This Civilian Harm Mitigation and Response Action Plan (CHMR-AP) by the United States Department of Defence (DoD) is drafted to overhaul how the United States (US) prevents and responds to civilian harm resulting from its military operations conducted in and outside the context of war. The reform is urgently needed; over the past two decades the US has caused repeated civilian harm without meaningful accountability, learning, or policy change. Examples are here, here and here.
The plan provides 11 objectives including, among others, the creation of department-wide procedures to assess civilian harm, updated guidance on the department’s public responses to civilian harm and the integration of processes to mitigate target misidentification. Each objective comes with a proposed set of phased actions that are to be realized between 2022 and 2025.
Importantly, the CHMR-AP introduces the term ‘civilian environment’ that is broadly defined to include the civilian population, infrastructure, essential services, natural resources and systems on which civilian life depends. This enhances the protection of civilians and civilian objects against military attacks. It is also an important move towards acknowledging the long-term consequences of military action on civilians caught in conflict.
Of specific interest for the Nuhanovic Foundation is objective 8 that aims at improving the US ability to ‘consistently and appropriately acknowledge and respond to civilian harm when it occurs and to treat those who are harmed with dignity and respect.’ Thereto a policy must be established that creates a range of response options whenever individuals and communities are harmed by US military operations, including public and private acknowledgements of harm, condolence payments, medical care, repairs to damaged structures and infrastructure, ordnance removal, and locally-held commemorative events or symbols. It also creates procedures for consulting with and/or expressing condolences to those who have been harmed or their next of kin, or representatives who can speak to their interests. Further it provides for standardized guidance for publicly releasing information relating to civilian harm, including the status and results of civilian harm assessments and the publishing of such information on at least a quarterly basis.
Recognizing that, in multinational operations specifically, inadequate information sharing between different military forces increases the risk that operations end up harming civilians -as happened in Hawija, Iraq- objective 10 aims, among other things, at supporting allies in the implementation of CHMR activities in joint military operations, and to contribute to realizing shared assessments of, and responsibilities for monitoring of and response to civilian harm.
The challenge now is bringing the plan from paper to practice.
Strictly speaking the CHMR-AP is not a legal instrument. In a footnote to its introductory section, the authors purport that the plan is not meant to suggest existing DoD policies and practices are legally deficient or that anticipated changes are required by law. The authors further claim that these new standards cannot create new legal obligations. However, in fact, policy decisions could alter existing legal requirements under customary international law.