Georgetown Law panel on DOD Law of War Manual

Unfortunately, it appears that Oona’s ASIL panel on the new Law of War Manual yesterday was not recorded. I hope that perhaps some who attended will be able to convey some of the highlights. For those of you interested in the Manual, however, I’m pleased to be able to be able to point you to a video of a panel convened back in February by the Georgetown Center for National Security and the Law. Georgetown Visiting Professor Jamie Baker, former Chief Judge of the United States Court of Appeals for the Armed Forces, moderated the panel. Our guests from the Department of Defense were Chuck Allen, Deputy General Counsel for International Affairs, and Associate General Counsels Karl Chang and Matt McCormack.

Chuck, Karl and Matt were principally responsible for the last few years of the Manual’s writing and editing. They offered unique and valuable insights into the process and the substance of the Manual, and even identified the eight questions that were most vexing and most comprehensively discussed and debated in the interagency process over the last few months of editing:

(i) the LOAC that applies in noninternational armed conflicts;

(ii) what constitutes a civilian’s “direct participation in hostilities” (thereby making the person subject to targeting);

(iii) lex specialis;

(iv) the chapter on the law of neutrality;

(v) issues relating to the law of occupation;

(vi) how much, if anything, to include in the Manual about the jus ad bellum (resolution:  not very much);

(vii) the domestic effect of the customary law of war, i.e., to what extent it is binding U.S. law; and

(viii) general methodology.

The discussants were Prof. Laura Dickinson of the George Washington Law School and myself. Our comments begin at around 46:00. The topics we addressed included:

— to what extent the Manual will, or should, contribute to the development of customary law, in light of the fact that it expressly disclaims to necessarily represent the views of the United States Government as a whole (p. vi);

— whether the Manual ought to more thoroughly reflect, or engage with, the practice and opinio juris of other states;

— how the Manual might be used, or not used, by military officers and attorneys;

— issues related to DPH–in particular, the notion (pp. 224-25) that DPH includes acts “that effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations,” and the question of how that standard applies to the conduct of various contractors;

— the need for future editions of the Manual to grapple in greater detail with the rules in NIACs; and various propositions related to targeting in Chapter 5, describing the principles of distinction, precaution, and proportionality, and the treatment of human shields.

Following Laura’s comments and mine, there is a discussion of some of these issues among the six panel participants, and then about 20 minutes of audience questions at the end.

 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).