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In a previous Lawfare article, I explained that a balanced approach is vitally important as the Department of Defense moves forward with implementing the recently published Civilian Harm Mitigation and Response Action Plan (CHMR-AP). The scope of the ambitious plan is truly impressive, as it establishes, for the first time, comprehensive policy-level guidance regarding how the department will resource and prioritize civilian harm mitigation practices.
A central point of my previous article is that the Defense Department must make a deliberate commitment to achieving “balance between civilian protection practices and operational effectiveness” with CHMR-AP implementation. As I noted, development of the CHMR-AP is set against the backdrop of a “powerful dynamic that has been simmering just below the surface for years,” which is “discord, and indeed at times outright acrimony, between civil society advocates and military practitioners.”
This discord influenced engagements between civil society advocates and military practitioners long before the CHMR-AP was published, and it will continue to shape expectations and objectives as the plan is implemented going forward. The various causes of the divergence between civil society and military approaches, however, have not been examined adequately. Therefore, the potential effects of the divergence have not been sufficiently accounted for.
As a follow-up to my previous Lawfare article, I will explore, in detail, the reasons for the long-running discord between civil society and military approaches and focus on why that matters in the context of CHMR-AP implementation. In short, clarifying the causes and effects of the divergence between civil society and military approaches will help to identify the common ground between the two communities. Doing so will encourage enhanced collaboration in those areas of alignment while also illuminating why the Defense Department may be reluctant to implement some specific suggestions that civil society advocates offer.
This enhanced clarity and improved collaboration will, in turn, encourage more effective congressional engagement. The Defense Department must be trusted to take the lead on CHMR-AP implementation, but Congress will perform a vital function in resourcing what are currently unfunded requirements as the plan is put into practice in the months and years ahead.
Enhanced clarity regarding the prevailing divergence between civil society and military approaches will allow lawmakers to prioritize legislative efforts that will maximize the utility of civilian harm mitigation practices without compromising operational effectiveness in the process. Developing the necessary clarity begins by examining the root causes of the divergence between the approaches and perspectives of military practitioners and civil society advocates.
Differences in Strategic Objectives Lead to Divergence in Approach
At the outset of an examination of divergent perspectives, it is worth noting that neither military nor civil society communities are completely homogeneous. This is a point that has been emphasized to me multiple times during conversations with friends who are civil society advocates, and it merits mentioning here. Just as the culture and priorities of the different branches within the military vary based on differences in the mission and purpose of each individual branch, the vision and objectives of different civil society groups or organizations vary based on the mission and purpose of each. Therefore, purporting to chart a “military” and a “civil society” approach or perspective would be a bit of an overreach. Even so, it is possible to bring focus to some factors that generally tend to unify perspectives in each separate camp and that likewise generally stimulate divergence between the two.
Additionally, divergence in approach is not an outright impediment to productive cooperation. Civil society routinely collaborates and consults with military organizations on matters of mutual interest, and, indeed, civil society advocates were among the stakeholders who provided input as the CHMR-AP was being developed. This cooperative dynamic will undoubtedly endure as the CHMR-AP is implemented. Clarifying the causes for the general divergence in approaches between the two communities, and thereby highlighting areas of common ground, however, will allow those ongoing strategic engagements to be even more effective going forward.
That endeavor begins by taking note of the mission of the Defense Department, which “is to provide the military forces needed to deter war and ensure [the] nation’s security.” In support of that mission, the department is divided into 11 separate combatant commands. Seven of these are geographic commands, which “operate in clearly delineated areas of responsibility and have a regional military focus.” The four functional commands, in contrast, “operate world-wide across geographic boundaries and provide unique capabilities to geographic combatant commands and the armed services.”
While listing the mission and vision for each individual combatant command would be cumbersome and redundant for present purposes, it is useful to draw from at least one geographic and one functional combatant command to illustrate how each is nested within the overall Defense Department mission.
The mission of U.S. European Command (USEUCOM, a geographic command), for example, is to execute “a full range of multi-domain operations in coordination with Allies and partners … in order to defend the Homeland forward and fortify Euro-Atlantic security.” According to the mission, “[s]hould deterrence fail, USEUCOM is prepared to fight alongside Allies and partners to prevail in any conflict.” In support of this mission, the vision of USEUCOM is to be “a combat-ready, warfighting theater that is postured, relevant, and ready” and that is “capable of delivering decisive battlespace effects, at speed, and in all domains.”
As an example of a functional command, the mission of U.S. Special Operations Command (USSOCOM) is to develop and employ “the world’s finest [special operations forces] to conduct global special operations and activities … against state and non-state actors all to protect and advance U.S. policies and objectives.” To support this mission, the vision statement of USSOCOM is to create “strategic, asymmetric advantages for the Nation in integrated deterrence, crisis and conflict.”
Although there is no formal hierarchical command relationship among the assorted civil society organizations (CSOs) that have been active in encouraging the Defense Department and combatant commands to implement various civilian harm mitigation practices during the past 20 years or so, several of these CSOs have coalesced to coordinate and amplify advocacy efforts.
One umbrella group involved in these advocacy pursuits is InterAction, which describes itself as “the largest alliance of international [nongovernmental organizations (NGOs)] in the United States.” The mission of this alliance is to be “a convener, thought leader, and voice” for NGOs working to, among other pursuits, “promote peace” and “ensure dignity for all people.” Again, there is no formal command structure among the various CSOs active in this area, but as an alliance of NGOs, this mission can be thought of as the civil society corollary to that of the Defense Department.
As with the combatant commands, it is useful to use two of these CSOs to understand how they fit in the overall civil society mission. Two particularly active organizations advocating in favor of civilian harm mitigation practices are the Center for Civilians in Conflict (CIVIC) and PAX Protection of Civilians (PAX). While these two CSOs are not among the members of the alliance, InterAction has described them as “civil society partners” in civilian harm mitigation advocacy efforts.
According to CIVIC’s vision and mission statement, the organization “envisions a world in which no civilian is harmed in conflict.” Among the principles expressed in support of this vision is the belief that “armed actors are responsible and must be held accountable for preventing and addressing civilian harm” and that collaborating “with a wide range of partners and in coalitions is critical to accelerating global action on the protection of civilians and reducing public tolerance for civilian harm.”
Turning to PAX—also referred to as PAX PoC—the group describes itself as “the largest peace organization in the Netherlands.” The “overall goal” of its work is to “increase the effectiveness of security interventions so that civilians have greater security.” To achieve this goal, the organization seeks to help “civilians to hold local and international security actors to account” while enabling and motivating “security actors to design and implement more civilian-centered protection strategies.” This work is in support of the overarching organizational purpose, which “is to reduce civilian harm, end armed violence and build sustainable peace around the world.”
Divergence in Approach Generates Conflict in Accounting for Civilian Harm
Even a cursory assessment of the mission, vision, and purpose of the various military institutions and civil society organizations reveals a fundamental divergence in approach, which is likewise evident in the ways in which the two general communities interpret how “accountability” should be assessed in the context of civilian harm. As the military asserts in a report published in 2019 regarding civilian casualty policy, the Defense Department “has a strong history of taking care to protect innocent civilians while successfully defending the nation.”
Yet “taking care” to protect civilians from the effects of combat operations is not sufficient from a CSO perspective. As InterAction observed not long after the 2019 Defense Department report was published, “Over the past decade, armed conflict has been too often characterized by immense human suffering resulting from” actions taken during the conduct of hostilities. Although CSOs seeking “improved military conduct to minimize civilian harm” have, according to InterAction, “offered a series of concrete recommendations on how the [still] forthcoming” Defense Department instruction regarding civilian harm mitigation “can better safeguard civilian lives, property, and infrastructure in U.S. military operations and its security partnerships,” many of those specific recommendations have not been adopted by the military over the years.
Bringing focus to the divergence in approaches examined above is necessary to fully appreciate the reluctance by the Defense Department to implement various civil society recommendations. CSOs have no responsibility for engaging in combat and no authority to do so. There is likewise no requirement for CSOs to balance humanitarian considerations with the principle of military necessity, whereas this balance is integral to the conduct of hostilities in practice.
While military institutions are tasked with the mission to fight against an adversary when called upon to do so and win on behalf of the nation, the CSO mission bears no such corollary. This dynamic helps explain the observation in the Defense Department Law of War Manual, for example, that “the protection of civilians against the harmful effects of hostilities is one of the main purposes of the law of war” (emphasis added). However, this is by no means the only purpose. From a military perspective, as the manual notes elsewhere, the law of armed conflict “may be understood to reflect States’ determinations that such conduct is militarily unnecessary per se.”
This reflection regarding the law of war, in turn, provides useful background for the commentary presented in the section of the manual titled “Assessing Information Under the Law of War.” There, the manual notes that, “[e]ven when information is imperfect or lacking (as will frequently be the case during armed conflict), commanders and other decision-makers may direct and conduct military operations, so long as they make a good faith assessment of the information that is available to them at that time.” Commentary in this section goes on to observe that “combatants must make decisions while enemy forces are attempting to attack them and while enemy forces are seeking to deceive them” and that “the importance of prevailing during armed conflict often justifies taking actions based upon limited information that would be considered unreasonable outside armed conflict.”
From the perspective of military decision-makers and their advisers, then, an assessment of compliance with relevant rules of law and policy related to the use of force in armed conflict is centered on the process that led to an attack, based on the information reasonably available to the commander at the time, rather than on the outcome of the engagement in light of subsequently discovered facts. From a civil society perspective, it is the outcome—rather than the process—that is of central importance. In a letter to Defense Secretary Lloyd Austin and signed by a coalition of 21 civil society groups—including InterAction, CIVIC, and PAX—the group criticizes the Defense Department for failing to “deliver accountability for civilian harm that has devastated families and communities.” As a call to action, the CSO coalition urges Secretary Austin “to robustly account for and reckon with the civilian harm of the last twenty years, and commit to finally implementing structural changes to prioritize civilian protection and accountability for civilian harm” (emphasis added).
This emphasis on accountability for civilian harm is predictable and completely reasonable if the organizational objective is to accelerate “global action on the protection of civilians,” as CIVIC notes, or to “reduce civilian harm, end violence and build sustainable peace around the world,” as is a focus for PAX. This strategic-level vision does not, however, align with that of the Defense Department.
The department is required to implement civilian harm mitigation practices within the broader context of the strategic imperative to fight and prevail in armed conflict. While the military may have “a strong history of taking care to protect innocent civilians while successfully defending the nation,” it will continue to fall short of civil society expectations if it does not commit to structural change that “prioritize[s] civilian protection and accountability for civilian harm.”
Divergence in Approaches to CHMR-AP Implementation and Operational Scalability
This survey of differences in strategic objectives and divergent approaches brings focus to what I described earlier, and previously on Lawfare, as “discord, and indeed at times outright acrimony, between civil society advocates and military practitioners” that has been simmering just below the surface for years in the context of civilian protection practices. Although the letter signed by the coalition of 21 CSOs notes that, for more than 20 years, “the Department of Defense has failed to adopt solutions well within its grasp,” the suggested “solutions” were developed by civil society advocates in support of civil society strategic priorities. In this context, it should come as no surprise that the Defense Department has refused to adopt recommendations presented by civil society advocates even though these “solutions” seem, from a civil society perspective, to be “well within its grasp.”
As the military continues to implement the strategic vision presented in the CHMR-AP, clarity involving the divergence in approach and perspective will be more important than ever if the Defense Department is to successfully implement any number of civilian harm policies while not compromising operational effectiveness in the process. From a civil society perspective, the CHMR-AP has been characterized as “insufficiently ambitious” and success in implementation will be measured by “how it delivers real results for civilians” (emphasis added). As reporters for Politico summarized after interviewing a number of civil society advocates, the plan “doesn’t go far enough to make civilian harm a top component in military decision-making,” which will ostensibly “anger activists.”
In contrast, military practitioner Lt. Gen. David Deptula (ret.) expressed concern that the plan will “hobble U.S. forces” by “limiting America’s ability to wage war” while “potentially increasing the risk of civilian casualties in the future.” Likewise, two current military lawyers caution that, although the CHMR-AP emphasizes the need for civilian harm mitigation practices to be scalable depending on the operational environment, “four of the listed objectives of the plan imply” that maintaining scalability in practice may not be feasible.
The specific CHMR-AP components about which the authors express concern as the plan is implemented in the future are Objective 3 (involving guidance for addressing civilian harm), Objective 4 (involving knowledge of the civilian environment), Objective 5 (involving measures to mitigate risk of target misidentification), and Objective 7 (involving investigating incidents of civilian harm). Regarding these specific objectives and the CHMR-AP in general, the military lawyers caution that implementing a “policy that aims to reduce civilian harm on the future battlefield against a near-peer enemy … carries the risk of defying the delicate equilibrium sustained in” the law of armed conflict and “is a misapplication of the law.”
Divergent perspectives in the context of scalability on the spectrum of armed conflict is a topic I address in some detail in a section of a recent working paper engaging in a critical analysis of a Feb. 14 letter from Rep. Sara Jacobs (D-Calif.) and Sen. Dick Durbin (D-Ill.) to Defense Department General Counsel Caroline Krass. In the working paper, I suggest that “studies conducted and recommendations developed by entities external to” the Defense Department often promote “practices that were developed for, and are primarily suitable during, counterinsurgency operations.” As a cautionary note, however, I observe that “the more recent return of focus on full spectrum operations will render many of these ‘favored’ counterinsurgency practices untenable—unless they are scalable across the spectrum of conflict.”
Misalignment in CHMR-AP Issue Prioritization and the Pursuit of Common Ground
While a full accounting of the potential impact of divergent approaches in the context of CHMR-AP implementation is beyond the scope of this article, I will address a number of specific topics for illustrative purposes. As the CHMR-AP was being developed, several civil society groups published this policy paper to provide recommendations for the plan. InterAction, CIVIC, and PAX are among the 10 CSOs that worked on the paper, which “sets out priorities and expectations from humanitarian, human rights, and civilian protection organizations.”
One specific suggestion presented in the paper is for the Defense Department to “improve transparency regarding the legal and policy standards applied to the use of force and ensure adherence to international legal standards as well as U.S. government rules, criteria, and required civilian protection safeguards.” On this topic, Laura Dickinson, Brianna Rosen, and Rachel VanLandingham suggest that increased public disclosure of information related to targeting operations has value for “civil society and media organizations that track civilian harm closely and may have sources on the ground.” While this is undoubtedly true, there is a significant competing interest from a military perspective that does not align with this civil society value of data transparency.
As noted in the current edition of Joint Publication (JP) 3-61—the Defense Department doctrinal publication involving public affairs activities in joint operations—certain types of information “should not be revealed because of potential jeopardy to future operations, the risk to human life, possible violation of [host nation] and/or allied sensitivities, or the possible disclosure of intelligence methods and sources.” These categories of potentially sensitive information include data related to “rules of engagement” and “intelligence activities, including sources and methods, lists of targets, and battle damage assessments.”
The sensitivity of this type of operational information is especially problematic considering the potential “mosaic effect” of gathering intelligence. That is, as seemingly small fragments of data are released to the public, the information may appear “meaningless or trivial” in isolation. Fitting the individual bits of data together, however, can “permit a comprehensive understanding of the information being protected.”
While Dickinson, Rosen, and VanLandingham are undoubtedly correct when they note that increased public disclosure of information related to targeting operations is useful for “civil society and media organizations that track civilian harm closely,” robust data transparency is also a boon for current and future adversaries keeping track of U.S. military targeting and poststrike analysis practices. Because Defense Department interest in increased public disclosure must be balanced against the need for operational and information security, the military can be expected to approach this civil society suggestion for “improved” data transparency with extreme caution as the CHMR-AP is implemented.
The same is true for the civil society recommendation for the Defense Department to “go beyond civilian casualties to account for, prevent, mitigate, and address the reverberating civilian harms that result from use of force operations.” As the Defense Department Law of War Manual notes, reverberating effects generally aren’t factored into a proportionality analysis, for example, because of “the difficulty in accurately predicting the myriad of remote harms from the attack (including the possibility of unrelated or intervening actions that might prevent or exacerbate such harms) as well as the primary responsibility of the party controlling the civilian population to take measures to ensure that population’s protection.”
A similar dynamic emerges on the topic of amends. The CSO coalition that released the policy paper on CHMR-AP recommendations calls for “a comprehensive amends policy for responding to confirmed civilian harm” that would “offer amends for past cases of civilian harm.” However, offering amends—especially for cases of past harm where the Defense Department is no longer involved in active hostilities—is by no means a significant operational priority from a military perspective. As the manual describes, “although indemnification is not required for injuries or damage incidental to the lawful use of armed force, compensation may be provided as a humanitarian gesture.”
The practical effects of the divergence between approaches are also evident regarding the issue of investigating past incidents of potential civilian harm. As the CSO coalition paper describes, the expectation from a civil society perspective is for the Defense Department to “identify a plan for reviewing and responding to past cases of civilian harm that may have been prematurely or falsely dismissed.” Poststrike analysis from a military perspective, however, typically centers on determining whether personnel involved in an attack complied with relevant rules of law and policy involving the use of force. Doing so requires a robust assessment of the process that led to an attack rather than the outcome of a strike.
As the manual observes, “the actual results of an attack do not always provide useful information in assessing whether” personnel complied with requirements such as the proportionality rule while conducting the attack because this assessment involves an evaluation of “information available at the time, and the responsibility of commanders is not to be assessed on the basis of information known only after the fact.” While there will certainly be some operational value in learning from past targeting operations, the focus for organizational improvement won’t necessarily be only on past occasions of civilian harm—even those that were ostensibly “prematurely or falsely dismissed.” Incidents involving near misses, fratricide, cases of confusion between ground and air components, an incomplete understanding of available intelligence, and so on will be useful for purposes of organizational improvement, regardless of whether an attack involves a “prematurely or falsely dismissed” allegation of civilian harm.
Finally, one of operational imperatives that the CSOs suggest is that the Defense Department “revise assessment and investigation processes to incorporate external information, including civil society documentation, survivor and witness interviews, and site visits.” Again, however, the focus of poststrike analysis from a military perspective is on compliance with relevant legal and policy rules involving the use of force. As I have pointed out in the context of the 2015 attack on the Médicins Sans Frontières trauma center in Kunduz, Afghanistan, “the outcome of the attack is of little consequence—no matter how tragic, horrific, and utterly unimaginable it may be—when deciding what accountability and corrective measures should be implemented afterward” (emphasis in original). This holds true for poststrike assessments as CHMR-AP is implemented in the future, just as it was before the plan was developed throughout most of last year.
On the topic of collaboration between CSO groups and the military, the primary doctrinal publication involving counterinsurgency operations—JP 3-24—cautions that while NGOs can “play important roles assisting in resolution of insurgencies, providing humanitarian assistance … and supporting stability,” military personnel “should also be aware that some illegal and potentially adversarial organizations will attempt to claim status as an NGO.” Accepting information even from local civil society groups should be done using extreme caution since these groups “may have self-serving or particular perspectives or agendas that do not represent all components of the population.” Ultimately, as this doctrinal publication emphasizes, the relationship between military and CSO leadership “is neither supported nor supporting, but one of collaboration and coordination.”
In the context of CHMR-AP implementation, successful collaboration and coordination between the military and civil society groups will require a sharp focus on what factors lead to divergence in approaches as well as on the ways in which this divergence informs perspectives regarding the implementation of measures designed to mitigate civilian harm. Clarity on this front can encourage enhanced trust between stakeholders by contributing to a mutual understanding of the intrinsic motivations that inform, for example, various civil society recommendations and the potential reluctance among a military audience to adopt these suggestions.
Even more importantly, improved clarity can facilitate the identification of common ground. Practices that genuinely improve institutional Defense Department targeting and assessment processes will improve the capacity of the military to neutralize adversarial personnel and equipment as well as reduce the risk of targeting mishaps that lead to civilian casualties and other unintended consequences. This will, in turn, support the missions of both communities of stakeholders.
If the reasoning described in support of a particular recommendation presents the veneer of advancing the department’s interests but actually supports CSO goals such as promoting “peace” and ensuring “dignity for all people” (InterAction) or assisting “civilians to hold local and international security actors to account” (PAX) for civilian harm, the suggestion aligns more closely with a civil society mission or vision than with the Defense Department mission. Identifying sincere common ground between the two approaches must be a guiding principle for collaboration between the Defense Department and CSOs as the CHMR-AP is implemented in order to maximize the effectiveness of the organizational structures developed in the plan while not unduly infringing upon operational targeting capabilities in the process.
CHMR-AP Implementation and the Future of Civil Society Engagement and Congressional Intervention
It is undoubtedly true that civil society organizations have presented suggestions and best practices to the Defense Department for “over twenty years,” as the 2021 letter from the coalition of CSOs to the defense secretary notes. The department’s reluctance to “adopt solutions well within its grasp,” however, is not necessarily evidence of an institutional “failure” as the CSO letter suggests.
Rather, ongoing reluctance by the department to adopt recommendations persistently presented by civil society advocates can be attributed to two primary factors: resource availability and divergent interests. Successful implementation of the CHMR-AP will help alleviate the former, but the latter will continue as long as the missions and visions of the department and various civil society groups remain misaligned.
Maintaining clarity in understanding divergent approaches is especially important for administration officials involved in charting the path toward organizational implementation of the plan. As a fairly senior military lawyer expressed to me recently, there is concern among the operational ranks that perceptions of civilian leadership will be developed in an “NGO echochamber” and that this will guide institutional implementation of the CHMR-AP. Based on the nature of recent public engagements in which relevant members of senior civilian leadership have participated, this concern does not appear to be entirely unwarranted.
The same concern applies to recent legislative pursuits of select lawmakers in Congress, particularly in relation to members of the recently established Protection of Civilians in Conflict Caucus. Although a thorough assessment of ongoing legislative activities of select members of Congress is beyond the scope of this article, recent messaging by civil society advocates and lawmakers alike indicates that the emerging progressive legislative agenda related to civilian harm is being driven primarily by civil society interests rather than those of the military.
Divergence in approach and perspective between military practitioners and civil society advocates is predictable based on the misalignment in the missions and visions of the two communities. Rather than serving as a source of discord, this fundamental divergence can encourage more effective collaboration between relevant stakeholders. An essential precondition for this mutually beneficial outcome is bringing focus to those factors that separate the two general communities so that the common ground that currently exists between them can be illuminated.
Common ground does not generally exist, for example, regarding amends for civilian harm. John Ramming Chappell of CIVIC suggested recently that the Defense Department “should prioritize creating a review process that ensures civilians harmed in U.S. military operations receive appropriate acknowledgment and amends” during CHMR-AP implementation. On a related note, Joanna Naples-Mitchell, the director of the Redress Program at the Zomia Center, asked recently, “For whom is the CHMR-AP if not for civilians already harmed by U.S. military operations?” As Annie Shiel of CIVIC similarly observed regarding CHMR-AP implementation, “the true measure of this effort will be how it delivers real results for civilians.”
These perspectives align well with the mission and vision of a CSO such as CIVIC, which as an organization “envisions a world in which no civilian is harmed in conflict” and believes that personnel engaging in armed conflict “are responsible and must be held accountable for preventing and addressing civilian harm.” From a doctrinal, military approach, however, “the focal point of inquiry related to targeting operations must be the attack judgment, not the attack outcome”—regardless of the extent of civilian harm from that targeting operation (emphasis in original).
Amends and redress for civilian harm based on the outcome of an attack, then, is not a topic for which the CSO and Defense Department approaches align, so this should not be a focal point of collaborative efforts among the two general communities. Instead, identifying practices that can enhance implementation of the joint targeting process is an example of an effort that may be beneficial from both perspectives. Improved collaboration with relevant civil society experts on areas of common ground can foster a more holistic approach to operational targeting process optimization, and this in turn will support the missions and visions of the Defense Department and interested civil society organizations alike.
As the ambitious organizational outline developed in the CHMR-AP continues to progress from paper to practice, a candid and comprehensive assessment of the various interests implicated by implementation of the plan will be vitally important for all stakeholders involved in the process. This commitment to a collaborative and balanced approach will be essential to maximize the potential institutional advantages of effective CHMR-AP implementation while avoiding the possible pitfalls that may lead to degraded operational effectiveness.