Failing Our Troops: A Critical Assessment of the Department of Defense Law of War Manual

65 Pages Posted: 14 Dec 2017

See all articles by David W. Glazier

David W. Glazier

Loyola Law School Los Angeles

Zora Colakovic

Loyola Law School Los Angeles

Alexandra Gonzalez

Loyola Law School Los Angeles

Zacharias Tripodes

Loyola Law School Los Angeles

Date Written: October 17, 2017

Abstract

In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing the U.S. military its first unified guidance on the law governing armed conflict. Unfortunately, despite some positive attributes including an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, including media outrage over its treatment of the press, led DoD to issue two slightly revised 2016 versions, making modest changes to its language addressing reporters and proportionality when conducting attacks.

This article provides the first comprehensive critique to date, 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 that undermine its utility as a practical reference for American troops.

The manual’s substantive shortcomings are even more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests.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 the principle of distinction essentially allows attacks on any target to be justified based on even a remote potential for future military use, and it endeavors to shift the primary 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 universal recognition of doing so 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The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard or replaced with a manual more faithfully serving the law, U.S. military forces, and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: Department of Defense Law of War Manuel, Armed Conflict Law, Torture, Geneva Protocols of 1977

Suggested Citation

Glazier, David W. and Colakovic, Zora and Gonzalez, Alexandra and Tripodes, Zacharias, Failing Our Troops: A Critical Assessment of the Department of Defense Law of War Manual (October 17, 2017). 42 Yale Journal of International Law215 (2017); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-49. Available at SSRN: https://ssrn.com/abstract=3088061

David W. Glazier (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

Zora Colakovic

Loyola Law School Los Angeles

919 Albany Street
Los Angeles, CA 90015-1211
United States

Alexandra Gonzalez

Loyola Law School Los Angeles

919 Albany Street
Los Angeles, CA 90015-1211
United States

Zacharias Tripodes

Loyola Law School Los Angeles

919 Albany Street
Los Angeles, CA 90015-1211
United States

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