as well. And so we were just protection of civilians week a few months ago at UN headquarters here in New York.

And we had a meeting of all of the different UN military groups there. So you had military reps from, from, from all of the member states speaking directly about civilian harm mitigation and calling on the UN to, to implement this, to put in civilian harm mitigation into different requirements and mandates for the peacekeeping operation.

So it's moving beyond just the militaries. It's, I, I really see this as a wave moving forward. It's incumbent upon us now to, you know, to grab on and, and make sure we ride this wave and make sure it's implemented in, in such a way that it's going to have a positive effect, right? One of the negatives that I saw in Entebbe, for example, were disagreements on very basic definitional issues, you know, not just harm, response, amends, what does it mean to, to provide amends to someone? How do we do this? What are the legal issues? So there's a lot that needs to be worked out. But I'm, I'm feeling very positive about the direction things are heading in.

Tyler McBrien: Yeah. And Emily, I'm, I'm also curious your outlook in, in terms of positivity or pessimism, Marc mentioned that the, the DODI came at a, at an awkward time for the United States. It also came at a, it comes at a tragic time where we see, you know, mass civilian casualties in Gaza and elsewhere. So, with these new policies coming out, should we be pessimistic? You know, is war just war and, and, and people will die or, or do you also have a somewhat positive outlook looking forward?

Emily Tripp: Hmm, that's a good question. I think we have to be positive to some extent to keep doing this work. So I think we have to believe that there will be incremental change and that that change will lead to differences in the way war is waged. I mean, I think, you know, not just this Civilian Protection Action Plan, but also the, you know, Explosive Weapons Declaration.

I think there is hope for change. a new norm to be developed and a new normative framework for war, which says collateral damage isn't something we should take for granted, and it isn't inevitable, and civilians not only should be kind of protected, but also prioritized and treated with dignity. I mean, I think what we're seeing now is a lack of humanity and a lack of empathy for individuals affected by conflict, and so it's very difficult for me to, to, to be positive, I think, like, simply because of what's happening in that, you know, every single day, you know, at least us at Air Wars, we're trying to grapple with how do you document civilian harm on a scale that we haven't seen in this century.

And I think the silence from the U.S. towards Israel has been deafening. I mean, it's really, it's really shocking and it's depressing. And I think that's, so it's very hard to kind of sit here and say, yes, I feel positive, even though, you know, kind of some element of hope is needed to continue the work, which I do feel is really important.

But I think it's also important to recognize that we have a long, long way to go. And it might not be something we see, you know, perfectly materializing in the next year or five years or 20 years. But at least it's kind of like a mountain we're, we're starting to climb. And I think that's, also due to a huge collective effort of organizations, of civilians, of, of, you know, local civil society groups in countries like Yemen who've really kind of pulled together under different organizations and tried to say, look, this isn't okay, we can't keep doing this. So I think it's kind of incumbent upon all of us to just to kind of listen to those voices now and, and at least maintain some kind of semblance of humanity, you know, in order to, to make change.

Tyler McBrien: Marc, as we near the end here, I think some of our listeners may still be wondering why a policy like this is necessary when protection of civilians is enshrined in international law and other domestic laws. Why is, why is releasing a policy like this still so essential and necessary in, in meeting these obligations?

Marc Garlasco: Very simply, the fact of the number of civilian deaths that we've seen in the past twenty years at the hands of the various governments and militaries that have been operating, you know, worldwide. I mean, we have in Gaza over 20,000 reasons to do this work.

We have the many thousands of Iraqis and Afghans who were killed, the Yemenis, I mean, there may be laws in place. But international humanitarian law, the laws of armed conflict that we know from the Geneva Conventions is an incredibly low bar, right? It's don't purposefully kill civilians, right? That's it. Don't purposefully do it. But it doesn't mean that killing civilians is a war crime. You know, I was a war crime investigator for the UN in several different countries. And one of the hardest things that I did was explain to people that, hey, most civilian deaths in war are lawful. And so with that in mind, what can be done to improve civilian protection and I think this is a desperately needed policy. This is a desperately needed effort because of the work that organizations like Air Wars does. All right. They, they, they wouldn't exist if states were not killing civilians. And so these kind of protective measures are desperately needed.

And, you know, I look at it when I started in, in, on the ground in 1999 in Kosovo on my first mission. And I, I was doing a battle damage assessment, going around site to site with my, my clipboard and yes, weapon hit, yes, weapon functioned properly, civilian casualties. Where do I put that? And I turned to my boss, I said, hey sir, where do I put the civ-cas? And he said, we don't track that. But now they do, right? Now they do. It's been all of these years later, they do. And so now it's time to improve how civilians are being protected. And it's not good enough to say you can't just target civilians, right? Now you have to be able to say what active steps are we taking to protect civilians? What active steps are we taking to mitigate that harm when it happens? Because it will happen. Right? This is not going to be a policy that, that removes civilian casualties from, from conflict at all. Right? So how do we change things when we see things are going wrong? And then how do we respond? Right? So when those, when that harm does happen, what do we do about it? Do we, and how and why are we responding?

And I, I look very much at what Secretary Austin said. He said we have not only a legal requirement, but there is a moral and ethical element here. And so we as human beings have to look at how we are treating each other. And with that empathy, say, hey, what's happening is not all right. And we are going to improve what we do. And we're going to make sure that we take care of those that we harm.

Tyler McBrien: No, it's a really helpful reminder. And I'm reminded of something that Brian Finucane wrote in Foreign Affairs late last year, when he said the law of war permits vast death and destruction. This is true, even under restrictive interpretations of the law. So it's really helpful to keep in mind.

And Marc, you said earlier that Secretary Austin deserves some credit for this truly landmark policy. That's absolutely true. And I think a lot of the credit also goes to you and Emily and Air Wars and PAX and a lot of organizations who have been pushing for something like this since long before Lloyd Austin became secretary of defense. So I want to, I want to keep that in mind and I just want to open the floor to both of you as we near the end here. If you wanted to add anything, anything you wish I would have asked and Emily, we can start with you.

Emily Tripp: Yeah, no, just thank you so much. I think even the fact that we're talking about this issue, you know, on this podcast shows that it's something that, you know, is part of now our common parlance and it hasn't always been.

I think, you know, the, the war in Ukraine and, and kind of the statements around civilian harm, particularly in the war in Ukraine from states was, you know, I think a turning point for how conversations of this kind happen. And I think it would just be, it's, it's important to remember that, that, you know, all of those conversations and all of those discussions around then really recognize the value of, of civilians in conflict and the dignity of, of people affected by conflict.

And I would just kind of say that it's important to remember that everywhere, whether you're a civilian in Yemen or Somalia or Kharkiv, you know, the important point is that you're a civilian affected by conflict and, you know, the world has not dealt you a good hand. And I think it's, you know, it's good that we're able to talk about this in a constructive way, but just to take us back to the beginning and remember that, you know, not to appear too cold, essentially that we are talking about tragedy in, in that way.

Tyler McBrien: Marc, over to you for the last word.

Marc Garlasco: Yeah, I just want to finish by saying that when, when I left the Pentagon, there was very much an adversarial relationship between NGOs and the military. And that's changed dramatically. Now that doesn't mean that, that we're always in lockstep, that we're holding hands, you know, sitting around the fire and singing songs at night together.

But it means that there's a recognition that there is a, a level of, of knowledge and capability in NGOs that, that we bring to the table and militaries require, they don't have. And also recognition on our side that militaries are staffed by human beings who don't want to hurt people and want to improve what they're doing.

And so we need desperately to work together to come to better ends and I'm, I'm hopeful that this policy is a first step in, in making that happen and that we're going to see better outcomes. Because, you know, we've, we've been dealing now with over two decades of just dramatic loss of human life and loss of life in just the most violent way possible. And so we need to recognize that and try to improve, improve the way that we treat each other as human beings. Thanks.

Tyler McBrien: Marc Garlasco and Emily Tripp, thank you both so much for taking the time and joining me on the podcast.

Emily Tripp: Thank you.

Marc Garlasco: Hey, thanks for having me. It's, it's been a pleasure and thanks for caring about this.

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