At War with Itself: The DoD Law of War Manual's Tension between Doctrine and Practice on Target Verification and Precautions in Attack
The United States Department of Defense Law of War Manual: Commentary & Critique (Michael A. Newton ed., Cambridge University Press, Forthcoming)
Roger Williams Univ. Legal Studies Paper No. 175
22 Pages Posted: 28 Apr 2017
Date Written: April 28, 2017
The U.S. Department of Defense Law of War Manual (“Manual”) has sparked debate on U.S. interpretation of core duties under international humanitarian law (“IHL”), including the principles of distinction, proportionality, and precautions in attack. The December, 2016 revisions to the Manual have shifted the terrain of that debate. However, the debate persists. This Chapter argues the revised Manual highlights a debate between the Manual’s rich examples – which track IHL – and the Manual’s doctrinal assertions, which often clash with IHL norms. The Manual’s doctrine regarding precautions is flawed in two respects. First, the Manual subsumes precautions under the principle of proportionality, which addresses “excessive” collateral civilian harm. The Manual thus fails to acknowledge that precautions also play a role in the identification and verification of appropriate military targets. Moreover, the Manual asserts that the standard applicable to target identification and verification is mere good faith, not reasonableness. Neither doctrinal move meets the customary duty to employ “constant care” in reducing harm to civilians.
This Chapter asserts that IHL’s constant care requirement entails what this Chapter calls “dynamic diligence.” Dynamic diligence mandates reasonable care in target identification and verification, as well as in assessment of collateral harm. It also demands ongoing learning from the mistakes that are endemic to the fog of war.
The good news is that U.S. practice, revealed in the Manual’s examples, adheres closely to the contours of the dynamic diligence paradigm. For example, the U.S. uses human intelligence, computer modeling, satellite imaging, and legal advice to inform target selection. Moreover, the U.S. compiles no-strike lists that flag objects of historical or cultural importance or protected sites such as hospitals. When U.S. procedures fail to adequately protect civilians, as in the calamitous 2015 attack on a Medecins Sans Frontieres hospital in Kunduz, Afghanistan, the U.S. investigates and integrates “lessons learned” into its tactics, techniques, and procedures.
The Manual’s doctrinal assertions thus part company with U.S. practice on precautions and standards governing target identification and verification. Because of this disconnect, the Manual fails to offer sufficient guidance to commanders or the lawyers who advise them. The Manual should heed its own examples, and revise its doctrinal assertions to reflect the dynamic diligence that U.S. practice customarily displays.
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