The study group was joined by Luke Hartig, a former senior director for counterterrorism at the National Security Council during the Obama administration, and Annie Shiel, a senior advisor at the Center for Civilians in Conflict, to explore this subject. Rita Siemion, a Senate staff member (and study group participant) who formerly served as an associate on civilian casualty and related matters at Human Rights First, also contributed remarks in her role.

To prepare for the study group discussion, they suggested the antecedent readings listed below:

“Making Amends: A Guide to U.S. Law and Policy on Post-Harm Amends,” January 7, 2021; Luke Hartig, “Biden’s Drone Policy Review: Recommendations for a Reset,” March 5, 2021; Annie Shiel, “Reference Guide: Tracking Protections of Civilians Through the NDAA,” July 21, 2021; “In Search of Answers,” The Civilian Protection Podcast, “A (Nov. 10, 2021).

Hartig participated in the Lawfare Podcast just before the study group meeting to discuss the media reports of civilian casualties in Syria and related policy responses.

Hartig began the speech by pointing out that the Biden administration would soon reveal a new policy on civilian casualties, making this a crucial time for the subject. He pointed out that the Biden administration had pledged to end the “long war” in Afghanistan and scale back worldwide counterterrorism operations, which would help minimise the number of civilian casualties. He added that the administration’s devastating strike in Kabul during the country’s August 2021 pullout, which unintentionally targeted and killed several Afghan children and other Afghan civilians, shaped the government’s strategy.

Hartig then summarised the evolution of American policies on civilian casualties. In response to complaints about the high number of drone strikes it had carried out, the Obama administration created a Presidential Policy Guidance (PPG) that restricted the use of drones outside of combat zones except in cases where capture was impossible and the target posed an immediate threat. There was a high probability that no civilian casualties would occur. The number of drone strikes and civilian casualties declined due to this approach, but it was criticised on both sides. It did not address transparency issues or compensate those who were harmed. The PPG was halted and later restored by the Trump administration, which also increased operations in Yemen and elsewhere, gave field commanders more power, resisted transparency measures, and maintained some protections against civilian casualties. Some members of the defence and intelligence communities want to preserve the flexibility of employing such strikes under the Trump administration. Still, the Biden administration suspended those rules quickly after taking office in anticipation of a thorough assessment. According to Hartig, the Biden administration’s policy review is expected to reinstate several PPG components. But he added that more was required, such as more transparency, better procedures and training, and guidelines and analyses tailored to individual contexts. In terms of what Congress can do, he urged it to support robust Defense Department leadership on these issues through the nomination procedure, increase oversight and make transparency mandatory, and engage in reform of the 2001 Authorization for the Use of Military Force (AUMF) that is used to permit the majority of international U.S. military operations.

Then Shiel chimed in to offer her viewpoint. She began by emphasising the need to humanise the civilian cost of American military operations and avoid merely treating people as statistics. She pointed out that despite widespread acknowledgement of the issue, there has not been a significant or sustained shift in this area, which highlights how persistent a problem civilian casualties are in U.S. military operations. She drew attention to the lack of openness caused by the U.S. military’s ongoing undercounting and inadequate investigation of civilian mortality situations. At the time of the discussion, recent media reports also revealed that elite forces, whose operations are frequently top-secret, have been implicated in some of the worst events involving civilian casualties. She also noted the flawed system in place in the US for compensating victims of incidents, noting that the Defense Department has not used the funds Congress granted for that purpose or issued any relevant regrets. She asked Congress to conduct additional oversight of these matters, particularly given that the Biden administration’s planned switch to “over the horizon” counterterrorism methods may repeat many circumstances that have previously resulted in civilian casualties.

Siemion then started the conversation by providing some further legal context. She pointed out that terminal operations are typically only permitted under international human rights law as a last resort to stop threats to the lives of others. However, the law of armed conflict is laxer. The United States decided to handle global counterterrorism as a military operation after the 9/11 attacks rather than as a law enforcement effort under the former. Even then, the bar for who can be targeted has been raised from just those directly engaged in hostilities to all members of the numerous organisations with which the US claims it is at war. As a result, there is a low threshold for using fatal force, significantly increasing the risk of civilian casualties.

The study group then transitioned into an open conversation. The value of apologies and condolence payments, including counterterrorism initiatives, the need for different guidelines depending on which foreign country or context operations are being pursued in, the significance of—and challenges facing—congressional oversight, and what to do about mistakes or intentional manipulations by foreign partners are among the subjects covered in the discussion.

Analysis by: Advocacy Unified Network