Assessment, and taking responsibility for U.S.-caused civilian
casualties;17
- Engagement with stakeholders to develop, and share best practices; and18
- Reporting, both to the public and to Congress.19
Section 3 of EO 13732 required the Director of National Intelligence to publicly release a report of all combatant and non-combatant deaths resulting from strikes by any U.S. Government agency.20 However, in 2019, then-President Trump issued an executive order that revoked the public reporting requirement for Section 3 of EO 13732.21 That said, then-President Trump’s EO included provisions to comply with various Congressional and public reporting requirements in the Fiscal Year (FY) 2018 and FY 2019 National Defense Authorization Acts (NDAA). Thus, while the four broad requirements defined above remain, it is in somewhat modified form.22 In addition to this presidential back and forth, in both the FY 2018 and FY 2019 NDAAs, Congress legislated requirements in the four broad functional responsibilities defined above.
Congress Steps In
In the FY 2018 NDAA, in the period intervening between EO 13732 and then-President Trump’s EO, Congress passed a provision requiring an annual report to Congress on civilian casualties caused by U.S. military operations—a report which will be unclassified, but may include a classified annex where appropriate.23
The report is required to include reporting of civilian casualties
occurring both within and outside of Declared Theaters of Active Armed
Conflict.24 The report must also describe the process by which DoD investigates allegations of civilian casualties, and the steps DoD takes to mitigate the occurrence of civilian casualties. Finally, the Secretary and DoD are required to consider information from all available sources, including NGOs, when assessing whether reports of civilian casualties are confirmed. Congress followed up on these reporting requirements in the FY 2019 NDAA, which was passed in August 2018.
Specifically, two provisions bear fleshing out. Section 1062 of the FY 2019 NDAA levies additional reporting requirements on the DoD with regards to civilian casualties. These improvements are primarily intended to increase the specificity of reporting, broadening the scope to include lethal strikes and “each specific mission, strike, engagement, raid or incident.”25 Furthermore, the FY 2019 NDAA requires the annual report to differentiate between the numbers of civilians injured and those killed, the making of any ex gratia payments as recompense, and any modifications to reports from previous fiscal years.26 Congress also requires that the report be unclassified and released to the public at the same time as it is made to Congress; though, the NDAA does allow for the Secretary of Defense to decline public release, should he certify in writing that doing so would pose a threat to the national security interests of the United States.27 Finally, Congress mandated that the DoD both establish a uniform policy or guidance on dealing with civilian casualties, and appoint an official within the DoD to oversee compliance with said policy.28
DoD Efforts: Fits and Starts
Despite the statutory deadline of 180 days from passage of the NDAA to
provide a report describing the policy developed by the DoD, no such
policy has yet been completed.29 That said, the DoD has made significant efforts toward the development of said policy. This includes the appointment of the Deputy Under Secretary of Defense for Policy as the civilian official responsible for coordination, developing, and overseeing compliance with that policy.30 The DoD has also taken a number of steps toward the development of a comprehensive policy to prevent, assess, and respond to civilian casualties, many of which predate the FY 2019 NDAA.
These efforts include engagement with NGOs (such as the ICRC) to provide an overview of current DoD policies and procedures, as well as soliciting concerns and input from NGOs.31
The DoD also conducted a number of activities subsequent to the passage
of the NDAA, including a Joint Staff-hosted tabletop exercise,
engagement with other federal departments and agencies, and engagements
with NGOs.32 That said, the DoD has yet to publish a complete and comprehensive policy that addresses the four functional responsibilities that appear in EO 13732 and the FY 2018 and FY 2019 NDAAs.
Instead, the DoD points to a number of Joint publications for the proposition that DoD policy encapsulates these four requirements—some of which provide positive authority and guidance,33 and some of which do not.34 The DoD also points to the Combatant Commands as shouldering the load with respect to policy development to this point. In particular, the DoD report on policy development points to commonalities in practices as between U.S. Central Command (USCENTCOM) and U.S. Africa Command (USAFRICOM).35 However, the DoD acknowledges that there is still some variance amongst the Combatant Commands (CCMD) as to the specifics of their respective civilian casualty policies.36 Thus, while there may be some commonality in these CCMD policies and processes, there is no universally applicable policy standard. Regardless, the role of the operational JA includes advice and counsel in each of the four categories or efforts described in domestic law and Presidential policy. The question then, is this: In practice, how does the operational JA advise on these areas where the proverbial “rubber meets the road”?
The Law in Practice: Gaps and Inconsistencies
In each of the four areas defined in law and policy, the JA is a critical supporting effort; though primary responsibility most often does and should reside with other staff directorates. By understanding the inputs and output of each responsibility, the JA plays a central role in the development and implementation of DoD policy, thereby, enhancing efforts to prevent and respond to civilian casualties. The Subunified Command/Joint Task Force level is uniquely situated to impact each of the four functions defined by domestic law and policy.37 The JA is an integral part of this process due to their ability to think critically about hard problems and develop creative solutions.38 Furthermore, while the attorney’s relationship with the commander is critical, it can be argued that the attorney’s relationship with the staff is more important.
Precautions During Planning and Execution
During planning and execution, the JA provides support by identifying relevant legal and policy authorities, and associated shortfalls.39 This includes, but is not limited to, the law of war, domestic legal considerations, and policy restraints and constraints. These considerations can vary from ensuring target nomination, validation, and engagement criteria are met,40 to consideration of other law of armed conflict matters—such as the highly circumstance-dependent matter of proportionality or compliance with policies and orders governing collateral damage.41
While the law certainly matters, so do the facts;42 and JAs should relentlessly seek them out. This can take the form of requesting all the intelligence supporting a strike, or questioning the underlying intelligence or rationale for targeting a particular individual. One area which can hamper this access is having the appropriate “read-ins” to access intelligence at either the Special Access Program (SAP) or Sensitive Compartmented Information (SCI) level.43 The JA should not simply accept what the J2 (Intelligence Directorate) or J3 (Operations Directorate) personnel provide. These officers are well versed in their respective disciplines, but it is the JA’s job and expertise to assess the underlying facts and provide the necessary legal advice. The JA cannot provide adequate legal advice without a full and complete understanding of the facts, including all foundational intelligence—whether SAP/SCI or otherwise.
Assessment and Responsibility
Upon receipt of allegations, the focus shifts to an assessment, in which there are a host of legal considerations. The JA must first be prepared to advise in situations in which an alleged instance of civilian casualties amounts to a war crime; in which case, the incident must be reported through both operational and legal channels and then turned over to a military criminal investigative organization.44 Should the JA determine that war crime reporting is inappropriate, the command may then shift to conducting an assessment.
The geographic CCMDs, in particular USCENTCOM and USAFRICOM, drive the process of assessing civilian casualties.45
Understanding the nuances of each CCMD policy is critical to the
operational JA. For instance, the DoD has mentioned a binary
“credible/non-credible” assessment terminology and alluded to it as
uniform across the DoD.46 While this is supported by several documents,47 it appears that USAFRICOM has shifted to using the terms “substantiated/unsubstantiated.”48 It is unclear how this new terminology differs from the credible/non-credible dialectic, as it is still based on assessing facts as “more likely than not.”49 Regardless, there is variance in the CCMD assessment methodologies. Furthermore, as the DoD continues to develop its own policy in coordination with the CCMDs, many of the precepts in the draft policy may be adopted by the CCMDs, thereby introducing further fluidity to the assessment and reporting process.
Further considerations at this stage can include whether an investigation is appropriate50 or whether there is already sufficient information available to assess the claim. Should the commander appoint an investigation, the JA will play a role in advising both the investigating officer and the commander taking final action.51 The JA will also advise on the assessment itself—which will often include a legal opinion related to both compliance with applicable law and rules of engagement, as well as whether the evidence presented supports the credibility assessment.52 The standard most frequently applied in assessing whether a reported civilian casualty occurred is whether the allegation is more likely than not to be true.53
Often, commands may not have access to the specific locations or persons involved in a strike resulting in civilian casualties;54 however, NGOs often do.55 When feasible, in accordance with EO 13732, commands should seek to include information from these NGOs in their assessments.56 However, the operational JA should be prepared to deal with a few contentious issues with regard to NGOs. The first is that the DoD often has access to information to which NGOs do not—such as sensitive intelligence information, the revelation of which could compromise intelligence sources and methods.57 While this has been criticized for a lack of transparency,58 there is little the operational JA can do to address this concern. The second—and related—concern, is that the DoD may have not conducted the strike at issue, but there is no other department or agency in a position to take responsibility.59 Finally, NGOs often advocate for full administrative investigations in all instances of civilian casualties—a contention which is not necessitated by law or policy in the absence of evidence indicating a war crime.60
Development and Sharing of Best Practices
The next functional responsibility, directed by law and policy, is to refine and share best practices for preventing and responding to civilian casualties. Any investigation into civilian casualties should include recommendations to avoid similar incidents in the future.61 These recommendations will most often focus on the conduct or execution of a strike or operation and can include recommendations to modify or implement new strike Standard Operating Procedures or Tactics, Techniques, and Procedures. These recommendations might also identify gaps in a command’s target development and vetting process, or internal strike cell operations.
However, improvements in processes should not be limited to those recommended during the course of an investigation. Commands should seek to refine both strike and casualty assessment processes whenever the opportunity presents.62 In other words, processes should be reviewed and/or improved—even if there is no recommendation or approval to do so as part of a command operation. Such improvements could include identification of another key billet holder required in the strike cell or a modification to a strike cell Standard Operating Procedure during an annual/semi-annual revision. The JA should raise the issue as appropriate and defer to the staff director or commander empowered to make the final decision. The second caveat is to not confine improvements to the planning and execution of a strike.
Assessment methodologies should be examined and refined as well. The JA should highlight where additional expertise is needed to conduct the assessment. For instance, an operative fact might include the range at which a particular weapon presents a danger of wounding or death.63 The JA would not normally possess the necessary expertise to assess these facts. Thus, it may be appropriate for a trained individual to participate in all civilian casualty assessments.64 Perhaps there are multiple intelligence disciplines supporting the conclusion that an individual is a civilian, but a trained J2 all-source analyst will be better positioned to opine upon the overall intelligence picture than a JA.
Non-governmental organizations are specifically identified in Presidential and DoD policy as entities that provide critical input to the development of sound policy and best practices regarding preventing and responding to civilian casualties.65
Accordingly, NGOs should be included where feasible in policy
development. A risk of this inclusion may include the introduction of
substantive provisions which do not reflect the U.S. Government or DoD
position on certain rules of international law. For instance,
discrepancies or debates about the law governing a person’s status as a
combatant or a civilian. One such area of disagreement has to do with
the construct of Direct Participation in Hostilities (DPH).66
The ICRC occupies a special position in international law, and is
charged under the Geneva Conventions with monitoring compliance with the
Law of War.67 Pursuant to this role, the ICRC published interpretive guidance as to the meaning of the Geneva Conventions, including the concept of DPH.68
In addition to a three-factor test, the ICRC also subscribes to what is
often pejoratively referred to as the “revolving door,” of civilian
protection.69 Neither of these constructs is consistent with the U.S. view on DPH.70 This is also by no means the only area of law on which the U.S. Government and NGOs disagree.71
In engaging with NGOs, the operational JA should politely but firmly articulate the U.S. position on the law. Second, and in light of the DoD’s engagement with NGOs and academics,72
DoD attorneys and JAs must be prepared to advise policy makers on the
law; they should ensure there is clarity between measures the U.S.
undertakes as a matter of legal obligation and those it implements as a
matter of sound policy for prevention and response to civilian
casualties.73
Public and Congressional Reporting
As discussed, the DoD is required to provide reports on the annual civilian casualty statistics and efforts,74
as well as the development of a comprehensive DoD policy to prevent and
respond to civilian casualties.75 Many sub-unified commands and combatant commands also issue public press releases of their civilian casualty statistics and assessments.76 It is not uncommon for allegations of civilian casualties to languish for years, or be reported years after the fact.77 Nor is it uncommon for a particular incident to receive heightened scrutiny, which necessitates rapid action to move that particular incident to the head of the assessment line. There is little role for the operational JA in this reporting process, with one caveat. When a particular allegation is the subject of an investigation, either administrative or criminal, the JA will often have the best visibility on the status and timing of that investigation.
The JA in this circumstance will primarily play the role of liaison between the various stakeholders. They will need to 1) assist and relay information from investigators to the staff and commanders, 2) keep commanders and staff apprised of the status of the investigation and elucidating potential options, and 3) relay investigative status and approximate timeline for completion to higher headquarters and external stakeholders (such as NGOs). The JA should also review public and congressional reports to ensure accuracy in characterization of legal and policy standards.
Conclusion
Domestic law and policy governing the DoD’s prevention of and response to civilian casualties is in significant flux. The lack of a comprehensive, DoD-wide policy on prevention of and response to civilian casualties has led to a legal and policy environment characterized by a patchwork of requirements that are often fluid across both time and geographic CCMDs; they also contain various gaps or inconsistencies, which the JA must be prepared to address. In each of the four functional areas dictated by law and policy, the JA is a critical supporting effort and is uniquely positioned to assist their own command and the DoD in its efforts to minimize civilian casualties.
An integral part of this effort is understanding the legal and policy gaps and inconsistencies. The lack of a comprehensive DoD policy has resulted in differing policy standards across CCMDs, as well as a fluid and somewhat unpredictable policy environment as the DoD works toward the development of a DoD-wide policy. The JA must also be prepared to deal with discrepancies between the international legal standards advocated by NGOs or foreign partners and those held by the U.S. Government. Finally, there are questions of the practical application of law and policy. The JA can and should advise on 1) feasible precautions during planning and execution; 2) the factual and policy basis for an assessment of civilian casualty allegations, as well as steps to improve the assessment process; 3) the sharing and adoption of best practices across the four functional areas; and 4) reporting of the status and outcome of assessments to higher headquarters, Congress, and the public. TAL
LtCol Combe is a student at the Marine Corps School of Advanced Warfighting—Marine Corps University in Quantico, Virginia.
This article is a companion piece to the American Society of
International Law online symposium series, Civilian Casualties: The
Law of Prevention and Response, and focuses on the role of the
operational judge advocate (JA) in preventing, mitigating, and
addressing civilian casualties.
Notes
1. Missy Ryan,
U.S. Military Made $2 Million in Civilian Casualties Payments in
Afghanistan in Recent Years, Wash. Post(Aug. 17, 2020), https://www.washingtonpost.com/national-security/us-military-made-2-million-in-civilian-casualties-payments-over-5-years-in-afghanistan/2020/08/17/cd550af0-d025-11ea-af07-1d058ca137ae_story.html.
2. See, e.g., Rita Siemion & Daniel R. Mahanty, The Pentagon’s 2018 Civilian Casualties Report: What’s in It and
What’s Next, Just Sec. (May 2, 2019), https://www.justsecurity.org/63898/the-pentagons-2018-civilian-casualties-report-whats-in-it-and-whats-next/.
3. Letter from Am. C.L. Union et al. to Sen. James Inhofe et al., subject: Congress on Strengthening Civilian Casualty Reporting (May 2, 2019), https://www.humanrightsfirst.org/sites/default/files/Civcas-Letter-2019-05-02.pdf [hereinafter Letter to Congress]. Rather than having any individual signatory, “signing” organizations include the American Civil Liberties Union, Center for Civilians in Conflict, Human Rights Clinic (Columbia Law School), and Human Rights Watch, among others.
4. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Common Article 3]. These types of conflicts are routinely termed “non-international armed conflict,” or “NIAC.”
5. Various terms are used to describe the same general construct: Law of War, Law of Armed Conflict, and International Humanitarian Law. For the sake of consistency, this article uses the term Law of War. See generally U.S. Dep’t of Def., Department of Defense Law of War Manual (12 June 2015) (C3, 13 Dec. 2016) [hereinafter DoD Law of War Manual].
6. Id. § 2.1.
7. Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV].
8. Exec. Order No. 13732, sec. 1, 81 Fed. Reg. 44,483 (July 1, 2016) [hereinafter EO 13732].
9. See, e.g., DoD Law of War Manual, supra note 5, paras. 5.7.1, 5.7.2, 5.10.3; Nat’l Sec. L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. & Sch.,
U.S. Army, Operational Law Handbook 71, 105–06, 185–87 (2020).
10. EO 13732, supra note 8.
11. Id. sec. 2(a)(iv).
12. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 57, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. Though the United States is not a signatory to Additional Protocol I, it does consider the treaty to be reflective in many instances of customary international law. See, e.g., Dupuis et al., The Sixth Annual American Red Cross–Washington College of Law
Conference on International Humanitarian Law: A Workshop on Customary
International Law and the 1977 Protocols Additional to the 1949 Geneva
Conventions, 2 Am. U. Int’l L. Rev. 415, 419–31 (1987) (remarks of Michael J.
Matheson, Deputy Legal Advisor, U.S. Dep’t of State).
13. Additional Protocol I,
supra note 12, art. 1.3.
14. EO 13732, supra note 8, at sec. 2(a)–(b).
15. Id. sec. 2(b).
16. Id. sec. 2(a)(i)–(iv).
17. Id. sec. 2(a)(v), (b)(i)–(ii).
18. Id. sec. 2(b)(iii)–(iv).
19. Id. sec. 3.
20. Reporting by the Director of National Intelligence appears to contemplate inclusion in the report of strikes or other operations resulting in civilian casualties conducted under the authority of the Central Intelligence Agency pursuant to the Covert Action Statute. 50 U.S.C. § 3093. See, e.g., David Welna, Trump Restores CIA Power to Launch Drone Strikes, NPR (Mar. 14, 2017, 4:28 PM), https://www.npr.org/2017/03/14/520162910/trump-restores-cia-power-to-launch-drone-strikes. For a more fulsome discussion of the covert action statute generally, see generally Major Peter C. Combe II, The Covert Action Statute: The CIA’s Blank Check?, 9 J. Nat’l Sec. L. & Pol’y 29 (2017).
21. Exec. Order No. 13862, 84 Fed. Reg. 8789 (Mar. 6, 2016) (amending
Exec. Order No. 13732).
22. See, e.g., Welna, supra note 20. For instance, this difference in reporting agencies may be at the root of the discrepancy described by some commentators regarding civilian casualties in Yemen. See, e.g., Abdulrasheed Al-Faqih & Kristine Beckerle, U.S. Fails to Acknowledge Killing Yemeni Civilians, Just Sec. (May 15, 2020), https://www.justsecurity.org/70151/u-s-fails-to-acknowledge-killing-yemeni-civilians/. While outside the scope of this article, it is interesting to note that this apparently relieves the Director of National Intelligence from reporting on civilian casualties caused by agencies other than the Department of Defense; begging the question of how to account for those operations when discussing U.S. Government-caused civilian casualties.
23. National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1057, 131 Stat. 1283, 1572 (2017).
24. The term Declared Theaters of Active Armed Conflict (DTAAC/ODTAAC) originally appeared in 10 U.S.C. § 130f, which required prompt reporting to Congress of any lethal “sensitive” military operations occurring ODTAAC. This statute was amended in 2018 to remove the terms DTAAC/ODTAAC, and instead requires reporting within 24 hours of any “sensitive” military operations occurring outside of Syria, Iraq or Afghanistan. See, e.g., John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115-232, § 1062, 132 Stat. 1636, 1970 (2018). This creates an apparent conflict, as the 2019 DoD report pursuant to this section applies the term “DTAAC” to those three countries, as well as Libya, Somalia, and Yemen. U.S. Dep’t of Def., Annual Report on Civilian Casualties in
Connection with United States Military Operations in 2019
(2020) [hereinafter
Annual Report on Civilian Casualties].
25. Id. at (a)(1).
26. Id. at (a)(5).
27. John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115-232, § 1062, 132 Stat. 1636, 1970 (2018).
28. Id. § 936.
29. U.S. Dep’t of Def., Report on Civilian Casualty Policy
(2019) [hereinafter
Report on Civilian Casualty Policy].
30. Id. at 3.
31. Id. at 4.
32. Id. at 9–10.
33. See e.g., U.S. Dep’t of Def., Dir. 2311.01, DoD Law of War Program (2 July
2020) [hereinafter DoDD 2311.01]; Chairman, Joint Chiefs of Staff, Instr.
3150.25G, Joint Lessons Learned Program (31 Jan. 2018) [hereinafter CJCSI 3150.25G].
34. See, e.g., Joint Chiefs of Staff, Joint Pub. 3-09, Joint Fire Support
(10 Apr. 2019) [hereinafter
JP 3-09].
35. Report on Civilian Casualty Policy, supra note 29, at 13.
36. Id. at 16.
37. Joint Chiefs of Staff, Joint Pub. 3-84, Legal Support
fig.I-1 (2 Aug. 2016).
38. See, e.g., Joint Pub. 1-04, Legal Support to Military Operations
(2 Aug. 2016).
In essence, we “threw” lawyers at very difficult problems, and they
produced solutions in virtually every case—often under very challenging
circumstances and in an uncertain security
environment. . . . I tried to get all the lawyers we
could get our hands on—and then sought more.
Id. at II–6 (quoting Major General David Petraeus).
39. Id. at I-14.
40. JP 3-09, supra note 34, at II-6 (discussing target nomination); id. at IV-13 (discussing target validation and Target Engagement Authority); id. at I-4 to -5 (discussing target engagement standards and processes).
41. See, e.g., DoD Law of War Manual, supra note 5, para. 5.10.2.3.
42. See, e.g., Nathan Isaacs, The Law and the Facts, 22 Colum. L. Rev. 1 (1922).
43. See, e.g., 1 U.S. Dep’t of Def., Man. 5205.07, DoD Special Access Program (SAP) Security Manual: General
Procedures
encl. 5 (18 June 2015) (C2, 30 Sept. 2020); 1
U.S. Dep’t of Def., Man. 5105.21, Sensitive Compartmented Information (SCI) Administrative Security
Manual: Administration of information and Information Systems
Security
encl. 3 (19 Oct. 2012) (C2, 6 Oct. 2020).
44. See generally DoDD 2311.01, supra note 33.
45. Report on Civilian Casualty Policy, supra note 29, at 13.
46. Id. at 14.
47. See, e.g., U.S. Africa Command, Instr. 3200.03, Reporting and Responding to
Civilian Casualty Allegations and Incidents
(1 Feb. 2019) [hereinafter ACI 3200.03];
Combined Joint Task Force, Operation Inherent Resolve Monthly
Civilian Casualty Report (29 Oct. 2020) [hereinafter
CJTF Report].
48. U.S. Africa Command Civilian Casualty Assessment Quarterly Report;
2nd Quarter, 2020, U.S. Afr. Command, https://www.africom.mil/civilian-casualty-report/us-africa-command-civilian-casualty-assessment-quarterly-report-2nd-quarter-2020 (last visited Oct. 1, 2021) [hereinafter CIVCAS Report].
49. In light of non-governmental organization (NGO) critiques, the Department of Defense (DoD) is also re-evaluating this binary assessment methodology. See, e.g., Ctr. for Civilians in Conflict, In Search of Answers: U.S. Military
Investigations and Civilian Harm 35-37
(2020); Siemion & Mahanty,
supra note 2; Report on Civilian Casualty Policy, supra note 29, at 14.
50. See, e.g., Annual Report on Civilian Casualties, supra note 24, at 9. There is no requirement in either international or domestic law, or policy, to investigate every allegation of civilian casualties. See, e.g., Ctr. for Civilians in Conflict, supra note 49, at 2. This “duty” appears to be based upon a conflation of civilian casualties with actions constituting a war crime or other violation of the Law of War. See, e.g., id. at 55, n.206. This is bolstered by the “Breakout Box,” which appears to indicate the authors’ perception that AR 15-6 investigations were always conducted prior to the implementation of the Civilian Casualty Assessment Report process. Id. at 39.
51. See generally U.S. Dep’t of Army, Reg. 15-6, Procedures for Administrative Investigations and
Boards of Officers
ch. 2, sec. 2 (1 Apr. 2016) [hereinafter AR 15-6]. This regulation is
most frequently used in Joint environments, and it requires legal
support to the investigating officer (IO) and to the appointing officer
taking final action. Ordinarily, the JA who provided advice on the
strike or operation, the IO’s legal advisor, and the Commander’s advisor
should be different attorneys.
52. See, e.g., ACI 3200.03, supra note 47. Ordinarily, the JA reviewing the assessment should be a different JA than the one who advised on the planning and execution of a strike or raid.
53. Annual Report on Civilian Casualties, supra note 24, at 6.
54. Id. at 16.
55. Ctr. for Civilians in Conflict, supra note 49, at 40, 43.
56. Annual Report on Civilian Casualties, supra note 24, at 16.; Ctr. for Civilians in Conflict, supra note 49, at 15.
57. Annual Report on Civilian Casualties, supra note 24, at 16.
58. See, e.g., Daphne Eviatar, The Fatal Flaw in DoD’s Latest Civilian Casualties Report, Just Sec. (May 14, 2020), https://www.justsecurity.org/70139/the-fatal-flaw-in-dods-latest-civilian-casualties-report/.
59. See, e.g., Welna, supra note 20. This circumstance appears to be recognized by NGOs, as the Letter to Congress recommends consolidating authorities for the use of lethal force within the DoD. See Letter to Congress, supra note 3.
60. See, e.g., discussion supra note 50; DoDD 2311.01, supra note 33.
61. See, e.g., AR 15-6, supra note 51, para. 3-11; Annual Report on Civilian Casualties, supra note 24, at 16.
62. CJCSI 3150.25G, supra note 33.
63. This is known as the Collateral Effects Radius (CER) or Collateral Hazard Area (CHA). See, e.g., Major Steven P. Dillenburger, Minimization of Collateral Damage in Airdrops and Airstrikes
(Sept. 28, 2012) (Ph.D. dissertation, Air Force Institute of Technology,
Air University), https://apps.dtic.mil/dtic/tr/fulltext/u2/a566426.pdf.
64. See, e.g., Joint Staff J-7, Joint Targeting Staff Familiarization Course
Syllabus
(2020),
https://www.jcs.mil/Portals/36/Documents/Doctrine/training/jts/jt_staff_syllabus31jan20.pdf?ver=gr_Il5kMRsYHFnk2c9YupA%3d%3d.
65. EO 13732, supra note 8, § 2(b)(i); Memorandum from Off. of the Under Sec’y of Def. to Sec’ys of the Mil. Dep’ts et al., subject: Development of a DoD Instruction on Minimizing and Responding to Civilian Harm in Military Operations (31 Jan. 2020).
66. DoD Law of War Manual, supra note 5, paras. 5.8.3, 5.8.4. The rule governing Direct Participation in Hostilities indicates that a civilian, ordinarily immune from attack, forfeits that protected status for such time as the civilian at issue directly participates in hostilities against a belligerent party.
67. See GC IV, supra note 7 (relating to the protection of civilians, in which the International Committee of the Red Cross is mentioned in no fewer than sixteen articles).
68. Nils Melzer, Interpretive Guidance on the Nation of Direct
Participation in Hostilities Under International Humanitarian
Law
(2009).
69. Id. at 47–58, 70. These three factors are: 1) threshold of harm; 2) direct causation; and 3) belligerent nexus. All three of these factors must be present for an individual to be considering “directly participating,” pursuant to the ICRC’s formulation of the rule.
70. Under DoD’s view, these three factors are important; but none are dispositive. See, e.g., DoD Law of War Manual, supra note 5, paras. 5.8.3, 5.8.4.
71. See, e.g., Sean Watts, Interpretation in the Updated GC III Commentary, Lieber Inst. (Dec. 15, 2020), https://lieber.westpoint.edu/interpretation-updated-gciii-commentary/.
72. Report on Civilian Casualty Policy, supra note 29, at 13.
73. Thus countering any assertion that U.S. policy preferences have become or reflect customary international law. See, e.g., DoD Law of War Manual, supra note 5, para. 8.1.4.2.
74. National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1057, 131 Stat. 1283, 1572 (2017); John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115-232, § 1062, 132 Stat. 1636, 1970 (2018).
75. John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115-232, § 936 (2018).
76. CIVCAS Report, supra note 48; CJTF Report, supra note 47.
77. See, e.g., U.S. Africa Command Civilian Casualty Assessment Quarterly Report;
3rd Quarter, 2020,
U.S. Afr. Command, https://www.africom.mil/civilian-casualty-report/us-africa-command-civilian-casualty-assessment-quarterly-report-3rd-quarter-2020 (last visited July 19, 2021); Annual Report on Civilian Casualties, supra note 24, at 6.