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Department of defence law of war manual.Clear Error in the Defense Department’s Law of War Manual: On Presumptions of Civilian Status
This article considers how the U. The Manual risks creating a false impression that is not intended by the senior leadership who produced the Manual — a problem that could significantly undervalue the lives of civilians in targeting operations. Proportionality is a fundamental precept of the law of armed conflict. The principle holds that military commanders must refrain from attacks in which the expected loss of civilian life would be excessive in relation to the concrete and direct military advantage expected to be gained.
The initial version of the Manual raised very serious concerns due to its suggestion that civilians who work on or near military targets would not be weighed in the proportionality analysis. The result is a section of the Manual that could leave many readers, including U.
That was not the result the OGC wanted to achieve in its revision. This essay then suggests several approaches to provide a more complete fix. June The Department of Defense publishes the first-ever department-wide manual on the law of armed conflict. These categories include … civilians [sic] workers who place themselves in or on a military objective, knowing that it is susceptible to attack, such as workers in munitions factories.
These persons are deemed to have assumed the risk of incidental harm from military operations. About a year later, legal experts published criticisms of then-Section 5. This Section appeared to stand for the proposition that civilians working in or on military objectives such as a munitions factory worker assume the risks of incidental harm from attack and therefore do not need to be considered or counted in the proportionality analysis Hathaway As Marty Lederman wrote :.
Indeed, the category of civilians used as an illustrative example in the DoD Manual — munitions factory workers — are generally considered the paradigmatic case of individuals who must be considered as civilians and treated as such for all law of war matters including proportionality analysis which can preclude an attack even though the building in which they work is a lawful military target.
Rogers, Law on the Battlefield 3d ed. Boothby at 8. Discounting civilians in or near such objectives could largely eviscerate the rule of proportionality. November The General Counsel of the Department of Defense delivers public remarks in which she previews forthcoming revised text. This caveat received renewed criticism from leading experts. Janina Dill wrote :. How then could it affect the level of protection a civilian is legally owed? They wrote:. And we do not recall seeing anything like it in any U.
Yet there has been no such discussion. Indeed, the sparse sentence by Bothe, Partsch and Solf may best be understood not as a statement of law or ethics, but rather a reflection on how actors may in reality apply the proportionality rule in such circumstances.
December The Department of Defense issues a new version of the Manual and disavows the footnotes as authority for interpreting the text. Those making such determinations may consider all relevant facts and circumstances. Accompanying footnote no. Specifically, Section 5. Burrus Carnahan in The treaty includes a provision requiring a presumption of civilian status in case of doubt for objects Article 3 8 a. The United States ratified the Protocol in with no reservation to this provision.
The Manual also omits the U. The Defense Department relies on the U. Air Force pamphlets and other U. In these now-declassified reviews, the JCS interpreted the rule as essentially requiring proof beyond any doubt that an object is a legitimate military target, and opposed the rule on that basis.
Understood in that way, the rule is of course unreasonable. It is a rule of doubt that creates a rebuttable presumption that can be overcome by some additional amount of information see, e.
The Manual posits policy reasons why the standard of doubt would not work well in practice. Most fundamentally, the presumption of civilian status for persons and objects has long been accepted and applied as a matter of U. As Haque explains, that proposition is tantamount to accepting a presumption of civilian status.
He writes:. So, the Manual, in its own way, entails that a legal presumption of civilian status exists for both persons and objects. The acceptance of a presumption admittedly does not resolve the level of certainty required to rebut it. But it is acceptance of a rule requiring presumption of civilian status nonetheless. In short, in addition to no sound legal basis, there is no good policy reason for the Defense Department to maintain the proposition in section 5.
The United States may, for example, want to put its weight behind understandings of the rule advanced by the United Kingdom and others. To correct the error, the United States should announce that it regards the presumption of civilian status for both persons and objects to reflect customary international law as it has previously done with other targeting rules.
If a party to the conflict is able to establish on a balance of probabilities that [the object] is making an effective contribution to military action, it may act accordingly.
Herbst and Jennifer Cafarella. Signups for A. Emails Featured Articles.
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