News & Investigations

News & Investigations

Published

April 8, 2022

Written by

Sanjana Varghese

International gathering brings nearer a protocol on restricting explosive weapon use in urban areas.

States edged closer to a political declaration on the use of explosive weapons in populated areas on April 8th, after three days of crunch talks in Geneva.

More than 65 states descended on the Swiss city for key talks on the wording of a political declaration that advocates believe would save thousands of lives by restricting the use of wide area effect explosive weapons in populated areas (EWIPA). Detractors, such as the United States government, argue it would unfairly limit the freedom of their own military actions and have threatened not to sign.

While no final text was agreed upon Friday, all sides struck an optimistic tone at the end of the three-day meet – saying a deal was nearer than ever. Delegates will meet again for one day in two months before an adoption ceremony expected in the summer.

“There are clearly differences of opinion but we have seen a very positive, solution oriented approach,” the chairperson, Ambassador Michael Gaffey of Ireland, said. “We are not simply working on a formula of words in a political declaration –  we want to make a real difference and impact on the ground and foster behavioural change.”

The talks were given additional urgency by the ongoing war in Ukraine, and Russia’s extensive use of explosive weapons on its cities. Moscow did not attend the talks.

Even the United States, widely viewed as one of the most hostile states to a declaration with teeth, struck a more positive tone than in previous meets. “There are still tough drafting issues and decisions ahead, and we have to get them right. The US delegation pledges our goodwill, to help to get to a positive outcome. We look forward to doing so.”

Since 2018, Ireland has chaired consultations on the use of explosive weapons in populated areas. In the sessions since, the need for such a declaration – which is not legally binding and so does not create new legal obligations – has only become clearer.

“The draft declaration text holds the potential to make a meaningful contribution to the protection of civilians, and negotiations over the past few days have overall been constructive,” Laura Boillot of INEW, a network of NGOs pushing for the protocol, told Airwars.

“But decisions will now need to be made if the final text is going to have humanitarian effect. Most importantly it needs to establish a presumption against the use of explosive weapons with wide area effects in towns, cities and other populated areas.”

It will be a failure to leave this room agreeing that simply restating existing laws will reduce civilian harm – a failure for all of us who came here with the intention to reduce that harm in the first place." @alma_osta in HI concluding remarks at #EWIPA negotiations today. pic.twitter.com/pTKpgfqWWU

— HI_Advocacy (@HI_Advocacy) April 8, 2022

Civil society groups and international agencies made a strong case for restricting EWIPA.

Three days of consultations

During three days of focused talks, several key fissures bubbled. While states in attendance – and civil society organisations – repeatedly emphasised the shared desire to produce a tangible and meaningful political declaration that could help save civilian lives on the ground, the practicalities of the process made clear that good intentions weren’t going to be enough.

On the first day of the informal consultations on April 6th, states made general remarks – affirming their support for the proceedings as well as their national positions – after an introductory statement from Ireland, the penholder.

In these general remarks, most states tended towards re-affirming the positions they had made clear in previous negotiations. On the hawkish side, the UK, US, Israel and Canada all emphasized that their positions as militarily active states meant that they would not sign a declaration in its current form, which included strong language about avoiding the use of explosive weapons in urban areas. Throughout the week, the delegates from these countries could often be seen meeting as a bloc outside of formal proceedings.

Many of the sticking points that emerged on the first day continued to dominate both the main floor and side conversations. The predominant line of argument was between those who argued that the declaration needed only to reaffirm the importance of international humanitarian law and provide further guidance about how to do so in this context; and those who asserted that this declaration needed to strengthen existing commitments and add new ones for states around the use of explosive weapons.

The second day of discussions took a more technical turn, with the majority of interventions focused on the wording of specific clauses and paragraphs of the text.

Clause 3.3, which attracted much attention in previous consultations, was once  again hotly debated. It is one of the first clauses in Section B, the operative section – which lays out the actions that states have to comply with if they choose to sign onto the declaration.

In the current draft, Clause 3.3 says states must: “Ensure that our armed forces adopt and implement a range of policies and practices to avoid civilian harm, including by restricting or refraining from the use of explosive weapons with wide area effects in populated areas, when the effects may be expected to extend beyond a military objective.”

The bulk of the discussion around this clause was on the second sentence, as many states intervened on the use of “restricting or refraining,” with some suggesting it was strong enough while others lobbied instead for the use of “avoid”.

A split between the majority of civil society organisations and militarily-powerful states was apparent during these parts of the discussions, with NGOs and international agencies pushing for stronger language, rather than trying to place limits on what kinds of civilian harm would be protected under this new declaration.

Airwars’ incoming director and current head of research Emily Tripp also made an intervention – emphasising how crucial it was for states to actually track civilian harm.

Airwars’ incoming director Emily Tripp addresses a UN-backed conference on explosive weapons in Geneva on April 7th, 2022 (Image: Airwars)

At the end of day two INEW, one of the organisers, named nine states – Belgium, Canada, Denmark, Israel, the Republic of Korea, Sweden, Turkey, the United Kingdom and the United States – that it said had “worked to weaken declaration provisions.” The UK delegation, for example, agreed that tracking civilian harm was a ‘moral obligation,’ but then highlighted ways in which it claimed this was not feasible – arguing that live hostilities made it near impossible to monitor casualties properly.

But INEW also said that there had been a “shift in the collective tone set by states since the last round of negotiations, with more governments explicitly committed to strengthening the protection of civilians through the declaration.”

The statement said this was likely as a response to the bombing of Ukrainian towns and cities, and the Ukraine crisis loomed large over the conflict. Not only did the majority of states open their remarks with condemnation of the Russian aggression in Ukraine, many also emphasised the importance of a meaningful political declaration with specific reference to Ukrainian cities and towns such as Mariupol, Bucha and Khrarkiv.

There was also an emphasis on the value of protecting civilian objects and infrastructure, such as schools and hospitals, with states such as Mexico and the delegate for the Holy See (which holds observer state) urging specific language around the need to protect hospitals, blood transfusion centres, and environmental and religious sites.

Speaking at the end of the latest talks, Ambassador Gaffey said Ireland and organisers would review the submissions from all parties before a month or two of further work on the text. He said states and NGOs would then hold a final one-day consultation in a couple of months, before a political adoption ceremony where states would declare their support for the text.

As Alma Taslidžan Al-Osta, of Humanity and Inclusion, noted in her own concluding remarks to delegates: “Eleven years in Syria, seven years in Yemen and over a month in Ukraine have taught us that explosive weapons with wide area effects should not be used in towns, cities and populated areas. The status quo is no longer an option.”

Civilians increasingly bear the brunt of modern conflicts. Addressing the devastating harm to civilians from Explosive Weapons in Populated Areas is a priority for 🇮🇪. We welcome states, international organisations and civil society to consultations in Geneva this week #EWIPA pic.twitter.com/pAyglwZO9D

— Disarmament IRELAND (@DisarmamentIRL) April 6, 2022

Ireland chaired Geneva talks on restricting urban use of explosive weapons

▲ The three-day EWIPA conference in Geneva sought to reach a deal on the use of explosive weapons in urban environments (Airwars)

Published

April 7, 2022

Written by

Sanjana Varghese

Crunch talks in Geneva aim to hammer out protocol on explosive weapons in urban areas

The shadow of the Ukraine conflict loomed large over the first day of the informal UN-backed consultations on a political declaration on restricting the use of wide area effect explosive weapons in populated areas (EWIPA), currently underway in Geneva.

Delegates from more than 65 nations have gathered to fine tune the language of the political declaration, along with more than 15 civil society organisations including Airwars. The chairperson, Michael Gaffey of Ireland, opened the proceedings by calling for a minute of silence for Ukraine.

Nujeen Mustafa, who had fled the war in Aleppo, then powerfully testified via a video message, saying, “throughout history, diplomats have discussed world problems while sitting at a table with a nice coffee. People trapped in a conflict zone cannot do that. Today, you have the possibility to change a terrible situation and protect civilians.”

Nujeen Mustafa, a Syrian who fled Aleppo after it was largely destroyed by explosive weapons, addresses delegates:“While you’ve been negotiating whether a declaration should be made, 11,076 people have fallen victim to these weapons" she sayshttps://t.co/DI9vYhD6nq

— Airwars (@airwars) April 6, 2022

While there are two days of discussion left before proceedings close on Friday evening, many of the most pressing issues arose in proceedings on Wednesday – particularly as states laid out their own positions during opening remarks. Here are five key themes from the first day of EWIPA negotiations.

1. The conflict in Ukraine adds a sense of urgency

The first statement was made by the Ukrainian delegate, who noted that “our cities and towns have been turned into dead ash because of the use of these explosive weapons” – highlighting a new sense of urgency and relevance which the negotiations have taken on.

Every delegate who spoke made reference to the Ukraine conflict, with many emphasising that the violent and horrific violence against Ukrainian civilians must move states to act more effectively. The French delegate noted that Russia did not attend the proceedings, while the Japanese delegation emphasised the importance of documenting civilian harm in Ukraine.

Many other states called on Russia to cease its aggression and indiscriminate bombing of civilians and it was noted multiple times that Russia’s campaign has targeted and destroyed civilian neighbourhoods using wide area effect explosive weapons – referring to the scenes of destruction in Kherson, Mariupol, and Kharkiv.

2.  The gap between ‘IHL is enough’ and ‘IHL does not go far enough’

Broadly the delegates and countries fall into two groups – those that believe international humanitarian law (IHL) is enough to protect civilians under attack in urban areas – and those that argue more is needed to protect civilians.

States such as the USA, UK, France and Israel argued that any political declaration could not introduce new legal requirements (which it cannot) and that the requirements currently set out under IHL should be sufficient protection for civilians. Currently, these frameworks emphasise for example that deliberately attacking civilians and civilian infrastructure constitutes a violation of IHL – and that any military actions must be both proportionate, and distinguish between civilians and combatants.

Those backing strong wording to the political declaration text – from Ireland to the ICRC – insist that adherence to IHL alone is not doing enough to protect civilians during much urban fighting.

The US nevertheless called on those states gathered not to produce an “unrealistic impression” that civilians would not be harmed in conflict, while emphasising that explosive weapons are “considered a legitimate and lawful means of warfare when used in accordance with IHL.”

But other states, as well as civil society organisations such as Human Rights Watch, emphasised that any resolution which merely restated the value of IHL – and how states must abide by it – would effectively be useless, as it would be an iteration of what states have already committed to.

States such as Finland and Sweden remarked that there are gaps within IHL around EWIPA , and mere compliance with IHL is not enough to protect civilians.  This has been an ongoing fissure during previous consultations, and continues to be a major fault line.

3.  Reverberating effects

The particularities of the language used in the eventual political declaration are at the heart of the ongoing consultations in Geneva – with discussions about whether to “avoid” or “restrict” the use of explosive weapons in populated areas already a key sticking point.

An additional area of tension appears to the so-called “reverberating effects” of EWIPA, which are essentially the long-term effects.

An example of a reverberating effect would be the destruction of a bridge. If destroyed, it has the immediate effect of removing a crucial piece of civilian infrastructure. But even after the conflict finishes the destruction could also mean that people can’t travel across a certain river, making it harder to access other kinds of civilian infrastructure such as hospitals or schools.

These long-term impacts were the subject of much discussion on Wednesday – with some states, such as the US, Israel, and the UK all noting that ‘reverberating effects’ is neither a legal term nor – they claimed – a widely accepted term with a clear definition. The US also said it would not accept a ‘novel’ term such as reverberating effects in the eventual political declaration.

However, civil society organisations such as PAX and observer states such as the Vatican suggested that it would be difficult to meaningfully understand the full implications of how civilian populations were impacted without incorporating ‘reverberating’ effects.

4. Focus on the humanitarian impacts

The Holy See opened its own remarks by noting that it believes conventional weapons should be named “weapons of mass displacement,” a nod to the ongoing long term effects that explosive weapons can have. The Danish Refugee Council also noted that the use of EWIPA can contribute to displacement, and in time, continuously produce forms of renewed displacement.

Some other states such as Uruguay emphasised the need to collect and monitor the impacts of EWIPA on specific groups – such as those with disabilities, or those who face discrimination because of their gender. Organisations such as CIVIC, PAX and Humanity and Inclusion also spoke about the psychological and mental effects of the use of explosive weapons, notably the need for a survivor-centric approach to any kind of political declaration.

 5. The impact of non-state actors 

While the political declaration is primarily a matter between states, the UK, Israel, the US and others asked that the considerations around EWIPA must also extend to non-state actors, such as armed groups, in the interest of maintaining what they termed a balanced account of how explosive weapons are actually used in populated areas.

The US noted for example that “the declaration has to make it clear that all belligerents, including non-state armed groups, must take steps to address the harms to civilians and civilian objects.” The Turkish delegation argued that asking non-state actors to really consider these impacts would also mean they would be considered as legitimate parties to an international armed conflict – which they are currently, for the most part, not.

The declaration has to make it clear that all belligerents, including non state armed groups, must take steps to address the harms to civilians and civilian objects,” says the USA, intervening for the second time today. pic.twitter.com/cNBYvzncqN

— Airwars (@airwars) April 6, 2022

▲ MPs from various European countries attend the first day of EWIPA talks on April 6, 2022 (Photo: INEW)

Published

April 6, 2022

Written by

Sanjana Varghese

Assisted by

Joe Dyke

Speaking at key Geneva talks, SNP's defence spokesperson calls on nations to back strong EWIPA protocol

Stewart McDonald MP, the defence spokesperson for Scotland’s ruling Scottish National Party (SNP), called on Wednesday for the United States and United Kingdom to join those nations backing restrictions on the use of explosive weapons in urban environments during key talks in Geneva.

On April 4th the SNP became the largest British party – and one of the largest in the world – to lend its support to restricting the use of explosive weapons in urban areas (EWIPA).

The policy – part of a wider SNP Protection of Civilians paper expected soon – was announced to coincide with crunch talks in Geneva, where dozens of countries are meeting to hammer out the wording of a protocol, or political declaration, on EWIPA. While the proposals are supported by the United Nations and many other nations, both the United States and United Kingdom are currently expected to oppose the protocol, while Russia is not attending the talks.

“It is unlikely that the United States or Russia are going to be signatories to it and that is deeply unfortunate – in fact it is worse than unfortunate,” Stewart McDonald MP told Airwars. “I am convinced that deeper cooperation internationally is what we need right now.”

During three days of talks, representatives from more than 65 nations are meeting in Geneva to discuss the potential final language of the political declaration. In Wednesday’s opening session, the US again said it had major reservations about restrictions on explosive weapons use.

The US and other states critical of the protocol argued that international human law is enough to limit civilian harm, but advocates say that when used in cities weapons designed for the open battlefield will always disproportionately harm civilians.

McDonald added that he was “optimistic” rather than confident that a strong text could still be agreed. But he raised concerns that the wording could be watered down by obstructive nations, including the United Kingdom, making it effectively meaningless.

“We will see what comes at the end of it, but anything that is not robust, that doesn’t have broad, multilateral buy-in to it, might make some people feel good – but I am not sure I would call that a success.”

🇺🇳 My remarks at today’s session at @UNGeneva on the #EWIPA negotiations, being led by 🇮🇪 @dfatirl. It was a pleasure to speak alongside fellow parliamentarians from Belgium 🇧🇪 and France 🇫🇷. The growing international consensus needs to coalesce around robust civilian protections pic.twitter.com/PWpUTSb8zz

— Stewart McDonald MP (@StewartMcDonald) April 6, 2022

McDonald said the new SNP declaration was a significant moment for both his party and the United Kingdom. The text declares that there “must be a presumption against the use of wide-impact explosives in conflicts that take place in populated and urban territories. SNP fully supports the ongoing UN-backed process to develop a political declaration addressing the use of explosive weapons in populated areas.”

The announcement comes ahead of a full approach the party intends to announce later this month outlining how the SNP, and potentially a future independent Scotland, would seek to protect civilians in conflicts.

“I believe my party should think like a state and act like a state – so if Scotland were independent, how would it approach these issues? That’s why we have taken the time to develop a policy around protection of civilians to show people where we think people would go.”

“But importantly, in the here and now what the UK government should be doing.”

While the SNP’s defence spokesperson said that Russia’s invasion of Ukraine – which has seen thousands of civilians killed while trapped in cities – had focussed attention on the scourge of explosive weapons use, McDonald also highlighted similar civilian suffering in Syria, Iraq, Yemen and elsewhere. Research by Action On Armed Violence indicates that around 90 percent of those killed and injured by explosive weapons in populated areas are civilians.

“Ukraine has gathered the public and political momentum now [and] I think that does mean correctly that these negotiations take on a particular urgency to succeed and deliver something meaningful.”

“How do you scroll through social media right now, and not want something serious to happen?”

The political declaration talks are continuing until April 8th. Airwars’s social media coverage of the first day can be viewed here.

Full text of SNP policy extract: Explosive Weapons in Populated Areas

When explosive weapons are used in populated areas – where conflicts increasingly take place – studies suggest that more than 90% of those killed and injured are civilians. Vital facilities such as sanitation systems and hospitals are disproportionately destroyed in attacks using these weapons, exacerbating risks to civilians who become further exposed to deadly diseases and further robbed of medical assistance. There must be a presumption against the use of wide-impact explosives in conflicts that take place in populated and urban territories.

SNP fully supports the ongoing UN-backed process to develop a political declaration addressing the use of explosive weapons in populated areas. An independent Scotland would look to sign on to this declaration. Additionally, Scotland should ratify the 2008 Convention on Cluster Munitions as well as the 1997 Anti-Personnel Landmines Convention.

▲ SNP Defence Spokesperson Stewart McDonald (centre) addresses a UN-backed conference on explosive weapons in urban areas with fellow European MPs on April 6th 2022 (Photo: Airwars)

Published

April 5, 2022

Written by

Sanjana Varghese

Crucial UN-brokered talks begin on restricting heavy explosive weapon use in populated areas

State delegates from around the world will meet this week in Geneva for UN-backed crunch talks, working towards a political declaration on restricting the use of wide area effect explosive weapons in urban conflict. If successful, the move could help save thousands of civilian lives.

Representatives from more than 60 countries will meet from April 6th-8th in the Swiss city of Geneva to try and hammer out the wording of a protocol, or political declaration, on restricting the use of wide area effect explosive weapons in populated areas (EWIPA).

As wars have increasingly moved from open battlefields to urban environments, weapons designed for the former are being deployed in heavily populated areas – sharply increasing the risks of harm to civilians and civilian infrastructure.

UN and civil society reports have repeatedly found that civilians and civilian infrastructure are at most risk when heavy explosive weapons are used in populated areas. This has been clearly demonstrated in recent weeks in Ukraine as Russian forces have pounded civilian neighbourhoods with devastating results, but has also been documented in other recent conflicts across the globe.

Research by Action On Armed Violence indicates for example that around 90 percent of those killed and injured by explosive weapons in populated areas are civilians.

“Ukraine puts a spotlight on the devastating consequences civilians face when towns and cities are bombed. But this is a pattern of harm that we see elsewhere too: Ethiopia, Gaza, Iraq, Yemen, and Syria are all recent examples,” said Laura Boillot, coordinator for the International Network on Explosive Weapons, which is leading civil society efforts to restrict EWIPA use.

To highlight the EWIPA talks, the campaigning group Humanity & Inclusion has installed a tank made of balloons outside the United Nations in Geneva (Credit: Megan Karlshoej-Pedersen/Airwars)

“This week, states have an opportunity to reduce civilian harm and agree a new international declaration that commits states to avoid the use in populated areas of explosive weapons with wide area effects.”

In 2019, Ireland convened the first EWIPA negotiations, inviting delegates from every country to join and shape a resolution to change how explosive weapons are used in populated areas.

In the years since, delegates have continued to gather to discuss the text of the declaration – which will be finalised and ratified by states this summer.

While not a United Nations process, the EWIPA proceedings are backed heavily by the UN; and Secretary General Antonio Guterres has repeatedly called for countries to adopt a strong protocol.

When explosive weapons are used in populated areas, 90% of the casualties are civilians, causing devastating suffering.

I again call on countries to avoid using explosive weapons in populated areas. https://t.co/OS4OgqJ771

— António Guterres (@antonioguterres) March 30, 2022

US, UK, France in focus

During three days of talks in Geneva, representatives from attending countries will pore over the draft resolution and try to agree on key sections of text.

Much of the focus will likely be on winning the support of those states which have previously attempted to water down the declaration’s language, including the United States, the United Kingdom and France. While some states argue that abiding by international humanitarian law (IHL) is enough, others like Britain also claim that limiting explosive weapon use in cities “would reduce the UK’s ability to operate legitimately and responsibly.”

Critics say that adherence to IHL alone is not sufficient to protect civilians during attacks on cities – a point recently supported by a major Pentagon-published study into the ferocious 2017 Battle of Raqqa, which noted that the US-led Coalition caused “significant civilian harm despite a deeply ingrained commitment to the law of war.”

Efforts by the US, UK and others to water down the political declaration would make it effectively useless critics warn – and crucially, would not lead to changes in the way that states actually approach the use of explosive weapons in cities.

Given the horrors of urban civilian harm in Ukraine, a very disappointing answer from UK government on whether it will commit to restrictions on explosive weapons use in cities, at upcoming @UN talks in Geneva. (Thanks to @MargaretFerrier for question.) https://t.co/BHWDagQD1D pic.twitter.com/LmK7mgStKv

— Airwars (@airwars) March 17, 2022

Detailed negotiations

The draft resolution being discussed at Geneva consists of two parts – a preamble, which lays out the framework and overall considerations; and the operative section, which effectively compels states to act. For example, the value of tracking civilian casualties in real-time are currently mentioned in the preamble, but aren’t in the operative section – though some states are pushing for it to be moved there.

Broadly speaking, those attending the political declaration talks can be split into two camps: those states that argue the resolution should use weaker language; and those nations – backed by the UN – arguing that the declaration should be as strong as possible.

Other key states, including Russia and China, are not expected to attend this round of talks.

Among the strongest advocates for an effective political declaration is Ireland, which has led the process. UN Secretary-General Antonio Gutteres has also called for “strong” wording. “The Secretary-General supports the development of a political declaration, as well as appropriate limitations, common standards and operational policies in conformity with, and further to existing requirements under, international humanitarian law relating to the use of explosive weapons in populated areas,” he said in a recent statement.

Some countries, such as Belgium, have already passed their own parliamentary resolutions indicating that they will be signing the declaration, although it is still unclear how this would be implemented in practice.

While these negotiations were originally planned to be the final in a series of discussions, there may still be a further round ahead of final ratification in the summer. In the meantime, supporters of controls on explosive weapon use in cities believe that Russia’s extensive use of indiscriminate large weapons on Ukrainian cities – and the horrific civilian toll associated with such attacks – may help sway wavering countries.

Armed conflicts in urban areas are increasingly fought with weapons that are not designed or adapted to be used in populated areas.

As a result, the effects of these weapons go well beyond their targets and have devastating consequences for civilians. pic.twitter.com/UUS2YMWW0x

— CIVIC (@CivCenter) April 1, 2022

▲ Remnants of a wide area effect explosive weapon used in Syria (Credit: White Helmets)

Published

March 31, 2022

Written by

Sanjana Varghese

US-led coalition against Islamic State had not admitted harming civilians in eight months

The US-led International Coalition has quietly admitted to killing 18 more civilians in Iraq and Syria and injuring a further 11, its first such public concession in eight months.

On March 10th, Operation Inherent Resolve (OIR) – the US-led coalition against the so-called Islamic State – quietly released on its website its first public civilian harm assessment since July 2021. It assessed a total of 63 incidents dating back to 2015, of which 10 were assessed to be ‘credible’ – meaning the Coalition accepted causing civilian harm.

The statement conceded that 18 civilians were killed and 11 were injured cumulatively in these ten events. Matching the incidents to its own archive, Airwars put the likely casualty numbers far higher for these events, with between 45 and 166 civilians reportedly killed. The remaining 53 incidents were deemed ‘non-credible.’

Unlike previous Coalition announcements on civilian harm, there was no accompanying public press statement or social media commentary. In a phone call to Airwars, CENTCOM confirmed it had published the information without any public announcement.

The release came after US Defense Secretary Lloyd Austin had ordered a comprehensive review into US military civilian harm processes following intense media scrutiny. As the Coalition itself noted in its opening paragraph, “this report is released as part of the commitment by the U.S. government to increased transparency and accountability.”

In total since the beginning of the war against ISIS in 2014, OIR has assessed 3,034 incidents of reported civilian harm from its air and artillery strikes. The alliance has only conceded 360 of these events to be credible allegations of civilian harm, according to Airwars analysis.

While the Coalition now concedes killing, overall, at least 1,437 civilians in its long war against the Islamic State, Airwars believes the likely tally is in fact at least 8,192 to 13,243 civilians killed.

Decline in releases

Civilian harm assessments released by the US-led Coalition were published monthly for a number of years, although they have significantly dropped in frequency since 2020. Last year, only seven such reports were released – four of them in the month of July. This was the first report since then.

Of the 10 incidents designated credible by the Coalition in its new report, seven were referrals from Airwars’ own archive. We were able to match an eighth event which was referred via both Amnesty and Airwars, to an incident within Airwars’ own database.

In only two of the eight events in the Airwars database admitted by CENTCOM did its own civilian casualty estimates match the public record. In the other six, US military concessions were far lower than the figures local communities had reported.

One of the ten ‘credible’ civilian harm incidents occurred on June 9th 2017 in Raqqa, during the most intense period of fighting for that city. Eight members of the al-Nasser family, including four children, were killed by a Coalition airstrike when their family home was hit. Najma Fadawi al-Nasser, whose 60 year old brother Faddawi was killed in the attack, had briefly left her cousin’s home when the strike happened. As she later told Amnesty “we were together and then I went to my cousins’ house across the road and my brother’s house was bombed and they were all killed. Why did they kill innocent people?” The incident was initially assessed by the Coalition as non credible. Now, four years later, the Coalition has conceded that eight civilians “were unintentionally killed due to their proximity to the strike.”

A further 53 incidents in the new report were assessed or reassessed by the Coalition to be  ‘non-credible.’ A range of reasons are usually given for such categorisation, including  ‘no strikes were conducted in the geographical area’; or that the ‘original allegations did not have sufficient information on the time and location of the incident’. However, these 53 incidents were all – highly unusually – designated as ‘non-credible’ for the same reason: that “after review of all available evidence it was determined that more likely than not civilian casualties did not occur as a result of a Coalition strike”.

Along with basic information about each incident, the Coalition’s own assessments also included an MGRS code, a military variation of latitude and longitude coordinates, which makes it possible to geolocate where each incident is alleged to have happened. Airwars found that at least one of the ‘non credible’ incidents had a location code in Turkey, indicating an error.

New York Times investigation

One of the ‘credible’ incidents in the new report, in Baghouz, Syria in March 2019, had previously been rejected twice by the Coalition as ‘non-credible’. A blockbuster New York Times investigation into the event recently led the Department of Defense to open an investigation into the incident – despite CENTCOM still classifying it as ‘non-credible’. While Airwars estimates that between 20 and 100 civilians were likely killed as a result of this strike, CENTCOM itself now says, “Regrettably, four civilians were unintentionally killed due to their proximity to the strike.” The release does not detail how this number was reached, or why it has only conceded four.

In January 2022, US Defense Secretary Lloyd Austin ordered a 90-day review into the Baghouz event and associated processes, which is due to publish by the end of April. Given that ongoing investigation by a four star US general – which Airwars has assisted – it remains possible that CENTCOM may yet release a fourth assessment of the event.

Speaking about the latest Coalition civilian harm release, incoming Airwars Director Emily Tripp noted: “While we welcome the release of these civilian harm assessments, it is clear that there still needs to be radical improvement in DoD processes.”

“We are seeking clarity in particular on when the remaining 37 open cases will be reviewed, as well as further information from DoD on their civilian harm assessment standards.”

▲ The aftermath of alleged Coalition shelling of Al Baghouz camp, March 18th - 19th 2019, which allegedly killed dozens of civilians (via Raqqa is Being Slaughtered Silently)

Published

March 15, 2022

Written by

Sanjana Varghese

Assisted by

Joe Dyke

Do civilians who take up arms to resist Russian invasion lose protected status?

On February 24th, Russian forces launched a full-scale attack on Ukraine. In the weeks since, Ukrainian government agencies and officials, including President Volodymyr Zelenskyy, have encouraged citizens to take up arms and defend their homeland. There have been widespread reports of state officials handing out thousands of guns and circulating information about making homemade explosives such as Molotov cocktails.

Civilians have some protections during times of armed conflict. It’s unlawful, according to the binding Geneva Conventions and their additional protocols, for civilians to be deliberately targeted – and any attacks by belligerents need to be both proportionate, and to distinguish between civilians and fighters.

Yet the potential involvement in Ukraine of civilians in hostilities against an invading state’s military has raised questions concerning their legal status under International Humanitarian Law (IHL). Some voices online have even claimed that those who receive weapons may no longer enjoy civilian status for the duration of the war.

This briefing explores the likely legal status of those civilians that take up arms. Understanding this framework and the implications of these classification are of particular importance to organisations like Airwars that monitor civilian harm, as well as for journalists, academics and others. This is not intended as a guide for legal professionals, though others have written guides along those lines.

 

The civilian-combatant distinction

In an international armed conflict, there are basically two classifications – combatant and civilian. According to IHL, combatants are members of the armed forces of the party to an armed conflict, and so have the right to directly participate in hostilities. Combatants are considered lawful targets during a conflict between states, and they directly participate in hostilities. They are also – generally – afforded immunity for acts committed while they are a combatant unless those acts constitute war crimes. If detained, they would be considered a prisoner of war.

By contrast a civilian is typically defined in negative terms – that is, as someone who is not a combatant. Civilians are afforded protection by international humanitarian law. Civilians and civilian objects – such as residential buildings – cannot be indiscriminately or deliberately targeted by an attacking force.

The Geneva Conventions and their additional protocols outline protection of civilians during armed conflict, both international and non-international, and declare that they “shall enjoy general protection against dangers arising from military operations.”

However, there are some circumstances in which someone can lose that protection. The statement above is caveated by another rule, that civilians are only protected against attack “unless and for such time as they take a direct part in hostilities.”

As the Ukrainian armed and territorial defense forces fiercely resist Russian invasion, so do ordinary civilians across the country. Read my dispatch for @TIME from the Western Ukraine on how citizens here mobilize and volunteer to defend the country https://t.co/31ZHKjDz5y

— Olga Tokariuk (@olgatokariuk) March 11, 2022

 

What is Direct Participation in Hostilities?

A person is understood to lose the protections against attack afforded to them as a civilian as soon as they directly participate in hostilities (DPH). This can range from working to make a Molotov cocktail, to picking up a gun and using it to harm a member of the attacking force.

Obviously, DPH follows on from two crucial components – one, that there are hostilities underway, and two, that an individual is directly participating in them. The notion of DPH is often fact- and context-specific, and given how dynamic the situation in Ukraine is, what exactly constitutes DPH there is open to question.

However, as laid out in the International Committee of the Red Cross’ Interpretive Guidance on DPH, there are broadly speaking, three cumulative conditions that have to be met before a specific act could be considered as direct participation.

    There has to be a threshold of harm – so for example a specific act has to adversely affect the operations or capacity of one party in the conflict, or damage people or objects that are protected against direct attacks (eg civilian objects) There has to be a direct causal relationship between the specific act and the harm which arises from that act. This act has to have been carried out with the intention to aid one party in the conflict at the expense of the other.

So in the Ukrainian context, a civilian who participates in a specific act in this way – for example, picking up a gun or throwing Molotov cocktails – is considered a legitimate target for, and such a period of time when, they are directly participating in hostilities. If someone was to prepare a Molotov cocktail, that would likely be considered a preparatory act for directly participating in hostilities, which would also likely make this person targetable.

Shovelled trenches, home-made camouflage, a diagram of how to use a Molotov cocktail: this is Ukraine’s defence against Russia. https://t.co/6Fud4vNGhd

— The Economist (@TheEconomist) March 11, 2022

As soon as an individual directly participates in hostilities, for such a period of time as they continue to do so, they are generally understood to be a lawful target. “One does not lose civilian status, rather one loses protection from being directly attacked,” explains Natia Kalandarishvili-Mueller, Professor of International Law at ALTE University Georgia and lecturer in IHL at Tbilisi State University.

As expressed in Article 51 of Additional Protocol I to the Geneva Conventions, “civilians shall enjoy the protection afforded by this Section unless and for such time as they take a direct part in hostilities.”

“Put differently, for the duration of one’s direct participation in hostilities, one may be directly attacked by the adversary,” Kalandarishvili-Mueller added.

Once an individual ceases to directly participate – through going back home, putting down weapons, or otherwise not directly participating in hostilities – they regain full protection from being attacked.

Under the ICRC’s guidance on DPH, civilians “lose and regain protection against direct attack in parallel with the intervals of their engagement in direct participation in hostilities (sometimes referred to as the “revolving door” of civilian protection).”

 

If they take up arms once, can civilians be targeted throughout the conflict?

There is a generally understood distinction in IHL between continuous, status or function-based loss of protection and temporary, activity-based loss of protection. In the first category, the presumption is that of combatant status or continuous combatant function. This would entail joining or belonging to an organised armed group, whether state or non-state, or future intent to directly participate in hostilities.

In the second category, an individual who arms themselves with a gun and aims to maim or kill a member or members of an invading force, and then does not use the gun again after a period of time, would ultimately not be participating in hostilities after they have put the gun down again. They would not necessarily be immune from being arrested, detained or prosecuted for their actions at that point or after, depending on the domestic legal system, but they cannot be attacked.

Below, we apply those distinctions to the Ukrainian conflict more directly.

 

The Ukrainian army and regional governments gave out tens of thousands of weapons and encouraged people to use them. Might all those people automatically become targetable if they accept weapons?

Distinctions between civilians, armed forces, and non-state armed groups have become difficult in contemporary conflicts, particularly as modern warfare increasingly occurs in civilian areas and population centres and often involves non-state armed groups.

In Ukraine so far there have been three broad ways in which citizens who have chosen to fight have responded to the Russian invasion. Each one has different legal implications.

The first is those citizens voluntarily enlisting for the Ukrainian army to fight the Russian invasion. In doing so, individuals will lose their right to not be directly attacked for at least as long as they are part of the regular armed forces.

The second is those that have engaged in ad hoc but semi-organised forms of defence, in particular a loose command structure emerging as part of a movement known as the Territorial Defense Forces.

These groups have been identified as wearing yellow armbands and other insignia to distinguish them, potentially from both Ukrainian civilians and invading Russian troops.

Four conditions have to be met to be considered irregular combatants:

    Being commanded by a person responsible for subordinates Having a fixed and distinctive insignia Carrying arms openly conducting operations Operating in accordance with the laws and customs of war – such as not firing indiscriminately on civilians or civilian objects.

For the duration of the war, irregular combatants would therefore lose their civilian status.

In this specific conflict, Emily Crawford from the University of Sydney Law School has argued that the Territorial Defense Forces and groups like them have reached the threshold of being combatants.

 

Civilians with guns

The third, and legally most complicated, group is those Ukrainian civilians who have taken guns distributed by the state or the army, or those who have prepared and thrown Molotov cocktails.

Ofer Fridman, a Senior Lecturer in War Studies at King’s College, University of London, explained that in situations like these, civilian status would be treated more of a continuum than a hard yes or no.

“Essentially, the more you participate, the more of a target you are,” Fridman said. “Participating on a low level – providing shelter, helping the wounded, driving ammunition, or even supporting from home by handing out leaflets – does not necessarily turn you into a legitimate target. Participating on a high level, such as in the way militants do, definitely does.”

It is important to remember people can only be targeted as long as they are directly participating in hostilities. Schools of thought do differ about whether or not someone who continuously participates in hostilities but is not part of a group doing so can be considered a civilian. The ICRC’s guidance – which is the classical interpretation of the relevant article – takes a narrow view of what constitutes DPH by asserting that only when an individual is engaging in preparatory acts for or directly engaging in hostilities are they targetable. As such, an indiscriminate attack on the house or building that they live in would be considered an attack on civilians, not on civilians engaging in DPH, and so would be considered unlawful.

Gun school: Ukraine rolls out weapons training for civilians https://t.co/g4SAPR4Ebj

— Irish Examiner (@irishexaminer) March 14, 2022

As Professor of IHL Dapo Akande notes, “This suggests that the ICRC rejects the notion of continuous direct participation. This is the idea that a person who takes a direct part in hostilities remains a valid target until he opts out of the hostilities through extended non-participation.” However, others may argue that if someone is participating in hostilities but has periods of rest between specific periods of participation, those periods of rest then essentially become preparing for DPH.

As such, if an individual uses a gun to defend their house or their building – but is not part of a command structure, does not wear a distinctive insignia, and does not carry their arms openly and is also not acting in accordance with the laws of war – it is likely that when they put down their weapon, they would not be considered a lawful target. Even if everyone in their apartment building had guns or molotov cocktails and acted with intent to harm the opposing forces – but they weren’t coordinating through a command structure and did not have a distinctive uniform or insignia – then by following the ICRC guidance, they would still be considered civilians when they stopped engaging in those acts.

Again, there are classical interpretations of these distinctions, such as the narrow scope taken by the ICRC, although there have been many court cases and rulings, particularly in the US and Israel, where the exact definition of DPH has been defined differently, along the lines of a ‘continuous combat function’.

As Professor Akande explains, “One danger of the continuous direct participation approach is that it increases the possibility of error given that a person can be targeted at moments when not involved in hostile acts. Such an approach to targeting raises the question how the belligerent can be confident that an individual poses a significant danger and will return to the fight.”

With regards to the conflict in Ukraine, the line about who is directly aiding the war effort and who is directly participating in hostilities becomes more blurry. Someone who is coordinating the movement of tonnes of explosives in cities in Ukraine may or may not be considered to be directly participating in hostilities. This is likely dependent on how integral their actions are to the continuing hostilities. For example, the ICRC’s guidance suggests that building blockades or road blocks should not be considered DPH as it’s indirect participation.

But crucially if it is ever unclear whether a person has civilian status or not, the assumption must always be that they are a civilian. As an additional protocol to the Geneva Conventions explicitly states: “in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”

 

If detained, would an armed civilian be treated as a prisoner of war?

In terms of detention, an article in one of the Geneva Conventions’ additional protocols offer some basic guarantees of humane and non-discriminatory treatment. Further protections are offered to those that have prisoner of war status under Article 4, Geneva Convention III.

Article 4 of Geneva Convention III requires at a minimum that the person detained be a member of an organised armed group or militia with a recognisable command structure that carry arms openly, and are recognisable at a distance. As such it would be unlikely that most civilians taking part in the Ukrainian conflict would meet that criteria.

However, this does not mean that a civilian captured under these circumstances could be degraded, abused or tortured. They must be afforded the fundamental guarantees laid out in Article 75 Additional Protocol I. The internment of the civilians is also regulated by Articles 42, 43, and 78 of Geneva Convention IV.

 

Is Russia respecting protection of civilians under IHL in Ukraine?

It is unclear how significantly the above distinctions between combatants and civilians – which are laid out in both the Articles of and Additional Protocols to the Geneva Conventions, overly impact the targeting or attacking decisions of Russian forces.

While in the early days of the war Russia’s targets were often military, there have been extensive and widespread reports of civilian neighbourhoods being directly targeted. There have also been recent reports of agreed humanitarian corridors – onto which it is unlawful for a military to fire – being targeted, with several civilians confirmed to have been killed when trying to escape to safety.

Russian attacks have also been characterised by the bombardment of cities using often indiscriminate weapons, including heavy artillery, cluster munitions, airstrikes and cruise missiles.

The Russian bombardment of the southern city of Mariupol has now caused more than 2,500 deaths, per Oleksiy Arestovych, an adviser in President Zelensky's office. "The Russians are just wiping the city out," he said Monday. https://t.co/ZczjMmwgTB

— Natasha Bertrand (@NatashaBertrand) March 14, 2022

Conclusion

In summary, the mere fact of civilians taking a weapon from the government does not necessarily mean Ukrainians lose their civilian status. If individuals join an active armed organisation – whether the formal military or a more informal military one – they would likely lose civilian status and be considered a combatant.

However for those at home with a weapon, they would likely remain civilians unless and for such a period of time that they are directly participating in hostilities, at which point they would be considered a lawful target. And if there is ever any doubt, it should always be assumed that the individual is a civilian.

▲ Ukrainian armed civilians or irregular forces inspect an alleged Russian military vehicle. Credit to Ministry of Internal Affairs, Ukraine

Published

February 21, 2022

Written by

Imogen Piper, Joe Dyke and Sanjana Varghese

Coalition's 'request for information' system in the spotlight in light of New York Times document release

For many years during the international air campaign against the so-called Islamic State (ISIS), Airwars participated in information sharing with the US-led Coalition on civilian harm incidents. When local Syrian and Iraqi sources alleged civilians had been killed or injured, the Coalition would review the event and on occasion ask Airwars for specific details. These official Requests for Information (RFIs) ranged from seeking the coordinates of a specific building, to requesting details about how many civilians died in particular strikes or neighbourhoods.

Airwars’ team would then pore over our own archives; geolocate events by exploiting every piece of known information; and then send back a detailed response. While there were periods when our public relations with the Coalition were fraught, we continued to work privately with its civilian harm assessment team over several years, in the hope that our technical assistance would lead to more recognition of civilian harm.

Yet a newly published trove of more than 1,300 previously classified military assessments, released by The New York Times after a lengthy lawsuit, has highlighted that the US-led Coalition’s internal reporting processes for civilian harm were often defective and unreliable. This, The Times claims, led the Coalition to radically underestimate the number of Syrian and Iraqi civilians it killed.

Those 1,300 assessments of civilian harm also provide an opportunity to assess how the Coalition itself carried out the RFI process.

Airwars selected a sample of 91 incidents between December 2016 and October 2017. In each case, the US-led Coalition had specifically reached out to Airwars requesting further details on alleged civilian harm. In 70 of these cases, we were able to match our response directly to declassified assessments in the Times database.

The results are concerning.

In total, in only three of the 70 cases where the Coalition asked Airwars for more information did it eventually go on to accept causing civilian harm. The other 67 incidents were deemed ‘non-credible.’

In 37 of the cases we were able to provide exactly the information they requested. In the other 33 cases we provided as much as possible, often including specific locations and details on victims.

Airwars’ monitoring has found that at least 8,168 civilians have been killed by the US-led Coalition during the campaign against ISIS. The Coalition, however, has accepted responsibility for 1,417.

‘No specific information’

We identified three worrying trends in how our information was treated during the RFI process. The first was that the Coalition sometimes closed assessments before we had even provided our feedback, or did not reopen them when new information was provided.

On April 30th, 2017, three civilians were reportedly killed in an apparent airstrike near a roundabout in Tabaqa in western Raqqa province, Syria, with up to eighteen more people wounded. All sources attributed the attack to the US-led Coalition that was, at the time, involved in one of the most intense stretches of its grinding campaign against ISIS – striking dozens of targets a day.

The three civilians who died were reportedly women, although their identities remain unknown. Ongoing fighting in the area had led to mass displacement of civilians and the ones who stayed behind were often trapped between ISIS and the US-led Coalition. Local sources reported the attack had hit a civilian neighbourhood near the ‘church roundabout.’

In the middle of 2017, Airwars wrote to the Coalition raising concerns about this incident.

Later that year, the Coalition opened up an initial assessment on the event. Its own civilian casualty assessment team wrote to Airwars on November 22nd with a simple question: “​​What are the coordinates for the alleged CIVCAS?”

Shortly afterwards, Airwars provided close coordinates for the event to the Coalition following work by our own geolocations team as documented below.

We also included a satellite image of the likely location – a 350 x 260m area north east of the roundabout.

Yet we now know that some time before our email was sent, the Coalition had privately deemed the event to be ‘non-credible’. It asserted that the claim needed to “be more specific to justify performing a search for strikes.”

Even after receiving Airwars’ response, there is no evidence the case was reopened. A year later, a press release declared that there was “insufficient information of the time, location and details to assess its credibility.” To date the US-led Coalition still does not accept responsibility for the deaths of those three women.

In total we tracked at least 18 such cases where the Coalition had already closed case files before we had responded. In none of these cases was there any evidence they reopened the file.

A second dispiriting trend was how rarely Airwars’ work actually prompted further review by the Coalition.

As the New York Times files show, the vast majority of Coalition probes stopped at the initial assessment stage – essentially a series of yes/no boxes where a single ‘no’ leads to the allegation being deemed ‘non-credible.’ In only seven of the 70 cases where we provided information did this lead to additional review steps being taken – in most cases turning an initial assessment into a Civilian Casualty Assessment Report (CCAR). These are slightly longer assessments but again often end in non-credible determinations.

If the evidence is more significant – or if there are claims of a breach of the laws of war –  a third, far more extensive, investigation called an AR15-6 could be carried out. We did not find any cases in the sample that went as far as an AR15-6, even among the three cases deemed credible by Inherent Resolve.

‘Thicker walls’

A third trend was that in cases where Airwars itself was not able, from local reporting, to specify exactly which civilians were killed in particular locations, the Coalition almost always rejected such allegations.

Particularly during intense urban fighting, local reports of civilian harm often comprise casualties from a number of weapon releases across an area over a period of time, which can make it difficult to ascertain the exact location where each victim was harmed. This would have been especially challenging during 2017, the most intense year of bombing in Iraq and Syria, when the sheer number of Coalition strikes made allegations even harder to disentangle.

When a few incidents were reported in the same area, the Coalition would often request that we specify which civilian harm occurred in which location. In 15 cases, the Coalition decided that, rather than search multiple areas they would instead close the assessment, using justifications such as “the CIVCAS numbers need to be broken up into the neighbourhoods that they belong to.”

A typical case was the strikes on January 3rd 2017 which killed up to 22 civilians and injured 29 more in eastern Mosul, reportedly targeting two houses close together. Two children were among those reported killed. Only one of the fatal victims – Younis Hassan Abdullah al-Badrani – was named in reports.

An RFI sent by Coalition assessors asked Airwars which civilian casualties were attributed to which of three named neighbourhoods in Mosul –  Mushayrifa, Hermat, Ma’moon. We replied back with the exact time and coordinates of an airstrike in Ma’moon, although we also noted that sources did not differentiate between the three proximate neighbourhoods when attributing civilian casualties. The corresponding document published by the New York Times shows the Coalition investigation was then closed and deemed ‘non-credible’ on the grounds that there were no Coalition strikes in Mushayrifa, even though we had provided an exact location in Ma’moon. It’s unclear whether the Coalition assessors ever investigated all of the three neighbourhoods identified.

Other claimed civilian harm events were closed despite there being credible information provided not just by Airwars, but also in detailed investigations by other major NGOs –  such as an airstrike on April 28th 2017, where multiple members of two families were killed in a residential home on Palestine Street in Tabaqa, Syria.

Fifteen members of the Dalo family, including five children under the age of ten, and three members of the al Miri’i family, were killed by a suspected Coalition airstrike at 4pm. A Human Rights Watch investigation released months later spoke to the owner of the house that had been flattened, who said he had given the Dalo family his keys as his house had thicker walls than their own. HRW also found the remnants of a Hellfire missile at the scene – which was linked back to Lockheed Martin, one of the US military’s largest contractors.

Despite this wealth of evidence, the US-led Coalition maintained there was insufficient information about the location, time and date – despite Airwars providing coordinates for the district that Palestine Street was in, as close as we could get with limited satellite imagery. Airwars also provided an exact date for the incident, as Coalition assessors were unsure about whether this incident took place on April 28th or May 3rd. After speaking directly with local sources, Airwars determined that the incident took place on April 28th, although cleanup efforts led to bodies being pulled from the rubble several days later.

None of this detailed information appeared to influence the Coalition – which deemed the event ‘non credible.’

How it should work

Our limited review of the Times documents did reveal at least one instance where Airwars provided information which then helped change the internal designation of an incident from non-credible to credible. This, in theory, was how the system was meant to operate.

On March 21st 2017, between 10 and 20 civilians were reported killed and dozens more injured when Coalition airstrikes targeted multiple locations in Tabaqa, Syria. A number of buildings, including a gas depot, a carwash, garages, shops and the area around the hospital were reportedly damaged.

In October, the Coalition asked Airwars for the locations of each of these sites. We provided exact coordinates for the majority, while providing neighbourhood-level coordinates for the remainder, alongside annotated satellite imagery.

Unusually, the Coalition then used this information to review its own strike database. Three corroborating strikes were identified, of which two were assessed to have led to civilian harm – one death and one injury. However, even here, the extent of the Coalition’s admission starkly contrasts with the number of fatalities and injuries reported by local sources. While the Coalition assessment claims it is ‘more likely than not’ that one civilian was killed and another injured as a result of these strikes, local sources insisted that between 10-20 civilians were killed, and up to 36 more injured in the same incident.

This RFI response by Airwars appears to have been no more or less remarkable than the other 36 cases where we provided the Coalition with exact information as requested. Yet it is the exception in terms of the event being officially deemed credible.

Were the Coalition to have treated those other 36 cases in the same manner, it might have accepted responsibility for at least 50 more civilian fatalities. Instead these civilians remain uncounted, and their families’ questions unanswered.

“We are only beginning to get to grips with this vast trove of formerly secret Coalition assessments – yet what we are finding already troubles us deeply,” says Airwars research manager Emily Tripp. “Iraqis and Syrians deserve far better than the inconsistencies, poor work and disinterest in casualty estimates which are demonstrated, again and again, by these official documents.”

Published

January 28, 2022

Written by

Sanjana Varghese

Civilian harm reduction proposals cautiously welcomed by NGOs - but delivery will be key.

Secretary of Defense Lloyd Austin has announced major proposals to overhaul how the US military monitors, assesses and documents when its actions kill civilians, a move warily welcomed by human rights and civilian harm mitigation NGOs.

Building on years of documentation by groups like the Syrian Network for Human Rights and Airwars, since late 2021 the New York Times has produced a series of deep investigations documenting systemic flaws in the way US military operations track casualties from their strikes. These revelations have prompted further scrutiny of the US military’s approach to civilian harm and raised pressures on the Biden administration to intervene.

In a directive released on January 27th, Austin announced a major shake-up of Department of Defense (DoD) policies on civilian harm reduction, including the establishment of a ‘civilian protection center of excellence’.

“The protection of innocent civilians in the conduct of our operations remains vital to the ultimate success of our operations and as a significant strategic and moral imperative,” Austin told reporters.

The directive gives the Under Secretary of Defense for Policy, Dr Colin Kahl, 90 days to prepare a “comprehensive” Civilian Harm Mitigation and Response Action Plan, or CHMRAP, that emphasises that “efforts to protect civilians are the responsibility of all leaders throughout the (DoD), always, and not only that of our commanders and personnel in the field in the execution of missions assigned.”

Austin’s directive also paves the way for the establishment of a new ‘civilian protection center of excellence’ which according to DoD, will enable it to “better expedite and institutionalize the advancement of our knowledge, practices, and tools for preventing, mitigating, and responding to civilian harm.”

And there are also plans to shake up how the Pentagon collects, shares and learns from casualty data; to re-examine the issue of condolence payments to victims; and to “Incorporate guidance for addressing civilian harm across the full spectrum of armed conflict into doctrine and operational plans, so that we are prepared to mitigate and respond to civilian harm in any future fight.”

The CHMRAP will then itself feed into a forthcoming Department of Defense Instruction, or DODI – a long awaited department-wide policy on civilian harm reduction. Airwars was among more than a dozen US and international NGOs which engaged extensively with the Pentagon on the DODI – which has been awaiting a signature since November 2020, when drafting was completed.

According to Austin, the DODI “should be informed by the CHMRAP and presented to the Secretary of Defense  for signature within 90 days of the CHMRAP’s conclusion” – meaning it should come into force by late July.

“Austin’s directive and the promised release of the DODI could be a crucial step towards standardising the US military’s approach to civilian harm assessments across US commands,” Emily Tripp, Airwars’ research manager, said.

Marc Garlasco, a military advisor at PAX and former civilian harm assessor with NATO, was among those cautiously welcoming the Pentagon announcements. “The memo sends a strong message that civilian harm mitigation (CHM) is not simply an issue for counterinsurgency. The US military is embracing CHM as it shifts to great power competition,” he said in a thread on Twitter.

🧵 on today's memo on "Improving Civilian Harm Mitigation & Response" by @SecDef. The memo is welcome focus from the highest level of @DeptofDefense showing leadership & taking ownership of the issue of civilian harm. Allow me to cover the salient points both pro & con 1/ #CIVCAS https://t.co/BJ83W6mXX9

— Marc Garlasco (@marcgarlasco) January 28, 2022

Critical study

On the same day that Secretary Austin announced his shakeup, the RAND Corporation also published a major Congressionally-mandated review of the US military’s approaches to mitigating civilian harm.

The deep-dive report, ‘US Department of Defense Civilian Casualty Policies and Procedures,’ argues that while the DoD may have made progress in some areas, “additional concrete steps are overdue.”

RAND points to several weaknesses in the DoD’s own policies and procedures – including that military officials often did not “sufficiently engage external sources” such as Airwars before they concluded investigations and designated them as non-credible; that investigations are often treated as independent of each other and so levels of detail between them vary widely; and that military assessments are often subject to long delays.

Several graphics in the report demonstrate the often extreme gap between US military estimates of civilian harm, and those of NGOs such as Amnesty International, Human Rights Watch and Airwars – noting that in Syria in 2019, more than 1,100 civilian deaths were locally alleged from US actions, yet with only 21 fatalities so far officially admitted.

The RAND report makes a number of recommendations, noting that many were called for several years ago. These include incorporating civilian harm assessments into intelligence estimates; reducing the eligibility conditions for those who can claim ex gratia payments; and implementing a standardised civilian harm reporting process across conflicts.

Airwars was among several stakeholders which met with RAND during the drafting of the report. “Many of the critical recommendations in this valuable study have long been requested by the NGO community and by Congress – and we urge the Biden Administration to now act swiftly,” Airwars director Chris Woods said.

▲ US Vice President Kamala Harris, President Joe Biden and Secretary of Defense Lloyd Austin, tour the Pentagon on February 10th 2021 (Official White House photo by Adam Schultz)