Last week, the Department of Defense released a revised version of its Law of War Manual, making significant changes to one section: “Proportionality in Conducting Attacks.” Under that heading, the Manual grapples with a cardinal rule in the laws of war—commanders must refrain from carrying out a strike that is expected to result in excessive civilian casualties compared to the concrete military advantage to be gained. This newly revised section of the Manual is three times the length of its former self. Some of the revisions should help quiet principled and pragmatic concerns that have been raised about wording of the original text. Of course the Manual will not satisfy everyone. If it did, that would be a failure. Some will say the Department has changed its position in this revised version; others will say the Department has simply clarified what it meant to say all along. What matters far more, however, is whether the current version of the Manual gets the law right and marks an improvement over the prior text.
I will focus most of my attention on the one issue that received the most widespread concern: the Manual’s treatment of civilians who work on or in military objects—such as workers on an assembly line in a bomb factory and civilians who work in places like the Pentagon. Understanding how the revised text treats that category of civilians offers an insight into how to read and use the Manual more generally.
Admittedly the way in which the Manual should be read is not entirely straightforward, and I likely benefit from my particular experiences. In full disclosure, I started work at the Pentagon soon after the first version of the Manual was published. When my post ended, the Department was about to embark on the task of drafting new text. In other words, when I read the revised section of text last week, it was new to me though I was already familiar with the issues involved. I hope to guide readers with how I read the Manual. In that endeavor, I also refer below to an exchange I had with Defense Department officials on the revisions to the specific legal rules concerning, for short-hand purposes, “munitions factory workers.”
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The Manual aligns itself with the military manuals of US allies and major military powers by making clear that commanders must apply proportionality analysis to all civilians who might be said to assume a risk of being harmed by deciding to work inside a targetable military object such as a military base or a munitions factory. According to the Manual, commanders “determining whether a planned attack would be excessive must consider such workers, and feasible precautions must be taken to reduce the risk of harm to them.” That clear statement cures one of the major concerns that many, many people had raised about the first version of the Manual.
Problem solved? Not fully.
The new Manual says of these civilians: “Such persons assume a certain risk of injury.” That proposition, standing alone, however, is not of great consequence. The military manuals of US allies include similar language about such civilians assuming a risk of injury, without that fact affecting the standard legal protections that apply to them. However, in the DoD’s new text, an accompanying footnote (#412 to be exact) contains sources which suggest that civilians who choose to assume such risks may not be weighed as heavily in a proportionality analysis.
So, how should one read the unobjectionable passage in the body of the text given the accompanying footnote?
The Manual actually provides a fairly specific answer to that question: the body of the text should be considered the position of the Department of Defense; the sources and various parenthetical excerpts contained in the footnotes are far from that. First, in an opening chapter, the Manual explains that its footnotes are dispensable in some respects: “it was desirable that this manual’s main text convey as much information as possible without the reader needing to read the footnotes.” Second, in a subsection titled, “Use of Sources in This Manual,” the document explains that its footnotes collect materials as a starting point for further research: “These sources are cited in the footnotes to help practitioners research particular topics discussed.” And perhaps most important for our discussion, the Manual states quite flatly: “Citation to a particular source should not be interpreted to mean that the cited source represents an official DoD position….” That said, elsewhere the Manual suggests that some sources in the footnotes are included to “support or elaborate upon propositions in the main text.”
So how should we interpret the sources in the specific footnote under scrutiny here? Do we risk spending too much time, as lawyers often do, poring over footnotes in search of meaning? The short answer to that is yes, at least for the purposes of reading the DoD Manual.
A Defense Department official explained with respect to footnote 412 but also more generally: “The text is our view of the law, and the footnotes are supporting information that is meant to provide a way for people researching questions” to find “others who have commented on these in other places.” Another Department official agreed “one hundred percent” with that explanation. (See also Marty Lederman’s Just Security post for a similar exchange he had with the Pentagon officials on how to understand sources in the footnotes. Marty also raises important concerns that the document’s use of sources in the footnotes will likely be misunderstood by readers and can, intentionally or unintentionally, work mischief.)
What’s more, with one exception the “authorities” in footnote 412 are scholarly and secondary source treatments of the issue, not prior US government documents or statements. The one exception does not add much; indeed, it contains a parenthetical quotation that closely tracks the unobjectionable proposition in the body of the text. That is, a US Comment to the ICRC following the Persian Gulf War in 1991 simply states: “Likewise, civilians working within or in the immediate vicinity of a legitimate military objective assume a certain risk of injury.” Nothing to see there.
There is another important indication that the Manual has aligned itself with other major military powers (and, indeed, I know of no other manual that includes weighting such civilians differently). In remarks at NYU last month the Department of Defense’s General Counsel discussed her office’s ongoing considerations of the section on proportionality. At the time it appeared from her remarks that the Manual might adopt as its position some of the ideas reflected in the sources in footnote 412. Two persuasive posts at Just Security—one by Marty Lederman, Oona Hathaway, and Mike Schmitt and one by Janina Dill—argued why that would be a mistaken approach to the law of armed conflict—indeed their analysis also changed my own way of thinking about the issue. It is clear that the Defense Department decided not to adopt the proposition in the final text of the Manual. That is, the body of the text does not include mention that civilians who assume a risk of being killed by working on or in a military object should be weighed less than other civilians in a proportionality analysis, or that commanders would be well advised to do so.
Finally, a separate subsection of the Manual might raise doubt about my analysis. It states:
“When the attacking force causes harms that are the responsibility of the defending force … due to the employment of civilian personnel in or on military objectives, the responsibility of the defending force is a factor that may be considered in determining whether such harm is excessive.”
First, this language should be understood in the context of assigning responsibility after a strike has taken place. Admittedly, some critics view such language as an attempt to relieve US personnel from legal liability after conducting operations rather than properly guide practitioners ex ante in how they should carry out a strike. Regardless of that criticism (and I might share some aspect of it), the text should be understood as such an ex post assessment. (See Adil Haque’s Just Security post on this very point.)
Second, the rule applies only if the defender has violated its responsibility to separate civilians from military objects. It is hard to identify when States violate that responsibility. Surely the United States does not do so in having thousands of civilians posted at the Pentagon, and presumably nor are States all around the world in violation of that responsibility in having civilians work in munitions factories. In addition, the responsibility of defenders, as codified in Additional Protocol I, is riddled with loose language such as requiring states only “to the maximum extent feasible” to “endeavor” (a qualification that often spells the death knell for many a legal obligation) to remove civilians under their control from military objectives. The United States has long encouraged the strengthening of defenders’ responsibilities in this space. I do worry that the new text in the Manual may now encourage other States to resist strengthening such defender obligations.
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As far as I am concerned, the resulting text is on balance a monumental achievement. It demonstrates an openness to public engagement rarely found with government agencies or governments in general, and a relentless commitment to improvement. There are many people who deserve credit, including General Counsel Jennifer O’Connor, Principal Deputy GC Robert Taylor, and Deputy GC Charles (Chuck) Allen. From the start, the Manual has contained a note to readers in its Preface: “Comments and suggestions from users of the DoD Law of War Manual are invited. All such correspondence should be addressed by email to: email@example.com” Take them up on it. They’re listening.