Policy Recommendations to Meaningfully Mitigate Civilian Harm in Military Operations: A View from the Netherlands (Part I)

[Megan Karlshøj-Pedersen is a Policy Specialist at Airwars, working across the U.K., U.S., the Netherlands and other European countries. Jessica Dorsey is an Assistant Professor of International and European Law at Utrecht University and the Managing Editor of Opinio Juris. Both authors are part of the civil society and academic consortium advising the Dutch Ministry of Defence described in this two-part post. Part II can be found here.]

Over the last four years, a consortium of academic experts and civil society organisations has been engaging with the Dutch Ministry of Defence (MoD) to improve Dutch mitigation of harm to civilians from its own actions in warfare in the so-called Roadmap Process. The process formalised in late 2019 on the tail end of revelations that the Dutch MoD was responsible for the bombing of an ISIS facility in Iraq four years earlier, which had killed at least 85 civilians and injured hundreds more.

The Roadmap Process has taken place in the context of broader efforts among some Western nations to improve their approach to civilian harm mitigation. The US released their Civilian Harm Mitigation Action Plan (CHMR-AP) in August 2022, followed by the Department of Defense Instructions on Civilian Harm Mitigation and Response (DOD-I) in late 2023. Together, these documents lay out significant commitments to reform the US’ approach to tracking, mitigating, investigating, and responding to civilian harm, often based on civil society recommendations. Additionally, in November 2022, 82 states, including the US, UK, and the Netherlands, endorsed the Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences arising from the use of Explosive Weapons in Populated Areas (EWIPA), committing themselves to refrain or restrict from the use of such weapons. Just this week, states and civil society groups gathered at the UN in New York for the annual UN Protection of Civilians week to share best practices and identify gaps. Yet even in this series of policy processes, the Roadmap Process has been unique in the regularity and formalisation of engagement with civil society; in 2023-24, we ran a series of bi-monthly technical workshops with the MoD, bringing together world-leading experts to identify best practice and implementation strategies for the Dutch context. 

As a result of these discussions, our consortium laid out 16 recommendations for the MoD PoC team this week, covering mechanisms that the MoD should implement to better mitigate harm to civilians. In this article, we highlight 8 of these recommendations which summarise the key changes needed in the Dutch approach to CHMR. While the recommendations were created for the Dutch context, they build on years of data collection, research, and advocacy, and they should also encourage other states and security actors to take steps to improve protection for civilians. The first part of this two-part blog post covers four of our recommendations and the second part the remaining four before offering concluding thoughts.

Selected Recommendations

Institutionalise engagement with academic institutions and civil society on pressing issues pertaining to civilian harm mitigation and response. 

Given that civilian harm mitigation is a multistakeholder issue, Ministries of Defence would be better equipped to develop policy and strategy by entertaining perspectives from academic experts and civil society organisations working in this space. Input from civil society can also feed into improvements within internal MoD policies and procedures. As shown by several years of engagement between the Dutch MoD and our consortium, this can be done through regular planned exchanges and the creation of channels through which urgent issues can be addressed. Several of the states which have engaged in such formalised processes of civil society engagement on their approach to CHMR have highlighted the benefits of doing so. For example, as one of us has highlighted elsewhere, the Dutch Ministry of Defence has taken concrete steps recently in recognising the importance of the role of NGOs in understanding allegations of civilian harm from its own military action. The Netherlands has also highlighted, more broadly, ‘In many cases civil society organisations address injustice and unequal power relations and hold political and economic institutions accountable for their policies. a strong civil society, in combination with legitimate, effective government… forms the basis for a well-functioning inclusive society.’ The Netherlands can in many ways be viewed as a leader in this space; by further institutionalising this engagement, they can project this leadership to allies and partners around the world to emphasise the importance of sustained relationships with external experts and specialised organisations. 

Adopt, publish, and operationalise a broadened understanding of civilian harm that goes beyond civilian casualties.

Civilian harm in modern warfare goes beyond those who are killed or injured directly. Many more often experience the indirect and reverberating effects of military action, such as a loss of livelihood or access to education and the destruction of infrastructure on which life depends, such as healthcare, electricity, and water treatment facilities. This is true for all forms of warfare, but particularly the use of  EWIPAs which have come to define more modern engagements, including by the Netherlands. 

There is more and more research taking place to understand the nature of reverberating effects – including how to mitigate against such effects and how to measure and monitor them. Some states have also begun to incorporate this into national definitions of civilian harm, with the US recently laying out the following definition: 

“Civilian casualties and damage to or destruction of civilian objects (which do not constitute military objectives under the law of war) resulting from military operations. As a matter of DoD policy, other adverse effects on the civilian population and the personnel, organizations, resources, infrastructure, essential services, and systems on which civilian life depends resulting from military operations are also considered in CHMR efforts to the extent practicable….”

In order for the Netherlands or any country to effectively mitigate harm to civilians, it must first understand what harm is occuring. To do so, it must adopt a broader definition of civilian harm that includes indirect and reverberating effects. When this is done, operationalisation can begin, for instance by identifying – and learning from – reverberating harm from past campaigns such as the anti-ISIS coalition in Iraq and Syria, and by incorporating additional technical experts, such as civil engineers, in the targeting process for planned strikes. 

Publish, to the greatest extent possible, the CHMR baseline study and potential subsequent study findings to ensure transparency.

Over the last year, the MoD PoC team has conducted a study into current CHMR mechanisms in the Dutch military. The purpose is to identify best practice, as well as areas of improvement, and recommendations for how to address these. This so-called Baseline Study marks a strong step in the right direction. The need to conduct critical reviews of militaries’ own practices has been a centerpoint in many recent recommendations on how to improve national CHMR mechanisms, including by Airwars and Article 36. It is also notable that the study is being conducted by respected military actors themselves, as opposed to external actors, increasing the trust among reviewers and respondents and leading to a highly technical, operational conversation on military practice. 

The MoD should release the CHMR Baseline Study and its findings to the greatest extent possible. It would allow civil society and experts to best understand the best practices emerging from the Netherlands and to work with the military to find the most effective solutions to current or emerging gaps. Beyond that, the April 2024 implementation conference for the EWIPA Declaration clearly showed that while some nations are engaging actively with the Declaration to find avenues of implementation, many others are unsure how to begin the process. A methodology that has already been built and tested by military actors themselves would be an extremely valuable tool for states that are willing to review current practices, but feel they lack the tools to do so. 

​In all coalition contexts, push for coalition-wide standards regarding CHMR efforts and formulate minimum requirements regarding CHMR efforts that are a prerequisite to Dutch participation. 

These should include clear standards in the areas of information access and sharing, agreed targeting thresholds and processes, and agreed investigation and response processes, and should be described in the Article-100 Letters (a constitutional requirement to inform Parliament about the deployment of Dutch military personnel, after which a Parliamentary debate occurs). By outlining these parameters prior to agreeing to participate within a coalition context, participating States agree on baselines of how they understand CHMR efforts prior to military engagement and where red lines are drawn. These standards can reflect access to intelligence and information prior to targeting missions and should reflect CHMR throughout the joint targeting cycle. States should also take this into consideration in thinking about their readiness for large-scale, high-intensity combat operations in collaboration with NATO Allies in response, e.g., to a European threat.

This particular recommendation is all the more pressing when we understand it within the context of progressively autonomous warfare. The increased speed of decision-making made possible through various ways AI is being integrated in the joint targeting cycle brings about new concerns regarding civilian harm, especially related to the IHL principles of precaution (and the duty of constant care to spare civilians and civilian objects to the greatest extent possible enshrined within it), distinction and proportionality. States developing, integrating and deploying these technologies must be equipped with robust answers not only about how they ensure compliance with the law but also how they take into account the moral and strategic imperatives of CHMR. Without doing so, the legitimacy of such operations is at stake, and, as U.S. Secretary of Defense Lloyd Austin incisively noted recently: failure to protect civilians risks strategic defeat. 

Part I of this post has introduced the Roadmap Process within the Netherlands and highlighted four of the recommendations the consortium has made to the Dutch MoD. Part II outlines the rest of the selected recommendations and after looking back on the process, it will offer concluding thoughts on a way forward.