July 6, 2015

I’m reading the new Law Of War Manual so you don’t have to: Chapters 1-3

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dod-law-of-war-manual(The following is from my ongoing series about the Department of Defense’s recently published Manual Of the Laws of War. This entry covers the first three chapters of the manual. For background, read the first entry here.)

“The law of war’s prohibitions on torture and unnecessary destruction are consistent with the practical insight that such actions ultimately frustrate rather than accomplish the mission.”

In a year of high-profile books that took years (and sometimes decades) to make their way to publication, the 2015 Law Of War Manual stands as a particularly tardy example.

Which is not to say that the task this book intends to achieve isn’t impressive! That a single manual can standardize the approach to the laws of war across the entire U.S. armed forces, replacing dozens of previous and service-specific resources, sounds ideal. Its creation would naturally require a huge amount of lead time. Cooperation across services and departments, plus the collection and collation of the various antecedents and arguments for what will basically constitute the authoritative response by the mechanism of war to the modern state of warfare, certainly sounds like a bureaucratic nightmare.

That’s the unmistakeable impression of the first three chapters of the Law of War Manual. In careful, exacting, and numbing language the manual defines the law of war and other terms in increasingly abstract language. Footnotes splattered with acronyms, arcane incantations (like “usufruct” and “perfidy”), and the occasional recognizable name (like Rice and Rumsfeld) dominate the page. This is a dense, detailed document.

Maybe that’s why the Manual was delivered 40 years after it was initially proposed.

Memoranda and meeting notes from the 1970s reflect that the international law offices of the Department of the Army’s Office of the Judge Advocate General and the Department of the Navy’s Office of the Judge Advocate General generally agreed on a concept plan for a new all-Services law of war manual that would be a resource for implementing the 1977 Additional Protocols to the 1949 Geneva Conventions.

These protocols, which were introduced in 1977, further expanded the protections of the Geneva Conventions for civilians in international and civil conflicts. Protocols, it should be noted, that have still not been ratified by the US, almost 40 years after our government official expressed its intent to do so.

The most authoritative and current antecedent for the 2015 Manual is the Army Field Manual 27-10, The Law Of Land Warfare (aka FM 27-10). Written in 1956, and later revised in 1976 to provide the US with some wiggle room when it came to using herbicides and tear gas, FM 27-10 is only 130 pages long. Of course, this isn’t the only Army Field Manual; the DOD issues hundreds of manuals on relevant subjects.

(You may have heard about FM 2.22-3 on the news recently; this is the manual that defines what is legal in the interrogation of POWs and “unlawful combatants” (we’ll get into the seamy etymological history of that latter phrase in future entries). A measure to establish as law Barack Obama’s executive order from 2009, which restricts the CIA to the techniques laid out in this manual, is currently attached to the stalled defense appropriations bill. The Senate voted overwhelmingly to pass this bill, but then quickly voted against actually paying for it.)

But all of this is to say that this new manual, designed to assist lawyers in advising all branches of the armed forces, is expected to be both comprehensive and up-to-date, accounting for changes in the nature of warfare itself—and in the first chapter, it claims that it will. (Bizarrely, it also states at the beginning of the first chapter that quoted materials retain two spaces after each period.)

Cyber warfare and drone warfare, for example, are now key elements in American foreign policy that wouldn’t have been covered in previous manuals. But the differences between the current and former manuals go even deeper than this in the first three chapters of the manual, which cover General Background, Principles, and Application of the Law of War.

Sean Watts, writing for Just Security (which has also been covering the new manual) points out that the new version, along with being significantly longer than previous versions, takes a fundamentally different approach to the principles of the law of war, which it lays out on page 77.

Three interdependent principles – military necessity, humanity, and honor – provide the foundation for other law of war principles, such as proportionality and distinction, and most of the treaty and customary rules of the law of war.

Watts points out that previous DOD manuals defined the key principles of law of war to be: military necessity, discrimination, proportionality, and unnecessary suffering. Watts argues that the new manual’s inclusion of humanity “abandons recent refinements of that concept in favor of a more general approach”, that it has superseded the principle of discrimination, which in previous manuals governed the treatment of captives, the approach to civilians, and the prohibition of certain weapons.

The principle of unnecessary suffering has been recast as the first purpose of the law of war, which the manual defines as “protecting combatants, noncombatants, and civilians from unnecessary suffering”. According to Watts, previous DOD manuals defined the protection of civilians under the principle of discrimination; as civilians are not lawful targets unless they “take direct part in hostilities”, they would not be subject to the same rules defining what constitutes unnecessary suffering as combatants. The 1956 manual expanded these rules to include noncombatants, and they appear to have expanded yet again to include civilians in 2015.

By not distinguishing between civilians and civilians taking direct part in hostilities, as well as by shifting the duty of preventing unnecessary suffering onto the broader and less enforceable principle of humanity, the new manual doesn’t just abandon previous refinements of what constitutes discrimination. It also troublingly paves the way to define what constitutes “necessary suffering” as applies to civilians.

Watts goes on to question the practicality of the “honor” and “proportionality” principles as defined by the manual, and his argument is worth reading in full. But if you’re thinking this is all just dry, abstract legalese, you’re right! Playing hide-the-principle is not a fun game for anyone except military courts and lawyers. If you want crackling literary prose, don’t read DOD literature; read Alan Pauls!

But that which comes across as dry and vague to the lay reader, at least in the first three chapters, could be a reflection of the entire document’s relative toothlessness. Eric Jensen pointed out that the manual’s purpose, laid out in an effective disclaimer at the beginning of the first chapter, is…what, exactly? Certainly not policy, and certainly not the U.S. Government’s stance on the laws of war.

This manual represents the legal views of the Department of Defense. This manual does not, however, preclude the Department from subsequently changing its interpretation of the law. Although the preparation of this manual has benefited from the participation of lawyers from the Department of State and the Department of Justice, this manual does not necessarily reflect the views of any other department or agency of the U.S. Government or the views of the U.S. Government as a whole. This manual is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

So after decades of inaction, hundreds of previous editions/drafts/errata, and the miraculous and exhaustive cooperation of a small city’s worth of lawyers, is the final 1176-page Law of War Manual, on a practical and principled level, just another diluted doorstop?

Liam O’Brien is the Senior Sales & Marketing Manager at Melville House, and a former bookseller.

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