A Critical Assessment of the New Department of Defense Law of War Manual
72 Pages Posted: 12 Nov 2016 Last revised: 15 Nov 2016
Date Written: November 11, 2016
In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing unified guidance on the law governing armed conflict. Unfortunately, despite such positive attributes as an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, notably media outrage over its treatment of the press, led DoD to issue a slightly revised 2016 version, mostly making cosmetic changes to language about reporters.
This article provides the first comprehensive critique, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” Stylistically, it is twice the length it should be, suffering from unnecessary repetition and internal inconsistencies.
The manual’s substantive shortcomings are more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests. Its treatment of proportionality, for example, endeavors to shift the greater burden for avoiding civilian casualties from the attacker to the defender. It makes a poorly supported claim of a U.S. right to use expanding bullets despite widespread recognition as a war crime. And it fails to enumerate which provisions of, the First and Second Additional Geneva Protocols of 1977 (AP I and II) – are binding on U.S. forces even though that was the original impetus for developing a joint U.S. manual.
The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard, or replaced with a manual more faithfully serving the law, U.S. military forces, and America’s true national interests.
Keywords: Expanding bullets, International humanitarian law, Law of armed conflict, Law of war, Law of war manual, Proportionality, War crimes
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