The Law of War Manual Debate Goes to ASIL

Today, at the American Society of International Law Annual Meeting, I will be moderating a panel of on the US Department of Defense’s new Law of War Manual. (Full disclosure: I was working as Special Counsel to the General Counsel at the Department of Defense when the Manual was issued, but I was not involved in its preparation.)

The Manual was a very long time coming. In 1990, Defense Department lawyer W. Hays Parks published a law review article in which he explained that “a comprehensive military review identified a need to update and significantly expand American military law of war manuals. … [T]he new Army law of war manual will be completed in 1990.” Two decades later, in 2010, Parks delivered a speech at the ABA Standing Committee on Law and National Security outlining the “forthcoming law of war manual.” Two years after that, he gave another speech, this time decrying the “demise of the Law of War manual.” But the Manual survived reports of its demise, finally issuing last year, 25 years after it was initially expected.

Since it was issued, the new Manual has met with a mixed response. As ASIL’s description of the panel (which I had no hand in writing) explains, “Some commentators view the Manual as embodying a return to broad based IHL principles. Others, however, argue that the Manual embodies a significant shift away from these principles in several key areas.” Some areas that have come under fire are its treatment of human shields, its treatment of the press, and the precautions to minimize civilian harm. Just Security hosted a mini-forum on the Manual last summer, in which editors and guests weighed in on both sides of the debate.

Today’s session brings together domestic and international experts to explore, as ASIL put it, “(1) whether the Manual represents a shift in U.S. doctrine and practice, (2) reactions to the Manual from other governments, and (3) the broader impact the Manual may have on international law.” We will discuss the preparation, purpose, and practicality of the Manual (which is an unwieldy 1,176 pages, but has the virtue of being text searchable). We will discuss the ways in which the Manual might clarify US positions for foreign partners — as well as create some interoperability concerns. We’ll consider the Manual’s positions on detention in non-international armed conflict. And we’ll consider a variety of critiques of the Manual that have been offered by several commentators, including panelist David Glazier — such as questions about its legal standing and authority, and what David has labeled its “idiosyncratic positions.”

Our panelists bring a range of expertise and perspectives to the conversation.  Karl Chang, an attorney in the US Department of Defense, Office of the General Counsel, has been closely involved in the preparation of the Manual over the last several years. He will offer background on the manual’s purpose and preparation. Juliet Bartlett, Head of Operational and International Law for the Army in the United Kingdom, and Anna Dolidze, Ministry of Defence (and Supreme Court nominee!) in Georgia, will offer comparative perspectives. Jelena Pejic, of the International Committee of the Red Cross, will offer her view on the impact the Manual may have on international law, with a particular focus on detention. And David Glazier, Professor at the Loyola Law School Los Angeles, will offer a critical perspective, drawing on a forthcoming article he has written on the Manual with his students.

We are planning for a lively conversation amongst the panelists and plan to open up early for plenty of questions from the audience. Readers of Just Security are encouraged to join us! 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School Follow her on Twitter (@oonahathaway).