Guest Post: Grant McDowell on “A DoD Law of War Manual ‘Call To Arms'”

Today we welcome another new contributor to Lawfire^®: Major Grant W. McDowell, USMC.  Major McDowell is currently assigned as an instructor at the Army Judge Advocate General (JAG) School.  His post is a ‘call to action’ to give the DoD Law of War Manual (LOWM) a good ‘scrub’ to ensure it is current and effective.  Helpfully, he Identifies some “gaps” he sees as existing in the current version.

Though we apparently differ on some issues, (e.g., the problematic change as to the presumption of civilian status – see here; the wisdom–or not–of DoD’s Civilian Harm Mitigation and Response Action Plan – see here), it is nevertheless very exciting to see someone give the LOWM the ongoing scrutiny such an important document needs.

Whether significant changes are truly warranted is something that can only be determined one way or another after an in-depth and considered examination, and this is why Major McDowell’s ‘call to arms’ essay is so timely.

A DoD LOWM Call To Arms

by Major Grant W. McDowell, USMC

Current Environment

On June 12, 2015 the Department of Defense (DoD) promulgated its first modern Law of War Manual (LOWM).  In May and December of the following year, the DoD issued two separate updates, totaling 12 pages. 

These updates included substantial and minor revisions regarding the principle of proportionality and recognition of journalists; additional revisions to the principles of honor; and numerous relevant, and (at the time) recent, footnote updates reflecting DoD positions on National Security Law (NSL).  Since then, U.S. NSL practioners, like uniformed Judge Advocates, have relied upon the LOWM as a seminal resource of law and policy guidance.

On July 31, 2023, the DoD issued the newest version of the manual, nearly seven years since the last update.  Noteworthy and understandably well-documented (see here, here, and here), were the revisions to the section “Assessing Information in Conducting Attacks” and the creation of another subsection, “Feasible Precautions to Verify Whether the Objects of Attack are Military Objects.” 

These changes effectively incorporated the presumption that persons and/or objects are protected from being made the object of attack unless available information indicates they are military objectives. 

In other words, the DoD LOWM finally acknowledged the presumption of civilian status as official DoD policy.  This doctrinal update reflects Additional Protocol I and the majority position of the international community, and is consistent with the Department’s recent emphasis on “civilian harm mitigation” (CHMRAP).

Identified Gaps

Despite the importance of this update, a mere 3 pages encapsulating all of the “description of changes,” left NSL practioners wanting for more guidance after a seven year wait.  Beyond the presumption of civilian status changes, the DoD did not include any revisions (major or minor), nor did the DoD add any new substantive information to any of the 7,096 footnotes, which practioners rely on to find relevant law and sources of DoD policy described in the manual.

In the last seven years, global events have shaped many areas of NSL.  Consider the following non-exhaustive list of events during that time period: Operation Allies Refuge and Welcome (the largest non-combatant evacuation operation in history); the South China Sea Arbitration Ruling (July 12, 2016) fallout; a Chinese Spy Balloon crossing and being shot down over CONUS; the January 6^th Insurrection; Russian interference into U.S. elections; cyberattack disruptions to U.S. entities including hospitals and municipalities, U.S. agencies (including the Department of Energy), and the Colonial Pipeline shutdown.

The International Armed Conflict between Russia and Ukraine alone continues to provide examples of how technology is clashing with the Laws of Armed Conflict on the modern-day battlefield and should be accounted for in our department guidance.  The EPPO application, the use of drones to accept surrender, the publication of a CIA recruitment video in Russia, and civilian satellite logistical support and subsequent alleged tactical denial are all real-life areas of opportunity to provide practical guidance to legal advisors.

Opening Salvo

The LOWM reflects affirmative DoD guidance and provides set U.S. law and policy positions.  The manual is neither a law review nor a treatise and therefore areas of unsettled law and policy are typically absent, which in part may explain the lack of direction from the above-mentioned world events.  Acknowledging this, submissions for updates should strive to reflect concrete positions and settled policy.

 In what could be considered the opening salvo, and in hopes of a community effort to follow, here are suggested areas still in need of updates:

• • • Inclusion of the Space Force (founded 2019);
    • DoD Directives: 2311.01E – DoD Law of War Program, July of 2020 (cited as 2006 and certified as of 2011 – 18 times, e.g. pps. vii, 8, 73, 1083), 2310.01E – DoD Detainee Program March, 2022 (cited as 2014 – 13 times, e.g. pps. 8, 521, 524, 533);
    • The Judge Advocate General’s Legal Center and School, Operational Law Handbook, 2022 (cited as 1997 – p. 21, 2006 – p. 242, 2007 – pps. 241, 1032, 2014 – pps. v, 229);
    • Marine Corps Doctrinal Publication 1, Warfighting 2018 (cited as 1997, p. 17);
    • The Fifth Periodic Report of the United States of America to the United Nations Committee on Human Rights, 2020 (currently cites the Fourth Report from 2011. p. 24);
    • Joint Publications: JP 1-04, Legal Support to Military Operations, 2016 (cited as 2011, p. 26), JP 3-05. Special Operations, 2020 (cites as 2014, p. 113);
    • Cyber Operations has not changed at all since December 2016;
    • A chapter focused specifically on API II and III acknowledging which articles the US considers CIL, which articles the US follows but does not consider CIL, and which articles are not in line with US positions;
    • Inclusion of Changes to U.S. Anti-Personnel Landmine Policy, 2022;
    • DoD Cluster Muntions Policy, Nov. 2017 (cited as 2008, pps. 412-414);
    • Inclusion of DoD Instruction S-2005.01, Freedom of Navigation (FON) Program (U), (which canceled DoD 2005.1-M, “Maritime Claims Reference Manual,” in 2014, p. 894);
    • Inclusion of Sixth Anniversary of the Philippines-China South China Sea Arbitral Tribunal Ruling statement from Anthony J. Blinken, Secretary of State, July 11, 2022.

Call to Action

Admittedly, it is easy to cast stones at a 1254-page manual, cherry-pick citation issues, and vaguely propose areas that need updating while not actually providing researched solutions by the DoD Law of War Working Group. The Herculean effort to create the LOWM, update changes across the spectrum of NSL, and to then publish it for all the world to scrutinize is not an enviable position. 

Said scrutiny is continuous, whether in articles or entire response publications.   It is somewhat misplaced to point fingers only at the DoD Law of War Working Group for lacking these changes; page vii of the manual specifies a POC welcoming comments and suggested changes.  Accordingly, it is our collective responsibility to improve and update this extremely helpful guide.

NSL academics, researchers, and Judge Advocates, and DoD civilian attorneys who have benefited greatly from using the LOWM over the years should strive to improve its content through a community effort.

Whatever area of the LOWM that is next researched or leaned upon for knowledge, individuals should endeavor to expand discussion areas, research updated positions from the government, or check for newer source materials.  This crowd sourced effort would not only assist the keepers of the manual, but could thereafter assist the NSL practicing community writ large. 

In short, a LOWM update call to arms across the NSL spectrum would benefit all.

About the Author

Major Grant W. McDowell is an active duty Marine Judge Advocate currently assigned as the Vice Chair and Associate Professor of National Security Law at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

Disclaimers: 

The views expressed are those of the author and do not necessarily reflect the official guidance or position of the U.S. Army, US Marines, or any other part of the Department of Defense (DoD), or the U.S. Government.  The appearance of external hyperlinks does not constitute endorsement by the DoD of the linked websites, or the information products or services contained therein. 

The views expressed by guest authors do not necessarily reflect my views, those of the Center on Law, Ethics and National Security, or Duke University. See also here. 

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!