Amidst a backdrop of numerous critical humanitarian disasters around the globe, the Department of Defense (DoD) defined “civilian harm” for the first time in December 2023. While the attempt to outline the contours of civilian harm is welcome, the definition is, unfortunately, too narrow to meet the intent set forth by DoD’s Civilian Harm Mitigation and Response Action Plan. Instead of defining civilian harm as it is, the definition places artificial limits on the meaning. The DoD definition constrains civilian harm only to civilian casualties and damage or destruction of civilian objects, effectively neglecting damage to any other objects or other effects on civilians. It provides that other “adverse effects” will be considered in CHMR efforts only to the “extent practicable.”
The new definition reads: “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 DoD 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.”
This definition suffers from three fatal flaws. First, it attempts to define civilian harm as different from what it is. Simply because the civilian harm may not be observed or able to be mitigated by CHMR efforts in a specific circumstance does not change the fact on the ground that civilian harm did indeed occur. The definition attempts to create multiple levels of civilian harm, with the second part of the definition malleable to specific circumstances. While those limitations in which civilian harm can be observed, mitigated, or responded to need to be considered as part of DoD policy regarding DoD actions, these constraints on DoD action in no way change the content of civilian harm. Civilian harm is what it is.
Second, the first sentence of the definition, which can be referred to as the mandatory part, provides no more than what is already required by the law of armed conflict as part of proportionality analysis. The principle of proportionality states combatants “must 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.” Limiting civilian harm just to civilian casualties and damage or destruction to civilian objects is adding nothing to what the law requires and the DoD already does.
While the limitation to only civilian objects might appear reasonable to the layperson, the law of war defines civilian objects as objects that are not military objectives. Accordingly, this excludes the many military objectives that are dual use, i.e., serving a purpose for both the military and civilian populations. Typical examples may include bridges, roads, public utilities, and communications infrastructure. If the object supports the military, its destruction and the related effects on civilians are not required to be part of the DoD’s assessments and reporting of civilian harm. But practically speaking, even though it is not required to be part of proportionality analysis, damage or destruction of a dual-use object still presents harm to civilians.
As a matter of policy, some countries consider the non-military share of the dual-use object as collateral. In practice, the U.S. definition means that destroying a bridge in a critical location, even if it was crucial for the civilian population to access food or clean water, may not be considered to create civilian harm. Granted, the second part of the definition asks one to consider adverse effects on the civilian population and civilian environment “to the extent practicable.” So, following the above bridge example, there is the potential that in some circumstances, when analyzing civilian harm, the U.S. military would consider the lack of access to food or water as civilian harm. However, the civilian bridge itself could not be counted. It’s unclear if this indirect, non-tangible harm would count at all, which leads to the final point.
The definition’s exact scope of possible civilian harm is hard to grasp concretely. It explicitly states that “remote harm” is not included, but does that mean all “indirect harm”? The last twenty years of conflict, including those ongoing in Gaza and Ukraine, are replete with examples of indirect harm that was reasonably foreseeable, such as cutting off power to hospitals or blocking access to potable water. With just a basic understanding of the civilian environment, the death and disease that follow should be an expected and duly appreciated outcome of these actions. Reasonably foreseeable harm, even if indirect, should be explicitly included in the definition. Even if CHMR efforts cannot always address it in a specific circumstance, acknowledging it, so that it can be tracked and analyzed is the only way to understand the effects of our operations fully and have any chance of coming up with mitigating measures in the future.
DoD’s release of its definition of civilian harm would have been the perfect opportunity for the U.S government to create a much-needed distinction between law and policy—between what is required as a matter of law and what is understood to be the real impact of American military operations on civilians around the world. Yet, this seems to be a mostly missed opportunity. A more meaningful and useful definition of “civilian harm” should include everything that is indeed civilian harm. While it may be necessary for the Department to develop ancillary documents or concepts that narrowly detail which kinds of civilian harm can be mitigated or responded to, its bedrock definition of civilian harm should include damage and destruction to dual-use objects, as well as reasonably foreseeable indirect harm, including lack of access to items critical to survival. This would be a definition that matches the reality on the ground.
Why Can’t We Get Civilian Harm Right?
By Loren Voss
Conventional Arms
Amidst a backdrop of numerous critical humanitarian disasters around the globe, the Department of Defense (DoD) defined “civilian harm” for the first time in December 2023. While the attempt to outline the contours of civilian harm is welcome, the definition is, unfortunately, too narrow to meet the intent set forth by DoD’s Civilian Harm Mitigation and Response Action Plan. Instead of defining civilian harm as it is, the definition places artificial limits on the meaning. The DoD definition constrains civilian harm only to civilian casualties and damage or destruction of civilian objects, effectively neglecting damage to any other objects or other effects on civilians. It provides that other “adverse effects” will be considered in CHMR efforts only to the “extent practicable.”
The new definition reads: “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 DoD 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.”
This definition suffers from three fatal flaws. First, it attempts to define civilian harm as different from what it is. Simply because the civilian harm may not be observed or able to be mitigated by CHMR efforts in a specific circumstance does not change the fact on the ground that civilian harm did indeed occur. The definition attempts to create multiple levels of civilian harm, with the second part of the definition malleable to specific circumstances. While those limitations in which civilian harm can be observed, mitigated, or responded to need to be considered as part of DoD policy regarding DoD actions, these constraints on DoD action in no way change the content of civilian harm. Civilian harm is what it is.
Second, the first sentence of the definition, which can be referred to as the mandatory part, provides no more than what is already required by the law of armed conflict as part of proportionality analysis. The principle of proportionality states combatants “must 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.” Limiting civilian harm just to civilian casualties and damage or destruction to civilian objects is adding nothing to what the law requires and the DoD already does.
While the limitation to only civilian objects might appear reasonable to the layperson, the law of war defines civilian objects as objects that are not military objectives. Accordingly, this excludes the many military objectives that are dual use, i.e., serving a purpose for both the military and civilian populations. Typical examples may include bridges, roads, public utilities, and communications infrastructure. If the object supports the military, its destruction and the related effects on civilians are not required to be part of the DoD’s assessments and reporting of civilian harm. But practically speaking, even though it is not required to be part of proportionality analysis, damage or destruction of a dual-use object still presents harm to civilians.
As a matter of policy, some countries consider the non-military share of the dual-use object as collateral. In practice, the U.S. definition means that destroying a bridge in a critical location, even if it was crucial for the civilian population to access food or clean water, may not be considered to create civilian harm. Granted, the second part of the definition asks one to consider adverse effects on the civilian population and civilian environment “to the extent practicable.” So, following the above bridge example, there is the potential that in some circumstances, when analyzing civilian harm, the U.S. military would consider the lack of access to food or water as civilian harm. However, the civilian bridge itself could not be counted. It’s unclear if this indirect, non-tangible harm would count at all, which leads to the final point.
The definition’s exact scope of possible civilian harm is hard to grasp concretely. It explicitly states that “remote harm” is not included, but does that mean all “indirect harm”? The last twenty years of conflict, including those ongoing in Gaza and Ukraine, are replete with examples of indirect harm that was reasonably foreseeable, such as cutting off power to hospitals or blocking access to potable water. With just a basic understanding of the civilian environment, the death and disease that follow should be an expected and duly appreciated outcome of these actions. Reasonably foreseeable harm, even if indirect, should be explicitly included in the definition. Even if CHMR efforts cannot always address it in a specific circumstance, acknowledging it, so that it can be tracked and analyzed is the only way to understand the effects of our operations fully and have any chance of coming up with mitigating measures in the future.
DoD’s release of its definition of civilian harm would have been the perfect opportunity for the U.S government to create a much-needed distinction between law and policy—between what is required as a matter of law and what is understood to be the real impact of American military operations on civilians around the world. Yet, this seems to be a mostly missed opportunity. A more meaningful and useful definition of “civilian harm” should include everything that is indeed civilian harm. While it may be necessary for the Department to develop ancillary documents or concepts that narrowly detail which kinds of civilian harm can be mitigated or responded to, its bedrock definition of civilian harm should include damage and destruction to dual-use objects, as well as reasonably foreseeable indirect harm, including lack of access to items critical to survival. This would be a definition that matches the reality on the ground.
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