By 2025, scholars identified an entire movement of “LSCO lawyering” [Large Scale Combat Operations] that seeks “to reframe existing, well-established rules, not by changing them outright but by stripping them to their most minimal defensible core.” This movement was said to have reacted to “a dangerous misalignment between current legal expectations and the demands of high-intensity war against a peer adversary.”
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Building on the claim by former Secretary of Defense Austin that the U.S. Civilian Harm Mitigation and Response Action Plan was “scalable and relevant to both counterterrorism operations and large-scale conflicts against peer adversaries,” an important 2024 Center for Naval Analyses report commissioned by the Department of Defense concluded that “civilian harm mitigation does not equate to restraint.” Rather, it “promotes the effective and precise use of force.” Furthermore, the report found that while “[g]iven the scale of civilian harm, commands will likely need to assess civilian harm at the macro level rather than incident level,” in LSCO as in COIN “a comprehensive, effective approach to Civilian Harm Mitigation and Response will result in strategic gains for the US.”
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In this post, I will not take a side in this debate or comment on its intensification under the current U.S. administration. Rather, I will seek to point out that arguments on both sides tend to rely on a series of common assumptions about civilian harm in LSCOs that are erroneous or at best misleading. Questions concerning the relevance of precision, restraint, and the limits of collateral damage are undeniably important, but they do not approach the central differences between COIN [Counter Insurgency Operations] and LSCO [Large Scale Combat Operations] or identify the salient legal questions for civilian protection in conducting operations against a peer adversary.
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Assumption 1: Larger-Scale Operations Will Lead to More Civilian Harm
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Civilian harm is less a function of the scale of military operations than of their proximity to the civilian population. When hostilities are conducted against insurgents embedded in the civilian population, particularly in urban areas, civilian harm tends to be high, even when necessary precautions to mitigate such harm are taken. Conversely, when hostilities take place in areas of low population density, particularly between regular armed forces, military objectives can be identified with greater certainty, and civilian harm is easier to avoid.
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Assumption 2: Most Civilian Deaths Will Be as a Result of Collateral Damage
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The lessons for civilian protection in LSCO are as clear as they are uncomfortable. While the LSCO debates share a preoccupation with the relative merits of precision, tolerance levels for incidental harm, and delegation limits for strike authority, the greater challenge is likely to come from the interpretation and implementation of the fundamental principle of distinction.
Unlike many of its allies, the United States has long held that “war-sustaining” objects qualify as military objectives, including in particular objects that generate finance for the enemy (DoD, Law of War Manual, para. 5.17.2.3). But while this may be used to justify destroying the Taliban’s opium business (an example cited in the Manual), what does it mean when applied to an enemy State, to whose finances the activities of millions of civilians may contribute (or indeed the majority through the tax system)? Surely civilians who assist war-sustaining activities cannot be held to be directly participating in hostilities, as suggested in a recent Justice Department memorandum.
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Assumption 3: Kinetic Action Is the Primary Cause of Civilian Harm
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It is now widely accepted that most conflict-related civilian deaths are not caused by people being directly killed but rather by the effects of displacement and disease and the degradation of healthcare, sanitation and access to food and water. We should not allow our heads to be so turned by the LSCO rhetoric of “lethality” as to ignore the non-kinetic aspect of war, which in the long run can prove more deadly. From the legal perspective, that includes the permission and facilitation of humanitarian access, an occupying power’s positive “duty to ensure the food and medical supplies of the population” (GC IV, art. 55), as well as the need to control the reverberating effects of attacks, at least where such effects are reasonably foreseeable.
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Yet as Professor Naz Modirzadeh warns, “LSCO lawyering is not dependent on the actual outbreak of a great power war.” The legal arguments “are already shaping how LOAC is taught, operationalized, and applied.” The introduction of a new LSCO mindset into military lawyering carries the danger that, as operations continue to be conducted against insurgencies, embedded in the civilian population, or other asymmetric enemies, they will be conducted with a greatly expanded tolerance for incidental harm. That would be disastrous for civilian protection and would negate 20 years of hard-won lessons about how to run COIN operations.
Edit sorry for the extensive quoting, I just feel very strongly that this is one of the more important and pertinent geopolitical articles I have read in a long time.
gloomy ambiance of the castle.
