The Law of War: A Detailed Assessment of the US Department of Defense Law of War Manual.
Perhaps no recent document published by the Department of Defense (DoD) has been more studied, reviewed, and criticized than its Law of War Manual. Initially released in June 2015, it already has received multiple updates. These updates occur partly because of the flurry of well-considered criticism from both academics and practitioners. However, no effort at reviewing the manual has been more exhaustive than this recently published book by two of Europe's most eminent international law scholars.
The Law of War represents a remarkable effort and should occupy a spot on the bookshelf of anyone seriously studying international law as it applies to military operations. However, readers also should be careful to understand what it is. It is not a traditional treatise on the law of war; rather, it is a deliberate--paragraph-by-paragraph--review of DoD's Law of War Manual and must be read alongside that document. Those readers lacking an existing understanding of the law of armed conflict will find the book difficult and cumbersome. However, the scholar trying to place DoD's manual within the context of coexisting understandings will have found an indispensable guide.
This view of The Law of War should not be understood as a criticism. No book can be all things to all readers. Had the authors attempted to craft the book in such a way that it aided the reader in learning the fundamentals of the law of armed conflict, there would have been little space for their in-depth critiques of DoD's positions. Indeed, the authors are up-front about the book's intended audience: "[military lawyers, commanders, specialists in military doctrine, military staff colleges, ministry and military policy staffs, academics," and those with an interest or professional involvement in the subject. Although this list may be a bit broad, given the nuanced legal arguments covered throughout the book, the authors are correct in identifying the need for previous experience in the subject matter.
In truth, the study of international law applicable to military operations can be a vexing enterprise. In addition to treaties that often vary in interpretation and applicability, international law places heavy reliance on legal custom--that is, the combination of state practice and that state's understanding of when its actions are constrained or required, as the case may be, by legal obligations. Therefore, it is unsurprising that widely divergent views on the law of armed conflict exist. The book is at its best when it identifies where the position stated in the DoD manual is inconsistent with some--or even most--other states' interpretations. The authors also perform an excellent service in pointing out when DoD's position is either vague or inadequately sourced.
An example of the strength of The Law of War is the discussion of the proportionality rule as it applies to conducting military attacks. The authors correctly point out the differences between the manual's definition of the rule and that of Additional Protocol I to the Geneva Conventions (API). Although the United States is not a party to API, the majority of its allies and partners are. Additionally, the United States does hold that API's targeting provisions generally constitute customary law binding on the United States. Thus, any study of the rule limited to examining DoD's definition and interpretation would be deficient in any academic review. By using The Law of War alongside the manual, researchers easily can avoid such mistakes.
If any criticism of the book is valid, it is that the work occasionally displays the same opaqueness and repetitiveness for which it criticizes the DoD manual. The authors seem to take such pains to present a balanced review of the manual that it becomes difficult to ascertain the precise parameters of their criticism. Additionally, much of their criticism appears to stem from a desire that the DoD manual be something it is not. The DoD manual is not an academic treatise; it is a U.S. practitioner's guide to advising on military operations. The DoD manual continually references U.S. policy documents that, while perhaps not relevant to a purely academic view of the law, are vital to a practitioner looking to place the law in context.
The Law of War is an invaluable contribution to scholarship in the field. The next move of any researcher studying the DoD manual's position on any topic should be to review The Law of War for analysis regarding where the manual is lacking or what additional wwviews exist. For this herculean effort, the authors should be commended.
Jeffrey Biller is a lieutenant colonel in the U.S. Air Force and a military professor in the Stockton Center for International Law at the Naval War College. The Stockton Center is the worlds premier research institute for the study of international law and military operations throughout the land, sea, aerospace, and cyberspace domains. Stockton Center faculty teach in the core curriculum and electives at the Naval War College, as well as in advanced international law courses around the world.
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|Publication:||Naval War College Review|
|Date:||Jan 1, 2019|
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