Brian Cox on a “Critical Analysis of the ‘Living Document’ Series: Maintaining the Integrity of the DoD Law of War Manual as a Tool for Military Practitioners” (Part I)
Today’s post by Lawfire® contributor Brian Cox assesses an ongoing project known as “A Living Document: Strengthening the DoD Law of War Manual.” The series describes itself as a forum for contributors to “reflect on how the Manual is keeping pace with its stated purpose and examine specific topics and rules where the Manual may be ripe for clarification or strengthening.”
In a two-part essay Brian examines individual contributions to the Living Document series as well as the broader context of ensuring the Law of War Manual remains an effective tool for military lawyers and practitioners in the field. He then situates, as he says, the “endeavor to ‘clarify’ and ‘strengthen’ the Manual in the broader context of the emerging movement to advance an humanitarian-centric vision of the law of armed conflict (LOAC) through a coordinated policy and even legislative ‘reform’ agenda.”
In Part 1 of Brian’s series puts the Living Document project in the context of a “contentious recent update to the DoD Law of War Manual.” In a post last August (“DoD’s law of war about-face is problematic for both civilians and warfighters”) I critiqued that July 2023 update.
Why? The revision asserted “there is a ‘legal duty’ to presume that all persons or objects in a conflict area have civilian status ‘unless the available information indicates that they are military objectives.’ The presumption, the update says, must be the ‘starting point’ for the exercise of ‘military judgement””. It replaced a Manual provision which, however unpopular it may have been among some academics, better reflected warfighting verities. The previous version of the Manual said (correctly in my view):
“A legal presumption of civilian status in cases of doubt may demand a degree of certainty that would not account for the realities of war. Affording such a presumption could also encourage a defender to ignore its obligation to separate military objectives from civilians and civilian objects. For example, unprivileged belligerents may seek to take advantage of a legal presumption of civilian status. Thus, there is concern that affording such a presumption likely would increase the risk of harm to the civilian population and tend to undermine respect for the law of war.” (Emphasis added).
Among the citations supporting its conclusion was a reference from the DoD’s Final Report of the Persian Gulf War which noted:
[Such a presumption] “is not a codification of the customary practice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burden for determining the precise use of an object from the party controlling that object (and therefore in possession of the facts as to its use) to the party lacking such control and facts, i.e., from defender to attacker.”
I observed in that August post that “[u]nfortunately, it appears that DoD yielded to the view of some academics, human rights advocates and others to not only create a new ‘legal duty’ but to also add thousands of words detailing how warfighters are to implement this new ‘duty.’” I went on to cite (and quote at length) Colonel Ted Richard’s brilliant analytical trilogy (supporting the previous version of Manual) published on Lawfire® in 2022 (see here, here, and here). I offered some specific examples of why the new interpretation is so “problematic for both civilians and warfighters.”
Brian shares his concerns and those raised by other experts regarding this Manual update, and incorporates them into his analysis. Part I situates the Living Document series in the context of this latest Manual update, and in Part II Brian will analyze the other suggestions for future updates that are presented in the Living Document series.
I will note that Brian’s analysis addresses the first three contributions to the Living Document series. A fourth article was published not long before Brian’s essay was set to be posted, so that article is not addressed in Brian’s current analysis.
The fourth and any subsequent Living Document posts may be analyzed in future essays here on Lawfire®. (In a future post I’ll share with you my own concerns about this “Living Document” series, to include issues with individual essays.)
For now, you won’t want to miss Brian’s timely, astute–and very important– analysis of the first three Living Document contributions as well as the broader context involved with the project.
Critical Analysis of the “Living Document” Series: Maintaining the Integrity of the DoD Law of War Manual as a Tool for Military Practitioners, Part I
by Brian Cox
In the wake of a contentious recent update to the DoD Law of War Manual, a series published by the Just Security blog site and the Reiss Center on Law and Security at NYU Law School presents the prospect of much more controversy to come.
The series, called “A Living Document: Strengthening the DoD Law of War Manual” is billed as a forum for “leading scholars and practitioners” to “reflect on how the Manual is keeping pace with its stated purpose and examine specific topics and rules where the Manual may be ripe for clarification or strengthening.”
This article engages in a critical analysis of the three contributions published in the Living Document series to date. As this review reveals, adopting the core suggestions presented in the series thus far may well “strengthen” the Manual as a tool for reinforcing humanitarian constraint—but doing so would come at the expense of maintaining the delicate balance between military necessity and humanity.
Before engaging with the three individual current contributions to the series, it is useful to survey the history of the “living document” sentiment from which the collection draws its name as well as the controversy involved with the most recent Manual update. This is the focus here for Part I of this post.
If additional revisions to the Manual are being contemplated in the DoD Office of General Counsel and suggestions presented in the Living Document series are considered for possible implementation, background related to the “living document” concept and the most recent Manual update can assist with evaluating the substantive merits of the respective Living Document contributions.
After surveying background related to the “living document” concept and the most recent Manual update in Part I, each of the three current contributions to the series is evaluated in turn next in Part II of this post. The present inquiry then concludes by situating the endeavor to “clarify” and “strengthen” the Manual in the broader context of the emerging movement to advance an humanitarian-centric vision of the law of armed conflict (LOAC) through a coordinated policy and even legislative “reform” agenda.
Inception and Progression of the “Living Document” Concept
The first public reference to the Manual as a “living document” seems to be during public remarks by Jennifer O’Connor, then the DoD General Counsel (GC DoD), at NYU School of Law in November 2016. The initial edition of the Manual was released to the public in June 2015. The first update was then published in May 2016, only two weeks before O’Connor was sworn in as GC DoD, while Rob Taylor was acting GC.
The next update was released that December, so O’Connor’s public address was given just three weeks before the third edition of the Manual was published. The third edition then remained in effect until the most recent update (now the fourth edition) was released in July 2023 under the authority of the current GC DoD, Caroline Krass.
This temporal gap between the third edition (released December 2016) and the fourth (published more than six years later) indicates the characterization of the Manual as a “living document” in November 2016 may have been rather aspirational at the time.
While the span of more than six years between publication of the third and fourth editions may seem undesirable given the ambition of maintaining the manual as a living document, fostering stability in the flagship law of war manual for the DoD is actually beneficial for at least two primary reasons.
The Virtue of Stability in a Strategic-Level Publication
First, stability maintains a sense of continuity for the practitioners expected to implement guidance in the Manual. Second, ensuring the Manual is updated only occasionally and only when major updates are called for helps insulate the tactical and operational levels—the primary audience for the Manual—from the shifting sands of political appointees and personnel shuffles that are a necessary feature at the strategic level.
Back in November 2016 at NYU Law School, then-GC DoD Jennifer O’Connor indicated that for the Manual “to achieve its purpose, it has to be a living document and provide as much clarity on the very tough issues on which these lawyers must provide advice.” “In order to accomplish that,” she continued, the GC DoD must “continue to review it and amend it to make it a better resource for the JAGs in the field.”
That the Manual was updated three weeks later and then not again for over six years is not necessarily a bad thing. It seems that the unidentified proponents of the current Living Document series published by Just Security and the Reiss Center at NYU Law School have in mind to employ the same sentiment expressed by GC O’Connor at NYU Law School over seven years ago.
As the critical analysis below of the Living Document series indicates, it will also not necessarily be a bad thing—at least not for military operators and practitioners—if these suggestions are not incorporated in a future update. To provide context for the analysis that follows, surveying the controversy stirred by the most recent update can be instructive.
Overview of 2023 Update to the DoD Law of War Manual
The July 2023 edition of the Manual included two substantial updates along with several minor revisions and corrections.
One of the substantive revisions, which adds a new section (§5.5.3), expands upon and clarifies what qualifies as “feasible” when implementing the LOAC feasible precautions rule to confirm the status of a proposed target as a military objective. This revision is fairly uncontentious and has therefore attracted little attention in public discourse.
The other substantive change, however, produced sustained and extensive controversy. This revision involves the contentious issue of presumption of civilian status.
The previous edition of the Manual indicated that pursuant to customary international law, “no legal presumption of civilian status exists for persons or objects.” The updated guidance (still in §5.4.3.2) now suggests the presumption of civilian status “is the starting point for the commander or other decision-maker’s good faith exercise of military judgment based on information available at the time.”
The Controversial Presumption of Civilian Status
In public discourse involving this substantive revision, Mike Meier is one of a few contributors who are unreservedly supportive of the update. Mike Schmitt also regards the change as a generally positive development, though he acknowledges concern that styling the “obligation” as a presumption “risks causing U.S. forces to become overly cautious.”
Maj. Grant McDowell also expressed general support for the update here on Lawfire. Geoff Corn suggests apprehension regarding the update may be “much ado about nothing,” yet he is still concerned about the ambiguity that is inherent in overcoming the presumption.
In contrast to the positive or neutral reception, a substantial degree of commentary has been unreservedly critical of the update. Hitoshi Nasu and Sean Watts characterize the presumption of civilian status, for example, as a “misnomer.” Bill Boothby endorses the analysis by Hitoshi and Sean related to the presumption.
Arthur van Coller describes the presumption as “unrealistic….impractical and unnecessary.” He engages in a more detailed assessment of the civilian presumption revision here in a full-length article recently published on the topic. Charlie Dunlap portrays the change as “problematic for both civilians and warfighters” here on Lawfire. I have also raised a number of practical concerns regarding the update (here & here).
Although his commentary predates the most recent update to the Manual, Col. Ted Richard denounces the presumption of civilian status in a three-part post published on Lawfire over a year before the 2023 edition of the Manual was released to the public (Part I, Part II, Part III).
One conspicuous contribution to public discourse not captured immediately above is a post written by Loren Voss expressing support for the presumption revision. Although Loren’s commentary is meant to defend the update, a critical analysis of her reasoning demonstrates precisely why the presumption of civilian status is not suitable in practice.
Presumption of Civilian Status and Persons or Objects as a Blank Slate
A common theme among supporters of the presumption revision is that the update merely reflects current practice. This sentiment is expressed in the posts linked above written by Mike Meier, Mike Schmitt, Geoff Corn, and Maj. Grant McDowell.
Supporters point out that personnel making targeting decisions do not assume every person or object in the battlespace is a military objective, so it just makes sense to describe the LOAC distinction rule in the applied context as a presumption of civilian status.
Making precisely this point, Geoff Corn asks rhetorically, “Is there really much doubt that commanders and others entrusted with these decisions merely assumed targets were legitimate without information to support that judgment in good faith?” (emphasis in original)
From this perspective, persons or objects in the battlespace can be thought of essentially as a blank slate. Warfighters do not just automatically assume everything is a military objective, so asserting that a presumption of civilian status is the starting point for targeting decisions seems sensible.
The trouble is, this is not exactly what civilian protection proponents have in mind for the presumption of civilian status.
Loren Voss has also written in support of the Manual revision related to the presumption. As she notes, previously “the individual or object in question is a blank slate, but before they can be targeted, the decision-maker has to determine that, based on the information available at the time, the individual or object is a military objective” (emphasis added).
This is precisely the vision expressed above by other supporters, even after the presumption was incorporated in the update. However, Loren expresses in the new framing, “For an individual or object to be a legal target, the presumption of civilian status must be rebutted” (emphasis added).
The “New” Protected Civilian Framing and the Vague Presumption Standard
This conceptualization of the presumption is exceedingly problematic in the applied context for at least two main reasons.
First, there is no indication of what standard must be adopted to overcome the presumption. Any point on a typical standard of proof spectrum from “some credible evidence” to “beyond a reasonable doubt” could be articulated.
Most supporters of the presumption revision express concern that this ambiguity could lead to uncertainty and an overly cautious approach to targeting, but these supporters also conceptualize persons and objects in the battlespace as a blank slate.
In rejecting the blank slate concept and articulating a new framing, Loren Voss’s vision embraces the uncertainty caused by articulating a presumption that must be overcome while not specifying a standard for the presumption. She expresses that “the protected civilian framing at the beginning is expected to result in better protections for civilians and civilian objects”—while linking to GC DoD Krass’s post announcing the Manual update (emphasis added).
Presumption of Civilian Status and Ex Post Assessments of Targeting Operations
The second reason the presumption of civilian status is inherently problematic from an operator’s perspective is that it encourages an ex post assessment of targeting decisions when it is applied in practice.
This approach was adopted, for example, in a letter signed by 21 humanitarian activist organizations and directed to Defense Secretary Lloyd Austin in December 2021. In the letter, the organizations express concern that the “the U.S. military has consistently failed to ensure that in case of doubt about the status of a target, a person is presumed to be a civilian” as required by international law.
The letter then advances the astonishingly implausible assertion that two decades worth of civilian harm is attributable to the refusal by the DoD to adopt the presumption of civilian status. According to the humanitarian organizations, the failure to presume civilian status “appears to be the case with the Baghuz strikes [in Syria] as well as other civilian deaths over the last twenty years, including” a long list of attacks that have occurred in that timeframe (emphasis added).
Part of the solution, according to the letter, is to “[r]evise the Department of Defense Law of War Manual to reflect the presumption of civilian status, as reflected in Additional Protocol I and customary international law.” Under the authority of the current GC DoD, the Department of Defense did just that in the most recent Manual update.
Presumption of Civilian Status and the Kabul Drone Strike
This letter written by 21 humanitarian activist organizations is, of course, not alone in advocating for the presumption of civilian status to be incorporated into the Manual.
Senator Dick Durbin (D-IL) and Representative Sara Jacobs (D-CA) directed a letter to GC DoD Caroline Krass in February 2023 expressing concern “that certain aspects of the Manual undermine U.S. compliance with the law of armed conflict…and increase the risk of civilian harm by not accurately informing the judge advocates who advise commanders on the ground” (emphasis added).
In the letter, Durbin and Jacobs go on to attribute the outcome of the Kabul drone strike to the failure to adopt a presumption of civilian status while claiming that revising the Manual to incorporate the presumption “will help prevent similar tragedies in the future.”
This is precisely the problem with incorporating the presumption of civilian status into military doctrine. Obviously, a tragic outcome could have been averted in the Kabul drone strike—or any attack that actually or reportedly resulted in civilian casualties over the last two decades of conflict—if the presumption were not overcome and the attack did not take place as a result.
But what if the target of the Kabul drone strike had been a vehicle-borne improvised explosive devise as suspected at the time?
How much devastation to military personnel and civilians alike—and at what risk to successful mission accomplishment—if the target was in fact a VBIED and the strike were called off due to the “new framing” of presuming civilian status? And how many such strikes will now be characterized as serious LOAC violations after the attack for failure to adequately overcome the vague and arbitrary presumption of civilian status before of the attack?
2023 Manual Update, Presumption, and “Better Protections for Civilians”
With the above practical background in mind, it should come as no surprise that the presumption of civilian status has emerged as a conceptual focal point for activists and scholars pursuing an humanitarian-centric agenda (for but a few examples, see here, here, here, here, here, and here).
Indeed, it seems quite likely that the latest update to the Manual that incorporated the controversial presumption of civilian status was a direct response to a question posed by Rep. Sara Jacobs to the current GC DoD during a hearing in March 2022. During questioning, Jacobs expresses that she has “been concerned about some of the reporting we’ve seen around civilian casualties” (emphasis added).
Jacobs later claims that “presumption of civilian status is essential to implementing humanitarian law.” She then asks whether the GC DoD will commit to reviewing the interpretation regarding presumption of civilian status that was reflected in the Manual at the time.
GC Krass answered in the affirmative, and the presumption of civilian status is now reflected in the Manual and implemented in DoD doctrine. As Loren Voss expressed while analyzing the presumption update, this revision may well be “expected to result in better protections for civilians and civilian objects.”
But this is not the doctrinal objective of the law of armed conflict in the applied context, and it is not the purpose of the DoD Law of War Manual. The most recent update to the Manual provides a boost to those seeking to advance the interests of humanitarian restraint and civilian protection, but this is not necessarily consistent with the purpose of the Manual or the mission of the DoD.
Conclusion
With the background and prevailing reception related to the most recent update to the Manual thus in focus, Part I now draws to a close. The present inquiry continues next in Part II by evaluating the three current contributions to the Living Document series.
The analysis in Part II then closes by considering the most recent Manual revision and the suggestions for further updates presented in the Living Document project to date in the broader context of the recent movement to institutionalize civilian protection practices across the Department of Defense.
This examination concludes that the ongoing undertaking of the Living Document project to “clarify” and “strengthen” the DoD Law of War Manual with suggestions from “leading scholars and practitioners” outside the DoD is inconsistent with the ambition to maintain the Manual as a “DoD-wide resource for DoD personnel.”
About the author:
Brian L. Cox is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School and a a visiting scholar at the University of Ottawa Faculty of Law (Common Law Section). Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.
Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, Joint Firepower Certification, and Special Victim Unit Investigator Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.
The views expressed by guest authors do not necessarily reflect my views or 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!
