Summary of "Lawfare Archive: Protecting Civilians in Gaza and Beyond with Marc Garlasco and Emily Tripp"

Release Date: June 7, 2025
Podcast: The Lawfare Podcast
Host: Tyler McBrien
Guests: Marc Garlasco, Emily Tripp

Introduction

In this archival episode of The Lawfare Podcast, host Tyler McBrien engages in a profound discussion with Marc Garlasco and Emily Tripp regarding the Department of Defense's (DoD) inaugural policy on civilian harm mitigation and response, released in December 2023. The conversation delves deep into the nuances of civilian protection in conflict zones, the evolution of military policies, and the persistent challenges in safeguarding non-combatants.

Defining Civilian Harm vs. Civilian Casualties

Marc Garlasco begins by distinguishing between "civilian casualties" and "civilian harm."
“Civilian casualties are the deaths and injuries that are caused in warfare. Civilian harm encompasses those deaths and injuries, but also more than that, right?” [09:55]

He elaborates that civilian harm includes secondary and long-term effects such as displacement, loss of income, mental trauma, and destroyed infrastructure. Garlasco critiques the DoD's formal definition, which he finds overly simplistic and insufficient in capturing the full scope of civilian suffering.
“They say other adverse effects... do not include mere inconveniences. And I think that is a point where Emily and I kind of roll our eyes back because the harm that's being meted out to people is not a mere inconvenience.” [12:58]

Emily Tripp echoes this sentiment, emphasizing the importance of acknowledging the severe and multifaceted impacts of war on civilians.
“The harm that's being meted out to people is not a mere inconvenience. So just to put a final dot on that...” [09:55]

Development and Motivation Behind the New DoD Policy

Marc Garlasco provides a historical overview of civilian harm mitigation efforts within the U.S. military, tracing their origins back to the conflicts in Iraq, Afghanistan, and the fight against ISIS. He highlights pivotal moments such as the 2007 NATO mission in Afghanistan, which prompted the initial tracking of civilian casualties, and the significant blowout in Asadabad that underscored the urgent need for systematic civilian harm mitigation.

“Congress mandated that the US create some kind of civilian harm mitigation plan as part of the 2019 National Defense Authorization Act... Secretary Austin took this on wholeheartedly.” [21:09]

He credits Secretary of Defense Lloyd Austin for prioritizing this initiative, emphasizing its comprehensive nature and the challenges in its implementation.

Emily Tripp discusses the broader implications of the policy, noting its impact on international norms and the heightened importance of high-level commitment to civilian protection within military operations.

“These are very small details within the Department of Defense instruction that as an organization that is in the business of tracking casualties, I think is really important.” [36:42]

State of Civilian Harm Worldwide

Emily Tripp provides a sobering account of the current state of civilian harm, citing specific figures and highlighting underreporting by the U.S. and its allies.

“We estimate that at minimum, there are about 8,000 civilians that we think were killed as a result of US and allied actions in the war against ISIS. The Americans themselves have admitted to about 1,400.” [17:46]

She underscores the challenges in obtaining accurate data and the ongoing efforts by organizations like Airwars to document and advocate for accountability.

Marc Garlasco adds that despite existing international laws aimed at protecting civilians, the high number of civilian deaths necessitates robust policies like the new DoD instruction.
“International humanitarian law... is an incredibly low bar. Right? It's don't purposefully kill civilians. That's it.” [57:21]

Implementation Challenges and Policy Reception

Emily Tripp discusses the meticulous details of the DoD Instruction (DoDI), commending its inclusion of specific codes for civilian harm allegations and the commitment to casualty ranges. However, she also points out shortcomings, such as the exclusion of "mere inconveniences" and the lack of stringent requirements for allies in joint operations.

“There's nothing in there that says, hey, we're going to stop sending weapons or we're going to... put in some kind of a requirement of what they're going to have to do.” [42:17]

Marc Garlasco acknowledges the policy's groundbreaking nature but expresses concerns about its limitations, particularly in holding allies accountable and ensuring consistent implementation across all military operations.

“It's very hard to see how while, yes, this has an important multinational and security cooperation section... it just doesn't really do it to the point where... a US ally is conducting offensive operations and just killing large swaths of civilians.” [42:17]

International Law and Obligations

Emily Tripp outlines the international legal framework that mandates states to report civilian harm, referencing recent UN Human Rights Council declarations and the political declaration on the use of explosive weapons in populated areas. She highlights the disparity between these obligations and actual state practices, pointing out significant underreporting and lack of compliance by nations like the U.S. and the U.K.

“States are obliged to track casualties resulting from their actions... but the reality of states are doing, which is, I would say, certainly not enough.” [18:05]

Ripple Effects and Global Implications

Emily Tripp observes that the new DoD policy has begun influencing allied nations, fostering a mindset that prioritizes civilian protection within military doctrine. She notes efforts in countries like the Netherlands and the U.K. to adopt similar frameworks, although challenges remain in harmonizing these practices globally.

“The key takeaway that we're seeing among states is the importance of high level buy in when it comes to civilian protection... which affects so many different levels.” [46:57]

Marc Garlasco adds that the policy is gaining traction beyond NATO, with increasing interest from United Nations peacekeeping operations. He remains optimistic about the policy's potential to foster international cooperation and enhance civilian protection standards.

“We're also seeing a movement in the United Nations... it's moving beyond just the militaries.” [50:55]

Future Outlook and Concluding Thoughts

Emily Tripp balances her cautious optimism with acknowledgment of the ongoing severe civilian harm in conflicts like Gaza. She emphasizes the need for continued advocacy and policy refinement to ensure meaningful protection and accountability.

“It's very difficult for me to be positive, I think, to, like, simply because of what's happening... the silence from the US towards Israel has been deafening.” [54:37]

Marc Garlasco underscores the necessity of the DoD policy in bridging the gap between existing laws and practical protection measures. He expresses hope that this policy marks the beginning of a more empathetic and accountable approach to warfare.

“We need to recognize that and try to improve the way that we treat each other as human beings... making sure that we take care of those that we harm.” [60:11]

Key Takeaways

• Civilian Harm Mitigation: The new DoD policy represents a significant shift towards comprehensive civilian harm mitigation, encompassing not just casualties but also long-term and secondary effects.

• Implementation Challenges: While the policy is groundbreaking, its effectiveness hinges on detailed implementation, international cooperation, and holding allies accountable.

• International Obligations: Existing international laws mandate the protection and reporting of civilian harm, but many states fall short, highlighting the need for robust policies like the DoD's.

• Global Ripple Effects: The policy is influencing allied nations and international organizations, fostering a collective movement towards better civilian protection in conflicts.

• Hope Amidst Tragedy: Despite ongoing severe civilian harm in conflicts, there is cautious optimism that these policy changes can lead to incremental improvements in protecting non-combatants.

Notable Quotes

• Marc Garlasco [09:55]: “Civilian casualties are the deaths and injuries that are caused in warfare. Civilian harm encompasses those deaths and injuries, but also more than that.”

• Marc Garlasco [12:58]: “They say other adverse effects... do not include mere inconveniences. And I think that is a point where Emily and I kind of roll our eyes back because the harm that's being meted out to people is not a mere inconvenience.”

• Emily Tripp [17:46]: “We estimate that at minimum, there are about 8,000 civilians that we think were killed as a result of US and allied actions in the war against ISIS. The Americans themselves have admitted to about 1,400.”

• Marc Garlasco [21:09]: “Congress mandated that the US create some kind of civilian harm mitigation plan as part of the 2019 National Defense Authorization Act... Secretary Austin took this on wholeheartedly.”

• Emily Tripp [18:05]: “States are obliged to track casualties resulting from their actions... but the reality of states are doing, which is, I would say, certainly not enough.”

• Marc Garlasco [57:21]: “International humanitarian law... is an incredibly low bar. Right? It's don't purposely kill civilians. That's it.”

• Emily Tripp [54:37]: “The silence from the US towards Israel has been deafening... it's very hard to be positive... but it's incumbent upon all of us to just to kind of listen to those voices now.”

• Marc Garlasco [60:11]: “We need to recognize that and try to improve the way that we treat each other as human beings... making sure that we take care of those that we harm.”

This episode provides a comprehensive exploration of the United States Department of Defense's efforts to mitigate civilian harm in conflict zones. Through the expertise of Marc Garlasco and Emily Tripp, listeners gain valuable insights into the complexities of military policies, the importance of accurate civilian harm tracking, and the ongoing struggle to uphold international humanitarian laws amidst real-world conflicts.