Let’s Balance the Argument About the DOD Law of War Manual and Targeting

Editor’s Note: Just Security is holding a “mini forum” on the new Defense Department Law of War Manual. This series includes posts from Sean Watts, Eric Jensen, Adil Ahmad Haque, Geoffrey Corn, and more to come.

My sparring partner, Prof. Adil Ahmad Haque, has energetically made a fresh critique regarding the new DOD Law of War Manual. This time about the manual’s reading of art. 57(3) of Additional Protocol 1 of the Geneva Conventions (to which the US is not a party), dealing with precautions commanders must take before attacking in order to avoid unnecessary harm to civilians. According to Haque, this manual provision, which he seems to understand as a total rejection of the essence of art. 57(3), is “both legally and morally unsustainable.” His interpretation is one that the ICRC doesn’t seem to share, but more about that in a minute.

Before proceeding, permit me to emphasize that the new manual ought to be scrutinized and debated; in fact, the DOD openly invites commentary and feedback because such feedback will make it better. But for a debate to have real meaning and impact, it has to be balanced, and that means elucidating competing views and facts. That’s why my previous post about Haque’s first assault on the manual (about human shields) asks the question “Can’t We Improve the Debate?”

Anyway, concerning Haque’s most recent post, let’s begin by looking at the Additional Protocol says so folks can make their own judgment. From the text of art. 57 (3) (emphasis added):

When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

Here’s what the manual says about that provision in paragraph 5.11.5 (emphasis added):

AP I Provision on Choice Possible Between Several Military Objectives. AP I provides that “[w]hen a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.” The United States has expressed the view that this rule is not a requirement of customary international law.

For the last sentence, the manual provides a footnote that says in substance (emphasis added):

Paragraph 4B(4) contains the language of Article 57(3) of Protocol I, and is not a part of customary law. The provision applies “when a choice is possible … ;” it is not mandatory. An attacker may comply with it if it is possible to do so, subject to mission accomplishment and allowable risk, or he may determine that it is impossible to make such a determination.

Haque considers this citation to be a mere “Army statement” (perhaps because of a misleading footnote in the ICRC customary law study), but it is actually from the 1991-1999 Digest of United States Practice in International Law. According to the State Department, the Digest is intended to “provide the public with a historical record of the views and practice of the Government of the United States in public and private international law.” This particular extract is from a January 11, 1991 telegram sent in response to a December 1990 memo that the ICRC distributed (to nations who might participate in the then pending Gulf war conflict) about the applicability of what the ICRC terms “International Humanitarian Law.”

In short, the position Haque criticizes is not a recent invention of “DOD” or the “Army” but rather has been the view of the US government for almost 25 years. Equally importantly, consider how the ICRC interprets the US position in its 2006 study of customary international law (emphasis added):

Interpretation

The United States has emphasized that the obligation to select an objective the attack on which may be expected to cause the least danger to civilian lives and to civilian objects is not an absolute obligation, as it only applies “when a choice is possible” and thus “an attacker may comply with it if it is possible to do so, subject to mission accomplishment and allowable risk, or he may determine that it is impossible to make such a determination”.

In other words, the ICRC does not relate the US view as wholesale rejecting the “obligation” but says the view is merely as an interpretation explicating the precise circumstances in which it applies. While the US had — and continues to have — many objections to ICRC study, this particular rendition of the US view has not drawn complaints from the US government.

You be the judge, but I don’t think that the US interpretation is “legally and morally unsustainable,” and my bet is that others would agree. In fact, this may be why it hasn’t drawn much in the way of criticism over the years. The interpretation reflects, I would suggest, a keen understanding of the realities of war and hard experience in the importance of clarity about something that could easily be misunderstood (as it seems, Haque has done).

However, what may be a bona fide criticism of the manual is that the ICRC interpretation may be a clearer and better explanation of the US position, and ought to be considered for adoption in the next iteration of the manual.

Another important note: Haque likens his attack on the US’s interpretation of targeting requirements to his assault on the DOD position on human shields which he similarly characterized as “both legally and morally indefensible.” In my response to his human shields piece, I did not take a personal position on the issue, but rather tried to illustrate that there are plausible arguments contrary to his position that I thought need to be considered in the debate.

I did not find much in Haque’s response to substantively dislodge what I had already addressed. I do observe that he now is claiming that “most involuntary shields are not hostages.” Really? As a Syrian activist recently put it, ISIL “uses civilians as human shields to claim that the US-led coalition is targeting innocent people during the strikes.” Are we to assume that most of those “innocent people” are not ISIL hostages in some way?

Here’s the question to be explored in Haque assertion: Does someone who is not seized, detained, or otherwise coerced by a belligerent (and hence not likely a hostage), yet who nevertheless stays, to paraphrase a passage from the Digest “within or in the immediate vicinity of a legitimate military objective” assume “a certain risk of injury”? Indeed, is such a person really an “involuntary” human shield?

Most puzzling, however, is Haque’s predilection in his posts to brand any disagreement with his view as “morally indefensible,” yet at the same time not comprehend that doing so would be seen as an attack on those that hold the views he labels that way. For example, in his original post, Haque variously describes the “DOD’s position” as “morally unintelligible,” “morally incoherent,” and with “no obvious basis in … morality.” But in response Haque makes a very odd argument: he claims that “[n]owhere in [his] post [does he] question the character of the manual’s authors. [He is] sure that they are fine people. Instead, [he] questions the soundness of the manual’s position.”

Who then is being, as Haque might put it, “morally unintelligible” or “morally incoherent” or who entertains views having “no obvious basis … morality”? Of course, the manual itself does not have an independent moral existence as it is simply paper (or electrons), so when one attacks the morality of a “position” reflected in that manual, one is questioning not just the legal acumen but the very morality of those who drafted and approved it. It really is that simple.

Allow me to close by saying that I believe that the academy (of scholars) has much to offer those operators who day-in and day-out face ruthless adversaries such as ISIL who are well-schooled in lawfare techniques. These belligerents are indifferent to the law of war, except to the extent they might exploit it. In fact, they embrace even the most egregious violations of the law of war, including not just the horrific use of mentally-disabled youngsters as suicide bombers, but also burying children alive.

Accordingly, if the academy really wants to have a genuine impact on practitioners, it would be well-served to better understand the harsh realities of war. Given the extraordinarily complex battlefields of the 21st century, the academy also must refrain from too cavalierly labeling efforts of those “in the arena” doing their best to try protect civilians from the perils of war as nevertheless exhibiting “morally indefensible” views. Of course, disagree when you must, but respectful disagreement can be a far more effective advocacy technique in the proverbial real world. 

About the Author(s)

Charles J. Dunlap, Jr.

Professor of the Practice of Law and Executive Director of the Center on Law, Ethics and National Security at Duke Law School He retired from the Air Force in 2010 as a Major General.