Thursday, December 28, 2017

New scholarly critique of DOD LOW Manual: definitely critical

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.

The authors understandably had to choose between in-depth legal analysis of the many alleged substantive flaws in the Manual and coverage of the same. With a few exceptions (such as the article’s erudite discussion of expanding bullets, noted above), the authors chose the latter. They also included numerous formatting and process critiques that resonate with those who have labored through the Manual. However, the article’s “coverage versus depth” trade-off leaves the reader frequently wanting more nuanced discussion of the article’s substantive critiques, such as regarding the article’s rather cosmetic condemnation of the Manual’s treatment of unprivileged belligerency and the status of individual members of non-state armed groups engaged in today’s non-international armed conflicts. While understandable given the article’s admirable scope, the lack of appropriate nuance and scholarly context makes the article’s occasionally simplistic, speculative and damning conclusions a bit jarring.

In a similar vein, while this article’s succinct and biting prose makes it an enjoyable and thought-provoking read, particularly for those accustomed to the dry obtuseness of typical law review articles, its numerous sound observations are occasionally undercut by sweeping “the sky is falling” type conclusions. For example, the article repeatedly condemns the Manual for its attempts to supposedly “shift responsibility for collateral damage to the defender.” Despite the unreasonableness of this broad claim, particularly given the Manual’s repeated emphasis of feasible precautions in attack (revised in 2016), the article nonetheless jumps to the conclusion that the Manual’s treatment of passive precautions “will have the practical effect of allowing U.S. commanders to regularly decide that precautions are unnecessary.” It reaches this exaggerated conclusion with little supporting analysis or footnotes, despite numerous law review articles that could have been explored to help situate the issue.

This particular conclusion is an extraordinary claim against U.S. military operators, given the status of precautions in attack as a key legal protection of civilians in armed conflict. Such a claim fails to acknowledge the complexity that is today’s asymmetric urban warfare—armed conflict against enemies who hide amongst civilian populations, using civilians to shield their weapons and their fighters. In fact, there has been insufficient scholarly and policy attention paid to what is one of the toughest challenges facing professional military operators today:  how to appropriately minimize risk to civilians while defeating enemies who intentionally use those same civilians, plus their homes and towns, to cloak enemy maneuver to an unparalleled extent. The complexity of such risk mitigation is heightened knowing that enemy forces will often use the civilian injuries largely caused by their own criminal human shielding as public relations weapons against the professional forces trying to minimize exactly that carnage. Hence the Manual’s efforts to address this complexity deserve more than superficial reductionism.

The authors’ tendency to turn some of its critiques into predictions that the Manual will unchain the dogs of war and even undermine U.S. national security interests is epitomized in the article’s ultimate conclusion. The article claims that the Manual is “a breach of faith with the men and women called upon to risk everything in the service of their country…and should be officially withdrawn until it can be brought up to an appropriate professional standard.” Contrast this with Duke Law School professor and retired Air Force Major General Charlie Dunlap’s characterization of the DOD LOW Manual in his 2016 scholarly work on the same:  “I nevertheless conclude that on balance the Manual provides an excellent, comprehensive and much-needed statement of the U.S. Department of Defense’s view of the lex lata of the law of war.”

Perhaps the huge disparity between these conclusions represents the understandable desire, from what Professor Glazier refers to as a “warrior’s” operational perspective, for simple, black and white rules that easily translate into limits for military operators tasked with fighting today’s complex conflicts. Yet the problems that Professor Glazier’s team does an admirable job identifying in the DOD LOW Manual largely have more to do with the law itself—famously situated at the vanishing edge of international law—than with the allegedly disingenuous design this article seems to attribute to the Manual.

The law of war—of armed conflict—was written by States to favor States, and U.S. military operations since 9/11 have largely been against non-state actors. Thus today’s U.S. military operations fall into the jus in bello’s least-specific area, an area intentionally left vague by States to preserve maximum flexibility against non-state armed groups during armed conflict. It’s no surprise that DOD would translate the existing ambiguities in its favor, and the Manual’s paucity of easily-applicable bright-line rules represents the state of the law more than the supposed “unprofessionalism” of the Manual—critical context that the article fails to note.

Certainly, the DOD Law of War Manual is not the easily-comprehendible product that former naval operator Professor Glazier concludes it should be, one that military operators can utilize it without the need of lawyers as some did in the 1990s. In fact, the Manual’s greatest failing is that it tries to be too many things; its name is a misnomer, as it is better characterized as a legal treatise, and not a true manual. As the ABA’s 2016 workshop report concludes, the Manual is “designed to serve as a resource starting point, rather than an end point, for military attorneys dealing with LOW issues.” One of the critiques of the previous manual (and its decades-long lack of update) was that it failed to provide military legal advisors, like my previous uniformed self, any starting point to launch from as military commanders sought my and my colleagues’ legal advice in the complex post-9/11 operating environment. The DOD Law of War Manual steps, albeit messily at times, into that gap, recognizing that complex legal analysis is the bread and butter of today’s “operational law” military legal advisors.

However important a role the Manual fills for military attorneys, Professor Glazier and his team’s best contribution, out of many worthy ones, is the reminder that DOD also has the critical obligation to ensure every military member understands and is able to implement their law of war obligations in today’s complex operating environment—and that this “Manual” is definitely not the vehicle for fulfilling that fundamental requirement.

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