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Review 2017-2018 - Volume 56

The Curious Case of Civilians Working in Munitions Factories: Civilian Assumption of Risk in Armed Conflict and the United States’ DoD Law of War Manual
ANNA KHALFAOUI*
Satter Fellow, American Bar Association Rule of Law Initiative, Goma, DRC

Table of Contents
  1. Introduction
  2. Two Understandings of Civilian Assumption of Risk in the Law of War Manual
    1. June 2015 and May 2016 Editions: Complete Disqualification from the Proportionality Calculus
    2. December 2016 Edition: Flexible Application of Proportionality and the Rise of a Third Categorye
  3. Origins of the Notion of Assumption of Risk
    1. The Central Role of Hays Parks and Rationales Rooted in World War II
    2. Civilians Unlike Others? Appeals at Distinguishing between Civilians
  4. Understanding References to Assumption of Risk Relating to Civilians Working in or on Military Objectives
    1. The Unchanged Nature of Military Objectives
    2. A Loss of Civilian Protection
      1. Combatants?
      2. Direct Participants in Hostilities?
      3. Quasi-Civilians for Proportionality Purposes?
  5. Confronting Notions of Assumption of Risk and “Quasi-Combatants” with Law and Practice
    1. An Idea Not Backed by Law
    2. The Lack of State Practice
  6. The Rise and Fall of the Assumption of Risk Doctrine
    1. An Idea that Will not Catch on?
    2. Assumption of Risk in a Context of Diminished Civilian Protection
  7. Conclusion
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* I would like to give heartfelt thanks to Professor Naz K. Modirzadeh, founding Director of the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), and Dustin A. Lewis, Senior Researcher at HLS PILAC, for their insightful comments in the writing of this piece. Back

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I. Introduction

Of the many surprising and expansive interpretations of international humanitarian law (IHL) in the United States Department of Defense’s Law of War Manual, the articulation of a notion of assumption of risk merits particular scrutiny. The Manual repeatedly insists that certain civilians or other protected persons 1 – by virtue of their presence close to combat operations and, in particular, in military objectives – assume the risk of injury or death. The primary consequence of this ‘assumption of risk’ or ‘acceptance of risk’, in the first two editions of the Law of War Manual, of June 2015 2 and May 2016, 3 was that these civilians and other protected persons would not have to be considered as part of a proportionality assessment in assessing the legality of a strike. 4 Significant changes were made in the most recent edition of the Law of War Manual updated in December 2016. 5 There, the notion of assumption of risk is preserved, but references to the idea that a commander could discount civilians and other protected persons from the proportionality analysis have been deleted. The Manual now explicitly states that these persons should be considered in the proportionality analysis and that feasible precautions be taken to reduce the risk of harm to them. 6

Although these changes may, at first sight, appear salutary in preserving a core principle of IHL and have been praised as such by some commentators, 7 this paper will argue that the notion of assumption of risk as formulated in the latest edition of the Law of War Manual continues to undermine the principle of proportionality. As will be seen, the changes leave room for a selective application of proportionality that runs the risk of weakening civilian protection in armed conflict. In doing so, the Law of War Manual points to the rise of a third, intermediary, category in between civilians and combatants of ‘quasi-combatant’ or ‘quasi-civilian’.

As a preliminary matter, it must be noted that there are numerous references to assumption of risk in the Law of War Manual relating to:
  • civilian workers supporting military operations in or on military objectives; 8
  • persons accompanying the armed forces; 9
  • medical and religious personnel, 10 including in relation to a non-international armed conflict (NIAC); 11
  • military medical units and facilities; 12
1 IHL formally recognizes and defines categories of persons in international armed conflicts who do not or no longer participate in hostilities as a 'protected person': the wounded, sick and shipwrecked under Arts. 13 of Geneva Convention I and II, and Arts. 8(a) and 8(b) of Additional Protocol I; prisoners of war under Art. 4 of Geneva Convention III and Arts. 43 and 44(1) of Additional Protocol I; and civilians under Art. 4 of Geneva Convention IV and Art. 50 of Additional Protocol I. While there are no formal categories of 'protected persons' in non-international armed conflict, IHL nonetheless grants protections to persons who do not or no longer participate in hostilities: see J. Kleffner, ‘Scope of Application of International Humanitarian Law’ in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, (Oxford, Oxford University Press, 2013, 3rd ed.), p. 55. Back
2 U.S. Department of Defense, Law of War Manual (June 2015) [hereafter DoD Manual June 2015]. Back
3 U.S. Department of Defense, Law of War Manual (May 2016) [hereafter DoD Manual May 2016]. Back
4 The principle of proportionality prohibits attacks against military objectives where such attacks "are expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (AP I, Art. 51(5)(b)). The principle of proportionality rules out any manifestly disproportionate collateral damage inflicted to achieve military objectives as a form of indiscriminate warfare. Back
5 U.S. Department of Defense, Law of War Manual (December 2016) [hereafter DoD Manual]. Back
6 DoD Manual, supra note 5, §5.12.3.3. Back
7 M. Lederman, ‘Thoughts on Distinction and Proportionality in the December 2016 Revision to the Law of War Manual’, 19 December 2016, https://www.justsecurity.org/35617/thoughts-distinction-proportionality-december-2016-revision-law-war-manual/ (unless indicated otherwise, all urls cited were last accessed on 19 September 2018). Back
8 DoD Manual, supra note 5, §5.12.3.3. Formerly § 5.12.3.2 in June 2015 and May 2016 editions. Back
9 Id., §4.15.2.3. Back
10 Id., §7.8.2.1. Back
11 Id., §17.15.1.2. Back
12 Id., §7.10.1.1. Back

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  • human shields; 13
  • persons hors de combat, 14 including in relation to NIACs; 15
  • prisoners of war and other protected persons, 16 including parlementaires; 17 and
  • hospital ships, sick-bays in warships, and coastal rescue craft. 18

Much of the corresponding academic discussion has focused on the treatment of human shields in the Law of War Manual. 19 Yet, the idea that civilians who are in or on military objectives would either be discounted altogether from the proportionality assessment or, according to the latest edition, be partially considered in the proportionality analysis, has much broader implications on civilian protection in armed conflict. This article focuses on the questions and implications raised by the concept of assumption of risk in the context of civilian employees in or on military objectives; the paradigmatic example of which is civilians working in munitions factories. Other examples include civilian drivers of munitions transports and civilian mariners on board warships – think engineers, cooks and cleaners.

This article, first, concentrates on references to civilian assumption of risk in the Law of War Manual concerning civilians employed in or on military objectives, tracking the changes made in the December 2016 edition, and the relative weighing of civilian lives.

Second, the paper retraces the origins of the notion of assumption of risk. It looks at the significant role played by the ideas of Hays Parks and rationales stemming from World War II. It also critically assesses the possibility of drawing a distinction between different classes of civilians on the basis that some lives or occupations are closely connected to the war effort.

Third, it considers the situation of civilians working in or on military objectives and how to best conceptualize these individuals in light of established IHL categories.

Fourth, this article argues that notions of assumption of risk and selective application of proportionality are not backed up by law or practice, and that the logic and objectives of IHL leave little room for ‘quasi-combatants’ or ‘quasi-civilians’.

Finally, it looks at the factors that would make it either unlikely or difficult for the concept of civilian assumption of risk to gain traction on the ground. It analyzes both potential problems in the application of a new standard of proportionality and the status of the Law of War Manual. It, nonetheless, maintains that the concept of civilian assumption of risk could have important repercussions on how officers understand their obligations and the protections guaranteed by IHL.

II Two Understandings of Civilian Assumption of Risk in the Law of War Manual

1. June 2015 and May 2016 Editions: Complete Disqualification from the Proportionality Calculus

The first two editions of the Law of War Manual, of June 2015 and May 2016, set out in section 5.12.3.2 an identical discussion of the concept of civilian assumption of risk. Section 5.12.3.2 states that “harm
13 Id., §.5.12.3.4. Back
14 Id., §7.3.3.1. Back
15 Id., §17.14.12. Back
16 Id., §5.15.1. Back
17 Id., §12.5.3. Back
18 Id., §7.12.2.5. Back
19 See Lederman, supra note 7; A. Haque, ‘Human Shields in the DoD Manual: A New Mistake or an Old One’, 29 October 2015, https://www.justsecurity.org/27173/human-shields-dod-manual-mistake-one/; A. Haque, ‘Off Target: Selection, Precaution, and Proportionality in the DoD Manual’, Vol. 92 International Law Studies 2016, p. 12; C. Dunlap Jr., ‘A Squarable Circle?: The Revised DoD Law of War Manual and the Challenge of Human Shields’, 15 December 2016, https://www.justsecurity.org/35597/squarable-circle-revised-dod-law-war-manual-challenge-human-shields/; C. Dunlap Jr., ‘The DoD Law of War Manual and its Critics’, Vol. 92 International Law Studies 2016, pp. 85-118; N. Gordon & N. Perugini, ‘Human Shields: the Weapon of the Strong’, 22 October 2015, https://www.justsecurity.org/27005/human-shields-weapon-strong/. Back

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to certain persons who may be employed in or on military objectives would be understood not to prohibit attacks under the proportionality rule”. 20

These editions of the Law of War Manual go on to list the individuals this section applies to as persons authorized to accompany the armed forces, parlementaires, and, most importantly for our purposes, “civilian workers who place themselves in or on a military objective, knowing that it is susceptible to attack, such as workers in munitions factories”. 21

The Law of War Manual asserts that such “persons are deemed to have assumed the risk of incidental harm from military operations”. 22 It adds that the presence of such persons does not have the effect of prohibiting attacks by the attacking forces. If it did, the Law of War Manual asserts, “the defending force that used such persons in proximity to its forces or military objectives would be unlawfully using the presence of such persons to shield its operations or its military objectives from attack”. 23

This proposition on civilian workers is supported by a footnote listing three sources. The legal valence of these sources will be discussed further below in Part V.1.

The first is The Commander’s Handbook on the Law of Naval Operation (2007) which states that, “[t]he presence of civilian workers, such as technical representatives aboard a warship or employees in a munitions factory, in or on a military objective, does not alter the status of the military objective. These civilians may be excluded from the proportionality analysis”. 24

The second – a quotation from Michael Bothe, Karl Josef Partsch and Waldemar A. Solf’s influential 1982 Commentary on the Additional Protocols to the Geneva Conventions – is cited for the proposition that, “[d]uring international armed conflict, workers in defense plants or those engaged in distribution or storage of military supplies in rear areas ‘assume the risk of incidental injury as a result of attacks against their places of work or transport’”. 25

The third is a 1956 draft rule from the International Committee of the Red Cross (ICRC), Article 6(3), to the effect that, “should members of the civilian population, Article 11 notwithstanding, be within or in close proximity to a military objective they must accept the risks resulting from an attack directed against that objective”. 26

Only one of these authorities, the Commander’s Handbook, in fact states that civilians can be excluded from the proportionality calculus because of their presence in or on a military objective. The second and third sources explicitly refer to this idea of assumption or acceptance of risk on the part of these civilians but do not, at least expressly, equate it to these individuals being discounted from a proportionality assessment. According to Oona Hathaway, these sources “only support the idea that the civilians who are in close proximity to a military objective must accept the risks resulting from an attack directed against that military objective, not that such civilians do not count in the proportionality analysis”. 27

The ICRC, after laying out the draft rule, immediately criticizes the notion that such civilians would lose their personal immunity within the military objective. It notes that, “far from seeking systematically to destroy civilians working in the war industries, belligerents have been at pains to attack these industries but to spare the people in them as far as possible”. 28 This supports an understanding that these
20 DoD Manual June 2015, supra note 2, §5.12.3.2 and DoD Manual May 2016, supra note 3, §5.12.3.2. Back
21 Id. Back
22 Id. Back
23 Id. Back
24 Department of the Navy, U.S. Marine Corps, Department of Homeland Security and U.S. Coast Guard, Commander’s Handbook on the Law of Naval Operations (July 2007), §8.3.2. Back
25 M. Bothe, K. Partsch & W. Solf, New Rules for Victims of Armed Conflicts (1982), p. 303. Back
26 International Committee of the Red Cross, Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War (1956), p. 63. Back
27 O. Hathaway, ‘The Law of War Manual’s Threat to the Principle of Proportionality’, 23 June 2016, https://www.justsecurity.org/31631/lowm-threat-principle-proportionality/. Back
28 International Committee of the Red Cross, supra note 26, p. 64. Back

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persons are civilians. As such those persons remain protected under the principles of proportionality and of precautions against the effects of attacks – irrespective of whether they are in or on a legitimate military object, which is a separate, if partly linked, consideration.

According to the concept of civilian assumption of risk articulated in the two first editions of the Law of War Manual, civilians who assume a risk by being present in or on a military objective would be wholly elided from a proportionality assessment. These civilians would not have to be considered by a commander in assessing the legality of a strike on that objective. That interpretation, assuming it is what is meant by assumption of risk, has the potential to radically alter the application of proportionality and its ability to protect the civilian population from excessive harm.

Section 5.12.3.2 of the first two editions of the Manual refers to “civilian workers who place themselves in or on a military objective, knowing that it is susceptible to attack, such as workers in munitions factories”. 29 Understood in this way, some form of choice or voluntariness on the part of these civilians to place themselves in a dangerous situation lies at the heart of the assumption-of-risk doctrine. Beyond workers in or on the military objective, the supporting sources are much broader and indicate that any civilian in the vicinity or proximity of that legitimate objective would also assume the risk and therefore could be legitimately disregarded when assessing proportionality.

The cited sources’ statements apply to all civilians, inside or in the vicinity of that objective, regardless of whether they are aware that this objective is susceptible to attack. 30 Lacking such a knowledge requirement, “if the ‘assumption of risk’ is sufficient to disqualify a civilian from consideration in a proportionality analysis, then any civilian in the vicinity of a military object no longer counts for purposes of a proportionality analysis”. 31 This would sound the death knell of proportionality altogether: an attacker would be free to target a military objective regardless of the presence of witting or unwitting civilians around it, however numerous.

2. December 2016 Edition: Flexible Application of Proportionality and the Rise of a Third Category

The latest version of (what was previously) section 5.12.3.2 was significantly revised in the December 2016 update of the Law of War Manual and now appears under section 5.12.3.3 titled “civilian workers who support military operations in or on military objectives.” Section 5.12.3.3 acknowledges that, although “reasonable steps must be taken to separate the civilian population from military objectives … sometimes civilian personnel work in or on military objectives in order to support military operations”. 32

The examples cited are civilian workers serving as “members of military aircrews, as technical advisers on warships, and as workers in munitions factories”. 33 Such persons are said to “assume a certain risk of injury”. 34 The Law of War Manual states that, “[p]rovided such workers are not taking a direct part in hostilities”, “those determining whether a planned attack would be excessive must consider such workers, and feasible precautions must be taken to reduce the risk of harm to them”. 35 The section adds that, “[t]hose making such determinations may consider all relevant facts and circumstances”. 36

The proposition that civilian workers assume a certain risk of injury is supported in a footnote by four sources, the validity of which, again, will be discussed in Part V.1 of this article. The first is an excerpt from U.S. comments on the ICRC’s Memorandum on the Applicability of IHL in the Gulf Region dating
29 DoD Manual June 2015, supra note 2, §5.12.3.2 and DoD Manual May 2016, supra note 3, §5.12.3.2. Back
30 Hathaway, supra note 27. Back
31 Id. Back
32 DoD Manual, supra note 5, §5.12.3.3. Back
33 Id. Back
34 Id. Back
35 Id. Back
36 Id. Back

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to 1991 which states that, “[l]ikewise, civilians working within or in the immediate vicinity of a legitimate military objective assume a certain risk of injury”. 37

The second – another quotation from Bothe, Partsch and Solf’s 1982 commentary – states that:
By being within, or in the vicinity of a military objective, these civilians assume the risk of collateral injury from the effects of attack. It is also doubtful that incidental injury to persons serving the armed forces within a military objective will weigh as heavily in the application of the rule of proportionality as that part of the civilian population which is not so closely linked to military operations. 38
The third is an excerpt from remarks of Lieutenant Colonel Burrus M. Carnahan at a 1987 American Red Cross-Washington College of Law Conference on IHL states that, “State practice … suggests the existence of at least one intermediate category: persons who, while not taking a direct part in hostilities, are so intimately connected with a military objective that they have forfeited the right to be free from risk of collateral damage”. 39

Finally, a quotation from a 1986 article by Solf argues that:
[W]hile a civilian may not lose his protection against individualized attack while working in a munitions plant, he assumes the risk of collateral injury when he is in the vicinity of the munitions plant, although he continues to retain full protection while at home. 40
This footnote again does not point to any source of law or, it should be noted, to any more recent material – the latest source being the U.S. comments dating back to the early 1990s. The four sources lay out a different understanding of what civilian assumption of risk means in practice in the context of civilian working in military objectives.

The first and fourth quotations both explicitly support the idea that a civilian would be assuming a certain risk of injury by working in or the vicinity of a military objective. However, neither states that, as a consequence, civilians could be excluded from a proportionality assessment.

The rationales underlying the two other cited sources entail much broader implications. The second and third sources state that civilian workers would “not weigh as heavily in the application of the rule of proportionality” or would constitute an “intermediate category” of persons that “have forfeited the right to be free from risk of collateral damage”. By doing so, these sources indicate that civilian lives could – and perhaps should – be weighed differently than other civilians in the proportionality calculus.

The factors affecting the proportionality assessment could include “whether the enemy is in part responsible for their presence, or the degree of ‘connection’ between non-DPH civilians [that is, civilians not directly participating in hostilities] and the military effort”. 41 Supplementing section 5.12.3.3, revised section 5.12.1.4 of the Law of War Manual lays down that the “responsibility of the defending force” in the “employment of civilian personnel in or on military objectives” would be a “factor that may be considered in determining whether such harm is excessive”. 42

The most recent edition of the Manual encompasses a second interpretation of civilian assumption of risk: a proportionality assessment is obligatory in respect of civilians who have assumed a risk by virtue of their presence in or on a military objective. In this version, however, proportionality seemingly would be susceptible to a selective and flexible approach that could also have profound adverse consequences for civilian protection.
37 U.S. ‘Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of International Humanitarian Law in the Gulf Region’ (11 January 1991), as reprinted in S. Cummins & D. Stewart (eds.), Digest of United States Practice in International Law 1991–1999 (2005), pp. 2057, 2064 Back
38 Bothe, Partsch & Solf, supra note 25, p. 295. Back
39 M. P. Dupuis, et at al., ‘The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions’, Vol. 2 American University International Law Review 1987, p. 510. Back
40 W. Solf, ‘Protection of Civilians Against the Effects of Hostilities under Customary International law and Under Protocol I’, Vol. 1 American University International Law Review 1986, p. 131. Back
41 Lederman, supra note 7. Back
42 DoD Manual, supra note 5, §5.12.1.4. Back

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This latest understanding of proportionality echoes a speech made by Defense Department General Counsel Jennifer O’Connor in November 2016. In it, she announced that the new edition of the Law of War Manual would clarify that the proportionality principle applies to “civilian[s] who are proximate to military operations, such as workers in a factory that produces military weapons” and that “feasible precautions must be taken to reduce the risk of harm to them”. 43 This important message was, however, immediately qualified: “their [namely, these civilians’] choice to support military operations in or on a military objective may be weighed by commanders as a factor in the proportionality analysis”. 44

This speech and the most recent edition of the Law of War Manual allude to yet another method of interpreting and applying the proportionality principle, namely of “variable weighing of the lives of different types of civilians.” 45 This approach hazards the rise of a new category of ‘quasi-combatants’ or ‘quasi-civilians’ made up of ‘bad civilians’ tainted by their participation in the war effort. Under this logic, the lives of these individuals, having made the “choice to support military operations”, could be partially discounted by a commander in deciding whether to launch an attack.

The Law of War Manual now expressly states that a commander “must consider” workers in or on a military objective in deciding whether the planned strike would lead to excessive civilian casualties. 46 This should be welcomed. Crucially, however, it does not lay down that the principle of proportionality fully applies in respect of these civilians, nor does it expressly require that the relative value or weight of these civilians’ lives must be fully assessed pursuant to a traditional understanding of the principle of proportionality in IHL.

On the contrary, implicitly, the Manual’s vague requirement that their lives must be “considered” leaves open the possibility for a selective and partial application of proportionality, which is consistent with O’Connor’s 2016 speech. In short, on one hand, the Law of War Manual acknowledges that civilian workers ‘count’, but, on the other, it does not state how much they count. This leaves considerable room for uncertainty: if the lives of such civilian workers must be weighed prior to the launching of an attack but there is no requirement for each civilian to be counted in full, how is each life to be weighed in this assessment?

Interestingly, section 5.12.3.2 of the two previous editions referred to “civilian workers who place themselves in or on a military objective, knowing that it is susceptible to attack, such as workers in munitions factories”. Section 5.12.3.3 of the new edition is titled “civilian workers who support military operations in or on military objectives” and states that “sometimes civilian personnel work in or on military objectives in order to support military operations” (emphasis added). As was pointed to before, section 5.12.3.2 previously seemed to establish some requirement of voluntariness on the part of the civilian workers needed for them to be deemed to have assumed the risk. The new edition of the Law of War Manual is more ambiguous on that point. There is no knowledge requirement that the individuals be aware of the risk associated with their presence.

Alternatively, it could be argued that an implicit intent requirement is discernible in the words “civilian workers who support military operations” and “in order to support military operations”. 47 But this reading is only partly persuasive. Civilian workers may support military operations in or on a military objective, in various ways, potentially even without being aware that they are aiding military capabilities. As such, they would not be voluntarily or willingly taking these risks upon themselves, especially in light of the variety of military objectives. Take, in particular, dual-use infrastructure serving both military and civilian purposes, such as steel factories, fuel storage centers, or electrical grid supplies. These dual-use facilities can constitute a legitimate military target, even if they also provide for the civilian population, if they make an “effective contribution to military action” and their
43 J. O’Connor, Department of Defense General Counsel, ‘Applying the Law of Targeting to the Modern Battlefield’ Speech at New York University School of Law, 28 November 2016, p. 12. Back
44 Id. Back
45 O. Hathaway, M. Lederman & M. Schmitt, ‘Two lingering concerns about the forthcoming Law of War Manual amendments’, 30 November 2016, https://www.justsecurity.org/35025/lingering-concerns-forthcoming-law-war-manual-amendments/. Back
46 Dod Manual, supra note 5, §5.12.3.3. Back
47 Id. , §5.12.3.3. Back

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destruction offers “a definite military advantage”. 48 Civilian workers in a steel factory, for instance, could be unaware that part of the finished steel goes into the construction of tanks in another facility.

Once again, the sources backing section 5.12.3.3 do not draw the line at civilians working in or on a military objective. The first, second, and fourth cited sources all refer to individuals assuming a risk, not just while they are working in or on a military objective, but also, more broadly, when they are in the vicinity of a lawful target. The third cited source is even broader: by referring to persons “so intimately connected with a military objective”, it could be used to implicate a much wider pool of civilians, beyond civilian workers, living or working around that military objective.

None of these sources establish the necessary knowledge or intent that these civilian workers must demonstrate to justify a diminution of the value given to their lives in a proportionality analysis.

III .Origins of the Notion of Assumption of Risk

1. The Central Role of Hays Parks and Rationales Rooted in World War II

It is difficult to account for the full breadth of the concept of civilian assumption of risk in the Law of War Manual without tracing the Manual’s origins back to the central figure of W. Hays Parks. Senior Associate Deputy General Counsel at DoD from 2003 to 2010, Parks spearheaded the drafting of the Manual through three quarters of the almost two decades that it took to bring the project to completion. 49 Parks announced the Manual would be released shortly in 2010 following a final-read through 50 and in 2011 after an informal interagency review. 51 In 2012, he announced the “demise” of the Manual due to disagreements between the Departments of Defense, State and Justice, appearing to doubt that the Manual would ever be released. 52

The seeds for the concept of civilian assumption of risk appear to have been planted in “Air War and the Law of War”, a 1990 article by Parks in the Air Force Law Review journal. The article most comprehensively discusses his interpretation of proportionality. It reveals an approach reflecting rationales that predate Additional Protocol I (AP I) and which are grounded in experiences of World War II. 53 Parks is starkly critical of the guarantees of civilian protection offered by AP I. Basing his analysis on the draft 1923 Hague Air Rules, Parks warns against “international lawyers endeavour[ing] to draft a set of rules that were totally at odds with state practice, technological advances, and military thinking”. 54 This is supported by a reference to James M. Spaight, that “[n]o restrictive covenant can avail to prevent that which is the nature of things”. 55

Regarding civilians working in or on a military objective, Parks asserts that “some legal scholars,” which would include him, support the idea that “if a military base were under attack, civilians employed thereon would be at risk from incidental injury and such injury would not be prohibited”. 56 He criticizes scholars who further assert that those civilians cannot be attacked directly, acknowledging that this “may reflect the view of Protocol I but it is not an accurate portrayal of history”. 57 According to Parks, AP I provided “a very small portion of a nation’s civilian population working directly with a nation’s
48 AP I, Art. 52(2). Back
49 Haque (2015), supra note 19. Back
50 W. H. Parks, ‘Update on the DOD Law of War Manual’, Speech before the America Bar Association's Standing Committee on Law & National Security, 30 November 2012, https://lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2012/12/Parks.Manual.pdf. Back
51 W.H. Parks, 'The US and the Laws of War', Speech at Chatham House, 21 February 2011 https://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/il210211summary.pdf. 52 W. H. Parks, ‘Update on the DOD Law of War Manual’, Speech before the America Bar Association's Standing Committee on Law & National Security, 30 November 2012, https://lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2012/12/Parks.Manual.pdf. Back
53 W.H. Parks, ‘Air War and the Law of War’, Vol. 32 A.F.L. Rev 1990. Back
54 Id. Back
55 J. Spaight, ‘The Doctrine of Air Force Necessity’, Vol. 6 B.Y.I.L 1925, quoted in Parks, supra note 53, p. 31, fn. 118. Back
56 Parks, supra note 53, p. 134. Back
57 Id. Back

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military effort … protection from intentional attack to the potential detriment of the overwhelming majority of the civilian population of any nation”. 58

In short, Parks’ position is that civilians, who work in or on a military objective or more generally serve the war effort, are quasi-military. Accordingly, for Parks, the presence of those civilians should not preclude the legality of a strike on their place of work. Parks quotes Spaight to characterize the “quasi-military nature of men and women in munitions factories” and to argue that “these persons may be regarded as auxiliary services of the armies while at work”. 59

Later, Parks addresses “civilians working directly towards the military effort”, in which category he includes scientists working on military research projects. 60 These individuals “should not be permitted to jeopardize the safety from attack of the innocent civilian, whose numbers make up the vast majority of any nation’s population.”. 61 In a footnote, Parks argues that these “quasi-civilians” or “quasi-military personnel” “generally” would be at risk only while at their place of work. 62 Parks’ main thesis is that “attack of a military objective, wherever located, is lawful”. 63 Any other approach taking account of the civilian losses would, according to him, encourage the defending forces to “cost out a high-value target” by surrounding the military objective by civilians, so that the civilian casualties of the attack would be disproportionate to the military advantage gained. 64

In an internal 1983 document titled “Proportionality in a Nutshell”, Parks argues that three kinds of civilians can be excluded when determining collateral civilian casualties. 65 The first are civilians directly participating in hostilities. Indeed, Article 51(3) of AP I expressly provides that civilians directly participating in hostilities lose their protection against attack for such time as that participation. 66 The second groups are civilians injured or killed while working in or immediately adjacent to a lawful target. The third are civilians injured or killed through actions attributable to the enemy. This would include civilians injured or killed as a result of the defending party’s decision to surround the target by civilians in an attempt to shield the target from attack. 67 The 1983 document further states that proportionality “does not establish a separate standard” but is simply a means to determine whether there has been an “intentional attack of civilians not engaged in the hostilities”. 68

Parks’ rationale is that “quasi-military” civilians, based on their presence in or on military objects, should not be included in the proportionality analysis. Parks' thinking reflects a total-war rationale which goes against principled and effective guarantees of civilian protection and is rooted in certain experiences of World War II where the killing of civilians and widespread destruction of civilian objects, along with the indiscriminate use of the air force, took place on a massive scale. 69 As much is shown by his references to the destruction of Dresden and the dates of publication of the sources he uses to support his arguments. This ignores the codification of the principle of proportionality in AP I in 1977.

The total-war mentality has come to pervade the Law of War Manual through Parks’ influence. Although Parks’ article “Air War and the Law of War” is referenced only twice in the Manual, Parks appears 38 times in the footnotes. Writers have already highlighted the similarities between Parks’
58 Id. Back
59 J. Spaight, Air Power and War Rights. (Longmans, 1933, 2nd ed.), quoted in Parks, supra. note 53, p. 42. Back
60 Parks, supra. note 53, p. 135, fn. 402. Back
61 Id. ., p. 132. Back
62 Id. ., p. 135, fn. 402. Back
63 Id. ., p. 176. Back
64 Id. . Back
65 The document is reproduced in part in Parks, supra. note 53, p. 174. Back
66 AP I, Art. 51(3); International Committee of the Red Cross, Customary International Humanitarian Law Vol. 1: Rules., 2007. Back
67 Parks, supra. note 53, p. 174. Back
68 Id. . Back
69 G. Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts. (Methuen, 1983), pp. 262-285. Back

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views and the Law of War Manual’s treatment of proportionality. 70 Adil Haque, notably, described at length how Parks’ vision of human shields is replicated throughout the Manual. 71

Fortunately, the Law of War Manual does not espouse Parks' views that proportionality is not a specific standard but merely a way to assess whether there has been an intentional attack on civilians, in breach of the principle of distinction. The Law of War Manual recognizes that the principle of proportionality is a distinct requirement laid down in the jus in bello. 72 However, Parks' influence in the two interpretations of the concept of civilian assumption of risk laid out in the successive editions of the Law of War Manual is clearly perceptible. The version of the concept laid out in the two previous editions – that civilians who have assumed a risk by virtue of their presence within a lawful target can be entirely disregarded from the proportionality analysis – was a strict application of Parks' extremely narrow understanding of proportionality reflected in his “Nutshell”.

Although the current edition of the Law of War Manual states that civilian workers must be considered in a proportionality assessment, as seen above, there is considerable uncertainty as to what considering these civilian workers means in practice. Instead, the fact that these civilians supported military operations in or on a military objective could be a factor in the proportionality analysis. This very much recalls Parks’ assertion that civilians employed in the war effort are not “true civilians” 73 but “quasi-civilians ... or quasi-military personnel”. 74 The Law of War Manual supports the view that it is the presence of these civilians in or next to a military objective that contaminates them and affects how their lives are valued in the proportionality calculus.

2. Civilians Unlike Others? Appeals at Distinguishing between Civilians

Before dismissing Parks’ assumption of risk as anachronistic thinking and in doing so inevitably calling into question the provisions of the Law of War Manual in which Parks’ influence is clearly perceptible, one must engage with the substance of his appeal at differentiating civilians working in or on a military objective from other civilians now reflected in the Law of War Manual. Are there considerations speaking in favour of recognizing civilian personnel as distinct and less deserving of protection under the proportionality rule?

The Law of War Manual and Parks, as shown above, support the position that civilian workers assume a risk by being in or on a military objective. Section 5.12.3.3's reference to “civilian workers who support military operations in or on military objectives” indicates that it is the civilians’ very action of working in or on a military objective that taints them for the duration of their presence in that location. The first two editions of the Law of War Manual referred to workers placing themselves in a place of attack “knowing that it is susceptible to attack”. 75 Separate categories of civilians would recognize that there is something different going on where civilians have placed themselves in a situation where they are at risk of injury or death.

Janina Dill asserts that, “[i]t is a powerful intuition that what happens to civilians in war should at least to some extent be a result of their own choices”. 76 For the purposes of proportionality, bakers, farmers and butchers, unconnected to the war effort, would be distinguished from the civilians whose principal occupation is the manufacturing of bombs, weapons and various other military items and who, by virtue of their profession, have deliberately incorporated themselves into the military's organization.
70 See M. Lederman, ‘Troubling proportionality and rule-of-distinction provisions in the Law of War Manual’, 27 June 2016, https://www.justsecurity.org/31661/law-war-manual-distinction-proportionality/; Haque (2015), supra note 19. Back
71 Haque (2016), supra note 19, p. 67. Back
72 DoD Manual, supra note 5, §2.4. Back
73 Parks, supra note 53, p. 132. Back
74 Id. , p. 135, fn. 402. Back
75 DoD Manual June 2015, §5.12.3.2 and DoD Manual May 2016, §5.12.3.2. Back
76 J. Dill, ‘The DoD Law of War Manual and the False Appeal of Differentiating Types of Civilians’, 1 December 2016, https://www.justsecurity.org/35068/dod-law-war-manual-false-appeal-differentiating-types-civilians/. Back

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These choices would introduce a moral distinction between civilians. Such moral distinctions between civilians have been discussed particularly in the context of human shields. 77 The moral weight of civilians employed in a military objective, despite being non-combatants, would be inferior to that of civilians unconnected to the war effort. This pyramid approach concerning civilian lives’ moral worth, from a ‘good civilian’ to a ‘bad civilian’ to a ‘terrible civilian,’ is reflected in Major General Rogers’ argument that:
There is inevitably the question of the significance in those calculations that the military planners attach to likely civilian casualties in different situations. They, and the public, will be very concerned about civilians who happen to be in the vicinity of objects that have been selected for attack, but perhaps less so for civilians who aid the war effort by, for example, working in an armaments factory, and hardly at all for those who have volunteered to act as ‘human shields’. 78
In turn, such moral distinctions would justify affording less protection to those who chose to remain in or on military objectives. According to Stefan Oeter, “the deliberate taking of the risk by any civilian who stays in a military installation” should influence the balance in the proportionality assessment because of “reasons of military practicability” and “of soldiers’ common sense”. 79 Oeter acknowledges this “might create serious ethical difficulties”. 80 Yoram Dinstein, in the context of human shields, has argued that the proportionality calculus “must make allowances for the fact that – if an attempt is made to shield military objectives with civilians – civilian casualties will be higher”. 81 Proportionality, in his view, should not unduly restrict the options of an assailant. In the context of civilian workers in or on a military objective, the expected number of civilian casualties that would occur as a result of an attack on that objective may be particularly important. A large munitions factory could employ hundreds if not thousands of civilians on site in various positions.

It may be attractive to consider IHL to be a “means to allocate harm and violence in war in accordance with civilians’ individual moral status”. 82 As a result, the death of an innocent bystander would be worse than that of an individual who puts themselves at risk of a foreseeable attack. Choices made by individuals would be reflected in the proportionality calculus, as enshrined in the Law of War Manual. Yet, there are compelling reasons to question the value of distinguishing between categories of civilians.

I would argue that the main issue with appeals at a distinction is that it fundamentally misunderstands the concept of choice – if any – offered to civilians in an armed conflict. First, as was already highlighted in the example of the steel worker above, there may be circumstances, particularly in the context of dual-use infrastructure, where a civilian worker may ignore that she is aiding military capabilities through her work. In such instances, such a civilian has not chosen to support military operations. Second, and crucially, countless reasons can lead to a civilian working in or on a military objective, be it a military base or a munitions factory. Coercion takes a variety of forms. Think, for instance, of severely limited employment opportunities; restricted access to food or water; or growth of military production in an armed conflict. Civilians may have very few, if any, secure alternative options to support themselves or their families where they are not exposed to the risk of a strike on their place of work. Other workers may not have a choice at all in the context of forced labour. Focusing on choice in this context casts too wide a net. Doing so makes it harder to identify the desired voluntariness or intent of civilian workers at the heart of the concept of assumption of risk and which supposedly explains why the lives of these civilians could be partly discounted from a proportionality assessment. Determining how worthy a civilian is of protection, merely based on their location of work and perceived choices, should be rejected.
77 M. Halbertal, ‘Moral Challenges in Asymmetric Warfare’, NYU Publications, http://www.law.nyu.edu/sites/default/files/upload_documents/a%20symetrical%20warfare%20publication%20(1).pdf, p. 31. Back
78 A.P.V. Rogers, Law on the Battlefield (Oxford, Oxford University Press, 2013, 3rd. ed.), p. 168. Back
79 S. Oeter, ‘Methods and Mean of Combat’, in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, (Oxford, Oxford University Press, 2013, 3rd ed.), p. 163. Back
80 Id. Back
81 Y. Dinstein, The Conduct of Hostilities, 185 (CambrIdge, CambrIdge University Press, 2016, 3 ed.), p. 185. Back
82 Dill, supra note 76. Back

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Another central issue with appeals at distinguishing between civilians, between ‘good’ and ‘bad’ civilians is delineating boundaries. If civilians directly working on military objectives are tainted by virtue of their participation in the war effort, what about scientists and engineers involved in technological research for the military? How are we to define this form of participation, which unlike direct participation in hostilities, is neither direct nor results in the individual concerned being directly targetable, but still leads the individual to be partly stripped from the protection associated with their civilian status?

This section linked the inclusion of the concept of civilian assumption of risk in the Law of War Manual to its central architect, Hays Parks. It rejected appeals at distinguishing between civilians based on their perceived deliberateness in supporting a belligerent and for their lack of definition. Having done so, it is now possible to delve deeper into references to civilian assumption of risk by the United States and other States to map out the concept and understand its meaning.

IV. Understanding References to Assumption of Risk Relating to Civilians Working in or on Military Objectives

A look at the ICRC’s customary IHL study reveals that a wide number of States appears to recognize some form of assumption or acceptance of risk when it comes to civilians present within or near military objectives, and, in particular, for civilians working in or on military objectives. 83 This section maps how such civilian personnel are understood by States and how they fit within the traditional categories of persons within IHL.

Many of the references to civilians working in or on military objectives, as will be seen, are contained in military manuals. As a preliminary point, one should recall that the United States criticized the ICRC study’s reliance on military manuals to ground a finding of customary international law. 84 This point has been extensively discussed elsewhere. 85 This paper will take the position that official publications, in the form of a military manual, constitute at least evidence of state practice and/or opinio juris. 86

1. The Unchanged Nature of Military Objectives

The principle that the nature of a military objective remains unchanged – irrespective of the presence (or not) of civilians in or around it – is firmly established in IHL. A corollary is that the presence of civilians on the site of a lawful military objective does not, in itself, preclude an attack on that objective as such. Hence, civilians in such circumstances do not enjoy absolute immunity. This point has been made forcefully by various leading commentators. Oppenheim, writing back in 1952, lays it out clearly:
Non-combatants are not, under existing International Law, a legitimate military objective. On the other hand, they do not enjoy absolute immunity. Their presence will not render military objects immune from attack for the mere reason that it is impossible to bombard them without indirectly causing injury to the non-combatants. 87
Sassoli, close to 60 years later, similarly posits that “military objectives, such as armament factories, may be attacked” and “subject to the principle of proportionality, the attack on a military objective does not become unlawful because of the risk that a civilian who works or is otherwise present in a military
83 International Committee of the Red Cross, ‘Practice Relating to Rule 8 Definition of Military Objective’, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule8_SectionA [hereafter ICRC Study, ‘Practice Relating to Rule 8’]. BACK
84 J. Bellinger & W. Haynes, ‘A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law’, Vol. 89 I.R.R.C. 2007. Back
85 M. Schmitt & S. Watts, ‘State Opinio Juris and International Humanitarian Law Pluralism’, Vol. 91 International Law Studies 2015; D. Glazier, ‘The DoD Law of War Manual: What is it Good For?’, 28 July 2015, https://www.justsecurity.org/24977/dod-law-war-manual-good-for/; J. Dehn, ‘The DOD Law of War Manual’s Potential Contribution to International Law’, 16 July 2015, https://www.justsecurity.org/24675/dod-law-war-manuals-potential-contribution-international-law/?print. Back
86 Ian Brownlie, in his Principles of Public International Law, includes “official manuals on legal questions” such as “manuals of military law” as a material source of custom: I. Brownlie, Principles of Public International Law (Oxford, Oxford University Press, 2003, 6th ed.), p. 6. Back
87 L. Oppenheim, International Law: Disputes, War and Neutrality (1952, 7th ed.), p. 525. Back

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objective may be harmed by such an attack”. 88 Rogers, equally, notes that “productions plants, engineering works or transports would be legitimate military objectives despite the fact that civilians were working in them”. 89

Numerous States' military manuals echo this point. 90 Germany’s Military Manual (1992), for instance, states that, “[c]ivilians present in military objectives are not protected against attacks directed at these objectives; the presence of civilian workers in an arms production plant, for instance, will not prevent opposing armed forces from attacking this military objective”. 91 Section 5.12.3.3 of the Law of War Manual makes the same point: “[t]he expected harm to civilian members of military aircrews on military aircraft or civilian technical advisers on warships does not render military aircraft or warships immune from attack”. 92 It adds expressly that, “munitions factories have not been deemed to be immune from attack just because of the presence of civilian workers inside the factory”. 93

Parks agrees, noting that,
[I]t has always been permissible to attack combatants even though some non-combatants may be injured or killed; so long as injury to non-combatants is ancillary (indirect and unintentional) to the attack of an otherwise lawful target, the principle of non-combatant immunity is met. 94
Therefore, recognizing that civilian presence does not, in itself, immunize a legitimate military objective from direct attacks appears uncontentious. That civilians working in or on a military objective will not change the nature of the military objective is true, irrespective of whether one recognizes the concept of assumption of risk.

The military manuals of various States, in addition to that of the U.S., make references to notions of assumption of risk or sharing of the risk. Typically, a statement to the effect that the presence of civilians does not change the nature of the military objective is followed by a second statement saying, in very similar terms, that the civilians assume the risk or share the danger of attack. Australia’s Law of Armed Conflict Manual (2006), for instance, states that:
The presence of non-combatants, including civilians, in or around a military objective does not change its nature as a military objective. Non-combatants in the vicinity of a military objective must share the danger to which the military objective is exposed. 95
88 M. Sassoli, ‘Legitimate Targets of Attacks under International Humanitarian Law’, Background Paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, CambrIdge, 2003, Harvard Program on Humanitarian Policy and Conflict Research, p. 9, http://www.humanrightsvoices.org/assets/attachments/documents/Session1.pdf. Back
89 Rogers, supra note 78, p. 9. Back
90 From the ICRC Study, ‘Practice Relating to Rule 8’, examples in War Manuals include: Germany, Madagascar, Netherlands, Russian Federation, Ukraine, Australia, Cameroon, Canada, Chad, Colombia, Côte d’Ivoire, Croatia, Ecuador, Hungary, Philippines, Spain, United States, Switzerland. Back
91 Germany’s Military Manual (1992) in IRCR Study, ‘Practice Relating to Rule 8’, supra note 83. Back
92 DoD Manual, supra note 5, §512.3.3. Back
93 Id. Back
94 Parks, supra note 53, p. 4. Back
95 Australia’s LOAC Manual (2006), quoted in IRCR Study, ‘Practice Relating to Rule 8’, supra note 83. Back

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The military manuals of the following States comprise very similar statements: Cameroon, 96 Canada, 97 Chad, 98 Colombia, 99 Côte d’Ivoire, 100 Croatia, 101 Hungary, 102 and the Philippines. 103

None of the statements equate running the risk with an either total or partial discounting of the civilian workers’ lives from the assessment of proportionality. Cryptically, however, neither do the statements elaborate on what is meant by assuming or sharing a risk and the practical implications flowing therefrom. How is one to understand references to civilian assumption of risk in these statements?

The first way to make sense of these statements is to understand references to assumption of risk as simply meaning that a lawful military objective can be attacked and that civilian workers are, hence, exposed to the risk of an attack for the duration of their presence in their place of work. This is the understanding that is clearly perceptible in the ICRC’s lessons on the conduct of operations:
The law should not be misunderstood to mean that civilians have absolute immunity from attack in all cases. They certainly have immunity from direct attack. However, military objectives do not stop being military objectives just because civilians are present; the latter share the danger of being there (emphasis added). 104
The ICRC’s document further states that, “civilians working in a munitions, weapons or aircraft factory run a risk by being there and are very much part of a legitimate military objective” and are protected against attack while “at home” or “outside their factory”. 105 The latter part of the statement must be presumed to mean 'when removed from the factory' and not as just ‘immediately in its vicinity’, because civilian workers in the immediate vicinity would likely still be covered by a proportionality calculus.

This understanding of assumption of risk – that military objectives can be directly targeted despite the presence of civilian personnel – is supported by various military manuals and official communications:
  • The Belgian Government, in a memorandum submitted to the Belgian Parliament in 1985 on the ratification of the Additional Protocols, asserted that, “each person, even a civilian, who is located inside a military objective, is exposed to the consequences of the risks that objective runs”. 106
96 Cameroon’s Instructor’s Manual (2006), quoted in IRCR Study, ‘Practice Relating to Rule 8’, states: “[The following] are considered military objectives: …- objects which by virtue of their existence or destruction contribute in whatever way to military action. Civilians located within a military objective or in its surroundings immediately share the danger to which it is exposed.” Back
97 Canada’s LOAC Manual (2001), quoted in IRCR Study, ‘Practice Relating to Rule 8’, states in its chapter on targeting: “For targeting purposes, the presence of civilians who are authorized to accompany the armed forces without actually being members thereof (such as crews of military aircraft, war correspondents, supply contractors or members of services responsible for the welfare of the armed forces) does not render a legitimate target immune from attack. Such persons run the risk of being attacked as part of a legitimate target”. Back
98 Chad’s Instructor’s Manual (2006), quoted in IRCR Study, ‘Practice Relating to Rule 8’, states: “A military objective remains one even if civilians are inside. They share the danger to which they are exposed”. Back
99 Colombia’s Instructors’ Manual (1999), quoted in IRCR Study, ‘Practice Relating to Rule 8’, states that “a military objective remains a military objective even if civilians are inside it. Civilians within or in the immediate vicinity of a military objective share the risk to which the objective is exposed”. Back
100 Côte d’Ivoire’s Teaching Manual (2007), quoted in IRCR Study, ‘Practice Relating to Rule 8’, notes in Book I (basic instruction): “Civilians situated inside or near a military objective share the risk to which the military objective is exposed.” It further states, “The presence of civilians who are authorized to accompany the armed forces without really being members of these forces (members of crews of military aircraft, war correspondents, suppliers, members of services responsible for the welfare of the armed forces) does not render a legitimate objective exempt from attacks. These persons run the risk of being attacked as elements of the legitimate objective”. Back
101 Croatia’s LOAC Compendium (1991), quoted in IRCR Study, ‘Practice Relating to Rule 8’, considers: “supply and maintenance bases are military objectives and that civilian personnel working there share the risk of attack”. Back
102 Hungary’s Military Manual (1992), quoted in IRCR Study, ‘Practice Relating to Rule 8’, considers that supply and maintenance bases are military objectives and that civilian personnel working there share the risk of attack. Back
103 The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006), quoted in IRCR Study, ‘Practice Relating to Rule 8’, notes in its glossary: “Civilian in military objective – A military objective remains a military objective even if civilian persons are in it. The civilian persons within such an objective or its immediate surroundings share the danger to which it is exposed.” Back
104 International Committee of the Red Cross, ‘The Law of Armed Conflict: Conduct of Operations – Part A, Lesson 3’, https://www.icrc.org/eng/assets/files/other/law3_final.pdf, § 6. Back
105 Id. Back
106 Belgian Government's explanatory memorandum to the Belgian Parliament (1985), quoted in IRCR Study, ‘Practice Relating to Rule 8’, supra note 83 Back

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  • Switzerland’s Basic Military Manual (1987) states that, “[c]ivilians who are inside or in the immediate vicinity of military objectives run the risks to which the military objectives are exposed”. It immediately adds, “[f]or example, the presence of civilian workers inside a weapons factory does not prevent the enemy from attacking this military objective.” 107
  • Ecuador’s Naval Manual (1989) similarly asserts that, “[c]ivilians who provide command, administrative or logistical support to military operations are exposed to attacks while performing such duties”. 108
  • Spain’s Law of Armed Conflict 2007 Manual declares that a “military objective continues to be considered as such even if there are civilians or civilian property in the vicinity”. 109 It then proceeds to describe “indirect objectives” as “those that cannot be directly attacked, but may suffer the consequences of an attack on a military objective”. It adds that civilians who support military operations, such as “labour units, workers in weapons factories, etc.”, constitute indirect objectives and thus “may suffer the effects of an attack on a legitimate military target”.
Similarly, Rogers posits that the fact that civilians work in factories, producing weapons and ammunition or more generally components directly assisting the war effort, would “not result in the forfeiture of protection, though the trucks, caches, workshops and installations in question may be legitimate targets so the civilians concerned run the risk of death or injury resulting from attacks on those targets”. 110

This first understanding of the concept of assumption of risk is consistent with the main purpose of IHL, which seeks to enhance civilian protection and reduce civilian exposure to risks but does not support the notion that civilians have an inherent right to be safe in any circumstances. IHL recognizes that civilian casualties may be inevitable in an armed conflict.

2. A Loss of Civilian Protection

A second way to interpret references to assumption of risk is that they entail a loss of protection for the civilians present in or on the military objectives. This more directly correlates with the U.S. approach taken in the Law of War Manual.

At least one other military manual expressly takes this position. The 1992 Military Manual from New Zealand states that, “[c]ivilians employed in industries or other activities connected with the war effort may lose while on the job some or all of their protection as civilians but they do not, as a result, become combatants”. 111 This appears to be the U.S. position articulated in the Law of War Manual.

The uncertainty surrounding the consequences which flow from an assumption of risk by civilians is a source of confusion. In a 2006 statement, Israel’s Ministry of Foreign Affairs asserted that, “the presence of civilians in the area does not stop a military objective from being a legitimate target”. 110 It then quoted the above statements from the Australian Manual and declared that “Israel does not adopt the position reflected here that civilians in the vicinity of a military objective must ‘share the danger’, but rather takes significant efforts to avoid or minimize civilian casualties”. 113 The previous section has
107 Switzerland’s Basic Military Manual (1987), quoted in IRCR Study, ‘Practice Relating to Rule 8’, supra note 83. Back
108 Ecuador’s Naval Manual (1989), quoted in IRCR Study, ‘Practice Relating to Rule 8’, supra note 83. Back
109 Spain’s LOAC Manual (2007), quoted in IRCR Study, ‘Practice Relating to Rule 8’, supra note 83. Back
110 Rogers, supra note 78, p. 15. Back
111 New Zealand’s Military Manual (1992), quoted in ICRC Study, ‘Practice Relating to Rule 8’, supra note 83. Back
112 Israel Ministry of Foreign Affairs, ‘Responding to Hezbollah attacks from Lebanon: Issues of proportionality’, 25 July 2006, http://mfa.gov.il/MFA/AboutIsrael/State/Law/Pages/Responding%20to%20Hizbullah%20attacks%20from%20Lebanon-%20Issues%20of%20proportionality%20July%202006.aspx. Back
113 Id. Back

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shown that the Australian Manual’s statement could simply mean that the nature of the military objectives being unchanged, civilians may be at risk of an attack on that objective. Israel's Ministry of Foreign Affairs, however, seemingly understood it as equating references to civilian assumption of risk to a loss of civilian protection and rejected it as a result.

On what basis under IHL could civilians working in or on military objectives be afforded less protection than other segments of the civilian population?

A. Combatants?

The first, and most unpersuasive, way to explain diminished protection for civilian workers in or on military objectives would be to argue that these individuals are not civilians at all but combatants and can be targeted directly on that basis.

This is apparently the stance of New Zealand’s most recent military manual (2009). In defining an “enemy”, the manual places “[a]ny person materially assisting that country, force, authority, or government in its war effort or armed combat operations” in the same category as “[a]ny member of any such armed force or any member of that authority or government”. 114

As combatants, civilians working in or on military objectives could be intentionally targeted inside and outside their place of work. However, to the extent that civilian workers are neither “members of the armed forces” 115 or of a levée en masse, 116 there is no basis in IHL to view them as combatants. AP I further lays out the rule that, in case of doubt, an individual shall be treated as a civilian. 117 New Zealand, as a party to AP I, would be bound by the presumption of civilian status.

The Law of War Manual does not make the argument that civilian workers are combatants. This argument further does not account for the fact that it is by virtue of their presence inside or on the military objective that civilian personnel are understood to assume a risk and thereby lose protection. The erosion of that protection derives from that very presence and does not continue once they are removed from their place of work.

B. Direct Participants in Hostilities?

If civilian workers are not combatants, the second basis under IHL according to which they could lose protection from attack is by being direct participants in hostilities. Indeed, the only situation in which AP I provides for a loss of protection from civilians is “for such time as they take a direct part in hostilities”. 118 The temporal limitation “for such time” would explain why civilian workers, having assumed the risk associated with their occupation, would only lose their protection while they are at work. As direct participants in hostilities, civilian workers in or on military objectives would be directly targetable, and not constitute incidental harm in an attack on a military objective.

Whether taking a direct part in hostilities includes the indirect contribution to the war effort made by factory workers and other civilians working in or on military objectives can be doubted. Ian Henderson notes correctly that, “while the concept of hostilities is wider than the concept of attack as used in AP I, it is nonetheless not synonymous with the armed conflict as a whole”. 119 Various commentators have stressed that the notion of direct participation in hostilities must necessarily be understood as narrower than “contributing to the war effort”. 120 Parks recognized that AP I had greatly restricted direct participation in hostilities as “placing ‘civilians’ at risk only when they are actually carrying out combat
114 New Zealand Defence Force, ‘Manual of Armed Forces Law’, Vol. 1 Commander’s Handbook of Military Law (2nd. ed.), http://www.nzdf.mil.nz/downloads/pdf/public-docs/dm-69-2ed-vol-1-al3-complete-bk-online.pdf, p. 4. Back
115 AP I, Art. 43(2). Back
116 1899 Hague Regulations, Art. 2 ; 1907 Hague Regulations, Article 2 , GC III; Art. 4(A)(6). Back
117 AP I, Art. 50(1). Back
118 AP I, Art. 51(3). Back
119 I. Henderson, The Contemporary Law of Targeting (LeIden, Martinus Nijhoff Publishers, 2009), p. 107. Back
120 F. Kalshoven & L. Zegveld, Constraints on the Waging of War (ICRC, 2011, 4th ed.), pp. 99-100; Rogers, supra note 78, p. 15. Back

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operations in which harms can come directly to enemy military forces”. 121 Conversely, Frits Kalshoven and Liesbeth Zegveld criticize ‘contributing to the war effort’ as “an extremely elastic notion, which even under the narrowest conceivable construction covers such activities as the production and transport of arms and munitions of war, or the construction of military fortifications” and, on this basis, rule out such activities as amounting to direct participation. 122

The ICRC, in its 2009 Guidance on the Direct Participation in Hostilities, listed three constitutive elements of direct participation: a threshold of harm, a direct causal link between the act and the harm, and a belligerent nexus. 123 Applying this test to the example of a civilian working in a munitions factory; producing munitions is likely to adversely affect the military operations of the other party to an armed conflict or could lead to civilian harm. There is, however, no direct causation between the act of making munitions and the harm likely to result.

The ICRC distinguishes between direct and indirect participation in hostilities. 124 Indirect participation, it argues, “contributes to the general war effort of a party, but does not directly cause harm and, therefore, does not lead to a loss of protection against direct attack”. The ICRC lists as examples “the production and shipment of weapons, the construction of roads and other infrastructure, and financial, administrative and political support”. “Merely building up the capacity of a party to a conflict to harm its adversary” would be insufficient. 125 Civilians working in a munitions factory would be indirect participants and, as such, be entitled to the full protection guaranteed by IHL to civilians.

However, one could imagine other situations in which a civilian working in or on a military objective could still fit the definition of direct participation, especially when taking an expansive view of “hostilities”. This is the approach taken in the Law of War Manual. Section 5.12.3.3 of the Law of War Manual states that civilian personnel who have assumed a risk must be considered in a proportionality assessment “provided such workers are not taking a direct part in hostilities”. 126 Individuals “working in a munitions factory or other factory that is not in geographic or temporal proximity to military operations but that is supplying weapons, material, and other goods useful to the armed forces of a State” would not be direct participants in hostilities. 127 However, “supplying weapons and ammunition … or assembling weapons (such as improvised explosive devices) in close geographic or temporal proximity to their use”, such as “delivering ammunition to the front lines,” would constitute taking a direct part in hostilities. 128

The Law of War Manual lays out a very broad basis on which to find direct participation. The “military significance of the activity to the party’s war effort” – such as “the degree to which the act contributes to a party’s military action against the opposing party” – is listed as one of the considerations that may be relevant to a finding of direct participation. 129 Military action is defined equally broadly, stating that it “is not necessary that the object provide immediate tactical or operational gains or that the object make an effective contribution to a specific military operation”. 130

The ICRC agrees that “the delivery by a civilian truck driver of ammunition to a shooting position at the front line would almost certainly have to be regarded as an integral part of ongoing combat
121 Parks, supra note 53, p. 124. Back
122 Kalshoven & Zegveld, supra note 120, p. 100. Back
123 N. Melzer, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, 2009), p. 46. Back
124 International Committee of the Red Cross, Direct Participation in hostilities: questions and answers, 6 February 2009, https://www.icrc.org/eng/resources/documents/faq/direct-participation-ihl-faq-020609.htm. Back
125 International Committee of the Red Cross, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report (2005), p. 21. Back
126 DoD Manual, supra note 5, §5.12.3.3. Back
127 Id. , §5.8.32. Back
128 Id. , §5.8.3.1. Back
129 Id. , §5.8.3. Back
130 Id., §5.6.6.2. Back

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operations and would therefore constitute direct participation in hostilities”. 131 To the extent that a truck full of ammunition supplying the front line would certainly constitute a military objective, 132 and that its civilian driver would be deemed to be directly participating in hostilities, this individual would be forfeiting any protection guaranteed to civilians for such time as they engage in this activity.

By contrast, a civilian working in a munitions factory or transporting munitions away from a conflict zone is not directly causing harm; as such they are not directly participating in hostilities and retain their civilian immunity from intentional attack. Thus, this argument – that civilian workers in or on a military objective assume a risk and thereby forfeit protection because they are directly participating in hostilities – is only persuasive for some civilian workers, depending on their specific activities. It cannot provide a general basis to justify a loss of protection for all civilians working in or on military objectives.

C. Quasi-Civilians for Proportionality Purposes?

If civilians working in or on military objectives are neither combatants nor uniformly direct participants in hostilities, on what basis could they be afforded less protection, or the relative value of their lives be smaller than that of other civilians in assessing proportionality?

The first way is to reject this question altogether and argue that civilian workers in or on a military objective are, in fact, entitled to the same protection as any other civilians. Their lives need to be fully considered according to a traditional proportionality calculus. However, the argument goes, the incidental loss of civilian life will never be excessive to the military advantage anticipated by the attack on that objective.

Dinstein, for instance, notes that employees of factories that constitute military objectives, such as armaments and munitions plants, face the most obvious dangers. 133 He posits that, “[t]he importance of a munitions factory is often so critical that – notwithstanding the principle of proportionality – casualties among the labourers may reach very high levels without coming under the rubric of ‘excessive’”. 134 Dinstein reiterates elsewhere that casualties among civilian workers are likely to be considerable when a munitions factory is bombed, but “[s]till, as a rule, they would come under the heading of permissible ‘collateral damage’”. 135 Consequently, “the bombardment of a vital industrial plant producing military aircraft or missiles, where there are hundreds or even thousands of civilian employees, need not be aborted merely because of the palpable hazards to those civilians”. 136

This line of reasoning does not argue that workers lose their civilian status or part of the value afforded to their lives in a proportionality assessment by virtue of being in a perilous location and thereby assuming a risk. Rather, it focuses on the military advantage to be gained from the attack on the military objective in which they work and argues that the strike would be lawful – even when fully considering the lives of the workers according to a traditional understanding of proportionality.

That the incidental loss of civilian life will never be excessive to the military advantage anticipated by the destruction of the military objective appears consistent with section 5.12.3.2 of the first two editions of the Law of War Manual, according to which, “harm to [civilian workers] who may be employed in or on military objectives would be understood not to prohibit attacks under the proportionality rule”. 137 However, if this was the intent behind the section, why refer to civilian assumption of risk at all? There is little to be gained by invoking this concept to say that, while the principle of proportionality applies
131 International Committee of the Red Cross, supra note 124. Back
132 AP I, Art. 52(2): by its use, it makes an effective contribution to military action and its destruction, capture or neutralization would offer a definite military advantage. Back
133 Dinstein, supra note 81, p 150. Back
134 Id. Back
135 Y. Dinstein, ‘Air Warfare’, in F. Lachenmann & R. Wolfrum (eds.), The Law of Armed Conflict and the Use of Force: The Max Planck Encyclopedia of Public International Law (Oxford, Oxford University Press 2017), p. 16. Back
136 Y. Dinstein, ‘The principle of proportionality’, in K. Larsen et al. (eds.), Searching for a 'Principle of Humanity' in International Humanitarian Law (Cambridge, Cambridge University Press, 2013), p. 77. Back
137 DoD Manual June 2015, supra note 2 and DoD Manual May 2016, supra note 3. Back

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fully, the incidental harm to these civilian workers will never be excessive to the military advantage to be gained by the destruction of their place of work.

Importantly, one can doubt whether the incidental harm on civilian workers would truly never be excessive. It may be true that a munitions factory forms such an important military objective that the death of a very large number of civilians working on its premises would not be disproportionate in relation the military advantage gained by the factory's destruction. William H. Boothby and Heintschel von Heinegg thus note that “only in relatively rare cases will the expected casualties among the [ammunition factory] workers be excessive in relation to what is likely to be the considerable military advantage accruing directly from the planned attack on the ammunition factory”. 138

But what about other smaller, less strategic military objectives that employ numerous civilians? A factory could produce items that are not indispensable to the adversary’s ability to fight, such as flares or smoke grenades. If the factory employed a large number of civilians, the loss of life or injury to its many employees could be excessive to the military advantage to be gained from the destruction of that objective.

In the context of a large dual-use factory that produces various items, some for military use, some for civilian purposes, how should we deal with the civilian workers who, while in the same building, work exclusively on items for civilian consumption? Would they also constitute “civilian workers who place themselves in or on a military objective, knowing that it is susceptible to attack” (according to old section 5.12.3.2) or “civilian workers who support military operations in or on military objectives” (within the wording of current section 5.12.3.3)?

It is difficult to defend a blanket statement to the effect that proportionality will invariably be satisfied when targeting a military objective in or on which civilians are employed. Proportionality is an inherently context-dependent assessment. In assessing the legality of a strike on a military factory, the incidental harm to civilian workers, in light of both their number and their location would have to be balanced against a number of factors, such as: what the factory produces; what impact the factory's destruction would have on the adversary’s supply of that good, in other words whether the objective could be rebuilt or the item acquired elsewhere; what impact the disruption of the supply would have on the adversary’s concrete ability to continue the kind of military operations that have a significant impact; etc. These are important questions a commander would have to wrestle with as part of a proportionality assessment.

The current edition of the Law of War Manual does not posit that striking a military objective where civilian workers are present will always comply with the proportionality principle. As previously shown, it instead suggests a flexible and selective application of proportionality to civilians who have assumed a risk, by virtue of their presence in or on a military objective. This is similar to Bothe, Partsch and Solf’s comments that civilians within a military objective would not “weigh as heavily” in the application of proportionality 139 or Rogers’ argument that the “use of civilians in war support activities” could be a factor considered by a tribunal in assessing whether a decision complied with proportionality. 140

This is where emerges the murky silhouette of the person, who although not a combatant, by virtue of having assumed a risk is not quite a civilian for proportionality purposes either. Whether motivated by moral or practical considerations, it remains to be seen whether this understanding of assumption of risk as a partial erosion of proportionality, which is predicated on distinguishing between different categories of civilians, is compatible with international humanitarian law. As will be seen in the next section, this idea finds support in neither law nor practice.
138 W. Boothby & H. von Heinegg, The Law of War: A Detailed Assessment of the US Department of Defense Law of War Manual (Cambridge, Cambridge University Press, 2018), p. 137. Back
139 Bothe, Partsch & Solf, supra note 25, p. 295. Back
140 Rogers, supra note 78, p. 168. Back

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V. Confronting Notions of Assumption of Risk and “Quasi-Combatants” with Law and Practice

This section argues that international humanitarian law does not support the existence of a third category between civilians and combatants or what some have called a “sliding scale of civilian protection” 141 rooted in an assumption of risk. There is no evidence of state practice pointing to customary law going in a different direction.

1. An Idea Not Backed by Law

IHL does not leave room for the recognition of ‘quasi-combatants’ or ‘quasi-civilians’ or distinguishing between ‘bad civilians’ and ‘good civilians’ unconnected to the war effort.

The dichotomy between civilians and combatants is at the heart of IHL and particularly of AP I. A civilian is defined as a person who is not a member of the armed forces. 142 The definition in contrario bars any category of ‘quasi-combatant’. Dill points out that if the location or occupation of a person were legally relevant, AP I could have defined combatants in a similar way to a military objective which takes into account the nature, location, purpose or use of the specific object. 143

Sassoli argues that the claim that some civilians could constitute a legitimate target because they contribute to the war effort is fundamentally flawed. 144 It stems from a misunderstanding as to the difference between objectives and persons that can be the subject of an attack. Military objectives can be attacked and such attacks, subject to the principle of proportionality, will not be unlawful simply because they lead to incidental harm to civilians. This, however, does not mean that civilians can be intentionally targeted.

In turn, a civilian either counts as one civilian in a proportionality assessment 145 or directly participates in hostilities and as such loses all protection from attack and can be deliberately targeted. 146 Direct participation in hostilities is the only basis recognized in IHL under which civilians are not protected by the principle of proportionality and here lies the only practicable distinction between civilians. As Hathaway, Lederman and Schmitt argue, “the DPH determination is an either/or proposition”. 147 As was suggested earlier, some civilians could indeed through their occupations be directly participating in hostilities – such as the civilian supplying ammunitions to the front line. In such cases, however, the lives of these civilians are not counted at all in a proportionality assessment rather than counted partly or weighted differently.

Civilians who work in or on a military objective remain full civilians – even if they do so willingly; with an awareness of the risk that their place of work be targeted; or with the intention of supporting the war effort. To the extent that they are not directly participating in hostilities, they must be counted fully as such in a proportionality assessment. There is no basis in law for weighting their lives differently from that of other civilians. In line with Dinstein, “the concept of a quasi-combatant workforce is completely spurious”. 148

Assumption of risk is a flawed standard because it is not relevant as a matter of law. Yes, civilians working in military objectives are subjected to a higher risk than civilians who do not. However, even leaving aside the previously discussed problem that there may be little choice or willingness involved,
141 Dill, supra note 76. Back
142 AP I, Art. 50. Back
143 AP I, Art. 52(2) and Dill, supra note 76. Back
144 Marco Sassoli, ‘Combattants et Combattants Illégaux’, in V. Chetail (ed.) Permanence et Mutation du Droit des Conflits Armés (Bruxelles, Bruylant, 2013), p. 176. Back
145 AP I, Art. 51(5)(b). Back
146 AP I, Art. 51(3). Back
147 O. Hathaway, M. Lederman & M. Schmitt, ‘Two lingering concerns about the forthcoming Law of War Manual amendments’, 30 November 2016, https://www.justsecurity.org/35025/lingering-concerns-forthcoming-law-war-manual-amendments/. Back
148 Dinstein, supra note 81, p. 77. Back

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the moral value of individuals and their mental state is not relevant to IHL if they do not engage in specific actions – in the same way that allegiance, ethnicity or nationality are equally irrelevant considerations. The presence of civilian workers in a military objective does not taint them, somehow turning them into ‘quasi-combatants’ or ‘quasi-civilian’. Only where a commander has given due and full regard to their lives and scaled them against the military advantage to be gained by the attack will a strike not be prohibited by the principle of proportionality. Indeed, “a relative-civilian-value scale would undermine the central purpose of the proportionality principle, which is to protect civilians in the vicinity of lawful targets unless they are directly participating in hostilities”. 149 Accordingly, any references to a civilian assumption of risk doctrine only makes sense if understood to mean that civilians working in or on a military objective expose themselves to the risk of an attack complying with proportionality.

While the attack may be carried out, the principle of precautions requires the attacker to avoid or minimize the risk of civilian collateral damage. 150 The obligation to respect IHL does not depend on reciprocity. 151 An attacker in all circumstances must comply fully with the principles of proportionality and precautions, regardless of the actions of the adversary. Particularly if the adversary deliberately encouraged civilians to work in or on military objectives in the hope of shielding these sites, a commander would still have to abide by proportionality and all other principles of IHL. Once removed from these factories, the civilian workforce is no longer exposed to the risk of their place of work being targeted. There is no basis for them to be targeted.

2. The Lack of State Practice

The concept of assumption of risk was explicitly rejected in the past, in particular during AP I’s drafting. AP I was not drafted in a vacuum: its drafters were very much aware of the crucial role played by civilians in wartime. 152 During the two World Wars, “the bulk of the adult population was engaged in some activity concerned with the war effort”. 153 Still, there was no support during the drafting of AP I for making these civilian workers directly targetable or exempt from proportionality. Thus, although Part IV above has highlighted a lack of clarity in States' military manuals as to references to civilian assumption of risk, the drafting history of AP I and following developments leave no room for diminished protection for civilian workers in or on military objectives.

Several proposals put forward by the ICRC in the drafting of AP I would have offered diminished protection to civilian workers, and yet were rejected. One example is the 1956 draft rule used as a source to back section 5.12.3.2 in the first two editions of the Law of War Manual. It states that, “should members of the civilian population (…) be within or in close proximity to a military objective they must accept the risks resulting from an attack directed against that objective”. 154

Similarly, another ICRC proposal from 1971 stated that, while the “civilian population shall enjoy general protection against dangers arising from military operations”, “[n]evertheless, civilians whose activities directly contribute to the military effort, assume, within the strict limits of these activities and when they are within a military objective, the risks resulting from an attack directed against that objective”. 155 The ICRC's commentary on this clause explains that there is a “difference between the indirect risk assumed by civilians in general who find themselves by chance in the close proximity to a
149 Hathaway, Lederman & Schmitt, supra note 147. Back
150 AP I, Art. 57(1). Back
151 International Committee of the Red Cross, supra note 66, p. 498, rule 140. Back
152 Henderson, supra note 119, p. 99. Back
153 H. Robertson Jr., ‘The Principle of the Military Objective in the Law of Armed Conflict’, Vol. 8 United States Air Force Academy Journal of Legal Studies 1997, p. 47. Back
154 International Committee of the Red Cross, Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War (Geneva, 1956), p. 63. Back
155 International Committee of the Red Cross, ‘Protection of the Civilian Population Against Dangers of Hostilities’, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Application in Armed Conflict (Geneva, 1971), p. 38. Back

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military objective and the indirect risk incurred by ‘civilians linked to the military effort’ situated within a military objective by virtue of their acts or activities”. 156

The difference would “lie not in the nature, but in the degree of protection given”. 157 According to the ICRC, the protection guaranteed to civilian workers would be weakened not by either totally or partially discounting the incidental harm to their live from a proportionality assessment (proportionality had not yet been codified in 1971) but by diminishing the precautions taken in attack. The “precautions to be taken by the attacker to spare civilians in general when they are located in close proximity to a military objective would be greater than those taken to spare civilians linked to the military effort, within the strict limits of their acts or activities.” 158

By the time of the next conference, a year after, in 1972, the scope of the concept of assumption of risk had been reduced to civilians present inside a military objective and not merely in its vicinity. Paragraph 5 of draft article 45 on respect for the civilian population laid out that, “civilians who are within a military objective run the risks consequent upon any attack launched against this objective”. 159

Crucially, none of these draft clauses were reflected in AP I. The ICRC’s Commentary from 1972 states that, “most of the experts called, verbally or in writing (…), for the removal of paragraph 5 on civilians within a military objective”. 160 One expert maintained that this paragraph concerned a statement of fact that should appear in the Commentary; 161 some suggested moving the paragraph to other articles; 162 and another expert advocated for its scope be expanded to include civilians in the vicinity of a military objective. 163 The majority did not support any weakening of the protection afforded to civilian workers in or on military objectives. 164

In recent years, the position that the civilian workforce in a military objective must be counted as part of a proportionality assessment has continued to be supported by most States and experts. The Commentary on the 2009 Manual on International Law Applicable to Air and Missile Warfare states that, “[o]pinions in the Group of Experts were divided as to whether civilians who are physically within a military objective (…) count for the purposes of the application of the principle of proportionality”. 165 While some experts supported the idea that civilians should not count because they had voluntarily assumed a risk of attack, the majority, once again, agreed that proportionality applied to such civilians as in all other cases. 166

The Commentary adds that some experts in the majority – hence, experts who supported the application of proportionality to civilian workers – argued that, “the principle of proportionality will not make a material difference when the target is a high-value asset”. 167 This does not contradict the principle of proportionality but merely applies it. As discussed above, where the military advantage to be gained by destroying a military advantage is particularly important (such as in the case of a large munitions factory), even a large number of incidental civilian casualties would not make the strike unlawful according to the proportionality principle.
156 Id., p. 39. Back
157 Id. Back
158 Id. Back
159 International Committee of the Red Cross, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Application in Armed Conflict, Vol. 1, (Geneva, 1972), 148. Back
160 Id., p. 149. Back
161 Id. Back
162 Id. Back
163 Id. Back
164 Id. Back
165 Program on Humanitarian Policy and Conflict Research, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (2010), pp. 93-94. Back
166 Id. Back
167 Id. Back

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The ICRC notes that the theory that civilians working in or on military objectives would be quasi-combatants finds no support in modern State practice. 168 Very few states are likely to adopt the selective application of the principle of proportionality defended in the Law of War Manual; some States have already expressly rejected it.

The Israeli Government, in its 2014 report on the Operation Protective Edge in Gaza, stated that civilians who are directly participating in hostilities do not constitute collateral damage. 169 The report correctly stressed that, “expected harm to civilians or civilian property located in or near a military objective is relevant to the proportionality analysis”. 170 Israel, hence, does not recognize any distinction between civilians in the application of proportionality; this point is further stated in the context of human shields, 171 and civilians failing to abide by a warning of attack. 172 In Public Committee Against Torture v. State of Israel, the Supreme Court of Israel recognized that, “[c]ivilians are likely to be harmed because of their presence inside a military target, such as civilians who work in a military base”. 173 In such situations, the Court held, “the rule is that the harm to innocent civilians should, inter alia, satisfy the principle of proportionality”. 174

The United Kingdom’s 2004 Manual of the Law of Armed Conflict similarly states that, “working in a munitions factory or otherwise supplying or supporting the war effort does not justify the targeting of civilians so doing”. 175 Further, it explicitly declares that incidental damage on civilians working in legitimate military objectives “is controlled by the principle of proportionality”. 176 Paragraph 2.6.3, specifically, discusses the application of proportionality to the scenario of a strike of a munitions factory: a “munitions factory may be such an important military objective that the death of civilians working there would not be disproportionate to the military gain achieved by destroying the factory”. 177 It notes that the explosion of a munitions factory may cause serious collateral damage, both to its civilian workers and to civilians living nearby. In such a case, it mandates a proportionality assessment: “the likely civilian casualties must be weighed against the military advantages which are expected to result from the attack”. 178

Thus, there is very little practice to support the idea that there could be a sliding scale of civilian protection in the proportionality assessment along the line supported by the Law of War Manual’s most recent edition.

VI. The Rise and Fall of the Assumption of Risk Doctrine

Having established that a recalibration of the principle of proportionality and its selective application to different categories of civilians is not supported by IHL, this section evaluates the impact of the Law of War Manual's embrace of assumption of risk and its contribution to shaping customary international law. It argues that, despite its significant flaws, the recognition of the concept of assumption of risk may affect how officers understand their obligations and is particularly worrying in a context of overall diminished civilian protection in the Law of War Manual.
168 International Committee of the Red Cross, supra note 54, at 23. Back
169 Israel Ministry of Foreign Affairs, The 2014 Gaza Conflict, 7 July-26 August 2014: Factual and Legal Aspects (2015), §324. Back
170 Id. Back
171 Id., §307. Back
172 Id., §§46 and 306. Back
173 The Supreme Court sitting as the High Court of Justice, The Public Committee Against Torture in Israel v. The Government of Israel, 11 December 2005, HCJ 769/02 (Isr.), §42. Back
174 Id. Back
175 United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict, (Oxford, Oxford University Press, 2004), §2.5.2. Back
176 Id. Back
177 Id., §2.6.3. Back
178 Id. Back

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1. An Idea that Will not Catch on?

One writer confidently asserted that, “I don’t think there’s any realistic likelihood that the Manual’s embrace of Hays Parks’s ‘assumption of risk’ understanding of the proportionality rule will find any traction in the development of customary law”. 179 There are several elements indicating that notions of assumption of risk and of ‘quasi-civilians’ or ‘quasi-combatants’, unsupported by law, are unlikely to thrive. The lives of civilian workers would, hence, have to continue being fully counted in a proportionality analysis.

First, there are serious doubts as to how a military commander would apply the new standard of section 5.12.3.3, when attempting to assess the legality of a strike on a military objective in which civilian workers are present.

Proportionality is already one of the most complex decisions that military commanders have to make in armed conflicts. It involves valuing and comparing two different notions of “incidental loss of civilian life, injury to civilians, damage to civilian objects” and “concrete and direct military advantage anticipated”. 180 IHL does not offer further guidance as to how to conduct this difficult balancing exercise. The uncertainty is compounded by disagreements over who can be lawfully discounted as a direct participant in hostilities or what constitutes military advantage. 181 The law fails to provide an absolute standard, as such any decision prior to an attack involves a complex judgment call and as much instinct as calculation. 182 The question of whether proportionality guarantees sufficient protection to civilians in armed conflict has also been severely doubted. 183 Similarly, its inherent ambiguity makes it difficult to secure a conviction for a violation of the principle.

Given these difficulties, introducing a scale of civilian protection which would make some civilians count less in a proportionality assessment would only make this calculus harder, more uncertain, and more arbitrary.

More uncertain, because as pointed out just above, proportionality assessments already require comparing two sometimes contradictory aims of civilian protection and achieving military advantage, both of which elude quantification. As one author points out, “[s]uggesting certain civilians should count less than others would only render a sibylline determination more so”. 184

More arbitrary, because it would give commanders discretion to differentiate between civilians through what is already an instinctive and essentially subjective assessment. The statement in the Manual that “[t]hose making such determinations may consider all relevant facts and circumstances” hardly adds any clarity. 185 It places additional discretion in the hands of the commander sitting in judgment to allocate the level of civilian protection appropriate in the circumstances. This would compound the risk that different commanders, based on their own morality, experience and subjective perceptions of the civilians' deliberateness, would not afford the same protection to similarly situated civilians. Hathaway, Lederman and Schmitt argue that “relative valuation of civilians in the proportionality analysis would impose extraordinary operational costs upon military decision-makers”. 186

Oeter is keen to stress that the demands of the principle of proportionality should not be exaggerated. 187 According to this author, “[w]hat is required is no more than a sincere effort to cope with the problem of collateral damage, and a proper application of common sense”. 188 The humanity and the moral
179 Lederman, supra note 70. Back
180 AP I, Art. 51(5)(b). Back
181 For more on this, see J. Dill, Applying the Principle of Proportionality in Combat Operations, (Oxford, Oxford Institute for Ethics, Law, and Armed Conflict, 2010), p. 3. Back
182 M. Schmitt, ‘Human Shields in International Law’, Vol. 47 Columbia Journal of Transnational Law 2009, pp. 292, 332. Back
183 Dill, supra note 181, p. 4. Back
184 Schmitt, supra note 182, p. 54. Back
185 DoD Manual, supra note 5, §5.12.3.3. Back
186 Hathaway, Lederman & Schmitt, supra note 147. Back
187 Oeter, supra note 79, p. 198. Back
188 Id. Back

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judgment of the particular commander have always been part of a proportionality assessment which is tilted in favor of preventing attacks causing calamitous collateral damage rather than ensuring widespread civilian protection. 189 Although this may be true, additional uncertainty, inherent in the concept of civilian assumption of risk, would only compound the problems inherent in the principle of proportionality; contribute to weakening the already feeble protection this principle guarantees to civilians; and, importantly, further complicate the role of a conscientious commander in combat.

Second, one can question the purpose behind the introduction of an assumption of risk doctrine in the Law of War Manual. What is achieved by, first, stating that proportionality does not apply to civilian workers in or on military objectives and, then, introducing a sliding scale of civilian protection in an assessment of proportionality? If this is an attempt to shield accountability for attacks resulting in severe collateral damage, this should not stand.

Part of the issue with introducing a concept of assumption of risk is that it pays excessive attention to proportionality compared to other principles of IHL, notably of precautions and military necessity. 190 Feasible precautions could almost always be taken to remove or greatly reduce the presence of civilian workers in or on military objectives. Precautionary measures could include changing the timing of the attack, such as attacking outside working hours, or giving a warning of the impending attack, which would still allow the military objective to be neutralized or destroyed.

Sassoli and Bouvier suggest that “to allow attacks on persons other than combatants would also violate the principle of necessity”. 191 Arguably, scaling down the value of civilian workers’ lives in a proportionality analysis could violate the principle of necessity. This is because victory could be achieved by overpowering combatants and military objectives – like a munitions factory – while continuing to ensure full respect to principles of proportionality and precautions and affording protection to the civilian workforce.

Third, many have emphasized that the statements in the Law of War Manual, including its reference to civilian assumption of risk, are not necessarily the official view of the United States. 192 The Manual’s preface states that the “manual is an institutional publication and reflects the views of the Department of Defense”. 193 Although the preparation involved participation from the Department of State and the Department of Justice, “it does not necessarily reflect the views of any other department or agency of the U.S. Government or the views of the U.S. Government as a whole”. 194 The Manual further states that it does not preclude any subsequent change in the interpretation of the law. 195 The Manual’s claim to authority is underwhelming. It is merely described as a “resource of DoD personnel” 196 and it notes that “[a]n effort has been made to reflect in this manual sound legal positions based on relevant authoritative sources of the law”. 197 Given these disclaimers, many commentators have speculated on its potential to contribute to customary law. 198 Accordingly, references to civilian assumption of risk in the Law of War Manual would not be authoritative nor necessarily represent the views of the United States.
189 On the principle of proportionality's failure to protect as being too lenient and privileging military objectives over humanitarian concerns, see Dill, supra note 181, pp. 4-5. Back
190 The principle of military necessity mandates that a belligerent apply only the amount and kind of force necessary to defeat the enemy, see M. O'Connell, ‘Historical Development and Legal Basis’ in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, (Oxford, Oxford University Press, 2013, 3rd ed.), p. 34. Back
191 M. Sassoli & A. Bouvier, How Does Law Protect in War?, Vol. 1, (ICRC, 1999, 2nd. ed.), p. 204. Back
192 Lederman, supra note 7; Lederman, supra note 70; and Haque (2016), supra note 19, p. 83. Back
193 DoD Manual, supra note 5, p. v. Back
194 Id., p. 1. Back
195 Id. Back
196 DoD Manual, supra note 5, p. iii. Back
197 Id., p. v. Back
198 Dehn, supra note 85; Glazier, supra note 85; and E. Jensen, ‘Law of War Manual: Information or Authoritative Guidance’ 1 July 2015, https://www.justsecurity.org/24332/law-war-manual-information-authoritative-guidance/. Back

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This is supported by the Manual’s careful handling of its many footnotes. Section 1.2.2.1 states that, “[c]itation to a particular source should not be interpreted to mean that the cited source represents an official DoD position, or to be an endorsement of the source in its entirety”. This may be best given that the sources backing the references to assumption of risk could be used to support a much broader understanding of assumption of risk on the part not just of civilians working in military objectives, but also of civilians in the vicinity. Given that these references are not sources of law and make reaching substantive statements, one may hope that “military officers will not pay much heed to the footnotes–at least not for purposes of explicating the laws of war–but will instead concentrate on the text of the Manual”. 199

The text of the Law of War Manual could still have significant repercussions on international law and how military officers understand their obligations.

Despite the disclaimers that it is only informational and does not necessarily represent the views of the United States, the Law of War Manual will be looked at for evidence of customary international law. The Manual could pre-empt use by other agencies or even other States, which may have limited resources to draft a comprehensive military manual or update their current ones, or which may be heavily influenced by U.S. practice. 200 Haque suggests that “states like Saudi Arabia and Sri Lanka may cite the Manual to justify their wartime conduct, particularly with respect to the killing of civilians forced to serve as involuntary human shields”. 201

Additionally, the Law of War Manual is likely to affect the behavior of U.S. soldiers on the battlefield. Its stated purpose is “to provide information on the law of war to DoD personnel responsible for implementing the law of war and executing military operations”. 202 The Manual “is not a substitute for the careful practice of law”, yet it also affirms that the “manual is intended to be a description of the law as of the date of the manual’s promulgation”. 203 Based on these statements, officers could partially discount from a proportionality calculus the lives of dozens or hundreds of civilian workers for having assumed a risk by working in or on a military objective – even if civilian personnel continue to be considered civilians. This could have important implications in the conduct of hostilities where the U.S. is engaged in an armed conflict in territories where there are large-scale factories producing weapons and armaments. 204 What protection would be given to the civilians working in these factories or in the storage or transport of these weapons?

2. Assumption of Risk in a Context of Diminished Civilian Protection

The Law of War’s references to civilian assumption of risk are all the more concerning given that they take place within the Manual’s broader trend of decreased civilian protection. Diminished civilian protection results from shifting the burden to avoid civilian harm on the defender and even the civilian. 205 The Manual even signals that civilians may be under an affirmative obligation to avoid harm as they “may share in the responsibility to take precautions for their own protection”. 206 It denies that
199 Lederman, supra note 7; R. Goodman, similarly, warns against poring over footnotes in search of meaning, see R. Goodman, ‘How to Read the Department of Defense’s Revised Law of War Manual’, 22 December 2016, https://www.justsecurity.org/35786/read-department-defenses-revised-law-war-manual/. Back
200 A good example of this is the Philippines. The ICRC notes that “according to a naval officer interviewed for the Report on the Practice of the Philippines, in the absence of an updated military manual, the Armed Forces of the Philippines follow the laws of war as applied by the United States of America”: International Committee of the Red Cross, ‘Military Manuals’, https://ihl-databases.icrc.org/customary-ihl/eng/docs/src_iimima. Back
201 Haque (2016), supra note 19, p. 84; D. Gamage, ‘U.S. clears Sri Lanka of civilian deaths: Faults Tiger human shield’, 14 August 2015, http://www.asiantribune.com/node/87659. Back
202 DoD Manual, supra note 5, §1.1.1. Back
203 Id. , §1.1.2. Back
204 In the context of US-led coalition against ISIS in Iraq and Syria, ISIS had effective control over significant portions of territory and has been shown to possess substantial factories producing weapons and armaments on an industrial scale, see Conflict Armament Research, Standardisation and Quality Control in Islamic State’s Military Production (2016). Back
205 Section 5.2.1 states that the “party controlling civilians and civilian objects has the primary responsibility for the protection of civilians and civilian objects”: DoD Manual, supra note 5, §5.2.1. Back
206 DoD Manual, supra note 5, §5.2.1. Back

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there is any legal presumption of civilian status for persons or objects under customary international law, unlike Article 50(1) and 52(3) of AP I. 207

The Law of War Manual also sets low target verification standards. Article 57(2)(a)(i) of AP I declares that an attacker shall “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects”, which according to the ICRC is customary. 208 Conversely, the Manual switches from an active to a passive standard and only states that persons deciding on an attack “must make the judgments required by the law of war in good faith and on the basis of information available to them at the time”. 209 Section 5.2.3 also sets a low bar for the precautions to be taken to reduce the risk of harm to the civilian population. A commander would be open to find that a precaution is not feasible where it would lead to any “increased operational risk” or “an increased risk of harm” to her forces.

What do these diminished protection standards mean for civilians working in or on military objectives? The party, be it a state or armed group, controlling the military objective would be primarily responsible for ensuring the protection of the workers. The workers, similarly, would share in the responsibility to take precautions for their own protection. This supports the idea that civilian workers should remove themselves from the vicinity of a military objective and, where they have failed to do so, have willingly accepted the risk associated with working in a military objective. Once again, this ignores the circumstances and rationale which led the civilian workers to this situation in the first place.

As the Law of War Manual does not presume civilian status and therefore non-targetability, soldiers would not have to “adopt a working hypothesis that every person they encounter is a civilian not directly participating in hostilities”. 210 Consequently, a commander could decide to intentionally target an individual in a situation where there is uncertainty as to whether a civilian, by working in a military objective, would be directly participating in hostilities – for instance, because the existence of a direct causal link between the civilian’s actions and the harm is debatable. The commander would not be required to make additional efforts to ascertain the civilian character of the individual and could base the decision, in good faith, on the basis of the limited information available to her. The decision would not require an assessment of proportionality or precautions.

As to the civilian workers in or on a military objective who clearly do not constitute direct participants in hostilities, pursuant to section 5.12.3.3, a commander would be given considerable discretion in a proportionality assessment as to how to weigh the incidental harm to these civilians as a result of the attack. Although there would be an additional duty to take precautions to reduce this civilian harm, any precaution that could lead to a risk of failing to accomplish the mission or any increased risk to the troops would not have to be taken.

There are clear risks with the recognition of a doctrine of assumption of risk in the Law of War Manual. In spite of the doctrine's impracticability, its excessive attention to proportionality over other IHL principles, and the ManuaL's low claim to authority, the Manual may shape international law and will likely affect the choices made by U.S. military officers on the battlefield. Further, the references to civilian assumption of risk should be understood within the Manual's broader context of increased military permissibility and diminished civilian protection.

VII. Conclusion

Notions of civilian assumption of risk laid out in the United States Department of Defense’s Law of War Manual are fraught with uncertainties, difficulties and could substantially hamper the civilian protection guaranteed by IHL. The interpretation of assumption of risk in the first two editions of the Law of War Manual entirely disqualified civilian workers in or on military objectives from a proportionality analysis. The current edition states that proportionality continues to apply to these
207 Id., §5.4.3.2. Back
208 International Committee of the Red Cross, supra note 66, p. 55, rule 16. Back
209 DoD Manual, supra note 5, §5.4.3. Back
210 A. Haque, Law and Morality at War (Oxford, Oxford University Press, 2017), p. 131. Back

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civilian workers. Troublingly, however, it seems to support a partial or selective application of proportionality in which commanders are endowed with discretion as to how to consider incidental harm to these civilian workers. It appears that, by virtue of their occupation, the lives of these civilians could count less in the balance.

This paper has highlighted the dangers of a decreasing scale of civilian protection and warned against resurrecting notions of quasi-civilians or quasi-combatants. Notions of assumption of risk are grounded in experiences of World War II that are incompatible with the modern protections guaranteed by IHL. It is vital that the rules of targeting continue to apply regardless of the perceived voluntariness or even willingness of particular civilians. IHL is not a vehicle for apportioning moral blame. Indeed, in the words of Dill:
While there is often a trade-off between IHL’s practical efficacy and moral appeal, inviting commanders to differentiate among civilians’ protection-worthiness based on evaluations of their perceived choices, in light of poorly understood and almost certainly unverifiable moral criteria, has the rare distinction of making IHL less useful in both military and moral terms. 211
References to assumption of risk by civilian workers in or on military objectives by several States lack clarity and compound uncertainty. That the presence of civilians does not change the nature of a military objective is an uncontroversial rule, which is firmly rooted in the practice of States. Some understand references to assumption of risk as synonymous with the rule that a civilian presence does not immunize a military objective. Alternatively, an assumption of risk may equate to a loss of protection for civilians – this position appears exclusively to be defended by the United States.

That an assumption of risk would diminish the protections afforded by IHL to civilian workers is hardly legally defensible. Civilians working in or on military objectives are not combatants. A small number may, in specific circumstances, qualify as direct participants in hostilities. However, this is a factual determination dependent on the specific facts of the situation. Civilian workers cannot be indiscriminately brushed aside as direct participants in hostilities. As such they are not directly targetable irrespective of the principles of proportionality or precautions. Surely, contrary to the interpretation defended in the first two editions of the Law of War Manual, it must be that proportionality applies to civilians working in or on military objectives. Proportionality is a heavily context-dependent determination. Therefore, one should treat with caution claims that the incidental harm caused to civilian workers, as a result of a strike on their place of work, will never be excessive in relation to the military advantage to be gained by the destruction of that objective.

The latest understanding of assumption of risk in the Law of War Manual supports the existence of quasi-civilians for the purposes of proportionality. This, again, is unsupported by law and the concept of a quasi-combatant workforce was specifically rejected in the drafting of AP I. References to a civilian assumption of risk doctrine will only comply with the law if meaning that civilians working in or on a military objective expose themselves to the risk of an attack complying with proportionality. As a result, one can hope that references to civilian assumption of risk as synonymous with diminished civilian protection will not make a lasting impression on international law or even the United States' understanding of international law.

Yet, the concept in the Law of War Manual may affect how officers understand their obligations and therefore conduct their operations on the battlefield, introducing additional uncertainty in a context of decreased protection for civilians. It is to be hoped that the DoD will reject this rationale in future editions of the Law of War Manual. The recognition of the concept reflects Hays Parks' major contribution to the Manual. The first two editions espoused Parks' view that civilians working in or on a military objective should not be protected at all by the proportionality principle. Seemingly, this view was not shared by the U.S. Government and has since been adjusted. The last edition, however, endorses Parks' erroneous belief in the quasi-military nature of the civilian workforce in or on a military objective. These traces of Parks' influence should be adjusted as well to ensure that the Law of War Manual reflects international humanitarian law.
211 Dill, supra note 76. Back

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We should not dismiss the dangers posed by the many references to assumption of risk in the Law of War Manual; it is important that they not continue to grow, bringing with them diminished civilian protection and the demise of the proportionality principle.

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