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, Geoffrey Corn, Charles Dunlap, and others.
The recently released US Defense Department Law of War Manual says the following (emphasis added):
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.
In a recent post, I argued that what the manual says is false. I argued that this rule — the “target selection” rule — is in fact a requirement of customary international law, citing the ICRC, the law of war manuals of Australia, Canada, France, Italy, Spain, Sweden, and the United Kingdom, among others, as well as the expert authors of the HPCR Manual.
In his response, Charlie Dunlap does not claim that what the manual says is true. Instead, Dunlap claims that the manual does not mean what it says. While the manual says that the target selection rule “is not a requirement of customary international law,” Dunlap claims that the manual means that the target selection rule is a requirement of customary international law. I find Dunlap’s claim implausible, both on its face and on closer examination.
Dunlap rests his claim not on the text of the manual but on a parenthetical quotation contained in a footnote. That parenthetical quotation — from a 1991 telegram to the ICRC, discussing an ICRC memo — says the following (emphasis added):
(“Paragraph 4B(4) [of the ICRC memo] 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.”)
According to Dunlap, this quotation also does not mean what it says. While the quotation says that Article 57(3) “is not a part of customary law,” Dunlap claims that the quotation means that Article 57(3) is a part of customary law.
In contrast, I believe that the quotation means exactly what it says. The first sentence of the quotation says that Article 57(3) “is not a part of customary law.” The second and third sentences state the U.S. interpretation of the “provision” — that is, of Article 57(3) — specifically the phrase “‘when a choice is possible.” Nowhere does the telegram recognize the target selection rule, however interpreted, as a part of customary law. As we have seen, neither does the text of the manual.
For other examples of the US interpreting provisions of Protocol I while rejecting their status as customary law, see here, here, and here.
For its part, the ICRC initially seemed puzzled by the telegram, writing that “the United States denied that this rule was customary but then restated the rule and recognized its validity.” In fact, the telegram nowhere recognizes the validity of the rule as a part of customary law. Perhaps the ICRC was confused by the telegram’s repeated use of the pronoun “it.” However, upon close inspection, “it” clearly refers to “the provision,” which in turn refers to Article 57(3), which the telegram says “is not a part of customary law.”
Dunlap writes that “the ICRC interpretation [of the telegram] 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.” Since the ICRC interpretation of the telegram has been publicly available for over a decade, the fact that this iteration of the manual does not adopt it strongly indicates that it has been considered and rejected precisely because it does not explain the US position.
In my view, if the drafters of the manual meant to recognize that the target selection rule, as they understand it, is a requirement of customary international law then they would have said so. The manual’s position on target selection is clearly wrong, but at least it is wrong clearly.
In an abrupt turn, Dunlap revisits our earlier exchange (here, here, and here) on the manual’s position that harm to human shields, no matter how extensive, will be “understood not to prohibit attacks under the proportionality rule.” At one point in that exchange, I observed that “most involuntary shields are not hostages,” noting that “[t]he combatant who takes refuge in a residential building, the group that establishes a command center in a hospital, and the unit that fires rockets from a schoolyard take no hostages yet clearly use civilians as involuntary shields.”
In response, Dunlap poses the following question:
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 [of United States Practice in International Law] “within or in the immediate vicinity of a legitimate military objective” assume “a certain risk of injury”?
No, she does not. Civilians are under no legal obligation to flee their homes, hospital beds, or communities in order to distance themselves from military targets. As Michael Schmitt observes, “[t]hose who remain may be too elderly or infirm to leave. They may be too frightened to leave, for fleeing … may be dangerous. They may wish to remain to safeguard their property and possessions.” Only civilians who remain near military targets for the specific purpose of voluntarily shielding those targets from attack thereby compromise their legal rights.
Dunlap then poses the following question:
Indeed, is such a person really an “involuntary” human shield?
Yes, she is. As Schmitt explains, “[w]hether the use of the civilians to shield is passive, as when a party to the conflict takes advantage of their presence (they may not even realize they are being so used), or active, for example when the party directs them to a location they will shield, is irrelevant.”
Finally, Dunlap writes that to argue that the manual’s positions are morally indefensible is to “attack  those that hold the views  label[ed] that way.” According to Dunlap, “when one attacks the morality of a ‘position’ reflected in th[e] manual, one is questioning not just the legal acumen but the very morality of those who drafted and approved it.” I respectfully disagree.
If morality were subjective — an expression of each individual’s emotions or preferences — then, indeed, all moral disagreement would be an exchange of personal attacks. However, morality is not subjective but objective, not an expression of how we feel but a reflection of how things are. We should therefore approach moral disagreement with the same personal detachment that we bring to other areas of rational inquiry. We should follow the arguments and evidence wherever they lead and present our conclusions without fear of ruffling feathers. With the lives of innocent men, women, and children hanging in the balance, all that matters is the truth.