Landmark tribunal found UK’s lack of published civilian harm policies may “undermine public confidence” in the system
The UK has only accepted killing a single civilian in the past decade. How did it reach that conclusion? For five years, Airwars has been trying to force the government to reveal how it concludes if it has killed a civilian in warfare – taking the Ministry of Defence (MoD) to a freedom of information tribunal, which recently reached a verdict.
While the judges ultimately ruled in favour of the MoD – relying heavily on secret evidence in closed court – the tribunal led to a number of significant revelations. These include that British ministers may make the final decision whether to recognise civilian deaths, that a senior MoD witness was unsure of the evidentiary standard the UK applies when reviewing civilian harm, and that the UK’s official narrative of the sole civilian death sits at odds with the findings of coalition allies.
You can read the judgement here, but here are five key things we learned.
What was at stake at the tribunal?
In short, we wanted to know: when the UK conducts a military attack how does it assess and review allegations that civilians were harmed? Unlike other advanced militaries – most prominently the United States – the UK has never outlined this publicly and there are no public policy documents explaining how the UK tracks civilian harm in conflict, nor why its findings routinely differ from those of its allies and independent monitors.
To try to get this information we looked to the UK’s most recent major military campaign – against the so-called Islamic State in Iraq and Syria. As part of an international coalition, the UK has conducted thousands of strikes from 2014 until today – and claims to have killed more then 4,000 ISIS militants.
But in that entire campaign the UK has only accepted killing one civilian – in an airstrike in Syria on March 26, 2018. The Minister of Defence told parliament that a British strike targeting three ISIS fighters in a car “unintentionally killed” a civilian on a motorbike. The statement continued: “We reached this conclusion after undertaking routine and detailed post-strike analysis of all available evidence.”
Since then the MoD has refused to release not only its ‘post-strike analysis’ but even basic details about the incident – including the exact location, how the MoD confirmed this civilian harm but rejected other allegations, and who made the ultimate decision that the allegation was ‘credible.’ An Airwars investigation with The Guardian also revealed major inconsistencies in the MoD’s version of events.
So in early 2021 we filed a freedom of information request with the Ministry of Defence seeking all documents assessing civilian harm in the incident. The MoD rejected it so we appealed until in November 2023 we had a two-day tribunal in London in which our legal team – led by renowned human rights lawyers at Leigh Day – cross examined a key MoD witness for more than an hour.
Five key tribunal takeaways
1. The UK’s lack of transparency on civilian harm damages public confidence
The tribunal made a landmark ruling that the UK’s lack of publicly available civilian harm policies may “undermine public confidence” in the system’s “integrity and comprehensiveness.” This is the first time a tribunal has made such a ruling.
The UK’s closest ally – the United States – has published guidelines on civilian harm and has released more than 1,000 actual civilian harm assessments via similar Freedom of Information requests.
In Airwars’ witness statement to the tribunal, Director of Programmes Joe Dyke argued that withholding such information undermines trust in British democracy by placing the UK’s military institutions beyond public scrutiny.
The tribunal agreed, finding that the UK’s lack of published guidelines was damaging to public trust. Here’s the full quote:
“Considering the evidence overall, we do accept that there is a lack of publicly available information on the procedure usually followed in assessing civilian harm, and that the nature, comprehensiveness and robustness of such a procedure is a matter of public interest. The absence of any published procedure at all has the potential to undermine public confidence as to its integrity and comprehensiveness. While there is no reason to doubt the good faith and competence of everyone involved, high level assurances do not provide the same confidence as a published procedure that can be scrutinised. That lack of open information correspondingly increases the public interest in disclosing information concerning how civilian harm was assessed in this particular strike.”
2. Ministers can decide whether or not to accept a civilian death
One of the enduring questions in trying to understand UK civilian harm processes is who makes the final decision about whether or not civilians have been harmed – and in particular whether British ministers can ultimately veto any designation.
In a detailed back and forth during the tribunal hearing, Alexander Oliver, a Deputy Director in the Ministry of Defence department responsible for operational policy, explained just how much influence ministers have. Mr Oliver outlined how an allegation of civilian harm would work its way through the formal channels of review and ultimately would reach the relevant minister.
He was then asked if “at the final end of the process, a minister is, effectively, being asked to reach what is a political decision as to whether or not to accept a civilian harm assessment.” “Yes,” Mr Oliver said. This is the first time that a senior official has stated this publicly.
The relevant part of the tribunal is below:
This revelation shows that a minister could in theory reject any allegation of civilian harm before it is published. This raises significant concerns about the independence of the investigative process, and also notably differs to allies where the outcomes of civilian harm assessments are determined by investigating cells or units, even if the decision to release such outcomes publicly may remain a matter of political decision-making. This is the case in the United States, for example, where assessment of civilian harm should be made by a dedicated Civilian Harm Assessment Cell, not a political figure. This raises the risk of political manipulation in the UK system.
3. MoD key witness unaware of the threshold by which civilian harm is assessed
A key aim of the tribunal was to understand what evidentiary threshold the MoD applies for accepting civilian harm.
While never publicly declared, it is believed that the UK applies a far higher threshold than the U.S. military – which assesses harm on the balance of probabilities. In contrast, the UK allegedly requires what it calls ‘hard facts’ when assessing civilian harm claims – an apparently higher standard even than the ‘beyond reasonable doubt’ used by UK courts. Yet the UK almost never conducts investigations beyond its own military footage, so critics argue it has set the burden of proof so high that it is almost impossible to reach a determination of civilian casualties.
In the tribunal, Airwars’ barrister, Will Perry, pushed Oliver on the standard of proof used by the UK to assess civilian harm. He was unable to answer the question.
Despite being a senior official, Oliver’s lack of knowledge on a basic and fundamental detail of how the UK concludes whether a civilian is killed left serious concerns about the existence of a clear system to measure evidence. Without such a process, how can the UK have any confidence it has killed just one civilian?
4. The UK blames ‘administrative error’ for Coalition declaring the strike didn’t happen
As revealed by Airwars and The Guardian in a 2023 investigation, there are gaping holes in the UK government’s official narrative of the Syria strike.
These include the fact that no Syrian organisation – even those based in the Deir Ezzor region where this is alleged to have occurred – have any record of a civilian killed, or even an airstrike, on that day. The strike also did not appear in an official UK military list of strikes that killed militants released under Freedom of Information laws to Airwars.
But most damningly of all to the UK’s argument, the US military through its civilian harm assessment cell as part of the wider Coalition – of which the UK is a part – reviewed the incident after the UK announcement. This was triggered by a so-called “self-report” – meaning that the referral of the incident came from within the coalition (this could be from a member state or from within the U.S. military).
The U.S. Coalition-wide mechanism concluded that there were “no coalition strikes… in the geographical area that correspond to the report of civilian casualties.” Given that, as above, the Brits were known to have a ‘higher’ evidentiary standard to the US, it would be unlikely that the UK MoD would determine a casualty had occurred that would not be caught by the U.S. teams. This leaves the possibility that either the strike did not happen on the date and location that the minister announced to parliament, or that the UK did conduct the strike but did not coordinate with its allies in the Coalition to do so. Not coordinating with the wider Coalition may indicate that this would be a special forces strike, not a standard RAF operation.
At the tribunal, the MoD was asked to explain these discrepancies. It stated that the failure to include the strike in the official FOI request was an administrative error. Regarding the U.S. coalition cell’s failure to declare the strike, the MoD denied it was an off-books UK strike, but provided little explanation in public. Airwars’ legal team and Justice Neville pushed the MoD witness Oliver on the confusion. The following comes from exchanges from the MOD’s oral evidence:
Oliver’s argument sits at odds with the coalition statement that it had reviewed the allegation and found no strike was conducted. At another point Oliver was asked whether the UK asked the Coalition to review its assessment.
However, in spite of the UK apparently having raised this admin error to the Coalition, to date the Coalition has not changed its assessment and its assessment that the civilian harm was ‘non-credible’ stands. In fact, beyond the UK government’s official statements, there remains little public evidence that the airstrike occurred.
5. Yet ‘national security’ exemptions still overrule the public’s right to know
Despite ruling that the lack of openness may damage public confidence, the tribunal ultimately sided with the Ministry of Defence and rejected Airwars’ appeal. It did this based largely on evidence discussed in closed court – meaning Airwars’ legal team were not permitted to be present.
In rejecting the request for transparency in civilian harm policy, the judges wrote that the full justification cannot be “given publicly without revealing the requested information or otherwise giving rise to harmful consequences.” In effect, the tribunal cannot even be transparent about why it rejected the appeal. The judges even accepted the paradox of this decision.
“We recognise that the reader of this decision, having persevered through over 10,000 words describing the evidence and arguments, may still feel rather in the dark as to what we made of them. This is an unfortunate but necessary consequence of the issues engaged, and all we can do is repeat our assurances that we have given the appeal our most anxious consideration.”
The MoD relied on the argument of national security when explaining why it cannot reveal its civilian harm policies, arguing that transparency would aid potential terrorists.
“Of specific relevance to this request is how UK personnel employ tactics to try to avoid civilian casualties. If these were made public, suspected terrorists could adjust how they operate to better protect themselves”
The tribunal agreed there was strong public interest in preventing harm to the UK’s capabilities in ongoing armed conflict. However Airwars had made it clear it would accept documents with sensitive information redacted and that it is a basic right of the UK public to understand the process for assessing civilian harm. With such little information available, it remains near impossible for the public to properly hold its authorities to account.
The MoD asserted that the lack of public messaging is “essential in maintaining our close collaboration with the other Coalition partners”. But the U.S. – which led the coalition – has a much more transparent approach to its own assessment of civilian harm.
The U.S. State Department is legally obliged to produce yearly reports to Congress on civilian deaths accepted during the past year. In 2021, more than 1,000 civilian harm assessments were published via the Freedom of Information (FOI) process – the largest U.S. release of its kind.
At no point since this annual report became mandated in 2018 have senior figures, either from the US military or political realms, argued that it in any way jeopardises national security or expressed regret about releasing information.
The bigger picture
The two-day trial delivered its verdict more than two years after the tribunal, five years after Airwars’ initial Freedom of Information request was submitted to the Ministry of Defence, and almost a decade after Airwars first started pushing the Ministry of Defence for greater transparency on this issue. This comes in the context of Airwars’ pioneering documentation effort. Since 2014, we documented civilian casualties from a number of major military powers, and were the single most referred to organisation by the U.S. military in its own admission of civilian harm incidents in the war against ISIS. More than a thousand civilian deaths have been admitted to by the United States, primarily based on Airwars’ referrals.
Throughout the campaign the United Kingdom has consistently fallen behind its allies when it comes to providing clarity and transparency on its own processes for tracking and assessing civilian harm. While countries like the Netherlands and the United States have embarked on substantive reforms in light of casualty claims in the ISIS war that claimed thousands of lives and levelled cities like Raqqa and Mosul, the United Kingdom has shown no capacity or willingness to do the same.
While the major kinetic period of the war against ISIS may have wound down, the Ministry of Defence announced renewed strikes in Syria as recently as January 2026.
Airwars was founded on the belief that transparency on civilian harm is a key step for states to both mitigate civilian harm in the future, and build trust in the government conducting wars in our name. The verdict in this tribunal concurs on both counts.
All documents relating to this case and wider UK policy will be archived and made accessible by Airwars’ partners at Unredacted, to support wider investigation and analysis of the UK position. The UK’s policies and practices are also analysed in full by Airwars’ specialist policy team on our subsite the Civilian Protection Monitor.
Failing to track and release information on civilian casualties sits against advisory from the Human Rights Commission in their 2023 report on casualty recording, which notes that robust casualty recording systems and public reporting mechanisms are key to fostering compliance with international humanitarian law. It also sits in contrast to a 2022 declaration on civilian protection signed by the UK, which also commits the UK to releasing data on civilian harm, where feasible.
By not properly accounting for the number of civilians killed by military actions, the UK creates the false impression that war can be fought without human consequences. Without an open and transparent system around how civilian harm is monitored and assessed, the UK public isn’t able to have a genuine conversation about the costs of war.