In 2015 the U.S. Department of Defense (DOD), specifically the DOD General Counsel, issued its DOD Law of War Manual
, replacing a 1956 Army field manual that had previously outlined legal obligations binding on U.S. troops during armed conflict. Updated twice since 2015, this huge DOD product has generated much debate on national security law blogs, and has even been the subject of an American Bar Association workshop which issued its detailed report
in early 2016.
Yet it is has generated little in-depth scholarly attention, until now. Professor Dave Glazier
, a retired Naval surface warfare officer who both earned his J.D. and became a law professor after his pre-9/11 military career, recently published a clearly written and comprehensive critique of this LOW Manual. “Failing Our Troops: A Critical Assessment of the Department of Defense Law of War Manual,”
co-authored by a team of able Loyola Law School students (now attorneys), provides sharply-worded and often astute appraisals of the Manual’s substantive content, its format, and its sources.
This article should be welcomed and closely read by all interested in this arena, for it offers numerous well-reasoned and wide-ranging observations. For example, the article’s initial critical assessment of the Manual’s confusing and inaccurate conflation of the jus in bello
and jus ad bellum
is thought-provoking, and supports the authors’ conclusion that portions of the Manual seem to be written to justify current “war on terror” operations rather than representing the actual state of binding international law. The article’s complaint that the Manual fails to provide guidance regarding the impact of international human rights instruments on the legality of U.S. military operations demonstrates the type of perceptive insights made throughout, as does the article’s critique of the expansive nature of the Manual’s treatment of the definition of military objective.
Also illustrative of the article’s arsenal of solid critiques is the section on the Manual’s legal “about-face” regarding the U.S. view on the legality of expanding bullets. While this reviewer doesn’t necessarily agree with the article’s conclusions on this subject, the authors make terrific points about the flawed legal reasoning—the analytical process—that the Manual employs to reach its debatable conclusions. In fact, Glazier and his team’s shining moments are found in their article’s carefully-crafted process critiques. For example, the article insightfully highlights the Manual’s deliberate choice to use archaic legal sources that conveniently predate Additional Protocols I and II and many international human rights instruments, a choice the article points out was perhaps made in order to ignore extant legal interpretations that run contrary to DOD desires.