Public Intelligence

An updated instruction issued by the Chairman of the Joint Chiefs of Staff in October 2012 incorporates significantly modified language in numerous sections of the document that describe the process for estimating collateral damage prior to conducting drone strikes and other military actions.  These subtle, but important changes in wording provide insight into the military’s attempts to limit expectations in regards to minimizing collateral damage and predicting the lethal effects of military operations.

The update to Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3160.01A “No-Strike and the Collateral Damage Estimation Methodology” incorporates technical updates to the process for estimating collateral damage as well as lessons learned from the conflicts in Libya and Afghanistan.  Despite its release restrictions, a previous version of the instruction was provided in full to the ACLU in 2011 after the group filed a Freedom of Information Act request for documents related to the military’s use of armed drones.  The version of the instruction obtained by the ACLU, which is dated February 2009, contains significantly different language in numerous key sections of the document that describe the accuracy and processes for predicting collateral damage.

While much of the actual technical methodology for predicting collateral damage remains unchanged, language throughout the document is modified in a way that minimizes expectations about the ability of U.S. forces to accurately predict collateral damage and includes qualifying statements regarding the compliance of U.S. military operations with international law.  In a section of the document detailing procedures related to no-strike entities (NSEs), which have “protected status” and cannot be targeted in military operations, the new version of the instruction no longer describes the U.S. as “adhering to” international law, but instead states that the U.S. is “bound by” international law which “regulates”, rather than “requires” certain conduct during military operations.  A few paragraphs later, a sentence warning against the “infliction of unnecessary suffering or damage to civilian persons or property that is excessive in relation to the concrete and direct military advantage anticipated” is removed from the document, as is the statement that the conduct is “inconsistent with international law.”  A section requiring “all military personnel to take reasonable precautions to ensure that only military objectives are targeted” and ensure that civilians are not made the object of attack is changed to require only that military personnel “avoid targeting (i.e., attacking) civilian or noncombatant persons or objects.”

The new version of the instruction also modifies a requirement that commanders limit “unnecessary suffering and disproportionate damage.”  Instead, commanders are now only required to mitigate “human suffering and property damage.”  The overall process for estimating collateral damage is described as “a conservative characterization” of the risks involved rather than the previous “best judgment of potential damage to collateral concerns.”  Several additions are also made in the new version of the instruction including an allowance for “weapon delivery uncertainties” and a statement indicating that U.S. forces are not responsible for “secondary explosions” from fuel or other supplies on the ground.

A small selection of some of the differences between the two versions of the instruction is included in the table below.  Blue indicates text modified from the previous version of the instruction.  Red indicates text that was inserted into the new version of the instruction.

Old Version February 13, 2009	New Version October 12, 2012	Changes
The source and method for defining a person, place, or thing as a No-Strike entity is derived primarily from the body of international law collectively known as LOW. The LOW incorporates international treaties and agreements adhered to by the U.S. government, as well as customary international law, into a comprehensive set of guidance and requirements governing the conduct of modern warfare.	The basis for defining a person, place, or thing as a No-Strike entity is derived primarily from the body of international law collectively known as LOW. LOW comprises the international law related to the conduct of hostilities binding on the United States or its individual citizens, including treaties to which the United States is a party and applicable customary international law that regulates the conduct of armed hostilities.	Law of war is now the “basis” for defining no-strike entities rather than the source.  The law of war is defined as international law “binding” rather than “adhered to” by the U.S. This includes treaties and “customary international law” that “regulates” rather than “requires” certain actions when conducting military activity.
No-Strike entities are those designated by the appropriate authority upon which kinetic or non-kinetic operations are prohibited to avoid violating international law, conventions, or agreements, or damaging relations with coalition partners and indigenous populations. The infliction of unnecessary suffering or damage to civilian persons or property that is excessive in relation to the concrete and direct military advantage anticipated is inconsistent with international law and is contrary to DOD policy outlined in this document and in references a and b.	No-Strike entities are those designated by the appropriate authority upon which kinetic or non-kinetic operations are prohibited to avoid violating international law, or agreements, or damaging relations with coalition partners and indigenous populations.	The new version removes “conventions” from a list of things to avoid violating.  An entire sentence prohibiting the infliction of “unnecessary suffering or damage to civilian persons or property” is removed, as well as the statement that this is “inconsistent with international law” and “contrary to DOD policy.”
The LOW requires all military personnel to take reasonable precautions to ensure that only military objectives are targeted and to ensure that civilian or noncombatant objects are not made the object of attack.	The LOW requires all military personnel to take reasonable precautions to ensure that only military objectives are targeted and to avoid targeting (i.e., attacking) civilian or noncombatant persons or objects.	A requirement to “ensure” that civilians are not the subject of attacks is changed to an admonishment to “avoid targeting” civilians.
However, in these circumstances the commander must weigh the anticipated loss of life, damage to property, or other negative effects incidental to the attack versus the military advantage expected to be gained by the attack. In making the decision, commanders must consider the military necessity for attacking the target, proportionality of the means planned for target engagement, and reasonableness within the framework of operational objectives.	However, in these circumstances the commander must weigh the anticipated loss of life, damage to property, or other negative effects incidental to the attack versus the military advantage expected to be gained by the attack. The anticipated injury or loss of civilian or noncombatant life, damage to civilian or noncombatant property, or any combination thereof, incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.	When making the decision to attack a location where collateral damage is likely, the commander is no longer told to consider “proportionality” and “reasonableness within the framework of objectives”, but is instead required to ensure that loss of civilian or noncombatant life or property is “not excessive” in relation to the “concrete and direct military advantage expected to be gained” by the attack.
By limiting unnecessary suffering and disproportionate damage, the No-Strike process will accelerate recovery in post-conflict operations and minimize operational limitations routinely imposed as a result of international sensitivities over the humanitarian impacts of military operations.	By mitigating human suffering and property damage, the No-Strike process will accelerate recovery in post-conflict operations and minimize operational limitations routinely imposed as a result of international sensitivities over the humanitarian impacts of military operations.	A commander’s “limiting” of “unnecessary” suffering is now only a requirement to  “mitigate human suffering” and property damage.
Failure to observe these obligations could result in disproportionate negative effects on civilians and noncombatants and be considered a LOW violation. Furthermore, U.S. leadership and military could be subject to global criticism, which could adversely impact military objectives, alliances, partnerships, or national goals.	Failure to observe these obligations would be considered a LOW violation. Furthermore, the United States could be subject to global criticism, which could adversely impact military objectives, alliances, partnerships, or national goals.	A statement that collateral damage could “result in disproportionate negative effects on civilians and noncombatants” is now no longer included.  Global criticism in such a circumstance would also be leveled at the U.S. generally rather than the “U.S. leadership and military.”
The CDM is a balance of science and art that produces the best judgment of potential damage to collateral concerns.	The CDM is a balance of science and art that produces a conservative characterization of the risk of collateral damage for commanders and decision makers.	The collateral damage estimation (CDE) methodology (CDM) has changed from a “best judgment of potential damage” to a “conservative characterization of the risk of collateral damage”.
However, the science is inherently limited by the quantity and reliability of collected and analyzed weapons effects data and target information.	However, the science is inherently limited by the quantity and reliability of collected and analyzed weapons effects data, weapon delivery uncertainties, and target information.	The new version inserts “weapon delivery uncertainties” into a list of factors affecting collateral damage estimation.
All of these sources contain some degree of inherent error and uncertainty.	All of these sources contain some degree of inherent variability.	Sources of information that feed into the collateral damage estimation process are no longer subject to some degree of “error and uncertainty”, but are instead subject to “variability.”
CDM is merely an estimate to assist a commander in the decision making process relying on informed data and sound judgment.	Ultimately CDE is an estimative process to help inform a commander’s decision making.	An entire sentence is changed to reflect that attempting to predict collateral damage is an “estimative process” rather than an “estimate” to “help inform the commander’s decision making.”  A description of this process as “relying on informed data and sound judgment” is also removed.
	The CDM does not account for secondary explosions. Collateral damage due to secondary explosions (i.e., weapons cache or fuel tanks for military equipment) cannot be consistently measured or predicted. Commanders should remain cognizant of any additional risk due to secondary explosions.	A passage is inserted indicating the collateral damage estimation methodology (CDM) does not apply to secondary explosions from gas and fuel tanks on the ground.

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