The U.S. Department of Defense (DoD) has updated its Law of War Manual to recognize the presumption that persons or objects are protected from being targeted unless the information available at the time indicates they are military objectives.Footnote 1 The update, the third set of revisions since the Manual's publication in 2015,Footnote 2 makes two significant substantive changes: (1) it revises Section 5.4.3 on “Assessing Information in Conducting Attacks”; and (2) it adds Section 5.5.3 on “Feasible Precautions to Verify Whether Objects of Attack Are Military Objectives.”Footnote 3 The 2023 update comes amid broader efforts within the U.S. government to mitigate civilian harm, including through DoD's issuance in August 2022 of the Civilian Harm Mitigation and Response Action Plan (CHMR-AP), the president's announcement in February 2023 of a new Conventional Arms Transfer Policy that emphasizes human rights considerations, the Department of State's reported promulgation in August 2023 of the Civilian Harm Incident Response Guidance, and DoD's December 2023 release of Instruction 3000.17 on Civilian Harm Mitigation and Response.Footnote 4 When he introduced the CHMR-AP, Secretary of Defense Lloyd J. Austin III emphasized that “the protection of civilians is a strategic priority as well as a moral imperative” that “reflect[s] our values and also directly contribute[s] to achieving mission success.”Footnote 5 Announcing the update to the Manual, DoD General Counsel Caroline Krass stated that this “version . . . provides greater clarity on the requirements of the law of war that are critical for protecting civilians and civilian objects during military operations.”Footnote 6
When it was first published in 2015, the Manual asserted that: “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects. . . . A legal presumption of civilian status in cases of doubt may demand a degree of certainty that would not account for the realities of war. Affording such a presumption could also encourage a defender to ignore its obligation to separate military objectives from civilians and civilian objects.”Footnote 7 These claims were severely criticized both by academics and politicians at the time and since.Footnote 8 The critiques argued that the presumption “is widely recognized as customary international law” and the contrary position incorporated into the Manual was based on an apparent earlier misinterpretation by DoD officials of the customary status of provisions of Additional Protocol I to the Geneva Conventions.Footnote 9 In March 2022, at a House Foreign Affairs Committee hearing, General Counsel Krass committed to review the issue.Footnote 10 The 2023 update reflects that review.
Revised Section 5.4.3.2 recognizes the presumption, which is characterized as a “legal duty,” and elaborates upon “Classifying Persons or Objects as Military Objectives When Planning and Conducting Attacks.”Footnote 11 The Manual now states that, “[u]nder the principle of distinction, commanders and other decision-makers must presume that persons or objects are protected from being made the object of attack unless the information available at the time indicates that the persons or objects are military objectives. This presumption is the starting point for the commander or other decision-maker's good faith exercise of military judgment based on information available at the time.”Footnote 12 “Under such a presumption,” therefore, “the person may not be made the object of attack unless the available information evaluated in good faith indicates that the person takes a direct part in hostilities. Similarly, an object dedicated to civilian purposes (such as a place of worship, a house or other dwelling, or a civilian school) is a civilian object and may not be made the object of attack, unless the available information evaluated in good faith indicates it is a military objective in the circumstances.”Footnote 13 What's more, “decisions [that a person or an object constitutes a military objective] must be consistent with the obligation to take feasible precautions to verify that the objects of attack are military objectives and with other obligations to seek to reduce the risk of incidental harm to civilians and other persons and objects protected from being made the object of attack.”Footnote 14 Altogether, then, so long as “commanders and other decision-makers make their decisions in good faith based on the information available at the time, take feasible precautions to verify that the person or object is a military objective, and act consistent with other obligations to seek to reduce the risk of incidental harm to civilians and other [protected] persons,” they may deem a person or an object a military objective “and make them the object of attack even if they have some doubt.”Footnote 15 In this way, the Manual concludes, “[t]he law of war accounts for the limited and unreliable nature of information in armed conflict.”Footnote 16
The Section then elaborates upon the component elements of the decision to deem a person or object a military objective. “Good faith” means that commanders and other decisionmakers “must have an honest and genuine belief that a person or object to be attacked is a military objective.”Footnote 17 There is no “fixed standard of evidence or proof.”Footnote 18 Rather, commanders and other decisionmakers must “exercise professional judgment in making any assessment that a person or object is a military objective, and what is reasonable in making that assessment depends on the circumstances[,] . . . includ[ing] the time and resources reasonably available, the risks to civilians from an erroneous decision, risks to friendly forces, and the military advantage expected from the attack.”Footnote 19 “[M]ere speculation” is not permitted, however.Footnote 20 Thus, “although an individual's age and gender may be relevant in determining whether a person is a military objective, the mere fact that a person is a military-aged male with no additional information would be speculative and insufficient to determine that person to be a military objective.”Footnote 21 Good faith decisions are made on the basis of “available information,” meaning the information “that is relevant to whether the potential target meets the applicable legal standard for a military objective.”Footnote 22 That “includes the characteristics of the potential target (e.g., the conduct or status of the person or the nature, location, purpose, or use of the object), as well as other information that indicates whether the potential target is a military objective (e.g., the military advantages or disadvantages offered by where the target is situated, intelligence estimates of enemy forces’ presence or anticipated action, enemy tactics, or assessments of civilian presence and behavior).”Footnote 23
The requirement to take “Feasible Precautions to Verify Whether the Objects of Attack Are Miliary Objectives” is discussed in new Section 5.5.3. Feasible precautions “are those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”Footnote 24 The Manual advises that “what precautions are feasible depends greatly on the context, including what time and other circumstances permit.”Footnote 25 The measures may depend, for example, “on how the attack is being conducted and what type of target is being attacked.”Footnote 26 Lest there be any doubt, the Manual clarifies that “the law of war, including the requirements discussed in this section, does not forestall commanders and other decisionmakers from making decisions and taking actions at the speed of relevance, including in high-intensity conflict, based on their good faith assessment of the information that is available to them at the time.”Footnote 27 Examples of feasible precautions include, but are not limited to:
• Reviewing the accuracy and reliability of the information supporting the assessment that a potential target is a military objective;
• Checking potential target locations against no-strike and sensitive site lists;
• Reviewing previously approved targets at reasonable intervals as well as when warranted in light of fresh information and changing circumstances, e.g., to ascertain whether enemy forces continue to use the object for military purposes or whether the object's destruction or neutralization continues to offer a definite military advantage;
• Gathering more information, such as visual identification of the target through intelligence, surveillance and reconnaissance platforms;
• Taking steps when carrying out a planned attack to confirm that the person or object to be attacked, is, in fact, the intended target of the attack; and
• Issuing communications to elicit reactions that inform whether a person or object is a military objective, such as summons of vessels to stop; directions given from intercepting aircraft; warnings required before the cessation of protection of medical units, vessels, or facilities; or some types of warnings before attacks that may affect the civilian population.Footnote 28
The update to the Manual was welcomed by those who had previously raised concerns,Footnote 29 but not everyone was pleased with the changes.Footnote 30 Some argued that there is doubt regarding the customary international law status of the relevant provisions of Additional Protocol I.Footnote 31 Others took issue with the characterization of any requirement—at least as it pertains to persons—as a “presumption.”Footnote 32 The objections reflect a concern with the potential operational consequences of a presumption, particularly that it might oblige U.S. forces to act too cautiously. How the update will affect training, planning, and operations is to be seen.
A number of criticisms of the prior version of the Manual were not incorporated into the 2023 update.Footnote 33 For example, the Manual continues to indicate that civilians “taking a direct part in hostilities” (thus forfeiting their protection) include those who “effectively and substantially contribute to an adversary's ability to conduct or sustain combat operations.”Footnote 34 That characterization of direct participation, it has been argued, is too broad and a “global outlier.”Footnote 35 The Manual also still provides for the duty to take “feasible precautions,” not “all feasible precautions.”Footnote 36 The omission of the word “all” has been decried as “lowering . . . the standard dangerously [to] understate[] the extent to which IHL requires parties to a conflict to take all of the precautions that are reasonable under the circumstances to safeguard civilian lives.”Footnote 37 General Counsel Kress noted upon the revised Manual's release that “[a]cting lawfully is an imperative that is fundamentally consistent with, and furthers, military success in the defense of our Nation. The Department will continue to update the Manual to provide DoD personnel with the best possible resource for understanding and complying with the law of war.”Footnote 38
