Redefining doubt in cases of uncertainty: an analysis of the 2023 US DoD Law of War Manual revision to the presumption of civilian status in armed conflict

The third edition of the United States (US) Department of Defense Law of War Manual , updated in December 2016 (2015 DoD Manual) states that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects”. The 2015 Manual received general support from military circles, but some experts believed that rejecting the customary international law (CIL) status of the presumption of civilian status in instances of doubt was an apparent mistake or important error. The 2023 US DoD Law of War Manual (2023 Manual) has now been promulgated with a revision to the doubt rule. Doubt regarding the character of persons or the nature of dedicated civilian objects results in a “presumption” of civilian status “unless the information available indicates that the persons or objects are military objectives”. The 2023 Manual attracted criticism, with some experts, especially those with military experience, arguing that it is counterproductive to incorporate exponentially legalistic or complex, nuanced judgements about status determinations, presumptions and the sufficiency of rebuttal evidence in practical matters such as targeting decisions. The article evaluates the substance and implications of the revision to the doubt rule in the 2023 Manual. The article further considers whether the doubt rule regarding the civilian character of persons and the nature of certain objects has acquired customary international humanitarian law status. Ultimately, the article concludes that is not realistic to include a presumption for application in targeting decisions due to the complexities of applying legalistic concepts during armed conflict.


Introduction
The principle of distinction requires that those considering and executing attacks 1 during armed conflict must distinguish between civilian objects and military objectives. 2 Treaty law dictates that doubt as to whether a person qualifies as a legitimate target will result in a consideration of civilian status for all such persons. 3Doubt whether an object "normally dedicated to civilian purposes" (certain objects) is used "to make an effective Page 2 of 15 van Coller Journal of International Humanitarian Action  (2024) 9:3 contribution to military action" triggers a presumption of civilian status. 4 Many states, including but not limited to state parties to the Additional Protocol I to the Geneva Conventions (AP I), 5 incorporated the "doubt rules" into their military manuals and regarded them as reflecting customary international humanitarian law (CIL).However, the United States of America (USA) elected not to become a state party to AP I and regarded the doubt rules as unrealistic and unnecessarily complicating targeting decisions.The third edition of the United States (US) Department of Defense Law of War Manual, updated in December 2016 (2015 DoD Manual), thus predictably confirms the US view that "[u]nder customary international law, no legal presumption of civilian status exists for persons or objects". 6The 2015 Manual received general support from military circles, but some experts believed that rejecting the CIL status of the presumption of civilian status in instances of doubt was an apparent mistake or important error. 7he 2023 US DoD Law of War Manual (2023 Manual) 8 has been promulgated with a revision to the doubt rule.Doubt regarding the character of persons or the nature of dedicated civilian objects results in a "presumption" of civilian status "unless the information available indicates that the persons or objects are military objectives". 9he 2023 Manual acknowledges that the inquiry into the existence of CIL in general and, by implication, the CIL status of the doubt rule are "difficult".In general, treaty provisions should accordingly not be regarded as reflecting CIL. 10 The 2023 Manual attracted criticism, with some experts, especially those with military experience, arguing that it is counterproductive to incorporate exponentially legalistic or complex, nuanced judgements about status determinations, presumptions and the sufficiency of rebuttal evidence in practical matters such as targeting decisions. 11here are clearly some opposing views on the revised doubt rule in the 2023 Manual.The aim of the article is thus to evaluate the substance of the revision to the doubt rule in the 2023 Manual.The second aim is to consider the historical context and motivations for the revision to the 2015 Manual's approach to the doubt rule to appreciate the implications of the new formulation of the DoD to this rule.It is further necessary to determine whether the doubt rule regarding the civilian character of persons and the nature of certain objects accurately reflects any possible related CIL rule.The criticism and support for the formulation of the doubt rule in both manuals will also be considered.Lastly, the practicality of the revised doubt rule in the 2023 Manual will be evaluated with specific reference to the complexities of applying legalistic concepts' during armed hostilities.
The 2023 Manual uses the terms "law of war" and "law of armed conflict" and states that international humanitarian law (IHL) is an "alternative" term that could have the "same substantive meaning" as the preceding terms. 12onetheless, the term IHL is preferred in this article.Commanders and other decision-makers responsible for assessing the lawfulness of an attack ("persons who plan, authorise or make other decisions in conducting attacks" in the 2023 Manual) will be referred to as "observers" or "commanders" depending on their role.The term "targeting" will be divided into "intentional" and "collateral" targeting as "direct" and "indirect" targeting do not satisfactorily name targeting decisions where proportionality assessments are performed.The term "targeting" itself is understood to refer to the process of planning and the execution of attacks.It includes the consideration of prospective targets, the accumulation of information to meet military, legal and other requirements, the determination of which weapon and method to employ to prosecute the target and the carrying out of the actual attack and associated activities. 13he presumption of civilian status in AP I concerning persons and objects

Doubt regarding the character of persons
The treaty provisions concerning instances of doubt regarding the character of persons and the nature of certain objects are recorded in AP I, Articles 50 (1) and 52 (3), respectively.The working group at the diplomatic conference on the reaffirmation and development of IHL applicable in armed conflicts Geneva (diplomatic conferences) agreed in 1978 that a "presumption" of civilian status where there is doubt regarding the status of a person would result in "difficulties".As a result, the term "presume" was intentionally replaced with the term "considered" with regard to the status of persons to ensure that the provisions are "readily understandable to the soldier". 14The AP I formulation of the doubt rule thus articulates distinct approaches, whereby persons are "considered to be a civilian" as opposed to certain objects, which are presumed not to be used for military purposes, in cases of doubt. 15The duty to consider a person's character as a civilian or to presume that certain objects are civilian in nature is triggered when mixed indications create doubt about the targetability of a person or object.The commentary on AP I states that persons whose "status seems doubtful because of the circumstances" "should be considered to be civilians until further information is available, and should therefore not be attacked". 16ule 6 of the International Council of the Red Cross Customary International Law study (ICRC CIL study) concerning "Civilians' Loss of Protection from Attack" states that "civilians are protected against attack, unless and for such time as they take a direct part in hostilities". 17he provisions regarding the doubt rule in the military manuals of most states follow the AP I formulation of the rule in that a person "shall be considered to be a civilian" in cases of doubt. 18A report on US practice of 1997 confirmed that the USA, in its military manuals, does not accept that persons shall be "considered" as civilians when there is doubt about their status. 19However, the 2019 The Commander's Handbook of the Law of Land Warfare states, "[T]he Army and Marine Corps, as a matter of practice due to operational and policy reasons", maintain that "[i]n cases of doubt whether a person or object is a military objective, Soldiers and Marines should consider that person or object as a civilian or civilian object". 20The 2022 edition of the Operational Law Handbook 21 states, "[T]he United States applies the same test to all targets, requiring commanders to act in good faith based on the information available at the 14 Official records of the diplomatic conference on the reaffirmation and development of international humanitarian law applicable in armed conflicts Geneva (1974-1977) Volume XV, Federal Political Department Bern,  1978, Convened by the Swiss Federal Council for the preparation of two protocols Additional to the Geneva Conventions of August 12, 1949.Protocol I: Relating to the protection of victims of international armed conflicts.Protocol II: Relating to the protection of victims of non-international armed conflicts held at Geneva, CDDH/50/Rev.1,p. 239, para 39. 15 Nasu &Watts above note 4. 16 Pilloud C, de Preux J, Sandoz Y, Zimmerman B, Eberlin P, Gasser H, Wenger CF.Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, 1987, 1920; ICTY, Dragomir  Milošević, Judgment, 12 December 2007,  § 946 (my emphasis). 17ICRC CIL study, Rule 6. 18 South Africa, presentation on the South African approach to international humanitarian law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 24(c); time". 22The 2023 Manual refers to the legal reasoning of the ICTY in the Strugar judgment, 23 which found that a person shall be considered a civilian in case of doubt regarding that person's character.The ICTY found that the prosecution must prove that a reasonable person would not have believed that the person targeted was a combatant. 24The ICTY also, in the Dragomir Milošević judgment, commented that in cases of doubt, whether a person is a civilian, that person shall be considered to be a civilian.The UK Law of Armed Conflict Manual requires that persons be "considered" to be civilians when "deciding upon or executing attacks".However, only "substantial doubt" would result in that person receiving the "benefit of the doubt" to be treated as a civilian. 25 few manuals deviate from the AP I articulation and incorporate the term "presumed" to be a civilian 26 as opposed to being "considered" to be a civilian, which is a distinct and far less legalistic approach to resolving doubt.The Chamber of the Special Court for Sierra Leone reasoned that any doubt as to whether an individual is a civilian would result in a presumption of civilian status, and a person cannot be attacked merely because he appears "dubious".27 Some states elected to use the terms "treated" 28 or "assumed" 29 to be civilian.A few manuals merely state that a person must be given the "benefit of the doubt" 30 if that person's character is undecided.

Doubt regarding the character of certain objects
Objects "which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage" qualify as military objectives. 31Doubt as to whether an object, which is normally dedicated to civilian purposes, is being used to make an effective contribution to military action shall be presumed not to be so used. 32Any presumption regarding the location and purpose of an object is thus irrelevant to the AP I, Article 52 (3) presumption. 33The US delegation at the diplomatic conferences raised concerns about the practical application of this provision, warning that "a soldier... could not be expected to take a decision in the circumstances of the moment, and grant a presumption in favour of doubtful objects, as distinguished from people, being immune from attack". 34The USA ultimately decided not to become a party to AP I as it was regarded as "fundamentally and irreconcilably flawed' to the point that it could not be 'remedied through reservations". 35owever, the USA is a state party to the Amended Protocol II to the Convention on Certain Conventional Weapons. 36an Coller Journal of International Humanitarian Action  (2024) 9:3   This treaty includes a provision, to which the USA made no reservations, 37 which imposes a presumption of civilian status ("it shall be presumed not to be so used") in case of doubt as to whether an object is being used to make an effective contribution to military action. 38The 1976 US Air Force Pamphlet 110-31 incorporates a paragraph virtually identical to the language of the presumption in AP I concerning certain objects. 39ule 10 of the ICRC CIL Study, titled "Civilian Objects' Loss of Protection from Attack", states that civilian objects may only be intentionally attacked for such time that they are determined to be military objectives.State practice establishes this rule as a CIL norm applicable in international armed conflict (IAC) and non-international armed conflicts (NIAC).
The military manuals of most states require that certain objects be "considered" as civilian objects when doubt exists concerning the possible military use of those objects. 40Some states use the term "presumed" to be a civilian object, 41 while a few specify that a doubtful object must be "assumed" not to be used in a way to make an effective contribution to military action and must thus be treated as a civilian object. 42Other states elected to make use of a formulation regarding doubt to mean that the "civilian object retains its civilian character", 43 that it must be "regarded" as a civilian object until proven otherwise, 44 or that a "dubious" character may be resolved by stopping and searching the object "to establish its status". 4537 UN Treaty Collection, Status of Treaties, Chapter XXVI, Disarmament. 38Protocol on prohibitions on the use of mines, booby traps and other devices, as amended, to the convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects, Geneva, 3 May 1996, Article 3 (8) (a). 39Department of the Air Force, AF Pamphlet 110-31 (19 November 1976)  International Law -The Conduct of Armed Conflict and Air Operations; pp.5-7 & 5-8; Goodman R. Clear error in the Defense Department's Law of War Manual: on presumptions of civilian status (9 February 2022), https:// www.justs ecuri ty.3 Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l'instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 92, § 352.13 and p. 134, § 412.13. 44 Côte d'Ivoire, Droit de la guerre, Manuel d'instruction, Livre III, Tome 1: Instruction de l'élève officier d'active de 1ère année, Manuel de l'élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp.32-33; see also Droit de la guerre, Manuel d'instruction, Livre III, Tome 2: Instruction de l'élève officier d'active de 2ème année, Manuel de l'instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp.21 and 28-29. 45Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 45,  § 16(d).
The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, when dealing with "Enemy Vessels and Aircraft Exempt from Attack", states that doubt regarding the character of an object will result in a "presumption" that the object is not used to make an effective contribution to military action.Doubt "imposes an obligation on a party to the conflict to gather and assess relevant information before commencing an attack". 46The HPCR Manual on International Law Applicable to Air and Missile Warfare provides, as it relates to civilian objects, that "[I]n case of doubt as to whether an object which is ordinarily dedicated to civilian purposes is being used for military purposes, it may only be attacked if, based on all the information reasonably available to the commander at the time, there are reasonable grounds to believe that it has become and remains a military objective". 47e 2015 Manual vs the 2023 Manual Both the manuals, in subsection 4.3.2,state that "[P] ersons who plan, authorise, or make other decisions in conducting attacks must make the judgements required by the law of war in good faith and based on information available to them at the time".Both manuals confirm that "a commander must, based on available information, determine in good faith that a target is a military objective before authorising an attack against that target".The "expected incidental damage to civilians or civilian objects must be assessed in good faith, given the information available to the commander at the time".The 2023 Manual expands on this by stating that observers may "rely on information obtained from other sources, including human intelligence or other sources of information" when deciding to attack a potential objective such as aerial reconnaissance and intelligence units.Section 5.4 of the 2015 and 2023 Manuals deals with "Rules on Conducting Assaults, Bombardments, and Other Attacks".Subsection 5.4.3 deals with "Assessing Information in Conducting Attacks".The heading of subsubsection 5.4.3.2 of the 2015 Manual ("AP I Presumptions in Favor of Civilian Status in Conducting Attacks") was changed in the 2023 Manual to "Classifying Persons or Objects as Military Objectives When Planning and Conducting Attacks".

The 2015 DoD Law of War Manual
The 2015 Manual, in subsubsection 5.4.3.2, states explicitly that "[I]n the context of conducting attacks, certain provisions of AP I reflect a presumption in favor of civilian status in cases of doubt". 48The 2015 Manual further states that "no legal presumption of civilian status exists for persons or objects" under CIL.There is no "rule inhibiting commanders or other military personnel from acting based on the information available... in doubtful cases".However, the 2015 Manual argues that the presumption of civilian status in cases of doubt "causes several things to occur that are contrary to the traditional law of war" as "[I]t shifts the burden for determining the precise use of an object from the party controlling that object... to the party lacking such control and facts". 49The 2015 Manual refers to expert commentary stating that "[I]t is very doubtful that Article 52(3) represents customary international law", 50 and that the presumption "will be a significant new addition to the law". 51he 2015 Manual argues that a presumptive civilian status in cases of doubt "ignores the realities of war", "may demand a degree of certainty that would not account for the realities of war", could "encourage a defender to ignore its obligation to separate military objectives from civilians and civilian objects", is likely to "increase the risk of harm to the civilian population" and may "undermine respect for the law of war". 52Nonetheless, the 2015 Manual argues that attacks "may not be directed against civilians or civilian objects based on merely hypothetical or speculative considerations regarding their possible current status as a military objective".Commanders and observers must make such decisions in "good faith" and "based on the information available to them in light of the circumstances ruling at the time". 53

Commentary and criticism of the 2015 Manual
The DoD's Final Report to Congress on the Conduct of the Persian Gulf War (1992) supports the conclusion that no CIL presumption of civilian status exists where it notes "[S]uch a presumption] is not a codification of the customary practice of nations". 54The US Joint Targeting Doctrine, van Coller Journal of International Humanitarian Action (2024) 9:3 published in 201355 (the current Joint Publication 3-60°edition is not available to the public 56 ), states, under the heading "Precautions in Attack", "[W]hen conducting military operations, positive steps and precautions must be taken to avoid excessive incidental civilian casualties and damage to civilian property", and "[P]lanners should ensure that military objectives, and not civilian objects, are prosecuted". 57his publication does not refer to a presumption but confirms that "[I]ntentional and direct attacks on civilians or civilian objects are prohibited". 58ajor General C. J. Dunlap, Jr., USAF Ret., describes the 2015 Manual formulation as "steeped in the realities of combat". 59He notes that the AP I formulation of the presumptive civilian status is confusing and dangerous as it complicates threat identification, especially in urban warfare. 60The inclusion of a presumption of civilian status in instances of doubt is "meaningless" and may burden targeting decisions with convoluted legal standards. 61However, Hathaway, Lederman and Schmitt advocated for a revision to the 2015 Manual as "the claim that there is no legal presumption of civilian status is clearly mistaken?".The authors acknowledged that it "might be difficult to articulate precisely how much doubt is too much to permit the use of force".Nonetheless, the manual should incorporate a "legal presumption of civilian status when the commanding officer has little or no reason to think that a person is part of enemy forces (or a civilian directly participating in hostilities), where the preponderance of evidence points to civilian status, or where the officer is not fairly confident that the person is a lawful target". 62Goodman also argues that the presumptive civilian status "is widely recognised as customary international law binding on all states", and that the proposition in subsubsection 5.4.3.2 of the 2015 Manual is thus inconsistent with CIL, the judicial reasoning of international criminal tribunals and various military manuals of states. 63

The background to the revision of the doubt rule in the 2023 Manual
On 14 February 2023, members of the US Congress, Sara Jacobs and US Senator Dick Durbin, addressed a letter to DoD General Counsel Caroline Krass with substantive suggestions regarding the review of the 2015 Manual.The authors referred to "problematic aspects" of the 2015 Manual and were "concerned that certain aspects of the Manual undermine U.S. compliance with the law of armed conflict", and that this failure "put us out of step with many of our key allies and increase the risk of civilian harm by not accurately informing the judge advocates who advise commanders on the ground".The letter argued that "it is well established" under CIL that a person shall be considered a civilian in instances of doubt about a person's status during armed conflict.The 2015 Manual, according to the lawmakers, thus needed a "clear statement of the legally required presumption of civilian status" to correct, "clarify" and "emphasise the importance of the presumption of civilian status".
Caroline Krass, the General Counsel of the Department of Defense, confirmed on 2 March 2022 to the Committee on Foreign Affairs, US House of Representatives, that, amongst other provisions, the approach to civilian status in instances of doubt during armed conflict, as articulated in the 2015 Manual, would be reviewed. 64Krauss responded to a question from a member of the US Congress, Dina Titus from Nevada, regarding the use of force after the 2001 US Authorisation for the Use of Military Force. 65Krauss was requested to respond to what measures are taken to "protect against civilian casualties", often in densely populated areas.She responded that "protecting civilians against harm is both a strategic and moral imperative, and we very much want to make sure that we minimise or eliminate that from happening.The Department is working very hard on continuing to draw lessons learned from situations where civilians are killed".The member of congress interjected and stated that it is "often women and children who are the civilians when these gatherings are attacked".Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict Christopher Maier confirmed that Secretary Austin issued a memorandum directing that the Civilian Harm Mitigation and Response Action Plan (CHMRAP) be published within 90 days. 66an Coller Journal of International Humanitarian Action (2024) 9:3

The 2023 DoD Law of War Manual
The 2023 Manual was promulgated in July 2023 and is described as a "resource for DoD personnel" that reflects "the views of the Department of Defense" and "not necessarily reflect the views of those Departments or the U.S. Government as a whole". 67The 2023 Manual, in subsubsection 5.4.3.2, now states that observers must, in compliance with the principle of distinction and the good faith principle, "presume that persons or objects are protected from being made the object of attack unless the information available at the time indicates that the persons or objects are military objectives". 68The good faith test requires an "honest and genuine belief " instead of mere speculation that the "person or object to be attacked is a military objective".In addition, the determination of the existence of a military objective must be consistent with the obligation to take feasible precautions to verify that the objects of attack are military objectives, together with other obligations to seek to reduce the risk of incidental harm to protected civilians and objects.The person may thus only be intentionally targeted if the "available information evaluated in good faith indicates that the person presumed to be civilian has forfeited the protection afforded to civilians by taking a direct part in hostilities".
Certain objects may only be intentionally targeted when "the available information evaluated in good faith" shows that the object complies with the legal standard to qualify as a military objective (including the conduct or status of the person or the nature, location, purpose, or use of the object and the military advantages or disadvantages offered, intelligence estimates of enemy forces, the presence or anticipated action, enemy tactics, or assessments of civilian presence and behaviour). 69Observers must also take those feasible precautions that are practicable or practically possible to verify whether the persons and objects to be attacked are military objectives and must attempt to reduce the risk of incidental harm to civilians and objects protected from being intentionally attacked. 70

Commentary and criticism of the 2023 Manual revision
The 2023 Manual attracted some criticism.In his unofficial capacity, Colonel Ted Richard of the USAF states that "[T]he advocates seem to think that such a presumption might better protect civilians in the targeting process, but that simply is untrue". 71Nasu and Watts argue that the 2023 Manual characterises the presumptive civilian status as legally required under CIL.They classify, as unsettled, whether the presumptive civilian status exists under CIL. 72The authors describe the revisions regarding the presumption of civilian status in the 2023 Manual as a "misnomer" that "goes beyond the standards to which even AP I countries have committed themselves".They argue that the revision does not include the "unequivocal restriction to cases of doubt" found in AP I and defines the presumptive civilian status "as broadly couched and untethered from doubt".The 2023 Manual, as with AP I, refuses "to recognise the realities of combat... " as it "shifts the burden entirely onto a force engaged in offensive operations". 73The result is that all persons and objects are, by default and as a point of departure, considered entirely civilian.The revision also expands the reach of the AP I presumption by expressing the presumption as an aspect of the principle of distinction as opposed to a precaution. 74Observers are, therefore, now directed to determine whether a person or object qualifies as a military objective in a manner from which they were "deliberately and persistently insulated... for convincing legal and practical reasons".The revision could, as a result, "further incentivise adversaries to exploit U.S. forces' efforts to comply with the law of war" based on this "doctrinally prescribed hesitation". 75ox, a retired US Army Judge Advocate, states that the revisions in the 2023 Manual are "commendable" except for the "updated guidance related to the presumption of civilian status". 76He argues that it would be inconceivable to advise an observer "that the proposed target must be presumed to be a civilian (not taking a direct part in hostilities) in case of doubt (which almost always exists in targeting operations) without being able to articulate what degree of certainty is required to overcome that presumption".Cox maintains that the provisions of the Rome Statute of the ICC contain "[s]alient prescriptions of customary international law". 77The Rome Statute stipulates that a person commits a serious IHL violation by "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" or by "intentionally directing attacks against civilian objects". 78The material elements of this crime must be "committed with intent and van Coller Journal of International Humanitarian Action (2024) 9:3 knowledge". 79The observer must thus "be aware that the target is a civilian person (who is not taking a direct part in hostilities) or a civilian object because civilian status is the 'circumstance' that must exist to violate the relevant rules".Positive knowledge of civilian status constitutes a "definitive and unambiguous legal standard, rather than an amorphous presumption that must be overcome by an undefined quantum of information". 80Cox concludes that the use of the term "presumption" is "superfluous", and the term introduces a higher degree of certainty than is actually required. 81orn argues that the value of the presumptive civilian status has been "undermined" as the standard of proof ("quantum of information") to rebut the presumption has not been established. 82This challenge is probably why the previous DoD Manuals did not incorporate the legalistic presumption of civilian status and the accompanying degree of certainty that does "not account for the realities of war". 83Nonetheless, the presumptive civilian status revision is "unremarkable" as, in practice, "tactical and operational attack decisions have likely always been made [with appropriate caution] based on reasonably available information indicating that the intended target was, in fact, not a person, place, or thing legally protected from attack". 84Retired Air Commodore Boothby (Royal Air Force Legal Services) comments that the notion of available information is still not qualified by the term "reasonable".Subsubsection 5.4.3.2 "could be misunderstood as seeking to combine what are, in law, two distinct rules, namely the doubt rules and the rules regarding the definition of civilians and civilian objects.It is the use of the word 'presume' that causes the potential ambiguity". 85oothby suggests that this rule should have been drafted to read "[U]nder the principle of distinction, persons or objects that are not military objectives are, respectively, civilians or civilian objects, and must not, therefore, be made the object of attack".The formulation of the doubt rule in the 2023 Manual might result in the mistaken impression that "the obligation to minimise civilian casualties has something to do with the decision whether a person or object is a military objective and, thus, a lawful target for attack" as well as "the correct relationship between doubt, available information, and good faith". 86orn also argues that the good faith assessment is "arguably" an "incomplete solution" as this test is typically associated with a subjective judgment as opposed to a "reasonable person" or objective test. 87awless comments on the implications of the presumption of civilian status by exploring the nature of, and the prudence of incorporating, legal presumptions and legal burdens of persuasion and proof into targeting decisions. 88Lawless states that those who regard the civilian presumption as unobjectionable tend to focus on those instances where it is either impossible or fairly easy to overcome the presumption as the observer is virtually certain about lawful targetability. 89Those who caution against the presumption generally concentrate on the challenges of implementing the presumption in the most challenging instances of doubt, which present significant uncertainty regarding the lawful targetability of the person or object. 90He argues that the presumption has a "reflexive character" in easy cases, while it is "relatively brittle" in hard cases. 91He thus argues that the nature of the presumption may create some "hesitancy about the prudence of the Manual's adoption" of legal terms into military manuals, especially when considering the tempo, complexity and intensity of armed conflict. 92he 2023 Manual also has its supporters.Adil Haque argues that the doubt rule might not have been part of CIL in the past, but it is now "widely accepted" as such. 93eier, the Special Assistant to the Army Judge Advocate General for Law of War Matters, welcomes the revision as correcting the "misstatement of international law that no legal presumption for civilian status exists for persons or objects".The new formulation "more accurately reflects U.S. practice concerning the treatment of civilians and civilian objects". 94He argues that the revision confirms that the presumption is the foundation for the good faith exercise of military judgment based on information available at the time. 95Krass maintains that the revision facilitates timely decisions during targeting by confirming that the presumptive civilian status is applicable unless the 79 Rome statute above note 78, Article 30 -Mental element. 80Cox above note 22. 81 Cox above note 22. 82 Corn G (2023) 2023 DOD Manual revision -what is in a presumption?, Lieber Institute, West Point, https:// lieber.westp oint.edu/ whats-in-a-presu mption/. 832015 Manual above note 6, Sect.5.4.3.2, referring to § 1.4.2.2 (nature of war -limited and unreliable information -"fog of war"). 84Corn above note 82. 85Boothby, WH (2023) 2023 DoD Manual revision -a commentary on the amendments, https:// lieber.westp oint.edu/ comme ntary-on-amend ments/.
Page 10 of 15 van Coller Journal of International Humanitarian Action (2024) 9:3 available information allows for a conclusion that they are military objectives. 96Schmitt states that the revision is a positive development as its approach to targeting is consistent with CIL and the actual practice of observers.Schmitt reasons that "there is an affirmative obligation to conclude the target is a military objective, " but "some uncertainly does not (permanently) preclude" an attack.Schmitt believes that "the central operational question" concerning the doubt rule relates to the obligation to identify and verify the target as a military objective.The practical challenge is determining the threshold of uncertainty that will render an attack unlawfully indiscriminate in cases of doubt (the "continuum of certainty as to the target's" status). 97He refers to the 2019 Army/Marine Corps Manual, 98 which stipulates that "as a matter of practice due to operational and policy reasons,... Soldiers and Marines should consider that person or object as a civilian or civilian object" when doubt exists regarding the military objective status of that person or object. 99eins and Durham consider the requirement of "available information" and argue that the "data detritus" that this exercise will produce could have longer-term and detrimental effects on the civilian population. 100

Interpretation of the presumption of civilian status in cases of doubt
The principle of necessity requires that intentional attacks be limited to military objectives whose destruction would provide a "direct and concrete" 101 military advantage thus serve a legitimate military purpose.
The 2023 Manual also confirms that observers "must discriminate between legitimate and illegitimate objects of attack in good faith based on the information available to them at the time" when considering or executing an attack. 102The determination of the existence of a military objective is never without risk of error, and any decision to attack a military objective will generally involve "a multifaceted situational assessment". 103Nonetheless, this determination is not always complicated since combatants, as a group, are "considered a legitimate military objective" at all times during the armed conflict, with some notable exceptions.Combatants in IAC and mandated participants in NIAC may thus be intentionally targeted as military objectives and "harm[ed] due to their status as combatants" or based on their affiliation or membership of the parties to the armed conflict. 104tate practice, realistically, acknowledges the existence of at least two further categories of mandated participants in NIAC or, at the least, does not exclude the existence of members of the regular armed forces and members of organised non-state armed groups as mandated participants in the hostilities.This argument is based on the requirement that armed conflict can only exist where there are military operations on the part of all the parties involved in the conflict. 105he existence of doubt regarding the character or nature of the potential target creates an obligation to take feasible precautions and, thus, to obtain and evaluate the available intelligence in good faith to determine a person's or object's status. 106Most states formulated this obligation to trigger a "consideration" of civilian character for persons and civilian nature for certain objects.The 2023 Manual, however, articulates this obligation as a "presumption" of civilian status for both persons and certain objectives in instances of doubt.Some experts argued that the terms "presume" and "consider" convey a substantially similar meaning.This approach contradicts the working group's intention at the diplomatic conferences.It was explicitly agreed at the Diplomatic Conference that the term "presumption" must be replaced by the term "considered" to ensure that the doubt rule is "readily understandable to the soldier".The working group only retained the term "presumption" in the event of doubt regarding the status of dedicated civilian objects. 107he further substantial challenge with imposing an evidential presumption in targeting decisions creates a legal duty based on a specific standard.The 2023 Manual provides no real guidance on the quantum of information that would overcome the "presumption" of civilian status and only states that the presumption is not intended to introduce complex legal rules of evidence, and observers are not required to "apply a fixed evidence or proof " standard. 108Legal terms such as prima facie, "balance of probabilities" and "beyond reasonable doubt" are thus inappropriate for use in targeting decisions.

Presume, consider or may be treated as
The Vienna Convention, Article 31 (1), which reflects CIL, 109 declares that a treaty shall be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of their object and purpose". 110Interestingly, the term "presume" is included in the Hutchinson Dictionary of Confusable Words. 111Nonetheless, the Cambridge English Dictionary defines the term "presume" to mean "to believe something to be true because it is very likely, although you are not certain' or an inference drawn from facts. 112The exclusion of the term "presume" at the Diplomatic Conference for persons was thus sensible as the burden to rebut a "very likely" standard is unrealistic in a dynamic, complex, chaotic and destructive environment that causes extreme stress, thereby reducing the ability of an observer to make decisions that meet such a high threshold.This term may be appropriate in situations where the observer can access multiple sources of intelligence, and a decision as to the targetability of a person is made with the benefit of time and from a position where the observer is sufficiently insulated from the realities and dangers of armed conflict.The term "presume" may also be appropriate for targeting operations within an urban environment where most people could reasonably be regarded as part of the civilian population.
The term "consider" refers to an "opinion" or "decision that someone has reached after much thought".Many states prefer this term, but the reality of armed conflict creates serious challenges for observers to reach targeting decisions after "much thought" in all circumstances. 113ssumed, on the other hand, means to accept something to be true without question or proof.This term is clearly inappropriate as it requires no proof.The use of any of the above terms in a military manual thus provides little realistic guidance.
The only possible term remaining to consider for possible inclusion in the doubt rule is "treated as" a civilian or civilian object in instances of doubt.This term means to behave towards someone or deal with something in a particular way.Treated as a civilian or civilian object has the potential to resolve the challenges inherent in the use of the other terms.This term establishes an acceptable level of risk by reminding observers, in instances of doubt, to behave in a certain way towards doubtful targets, thereby reducing the risk of error in targeting operations.An observer or commander faced with a situation where doubt persists after all feasible precautions has been taken to determine whether a person or certain object may be lawfully attacked and must thus treat the potential target as civilian while weighing up the risk or harm that may manifest if the attack is executed or terminated. 114The commander or observer is accordingly required to behave towards the potential target in a specific manner while performing a further assessment regarding the character or nature of the potential target.
This application of the doubt rule about the character of persons would specifically require that the commander or observer treat those persons as civilians and thus not make them the object of attack "unless and for such time that they take a direct part in hostilities". 115The 2023 Manual states that the USA supports the CIL principle that "[C]ivilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities" 116 but disagrees that the language of that provision reflects CIL. 117The 2023 Manual states that the use of the term direct participation in hostilities (DPH) does not mean that the USA "has adopted" the DPH rule, as expressed in AP I. 118 The 2023 Manual states that DPH "[A]t a minimum" "includes actions that are, by their nature and purpose, intended to cause actual harm to the enemy.Taking a direct part in hostilities extends beyond merely engaging in combat and includes certain acts that are an integral part of combat operations or that effectively and substantially contribute to an adversary's ability to conduct or sustain combat operations".DPH "is likely to depend highly on the context, such as the weapon systems or methods of warfare employed by the civilian's side in the conflict". 119The determination of DPH requires a "level of certainty that can reasonably be achieved in the circumstances", considering, among other things, "the intelligence available" ("the time and resources reasonably available"), "the urgency of the situation", "the harm likely to result to the operating forces or to persons and objects protected against direct attack from an erroneous decision" ("civilians", "friendly forces") and the "military advantage expected from the attack". 120he formulation of the doubt rule concerning certain objects is not as complicated.Dunlap proposes a revision to this doubt rule in subsubsection 5.4.3.2 of the 2015 Manual to read that certain objects "may only be attacked if, based on all the information reasonably available to the commander at the time, there is a good faith belief that it has become and remains a military objective", i.e. when "used to make an effective contribution to military action". 121Here, the observer or commander will be required to "treat" that potential target as civilian and to behave in a specific manner towards the object, i.e. not to intentionally attack the object unless a good faith assessment shows that the object is used to make an effective contribution to military action.

Conclusion
It is important to note that the DoD Manual's formulation of the doubt rule in the 2023 Manual merely represents the approach of the DoD to the protection of civilians during targeting operations. 122Any military manual should provide comprehensive, practical and realistic guidelines and information on various aspects of military operations, including but not limited to targeting A military manual should thus not introduce rules and terms for use during armed conflict that, from a military, moral and legal perspective, are impractical, unrealistic or theoretical. 123Ambiguous terms such as "presume" and "assume" only create misunderstandings, misinterpretations, uncertainty and confusion.These challenges reduce the possibility of making informed decisions and taking appropriate actions to minimise civilian harm.Determining what constitutes a lawful target during an armed conflict must thus be linked to reasonably possible decisions in the prevailing circumstances.Indeed, the 2023 Manual confirms that "information is often limited and unreliable" during armed conflict. 124It is, therefore, unrealistic to approach targeting determinations as a static, quantifiable threshold that must be satisfied before an attack may commence. 125ommanders and observers should thus not be required to rebut any consideration or presumption in instances of doubt as to a potential target's character or nature. 126he military perspectives regarding the practical formulation of the doubt rule have arguably not received the same consideration in the 2023 Manual as was accorded to academic opinions.The pressure on the DoD from the US Congress to include a presumption of civilian status in the 2023 Manual may thus not offer the desired benefits to the civilian population.The degree of certainty required by "presume" requires a level of conviction that cannot be achieved in armed conflict.From a practical perspective, the term "presume" in the 2023 Manual is unnecessary.The legal presumption unnecessarily complicates targeting decisions in exceptionally challenging circumstances.The same can be said for terms such as "consider" and "assumed".
It is submitted that the 2023 Manual should have included different rules for persons and certain objects in instances of doubt.Doubt as to the character of a person will trigger a duty to treat the person as a civilian until the assessment of whether that person is directly participating in hostilities is finalised.Doubt about the nature of certain objects will require that the object be treated as civilian until a good faith determination regarding the potential use of that object to make an effective contribution to the military action is completed.These potential targets should thus be "treated as" civilian in character or nature in instances of doubt during the time that further assessments are conducted.The phrase "treated as" provides practical and understandable guidance that reminds the commander and observer to act in a certain manner towards the potential target.In practice, "welltrained and responsible military professionals" 127 should thus treat potential targets, in instances of doubt, as civilians while making further targeting determinations in good faith. 128age 13 of 15 van Coller Journal of International Humanitarian Action (2024) 9:3

International instruments
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) (1977) 1125 UNTS 3 Protocol on prohibitions on the use of mines, booby-traps and other devices, as amended, to the convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects, Geneva (1996)