Wars over the laws of war

DoD Law of War Manual

The Pentagon has just published a new edition of its Law of War Manual: you can download all 1200 pages here.  From the Foreword by Stephen Preston, the Pentagon’s General Counsel:

The law of war is a part of our military heritage, and obeying it is the right thing to do. But we also know that the law of war poses no obstacle to fighting well and prevailing. Nations have developed the law of war to be fundamentally consistent with the military doctrines that are the basis for effective combat operations. For example, the self-control needed to refrain from violations of the law of war under the stresses of combat is the same good order and discipline necessary to operate cohesively and victoriously in battle. Similarly, the law of war’s prohibitions on torture and unnecessary destruction are consistent with the practical insight that such actions ultimately frustrate rather than accomplish the mission.

Thanks to Marty Lederman at Just Security: watch that space for more commentary (I think….)

W Hays Parks 2003In the meantime, for some of the politics involved in the protracted publication process of the new manual (and an explanation of the title of Marty’s post), see Edwin Williamson and Hays Parks [right] writing in the neo-conservative standard bearer the Weekly Standard in July 2013 here, who – even as they insist on their non-partisan, apolitical and thoroughly objective perspective – nailed their colours to the mast in no uncertain terms:

From the outset it was agreed that the manual would be apolitical—it would be based on the law rather than political arguments inconsistent with the law of war. For example, the working group rejected arguments by some Bush administration officials that the law of war did not protect captured al Qaeda and that “enhanced interrogation procedures,” including waterboarding, should not be banned.

Obama administration political appointees, though, have aggressively sought changes in the manual to conform to their political philosophies or legal arguments in detainee litigation, pushing for rules and principles that vary from longstanding law of war treaty-based terminology and norms previously accepted by Republican and Democratic administrations.

One of the more egregious changes proposed by State Department political appointees and human rights activists on the National Security Council was the removal of a paragraph acknowledging that the law of war is lex specialis—the controlling law in armed conflict. Denying the lex specialis status of the law of war would enable activists to inject human rights law into the manual and onto the battlefield. Deletion of the lex specialis text was apparently not sought on the basis that it was legally incorrect, but, we suspect, because it was inconsistent with their political agenda.

Such a change would impose restrictions on U.S. forces in combat so that deadly force could be used only against an enemy who had refused a surrender opportunity or who posed an “imminent threat.” These requirements would place our fighters on a footing comparable to a police officer in the United States in a peacetime environment and at an extreme and unprecedented risk of being killed by the enemy or facing “war crimes” allegations by human rights activists.

Justice Department efforts toward the draft manual echo its continued post-9/11 view of the battle with al Qaeda entirely (and incorrectly) from a law enforcement perspective. It seeks to bring the manual text into conformity with terms and arguments it uses in court (many of which are inconsistent with the law of war).

A change Justice Department lawyers sought involved civilians on the battlefield. Under the law of war, a civilian loses immunity from direct attack if he or she “takes a direct part in hostilities.” The working group agreed that this participation does not, however, necessarily constitute criminal activity. Without consulting with working group experts or senior DoD or State policymakers, Justice Department attorneys have asserted that it does. This extreme (and incorrect) position would place at risk of enemy prosecution the substantial number of U.S. and foreign civilians who accompany our armed forces in the field in time of war and whose support is a major basis for the way in which the United States—with congressional approval—determines its military force structure. Justice Department lawyers created new law to enable the department to win its cases against al Qaeda, disregarding battlefield consequences for civilians lawfully accompanying our own forces.

More from Charles Kels here.

4 thoughts on “Wars over the laws of war

  1. Pingback: Legal battles | geographical imaginations

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  3. Pingback: War crimes | geographical imaginations

  4. Pingback: Fighting over Kunduz | geographical imaginations

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