CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, December 21, 2017

Glazier et al. on The DOD Law of War Manual

David W. GlazierZora ColakovicAlexandra Gonzalez and Zacharias Tripodes (Loyola Law School Los Angeles, Loyola Law School Los Angeles, Loyola Law School Los Angeles and Loyola Law School Los Angeles) have posted Failing Our Troops: A Critical Assessment of the Department of Defense Law of War Manual (42 Yale Journal of International Law215 (2017)) on SSRN. Here is the 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more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests.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The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard or replaced with a manual more faithfully serving the law, U.S. military forces, and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.

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