What’s in the groundbreaking new policy on civilian harm mitigation and response?
For the first time in its history, the U.S. military has an official policy that standardizes how the Defense Department mitigates civilian harm and responds to it when it happens.
On Dec. 21 the Pentagon quietly released the “Department of Defense Instruction (DOD-I) on Civilian Harm Mitigation and Response” along with a website dedicated to CHMR. The policy assigns responsibility for the 2022 Action Plan mandated by the 2019 National Defense Authorization Act (NDAA), and the requirements called for in the new policy have been funded by Congress. How did this policy develop? Why was it needed, and what does it do? And, just how big a deal is this?
Civilian Harm Mitigation and Response is a systematic and focused approach to identifying and reducing risks to civilians from military operations to the maximum extent feasible and proactively responding when harm does occur.. That’s the textbook definition, but in practice it involves much more. For CHMR, the devil is in the details—and the DOD-I is full of details.
In 2007, General Dan K. McNeill, then Commander of the International Security Assistance Force in Afghanistan, realized he had a problem. With wars raging in Afghanistan and Iraq, American forces in both countries were killing civilians by the hundreds, destroying homes and infrastructure, and driving many to join insurgencies in the process. In an attempt to better understand the scale of civilian casualties, McNeill asked his subordinates how many civilians his soldiers had killed, but they couldn’t tell him—they weren’t counting.
McNeill’s query prompted the U.S. military to begin to collect data on civilian casualties, and then used those numbers to understand how and why civilians were dying in U.S. operations. That data informed changes to aspects of U.S. operations such as airstrikes, checkpoint procedures, and improved rules of engagement.
Within two years, civilian deaths from airstrikes decreased 70 percent. That was the start of what we now know as CHMR. Despite this early success, and many lessons learned ever since, theU.S. were slow to standardize these best practices.For example, while some combatant commands worked directly with nonprofit organizations like Airwars to get better data on when civilians were harmed in operations they simultaneously reduced the number of people working directly on civilian casualty (CIVCAS) reduction from a dozen to only two. With such uneven progress, Congress decided to step in.
The 2019 NDAA instituted far-reaching requirements on the Defense Department, including on reporting, oversight on arms transfers, and the creation of a civilian harm policy, but the Trump administration largely ignored it.
Things came to a head in 2021, during the first year of the Biden administration. The Pentagon was slowly putting together a plan on civilian harm, but an outside event gave the project an added urgency. On Aug. 29, 2021 a U.S. airstrike in Kabul killed an aid worker and his family. The after action investigations lasted through December, and by January 2022, Secretary Austin took decisive action, directing the Defense Department to create a plan to “improve our ability to mitigate and respond to civilian harm and to institutionalize these improvements.” The secretary gave his organization 90 days to do this. Unfortunately, the Pentagon didn’t act quite as decisively as Austin. Almost two years later, we finally have the policy.
Just to recap the timeline, in January 2022 the defense secretary told the Pentagon to create a plan to better protect civilians. That plan came out in August 2022, but the instruction that turns that plan into implementable policy came out yesterday.
The policy itself is broken up into five sections: responsibilities, mitigation, investigations, response, and the creation of a new center. The first section assigning who does what—the responsibilities—is the most important part. While hiring has been ongoing since the plan came out a year ago there have been many unknowns regarding which elements are responsible for which parts of the plan—who conducts investigations, who checks on allies, who trains soldiers, and the like.
There are a few notable elements either not seen in the original plan or that are now far more detailed. The first is the responsibility of allies and partners. On this point, 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. The policy requires the combatant commands conduct “civilian harm baseline assessments of allies and partners (CBAPs).” These assessments will look at compliance with the law in past operations and whether the partner force has proper harm mitigation in place. The CBAP will then be used by the Defense Security Cooperation Agency (DSCA)—the part of Defense Department responsible for arms transfers—to determine what needs to be done to bring any delinquent partners up to standard and provide them with those capabilities, training, etc. This is an additive policy, and while it doesn’t envision halting arms sales, it is possible that the State Department could use the CBAPs in its own arms sales determinations. The DSCA also trains allies and partners, and considering how NATO, the UN, and others are adopting CHMR, they will be busy.
The policy also goes far beyond the original plan in leveraging new technologies to better characterize the civilian environment. The U.S. military and intelligence community spends a lot of resources on understanding the enemy and how to kill them, but almost none on understanding the civilian populations and how to protect them. The new policy intends to change that. The civilian environment will become a part of the joint targeting process, so a commander will have more information before committing to a strike. That doesn’t mean the military can’t use force, just that when it does it will have a better understanding of the effects of that use of force. All of this will be managed by a new data management system to ensure information doesn’t fall through the cracks, as it has in the past. For example, a 2017 bombing of a mosque in Syria I investigated for the UN killed over 40 civilians, and CENTCOM later admitted one part of the targeting cell knew the building was a mosque, but another part didn’t.
The new policy also provides direction on weapons, including weapon selection (use precision-guided weapons, use weapons that can self-destruct in case civilians are nearby, develop weapons with scalable yields so you can lower the blast radius when civilians are near) as well as weapon development. The latter provides guidance on the development of more low collateral damage weapons. One such example is the GBU-39 Focused Lethality Munition, which can destroy a room in a building without harming anyone in other rooms. The policy contains much more guidance on training and responsibilities, but these archaic directives are as necessary as they are bland.
The section on mitigation may seem lean in comparison to responsibilities, but for those who have worked targeting before (I was Chief of High Value Targeting in the Pentagon in 2003) there is a lot here. It notes the need for mitigation efforts during both deliberate and dynamic targeting, for example. Deliberate targeting is when the military has time to plan out a strike, while dynamic is when targets of opportunity arise during the heat of battle and is therefore far more dangerous to the population, leading to more civilian casualties. This recognition will help the military put more resources into solving some of the vexing problems of civilian protection in a complex battlefield. It also provides more instructions on how to operate in partnered operations, such as sharing information to make sure both U.S. and partner forces have the best view of the operational environment. The U.S. isn’t just worried about how its own forces protect civilians—if American forces protect civilians, but our allies don’t, we have failed.
The section on investigations takes leaps forward in making sure claims of harm are not routinely ignored, establishing a “more likely than not” standard when determining if an incident happened, which can then lead to an investigation. As the advocacy group Airwars noted, “This is a significant step forward – and a marked difference in approach to its allies, such as the Brits.” Importantly, the policy standardizes the calculation of casualty ranges and encourages the use of non-Defense Department sources. One of the areas NGOs have been most critical of in Pentagon post-strike investigations is the use of classified information as the sole source of information used to investigate civilian harm. Now aspects of civil society, including the press and NGOs have been recognized as critical information sources.
The policy also extends harm to objects, not just people—a groundbreaking development. This means a destroyed home, for example, may also be considered within the civilian harm review. Investigations now also have important limitations, specifically on who conducts the investigation. To date, investigations have often been conducted by the unit involved in the event, but no longer. The policy creates civilian harm assessment cells (CHACs), but the assessors can’t be part of the unit being investigated. It also provides clear guidance on the expertise these certified CHACs must have, including intelligence, joint fires, and language specialists. Though this seems logical it took two decades of questionable investigations to make it happen.
The response section has grown out of real world failure. For example, the U.S. sets aside some $3 million annually to provide funds for those harmed by U.S. actions. For example, in 2021 not a dollar was spent— though two dozen cases were reported in the U.S. military’s own annual report on civilian casualties. But response is more than money, as the policy provides something victims and their advocates have long sought—acknowledgement. Throughout my career investigating civilian harm, most people I spoke to simply wanted to have their harm recognized and to understand what happened and why. In Libya in 2011, while working for the UN, I investigated a man who lost his family to a U.S. bomb. I later learned the bomb guidance tore off mid-flight. Though his family was killed by an American strike, they weren’t targeted. He kept asking me why no officials would explain to him how his family was killed. This will hopefully now change. The policy sets forth various types of condolences, as each region in which the U.S. military operates may have different societal norms requiring tailored responses. But for the first time the policy provides the U.S. military with clear response options.
Finally, the policy creates the Civilian Protection Center of Excellence (COE)—a one-stop-shop for best practices and lessons learned. It exists to support the operational commands with “reach-back, deployable expertise.” The action plan allowed the COE to begin hiring ahead of the publication of the DOD-I, and I met them in their offices in Crystal City, just down the road from the Pentagon. It’s an impressive collection of military servicemembers and civilians with real expertise taken from various disciplines and specialties, including the International Committee of the Red Cross and NGOs. Despite this promising start, the Pentagon’s hiring procedures have been heavily criticized. While the COE has been able to hire from outside the military, the combatant commands, intelligence community, and other elements are restricted to hiring only current Defense Department employees. This is terribly short-sighted. The policy recognizes the need for non-Defense Department data. If the Pentagon has been at the core of the problem of civilian harm, how can they solve it with insular hiring? This is one area that desperately needs to be changed.
The plan isn’t perfect. It has many more “shalls” than “musts,” giving more leeway to commanders than the NGO community will likely think healthy. The DOD-I’s definition of civilian harm is also hackneyed: “Civilian casualties and damage to or destruction of civilian objects (which do not constitute military objectives under the law of war) resulting from military operations. As a matter of Defense Department policy, other adverse effects on the civilian population and the personnel, organizations, resources, infrastructure, essential services, and systems on which civilian life depends resulting from military operations are also considered in CHMR efforts to the extent practicable. These other adverse effects do not include mere inconveniences.”
The “other adverse effects” is like lipstick applied by a lawyer to the proverbial pig. I daresay other adverse effects are probably bad enough for those experiencing them and needn’t be diminished. While it is great to see the inclusion of the various systems life depends on, the report is full of the qualifier, “to the extent practicable.” This does little more than weaken the standards the policy enacts.
This civilian harm policy will surely be a significant part of Secretary Austin’s legacy. He took the unusual step to sign the policy himself, something usually handled at a lower level, as he had taken personal ownership of the issue. In the grand scheme of things, this policy has far more good in it than deficiencies. It is groundbreaking. The U.S. is the first military to ever enact a policy aimed at uniformly instructing its forces to use a standard of civilian protection higher than the law calls for. If enacted properly this policy will save lives and lead to better operational outcomes for the military.
– Marc Garlasco is the military advisor at PAX and a consultant for the Pentagon’s Civilian Harm Mitigation and Response Action Plan. He is also a trainer at the Institute for International Criminal Investigations where he is currently training Ukrainian war crimes teams. Published courtesy of Lawfare.