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Lieutenant General Alexus G. Grynkewich, USAF, is Commander of Ninth Air Force (Air Forces Central). Lieutenant Colonel Thomas R. Burks, USAF, is Deputy Staff Judge Advocate, Air Force Special Operations Command. Major Alex B. Coberly, USAF, is Director of Staff, Office of the Special Trial Counsel. Major Samantha A. McClure, USAF, is Chief of Operations Law, Fifteenth Air Force.
The Department of Defense (DOD) seeks to reduce civilian harm caused by military operations and to improve its ability to respond when civilian harm occurs. To this end, Secretary of Defense Lloyd Austin approved and released the Civilian Harm Mitigation and Response Action Plan (CHMR-AP) on August 25, 2022. CHMR-AP is a watershed initiative in which DOD commits to improving its ability to prevent, mitigate, and respond to civilian harm. No amount of prevention or mitigation will eliminate civilian harm in armed conflict, nor does international law demand that civilian harm be eliminated. Still, providing civilians more protection than international law requires is a policy initiative worth pursuing.
The Secretary of the Army is CHMR-AP’s joint proponent, giving the Army great influence over plan implementation across the joint force. Putting responsibility for CHMR-AP implementation in one of the Services may have its benefits, but it also introduces risk. Specifically, because the Services tend to view joint operations through the lens of what each Service does best—and the Army is a premier ground-combat force—CHMR-AP initiatives risk being overly influenced by a ground-focused perspective. A single-Service perspective risks overlooking CHMR-AP’s relevant capabilities from Services focused on other domains. Worse yet, it may result in civilian harm reduction initiatives that are operationally infeasible or at least suboptimal when exported to other Services’ forces.
To give CHMR-AP the best chance at success, it must be implemented from a deliberately all-domain perspective, employing the best ideas of the Services with sufficient flexibility for application across the joint force. This article supports this assertion by first outlining how the Law of War protects civilians and how CHMR-AP seeks to provide greater civilian protection as a matter of policy. Second, it turns to how Services tend to view what is optimal for the joint force through the lens of the domain each knows best and argues that a deliberately all-domain focus is the key to CHMR-AP success. Finally, the article closes with an overview of challenges to come in CHMR-AP implementation.
LOAC and Civilian Harm Mitigation
For most of human history, combatants put little thought into the collateral effects of organized violence. This changed in the mid-19th century as states agreed to impose limits on state conduct during armed conflict. Although the first limitations sought to protect combatants from unnecessary suffering, this thinking eventually extended to protecting civilians. The body of international law that now governs armed conflict is known as the Law of War. The Law of Armed Conflict (LOAC) is a subset of the Law of War that regulates belligerent activities once an armed conflict has begun.
The LOAC protects civilians through the interplay of three principles: military necessity, distinction, and proportionality. The principle of military necessity “justifies the use of all measures needed to defeat the enemy as quickly and efficiently as possible that are not prohibited by the law of war.”1 Distinction tempers the broad scope of military necessity by requiring combatants to distinguish between an adversary’s armed forces and the civilian population and between military objects and protected objects.2 Proportionality further narrows military necessity by requiring combatants to refrain from attacks in which “the expected loss of civilian life, injury to civilians, and damage to civilian objects incidental to the attack would be excessive in relation to the concrete and direct military advantage expected to be gained.”3 When implementing proportionality, LOAC requires that all parties to a conflict take feasible precautions to reduce the risk of harm to the civilian population.4 The precise definition of the term feasible is subject to debate; however, it is well settled that feasible does not require doing everything possible.5 From the DOD perspective, feasible means precautions that are practical under the circumstances.6
LOAC protections notwithstanding, civilians are still killed and wounded because of military operations. Brown University’s Watson Institute for International and Public Affairs places civilian deaths caused by military operations in post-9/11 wars at more than 432,000.7 The Watson Institute does not distinguish between civilian deaths attributable to U.S. operations and civilians killed by other belligerents. More on point, Airwars, a United Kingdom–based nonprofit organization, estimates U.S. airstrikes alone killed 22,679 to 48,308 civilians during the 20-year period from 2001 to 2021.8 Notably, these figures from the Watson Institute and Airwars represent only deaths caused directly by military operations. Not reflected are civilian deaths as a secondary or tertiary effect of military operations. Although a 2018 study by the Joint Chiefs of Staff noted that nongovernmental organizations use different and less stringent criteria than DOD when assessing the credibility of civilian harm reports, the data is sobering.9 Equally sobering is that civilians were harmed notwithstanding DOD’s “strong foundation” for LOAC compliance.10
CHMR-AP is the DOD attempt to reduce or reverse the trend of civilian harm by providing civilians with greater protection than LOAC requires. One may wonder why, if LOAC compliance is already happening, DOD plans to spend time and resources on increased civilian protection. Secretary Austin partially answers this question in the opening line of CHMR-AP when he calls protecting civilians a “moral imperative.”11 In the language of high government officials, a “moral imperative” is something consistent with the ideals of a nation, and perhaps the norms of the international community, but is not actually a legal requirement. In short, a moral imperative is the right thing to do.
Secretary Austin completes the answer when he calls civilian protection a “strategic priority.”12 For example, in low-intensity conflicts like counterinsurgency, civilian harm can create more insurgents, as can cultural insensitivities in an honor-based society. Some might argue that mitigating risk of civilian harm is less of an imperative in high-intensity peer conflicts, which pit nation against nation rather than against subcomponents of a society. However, at the strategic level, protecting civilians may be important to preserving a coalition or to maintaining staging and basing areas, materiel support, and overflight rights. Whether civilians are protected also affects how the world views and supports one belligerent over another. Protecting civilians is important at the operational level and could determine the success or failure of military operations. Furthermore, viewed more broadly, civilian harm mitigation is critical in the aftermath of a large conflict, contributing to postconflict stabilization efforts and creating allies in the place of enemies, as demonstrated by relationships since World War II between the United States and the former Axis powers.
Thus, CHMR-AP is a multipronged approach to preventing, mitigating, and responding to civilian harm at every level of conflict intensity. It will enhance civilian protection by integrating civilian harm considerations into operational planning and mission execution. CHMR-AP will also align data collection priorities to better assess civilian harm. Additionally, when civilian harm does occur, CHMR-AP will ensure the harm is assessed and lessons learned are incorporated into future operations. Finally, CHMR-AP will provide operational commanders with resources needed to achieve these objectives. The overarching goal is to better protect civilians by both incorporating harm mitigation into the operational decisionmaking process and prioritizing civilian harm prevention and response to the extent the operational context permits.13 While civilian harm in war will never be eliminated, DOD can and must do better as a moral imperative and strategic and operational priority.
All-Domain Perspective to Implementation
An all-domain approach to CHMR-AP implementation is the key to its success. Title 10 of the U.S. Code separates military forces into two broad categories: those assigned to combatant commands for conducting military operations, and those assigned to the Services for executing Service secretary functions.14 Once presented to combatant commands, Service formations are placed under the command of a single joint force commander under whom they conduct operations to achieve the commander’s objectives. With the DOD emphasis on joint operations and the need for DOD-wide implementation, one might expect CHMR-AP implementation to be the responsibility of the Office of the Secretary of Defense or perhaps a directorate of the Joint Chiefs of Staff or a combatant command with a global mission. Instead, DOD assigned responsibility for CHMR-AP implementation to the U.S. Army.
The Secretary of the Army is CHMR-AP’s joint proponent (as noted earlier), and a key CHRM-AP initiative— the Civilian Protection Center of Excellence—is a direct reporting unit under an Army deputy chief of staff.15 As the entity “assigned coordinating authority to lead the collaborative development and integration of a joint capability,” a joint proponent has great influence on how the joint capability is developed and implemented.16 As a ground combat organization, the Army is necessarily focused on operations in the ground domain. This risks having CHMR-AP initiatives be ground-focused, as military Services tend to view problems and solutions through the lens of what their Service provides to the joint force. For example, in the mid-1990s, Air Force arguments as to how joint responsibilities should be divided prompted Marine Major General Thomas Wilkerson to assert that Air Force suggestions are “a very inflexible, dogmatic arrangement whose primary virtue would be to allow the Air Force to do what it does best.”17 Just as the Air Force saw military operations through an airpower lens and gravitated toward an Air Force–optimized vision for the joint force, a single Service overseeing CHMR-AP could overemphasize a perspective based in its peculiar capabilities, formations, and methods.
During the implementation of CHMR-AP across the joint force, we must be careful not to overlook or give insufficient consideration to relevant capabilities that reside in Services other than that of the joint proponent. For example, Air Force air operations centers (AOCs) have a multidivision structure designed to conduct targeting analysis, plan air operations, and then assess the results of mission execution in a repeating iterative cycle. AOC best practices for assessment and incorporating lessons learned can be modified for use in other command and control models. Similarly, the Air Force targeting enterprise—composed of intelligence, surveillance, and reconnaissance wings dedicated to supporting targeting efforts—can improve pre-strike understanding of the civilian environment and provide both post-strike analysis and verification of third-party reports.
From an operational art perspective, the Air Force’s effects-based approach to operations provides an analytic framework by which the joint force can assess and mitigate the risk of civilian harm in a systemic and enduring fashion.18 Human terrain (that is, the local population) is part of the operational environment, and the addition of civilian harm to the overall systems analysis is a natural extension of the effects-based approach. While Air Force capabilities are necessarily air-centric, the potential exists for modified application across other domains of warfare, something policymakers may fail to realize or fully appreciate without full and open discussion across Service lines. No doubt CHMR-AP–relevant capabilities reside in each of the Services.
In addition to potentially leaving behind the best that each Service has to offer, single-Service CHMR-AP advocacy may result in initiatives that are less operationally feasible. As a force provider, the Air Force is responsible for organizing, training, and equipping personnel for employment by an operational commander. Additionally, every combatant command has an Air Force Service component, and that unit’s commander is almost always designated the joint force air component commander (JFACC). The JFACC is doctrinally responsible for integrating joint fires through the target nomination process and is responsible for planning and executing joint air operations with aircraft made available for tasking from across the joint force. The JFACC commands and controls these aircraft through a joint or combined AOC where joint air operations are planned and their effectiveness assessed in an iterative cycle. The AOC performs these functions in conjunction with an Air Force Service component staff. The collective result is that during an armed conflict, whether as a force provider or through component command, Air Force leaders are often responsible for planning, executing, and assessing nearly every airstrike. Given that airstrikes have been the source of most civilian harm in recent years—a trend likely to continue in a peer-level conflict—the success of CHMR-AP relies in significant part on whether its initiatives can be implemented from the air.19
Admittedly, it is possible that concerns over a single-Service CHMR-AP are overblown; DOD has been fighting jointly for so long that CHMR-AP implementation could have an all-domain perspective by default. But joint does not mean homogenous. Joint force commanders coordinate and synchronize different types of formations and functions to achieve overarching objectives. Joint operations are integrated to a degree, but for such operations to be effective, each Service’s forces must still be experts in the domain in which that Service primarily fights. Domain expertise shapes how Service forces approach joint operations, which can lead to less-than-optimal employment of forces focused on other domains. For example, during the 1943 Battle of Kasserine Pass, ground force commanders in Tunisia ordered their air support to provide defensive ground force coverage, rather than permitting them to attack enemy airfields, convoys, and other targets with greater long-term effect.20 The result of this posture was lack of air superiority and limited freedom of maneuver for ground forces as well as a great number of friendly-force casualties. Air forces were later permitted to attack targets of their own choosing, with great effect. The battle illustrates how expertise from one domain can lead to suboptimal employment when applied to a combat capability from a different Service with a different domain focus.
For CHMR-AP, the corollary is that a single-domain focus may design policy initiatives unfit for other domains, not fully realizing the complexities that make those initiatives infeasible or suboptimal when applied to the full realm of joint all-domain operations. No doubt every Service has a historical example from which the same lesson may be derived.
The following criticism is not to assert another Service’s primacy or to argue against the Army’s role as the Service heading the CHMR-AP joint proponent. Nor is the purpose to doubt the importance of expertise in ground warfare. Rather, the purpose is to note the risks inherent in a single-domain focus and to assert the need for an all-domain approach to CHMR-AP implementation. Few in DOD will disagree that an all-domain approach is needed, but achieving an all-domain perspective may be easier said than done. Creators of CHMR-AP initiatives must intentionally and deliberately overcome the tendency to think—even subconsciously—only in terms of the domains they know best. Likewise, each Service must do its part by making CHMR-AP a priority, providing domain experts to the Civilian Protection Center of Excellence and to civilian harm reduction teams on combatant command staffs. Like the creators of CHMR-AP initiatives, these additional experts must counter their own tendencies to think only in terms of the domain each knows best. A deliberately all-domain perspective ensures that measures related to civilian harm are designed and implemented in operationally feasible ways, employing the best ideas of the Services with flexibility sufficient for application across the joint force.
Thoughts on the Way Ahead
As DOD works to meet CHMR-AP objectives, it will do well to remember another imperative: that conflict objectives must be met. War is extraordinarily violent, and as the intensity of the conflict grows, so too will the rate of civilian harm. CHMR-AP initiatives must reflect this reality by defining methods for civilian harm mitigation that are based on the level of conflict. Although policy requirements for civilian harm prevention, mitigation, and response must be uniform to the best extent possible, differences in threat environment and world geography make complete uniformity impossible.21 But a one-size-fits-all policy is not the goal. Instead, civilian harm policy should have some provisions applicable across the board with others tailored to the type of conflict, the level of conflict intensity, and the area of operations.
In the same pragmatic vein, DOD must anticipate how CHMR-AP can be used in the information environment. For example, adversaries of the United States will not hesitate to incorporate failures in civilian harm policy into their information operations. DOD must be prepared to counter or preempt this messaging. DOD must also consider how it can use its civilian harm policy against those same adversaries. CHMR-AP is a watershed moment—the world’s superpower has committed to a policy that might limit military options for the sake of humanity. This is a commitment that U.S. adversaries are unlikely to duplicate, creating messaging opportunities for DOD.
As an extension of messaging in the information environment, DOD must be cognizant of how it speaks and writes about CHMR-AP initiatives. International law like LOAC is binding only on states that consent to be bound by its terms. State practice, meaning what national governments do and say regarding a given subject, can express intent to be bound by international law and provide interpretation of a legal principle to which a state is already bound. Accordingly, DOD must continue referring to CHMR-AP as a policy initiative and moral obligation while avoiding reference to it in terms of legal obligation. To do otherwise risks expanding LOAC requirements as they apply to the United States, losing CHMR-AP’s inherent flexibility.
Finally, DOD must prepare to implement CHMR-AP in areas in which it has limited or no access. Aircraft routinely collect data before, during, and after airstrikes. But as advanced as this technology is, it cannot see casualties lying beneath rubble. Ground forces can be a better option for finding and responding to civilian harm because their presence makes harm discovery easier and permits forming relationships with the local populace.22 However, the presence of ground forces is not a given. Unlike recent conflicts in which the joint force has largely enjoyed air supremacy and a permissible ground environment, a high-intensity peer conflict would require using aircraft and standoff munitions employed across great distances and deep into enemy territory. Freedom of maneuver will be restricted by varying degrees of domain control.
The net result is that access to civilian harm–related information may largely be limited to air, space, and cyber capabilities, and even that access will depend on the level of domain control and variables such as atmospheric conditions, orbital mechanics, and network and system access. Consequently, unless DOD finds another way to acquire data related to civilian harm, it may find itself in the same LOAC-focused posture it held before CHMR-AP was issued. Non-DOD sources may be the best option for DOD to overcome the information deficit. DOD must take a self-critical look at the reliability of non-DOD, third-party information sources and at how technology and analysis can be used to verify third-party claims. DOD must also consider communicating its information credibility standard to third parties, thereby increasing the quality of the information they could produce.
Executing CHMR-AP requirements during operations is ultimately a task for the joint force, with each combatant commander responsible for CHMR-AP implementation within the commander’s area of geographic or functional responsibility. CHMR-AP’s joint proponent is not a joint command or organization but the Secretary of the Army. Nonetheless, all military Services must contribute their expertise to CHMR-AP initiatives. CHMR-AP—through which DOD aims to offer civilians greater protection from harm than international law requires— can succeed only through an intentionally and deliberately all-domain approach. JFQ