Biden Decries Civilian Deaths in Gaza as Pentagon Fails With Its Own Safeguards

As the Biden administration ratchets up its criticism of Israel’s ongoing campaign in Gaza, it has failed to implement its own civilian casualty avoidance policies for the U.S. armed forces, according to a scathing new government audit. 

“The right number of civilian casualties is zero,” White House press secretary Karine Jean-Pierre said of Israel’s war last week.

In December, a year after the Pentagon announced a new program to address civilian casualties, the Joint Chiefs of Staff called for an “urgent” effort to get units and headquarters throughout the military to take on the task of mitigating civilian harm.

“Hard-earned tactical and operational successes may ultimately end in strategic failure if care is not taken to protect the civilian environment as much as the situation allows – including the civilian population and the personnel, organizations, resources, infrastructure, essential services, and systems on which civilian life depends,” says the new Joint Chiefs of Staff directive to the armed services. The January 2024 document, obtained by The Intercept, has not been previously reported.

But as the Defense Department pushes forward to revamp its protocols addressing civilian harm, the Government Accountability Office, or GAO, released an audit this month that finds that field commands have so far largely rejected the Pentagon’s effort. The scathing GAO report, “Civilian Harm: DOD Should Take Actions to Enhance Its Plan for Mitigation and Response Efforts,” finds that Washington has failed to inculcate a new appreciation of the impact of civilian harm and that its top down directives have been met with ire and confusion from both military commanders and rank-and-file soldiers alike. 

In December 2023, Secretary of Defense Lloyd Austin issued an instruction formalizing the department’s new civilian harm response, which “Establishes policy, assigns responsibilities, and provides procedures for civilian harm mitigation and response.” 

“Protecting civilians from harm in connection with military operations is not only a moral imperative, it is also critical to achieving long-term success on the battlefield,” the Civilian Harm Mitigation and Response Action Plan said, as previously reported by The Intercept.

Wide-ranging in its scope, the directive and plan sets in motion 11 core objectives that establish a Civilian Harm Mitigation and Response Steering Committee, a Civilian Protection Center of Excellence, the creation of dedicated staff positions at battlefield commands to help mitigate civilian harm, and multiple initiatives to gather more information on incidents and trends with the goal of reducing civilian casualties.

The new regulation, Dan E. Stigall, director for Civilian Harm Mitigation and Response Policy in the Office of Secretary of Defense, wrote in December 2023, “provides important policy guidance to shape how DoD conceptualizes, considers, assesses, investigates, and responds to civilian harm.”

And yet the GAO report, issued earlier this month, finds that despite the Pentagon mandate, Middle East and Africa regional commanders have failed to change practices for how civilian harm prevention is being factored into military operations. The GAO also found that the Defense Department “has not addressed uncertainty about what constitutes improvement and how the action plan applies to certain operations.” In other words, there is an absence of processes and metrics to record civilian deaths and then interpret incidents and causes for the purpose of learning lessons. The Pentagon itself has also failed to think through civilian casualties and harm caused in the context of all types of operations.

The GAO generally excuses the failure of the fighting commands to take adequate measures to revamp their practices given the military’s focus on small-scale counterterrorism operations over the past two decades. According to the report’s findings, “in our discussions with DOD components about challenges in implementing the action plan, some [commanders] indicated that they are unclear about how to mitigate and respond to civilian harm for large-scale conflicts. This is because they felt that the action plan is geared toward counterterrorism operations.” Creating a culture of civilian harm reduction “will require much more time, resources, and personnel than during the counterterrorism or irregular warfare operations of the past 20 years,” the GAO concludes.

Large-scale conflicts refer to potential wars with China, Russia, Iran, and North Korea. But building up a capacity inside the military to assess civilian harm for conflicts like Ukraine and Israel is also a Pentagon goal in order to properly assess the use of U.S. weapons by American arms recipients, experts say.

U.S. Central Command officials, responsible for the Middle East, told the GAO that they didn’t understand the end goal of the Defense Department plan, given that they felt it fails to provide any way to measure the number of civilian deaths. The command also told the GAO that it was already working to mitigate civilian harm even without the new directives, saying that “the [Pentagon] action plan may be more helpful to other combatant commands that have not had recent experiences with combat and civilian harm mitigation.” It is a strange position for CENTCOM to take given that Austin’s directive itself was precipitated by successful lobbying by human rights groups for the military to address civilian harm in conflicts in Afghanistan, Iraq, Yemen, and Syria, where it became clear that CENTCOM was not doing enough

U.S. Special Operations Command, or SOCOM, similarly told the GAO that it should be allowed to continue with its operations as they are being conducted and that nothing more needed to be done to implement Austin’s plan. According to the report, a SOCOM official “told us that there is currently no deficiency in DOD’s civilian harm mitigation and response efforts and the action plan codifies what the command is already doing.”

Officials from Africa Command and Indo-Pacific Command expressed similar skepticism about the Pentagon’s effort, according to the GAO report. A Navy officer said that the new regulations were unpopular within the rank and file: “some staff at lower levels of the Navy are asking questions about what DOD is fixing by implementing the action plan,” the officer said. 

On December 13, 2023, the Joint Chiefs of Staff approved a new staff functional task, contained in its Unified Joint Task List, or UJTL, that directs all military organizations to “manage civilian harm mitigation and response.” The UJTL is the standard “library of tasks, which serves as a foundation for capabilities-based planning across the range of military operations.” It is a comprehensive menu of “tasks, conditions, and measures” used to establish standards and even job descriptions across the entire defense enterprise. A printout of the tasks is over 1,600 pages, but the UJTL is maintained electronically.

According to an electronic copy obtained by The Intercept, the “urgent” priority new task directs the armed forces to “plan, integrate, and/or manage approaches for mitigation and response to civilian harm in plans, operations and/or training.”

“This task may include the Civilian Environment Teams at operational commands, composed of intelligence professionals; experts in human terrain, civilian infrastructure, and urban systems; and civil engineers, to assist commanders in understanding the effects of friendly and adversary actions on the civilian environment. This task may also include the development of command red teaming policies and procedures appropriate to relevant operational environments, with a focus on combating cognitive biases throughout joint targeting processes,” the description of the task says. It calls for reporting on the number of “trained, qualified, and certified personnel ready to support civilian harm mitigation and response requirements.”

With Austin’s civilian harm reduction rollout in 2023 and now with the Joint Chiefs of Staff chiming in, demanding that the services and commands incorporate civilian harm reduction into its staff and operations, a fundamental disagreement inside the military comes into focus, pitting top brass in Washington against combat commanders serving overseas. In the field, according to the GAO report, commanders believe that they are abiding by the laws of war and that their jobs which require putting their lives on the line are difficult and dangerous enough without having to modify them to satisfy Washington. They view the Pentagon as out of touch, catering more to public opinion and negative news coverage than to military reality.

The Pentagon, by focusing on “managing” and “mitigating” civilian harm is also being cautious about directing any mandate to count (or account for) civilian casualties because of the legacy of the dreaded “body count” from the Vietnam era, where commanders were pressured to inflate the number of enemy killed to demonstrate the false success of their operations. In Desert Storm (the first Gulf War in 1991), then CENTCOM commander Gen. Norman Schwarzkopf fashioned his own experiences into a creed that his command would refuse to count not only Iraqi combatants killed, but Iraqi civilians as well. For many in the military, that bias not to count civilian casualties has continued to this day.

Pressure from human rights and civilian casualty organizations began to change this practice after the Kosovo war in 1999, holding NATO and individual military forces accountable for civilian casualties and harm. Two decades of fighting after 9/11 accentuated the need to account for civilian harm, not just for legal and humanitarian reasons, but also because the effort to kill terrorists without accounting for civilian effects was shown to just increase the number of terrorists in succeeding generations.

In the formulation of its civilian harm “mitigation” strategy, the Pentagon has chosen specifically to ignore the work of the human rights and warfare-monitoring community, as revealed in a 2022 RAND Corporation report on “U.S. Department of Defense Civilian Casualty Policies and Procedures.” The Office of the Secretary of Defense, the report says, rejected the use of “third party” assessments because it did “not want to be held accountable to a range [of number] that is not an accurate estimate.”

The GAO report notes that a Joint Staff official said that the Defense Department still chooses to ignore civilian casualty assessments from third-party sources even though it itself fails to aggregate its own data and make its own efforts. Citing the RAND study, the GAO notes however that “Third-party groups tend to identify a range of estimates and leverage local news, social media sites, and footage of incidents posted to YouTube or other outlets” and that these estimates, though they can vary widely from the DOD’s internal numbers, are still essential to improve the accuracy of the military’s own assessments.

The GAO urges the DOD to establish effective metrics and “to get buy-in from DOD components and officials at all levels implementing the [civilian harm] action plan.” It also says that the Pentagon needs to “better monitor progress in implementing [its own plan] to help ensure that the improvements endure.” It is not an optimistic prognosis for civilians after years of external pressure and more than a year after Austin unveiled his new plan.

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