Muddying the Waters: The Need for Precision-Guided Terminology in the DOD Law of War Manual
The United States Department of Defense Law of War Manual Commentary and Critique (Michael Newton, ed. 2018, Forthcoming)
21 Pages Posted: 28 Mar 2018
Date Written: March 22, 2018
In the midst of the chaos of war, the law of armed conflict’s principles, definitions and rules seek both to inject and to rely upon a measure of clarity and predictability. The implementation of the principles of distinction, proportionality and precautions, in particular, relies heavily on the ability of those fighting to distinguish between those who are fighting and those who are not. In order to prevent deliberate attacks on civilians, one must be able to determine who is a civilian. In order to refrain from attacks that will cause incidental harm to civilians that is excessive relative to the military advantage gained, one must be able to determine who is a civilian and what is a civilian object. Finally, in order to take constant care and other precautions to protect civilians, one must, again, be able to determine who is a civilian. Similarly, implementing legal obligations during detention operations rests, at least in part, on knowing how to classify detainees with regard to the relevant detention authority and treatment standards. Accountability mechanisms, whether courts-martial, military commissions, national courts or international tribunals, equally rely on legal definitions and categories to ensure that those accused of violations are prosecuted in the correct forum and that the elements of any given crime are met — for example, one cannot be convicted of the war crime of unlawful attacks on civilians if the individuals attacked were not civilians. Like many treaties and other manuals, the U.S. Department of Defense Law of War Manual devotes countless sections and discussions to presenting definitions and categories necessary for the application of the law of armed conflict (LOAC) and the relevant application of rules based on such definitions and categories. Unfortunately, rather than ensure clarity in doing so, the Manual muddies the conceptual waters, unnecessarily introducing uncertainty, confusing terminology and inconsistent definitions for the categories of persons in armed conflict.
This chapter highlights the problematic use of terminology for persons throughout the Manual, which diminishes protections for civilians, endangering the animating force and core purpose of LOAC. This recurring terminological imprecision undermines both the Manual’s effectiveness and, potentially, the law’s effectiveness in fulfilling its central purposes. The chapter first provides the necessary foundation for understanding the inaccuracies and counterproductive terminology in the Manual with a discussion of LOAC’s core principles and their reliance on the key categories of individuals in times of conflict, and the essential role for clarity in the presentation, interpretation and implementation of the law of armed conflict. It next examines three critical methodological problems the Manual evinces in its murky and inconsistent presentation of the categories of civilian and combatant, and the rules that rest on those definitions and categories: the creation of a third class of individuals, the conflation of conduct and status in the characterization of individuals, and the determination of status by the privileges an individual enjoys or does not enjoy — the reverse of the appropriate methodology. Finally, the chapter analyzes the dangers these uncertainties and interpretative problems create for the protection of persons during armed conflict and the effective and consistent application of the law, most importantly the way in which the Manual’s presentation of the legal definitions, categories and rules will undermine the protection of civilians during armed conflict.
Keywords: law of armed conflict, international humanitarian law, distinction, civilian, combatant, member of organized armed group, proportionality, precautions, DoD Law of War Manual, armed conflict, detention, targeting
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