Off Target: Selection, Precaution, and Proportionality in the DoD Manual
92 International Law Studies 31 (2016)
55 Pages Posted: 29 Jan 2016 Last revised: 9 Mar 2016
Date Written: January 27, 2016
According to its authors, the purpose of the United States Department of Defense (DoD) Law of War Manual “is to provide information on the law of war to DoD personnel responsible for implementing the law of war and executing military operations.” Unfortunately, the Manual provides misinformation on the law of war governing targeting and attack to its users and readers. In particular, the Manual misrepresents customary international law governing target selection, precautions in attack, and proportionality. Those who look to the Manual for guidance on these critical matters will be led astray.
The Manual asserts that attackers presented with a choice of targets for obtaining a similar military advantage have no legal obligation to select the target that places the fewest civilians in danger. In addition, the Manual asserts that attackers have no legal obligation to take precautions that will entirely avoid or greatly reduce risk to civilians if doing so would involve any additional risk to attackers or to their mission. Most dramatically, the Manual asserts that harm to civilians forced to serve as human shields will not prohibit attacks under the proportionality rule, no matter how great the expected harm to these civilians or how small the anticipated military advantage.
In each instance, the Manual does not describe customary international law as it was in 1996, when work on the Manual began. Certainly, the Manual does not describe customary international law as it is in 2016. State practice, including U.S. practice, continued to evolve in the intervening decades. The Manual “is intended to be a description of the law as of the date of the manual’s promulgation.” In fact, the Manual describes a law of war that no longer exists.
Keywords: Defense Department, Law of War Manual, law of war, law of armed conflict, international humanitarian law, target selection, precautions in attack, proportionality, human shields, civilian immunity
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