Misdirected: Targeting and Attack Under the U.S. Department of Defense Law of War Manual

Abstract

The stated purpose of the U.S. Department of Defense’s 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, with respect to the rules governing the conduct of hostilities, the Manual fails to achieve its stated purpose. With respect to some rules, the Manual provides insufficient information to help U.S. forces understand and fulfill their legal obligations. With respect to other rules, the Manual provides misinformation that, if followed, will lead U.S. forces to violate their legal obligations.

In a previous article, I critically examined the Manual’s original provisions regarding target selection, precautions in attack, and proportionality with respect to human shields. Fortunately, the December 2016 updates to the Manual partially correct some of the most alarming errors of the original. Unfortunately, significant problems remain. I will briefly revisit these topics at the end of this chapter. However, my primary concerns lay elsewhere. As I wrote in my previous article, “[l]awful targeting begins with lawful targets. Problems with the Manual begin there as well.” These are the problems that I wish to discuss here.

When do civilians lose their protection from attack? What steps must combatants take to confirm that particular individuals are liable to attack? When must combatants refrain from attack in case of doubt? In my view, the Manual’s general criteria for the loss of civilian protection are broad and vague; its standard for determining that specific individuals have lost their protection is weak and subjective; and its license to attack in cases of doubt is unreasonable and dangerous. On each point, the Manual reflects neither the lex lata nor the lex ferenda, neither the law as it is nor the law as it should be. The Manual provides misinformation to U.S. forces and spreads dangerous ideas to the world beyond our shores. The Manual has been updated twice before. For the sake of our troops and the civilians affected by our military operations, the Manual must be updated again.

Keywords: civilian immunity, direct participation in hostilities, target verification, rule of doubt, human shields, target selection, precautions in attack, Law of War Manual