U.S. and international perspectives on the new U.S. Department of Defense Law of War Manual.

Author:Chang, Karl
Position:Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law

This panel was convened at 1:00 p.m., on Thursday, March 31, 2016, by its moderator, Oona Hathaway of Yale Law School, who introduced the panelists: Juliet Bartlett of the Ministry of Defence, United Kingdom; Karl Chang of the U.S. Department of Defense, Office of the General Counsel; Anna Dolidze, Ministry of Defence, Georgia; David Glazier, Loyola Law School Los Angeles; and Jelene Pejic of the International Committee of the Red Cross. *

REMARKS BY KARL CHANG ([dagger])

I want to start our conversation with three themes about the Department of Defense (DoD) Law of War Manual: 1) its character as an institutional publication; 2) its purpose as an aid in the practice of the law of war; and 3) humility. (1)

  1. THE INSTITUTIONAL CHARACTER OF THE MANUAL

    My boss will introduce me as the chief author or principal drafter of the manual, but I would begin by noting that my job in preparing the manual was to reflect DoD's institutional views. The U.S. armed forces have a long history and practice in the law of war, and I always tried to keep this rich past in mind when drafting the manual or considering a legal interpretation.

    The manual is promulgated by DoD's chief legal officer--the DoD general counsel. The general counsel is supported in the preparation of the manual by a working group, which includes representatives from key international and operational law offices in the Pentagon--Army, Navy, Air Force, and Marine Corps, and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. Roughly the process worked like this. The DoD Office of General Counsel circulated drafts; other members of the working group gave comments. We incorporated the comments and circulated revised drafts for further comment. We repeated this process for approximately 1,200 pages, until staff lawyers could recommend to each's principal official (e.g., The Judge Advocate General of the Army) that she concur in the manual. Lawyers from the Department of State and the Department of Justice also gave very helpful comments. After the principal-level lawyers reviewed, the General Counsel signed the promulgation memorandum.

    The process of commenting and coordination strengthened the manual because of the expertise and diversity of perspectives in all these offices.

    The military services each have different perspectives on the law of war, which are based in different cultures and operational domains. Lawyers also brought different perspectives from their different experiences and roles, e.g., training military personnel or advising commanders during military operations. Trainers tend to want clear lines to teach their trainees; advisers often recognize that nuance and ambiguity in rules can mean more legally available options for their commander or policymaker. Similarly, war crimes prosecutors sometimes see the law of war differently from their colleagues defending the United States against allegations of war criminality.

    Incorporating these perspectives made the manual reflect the ways that the law of war is practiced.

  2. THE MANUAL AS AN AID IN THE PRACTICE OF THE LAW OF WAR

    Some seem to have, what I call, an "Empire-Strikes-Back" notion of the manual. They see a plucky rebel alliance of human rights groups, the International Committee of the Red Cross, and academics advocating progressive interpretations of international humanitarian law in "soft law" documents. The manual, cue the "Imperial March," is DoD's massive "Death Star" of traditional legal interpretation. Contrary to this dramatic picture, the purpose of the manual is not to wage ideological battle, but to help DoD practice the law of war.

    This mundane purpose of the manual explains almost every aspect of its format and content. I constantly looked to my experience as a law of war practitioner to shape the manual to be more useful to me and my fellow practitioners. For example, the manual gives quotes from treaty provisions in the footnotes, even where the main text repeats the treaty provision with little alteration. In practice, reviewing the exact treaty language can be vital, so we made that text readily available in the footnote. The exact treaty language also helps a practitioner electronically searching the manual for that text to find the relevant section of the manual.

    As another example, the manual often cites past...

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