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 II)
Today is Part II of Brian Cox’s critical assessment of the 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.”
As I said in introducing Part I (found here), 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 II of his analysis, Brian examines the first three essays in the series, and concludes that to “one degree or another, each contribution is found wanting when evaluated in light of the stated purpose of the Manual to be a “DoD-wide resource for DoD personnel—including commanders, legal practitioners, and other military and civilian personnel—on the law of war.”
Brian says that while the intent of his present inquiry “is not to engage in a comprehensive critical analysis of any of the three current Living Document contributions, a few significant observations are in order.” Indeed.
I especially invite your attention to the last two sections of Brian’s essay which include comments about DoD’s Civilian Harm Mitigation and Response Action Plan – something I believe is deeply flawed. I also fear that warfighters are not paying enough attention to this disturbing development that retired Lt Gen Dave Deptula, Dean of the Mitchell Institute for Aerospace Studies, has rightly characterized as one that would “hobble U.S. Forces.” (More about this in a future post.)
Brian is firing a warning flare that warfighters and their legal advisors need to heed. Take a look for yourself:
Critical Analysis of the “Living Document” Series: Maintaining the Integrity of the DoD Law of War Manual as a Tool for Military Practitioners, Part II
by Brian Cox
Part I of this post examines the Living Document series in the context of the most recent update to the DoD Law of War Manual, particularly relating to the contentious issue of presumption of civilian status. The analysis in Part I reveals the civilian protection bias inherent in the most recent Manual revision. It is against this conceptual and practical background that the current contributions to the Living Document project must be evaluated.
The inquiry continues now in Part II by evaluating each contribution to the Living Document project, in order of appearance, written by Sean Murphy, Mike Meier, and Eliav Lieblich. To one degree or another, each contribution is found wanting when evaluated in light of the stated purpose of the Manual to be a “DoD-wide resource for DoD personnel—including commanders, legal practitioners, and other military and civilian personnel—on the law of war.”
The goal of the analysis below is not to engage in a comprehensive assessment of each individual contribution to the series. Rather, the objective is to assess the degree to which each contribution aligns with the goal of the Manual to be a premier resource for DoD personnel.
After assessing each individual contribution in turn, the analysis considers the Living Document project and the most recent update to the Manual in the broader context of ongoing efforts to “strengthen” and “clarify” doctrine related to U.S. military operations.
Living Document Contribution #1: Sean Murphy on Conventional and Customary Law
As should be expected from Professor Sean Murphy, the first contribution to the Living Document series is conceptually rigorous and eminently well-articulated. However, the main thrust of his suggestions to revise the DoD Law of War Manual seems rather inconsistent with the doctrinal purpose of the publication.
While the intent of the present inquiry, again, is not to engage in a comprehensive critical analysis of any of the three current Living Document contributions, a few significant observations are in order.
Extraterritorial Application of (Customary) IHRL
Among Sean’s suggestions that could potentially involve the most significant impact in practice is to revise the Manual to clarify “whether certain rules of IHRL [international human rights law], though not applicable extraterritorially as treaty law, nevertheless regulate extraterritorial conduct as customary international law.” However, this suggestion seems to be already adequately addressed in the Manual.
As existing text of doctrinal publication indicates, apparent conflicts between LOAC and IHRL “may be resolved by the principle that the law of war is the lex specialis during situations of armed conflict, and, as such, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims.”
This passage does not distinguish between conventional and customary human rights law, so it would seem that Sean’s suggestion to clarify whether certain IHRL rules regulate extraterritorial conduct as customary law is already quite clear.
It does not, assuming the conduct in question involves the conduct of hostilities and protection of war victims (that is, wounded and sick in the field or at sea, prisoners of war, and civilians in occupied territory—the topics addressed by each of the four respective 1949 Geneva Conventions).
Maintaining the DoD Manual as a Resource for DoD Personnel
Sean also suggests enhanced clarity regarding reception by the United States of certain provisions of AP I and AP II. However, the existing text (§19.20) addresses this issue fairly comprehensively—complete with cross-references to substantive components of the Manual that address each topic.
Finally, Sean’s concern that the Manual limits its own significance by focusing primarily (though, certainly not exclusively) on U.S. sources should be considered, from a practitioner’s perspective, as a “sustain” rather than an “improve.”
The Manual is published and maintained as a “DoD-wide resource for DoD personnel.” Suggesting that OGC should strive to make the publication more expressive of U.S. government views of customary international law seems rather inconsistent with the stated purpose of the Manual.
Living Document Contribution #2: Michael Meier on Proportionality
Next is Mike Meier’s contribution to Living Document—the second in the series to date. Mike suggests three primary revisions to the Manual, though the second and third can be considered together.
Separating Feasible Precautions from Proportionality
His first substantive suggestion is for the Manual to “separate feasible precautions from proportionality” in §5.10.5. This section does, indeed, address proportionality and feasible precautions together—reflecting that taking measures to ensure the incidental damage anticipated from an attack is not excessive in relation to the concrete and direct military advantage expected also qualifies as taking feasible precautions in the attack.
However, this is by no means the only section in the Manual to address the topic of feasible precautions. For example, the subject of feasible precautions in the attack is covered in a section on affirmative duties and protection of civilians (§5.2.3), discrimination in conducting attacks in general (§5.5), and verifying whether the object of attack qualifies as a military objective (§5.5.3)
It would seem, then, that the current text of the Manual already implements this suggestion rather adequately.
Foreseeable harms to indirect harm or reverberating effects
Much more concerning is Mike’s second suggestion to revise guidance involving the LOAC proportionality rule to include indirect, or reverberating, effects.
The third substantive suggestion, to include specific examples of indirect harm that should be considered in the proportionality analysis, is inadvisable for the same reason the second suggestion is—the DoD absolutely should not expand the proportionality analysis to include consideration of indirect or reverberating effects.
The initial point here is that Mike mischaracterizes current guidance (§5.12.1.3) when he suggests the examples given in the text already include indirect harm.
In fact, current guidance indicates “immediate or direct harms foreseeably resulting from the attack” should be considered in the proportionality analysis (emphasis added). Each of the affirmative examples provided thereafter qualifies as direct harm that foreseeably results from the attack—these are not examples of “indirect” harm, as Mike suggests.
More fundamentally, Mike points out that his conceptualization of indirect harm is also widely referred to by an alternative term—reverberating effects. Fully exploring in depth the multitudinous reasons the DoD should not expand the current “immediate or direct harms foreseeable” proportionality standard to include reverberating effects warrants stand-alone treatment that is beyond the scope of this inquiry.
Maintaining the Balance Between Military Necessity and Humanity
For present purposes, surveying a sampling of how the term “reverberating effects” is widely used by humanitarian activist groups (for example, here, here, here, here, and here) indicates the suggestion to revise the Manual to incorporate indirect harm into the proportionality analysis is inadvisable.
Individuals and groups active in advancing the global civilian protection movement do so with the express purpose of tilting the balance in favor of humanitarianism, and they bear no risk to mission as practical application of military necessity is eroded. Dramatically expanding the categories of civilian persons and objects that must be actively considered on the incidental damage side of the proportionality assessment is an explicit attempt to shift the balance away from operational effectiveness and toward enhanced protection for civilians.
Along with the movement to restrict or ban the use of explosive weapons in populated areas, the effort to expand expected incidental harm to include indirect or reverberating effects in the LOAC proportionality analysis threatens to tip the balance between military necessity and humanitarian considerations sharply in the direction of the latter. Fewer lawful attacks means reduced risk to the civilian population, but it is also represents a windfall for adversaries who are at less risk of being attacked.
This is especially true for adversaries inclined to operate among the civilian population or who refrain from considering reverberating effects in doctrine related to their own proportionality analysis. Revising guidance in the Manual to include indirect harm in the LOAC proportionality analysis would be a massive victory for civil society public messaging campaigns and future potential adversaries, but not at all for the DoD.
Living Document Contribution #3: Eliav Lieblich on Protected Persons
The third and final Living Document contribution to date advances, to be perfectly candid, the rather curious suggestion that the Manual should be revised to alter the “geographic nexus” requirement describing the category of persons protected by the Fourth Geneva Convention of 1949 (GC IV).
Describing the “Geographic Nexus” Requirement
At the outset of the article, Eliav correctly notes that the Manual establishes (in §10.3.2.2) what he describes as a geographical nexus requirement for qualifying for protected status pursuant to GC IV.
As current guidance notes, a person must be either located in occupied territory or the home territory of a party to the conflict in order to qualify for protected status pursuant to the law of occupation (the primary subject of GC IV).
Eliav suggests this guidance seems more restrictive in terms of who qualifies as a protected person since the definition actually established by GC IV (in art. 4(1)) applies to persons “in the hands of a Party to the conflict or Occupying Power of which they are not nationals” regardless of where that might occur.
Incorporating Common Article 2: Application of the Convention
It is accurate that art. 4(1) of GC IV does not directly refer to a geographical requirement. However, Article 2, which is common to all four 1949 GCs, establishes that each Convention (including GC IV) is activated in the case of an armed conflict “between two or more of the High Contracting Parties.”
Common Article 2 further establishes that (all four Conventions) “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party.” These provisions of Common Article 2 combine with the definition of protected person established in art. 4(1) to establish the geographical nexus for protected person status in the text of the treaty.
Current guidance in the Manual correctly reflects this. The remainder of Eliav’s Living Document contribution is an attempt to fill (what he describes as) a “legal black hole” of his own creation—and with “solutions” that also explicitly seek to tip the balance between military necessity and humanity in favor of the latter.
Like the two Living Document articles that precede his, suggested revisions to the Manual presented in Eliav’s contribution are inadvisable.
“Living Document” Concept and Advancing the Civilian Protection Agenda
The most recent update to the Department of Defense Law of War Manual—and the apparent movement to push further revisions through the Living Document series—must be considered in the broader context of recent “reforms” to U.S. military doctrine and policy related to the applied use of force.
The Civilian Harm Mitigation and Response Action Plan (CHMR-AP) and the attendant DoD Instruction (DODI 3000.17) designed to implement the CHMR-AP shift the balance of previous doctrinal publications by centering institutional priorities on civilian harm prevention and response rather than on military effectiveness. This is dangerous in large part because metrics for measuring “success” in implementation focus on only one side of the military necessity/humanity equilibrium, thereby tilting the balance sharply in favor of the latter.
The same can be said for the recent Political Declaration on EWIPA, which the U.S. government endorsed in November 2022. These developments combined with the latest Manual update involving presumption of civilian status, along with additional updates seemingly being advanced as part of the Living Document series, reveal a concerning trend that has emerged within the Department of Defense of late.
My dear friend Marc Garlasco noted during an interview for a recent podcast episode that the CHMR-AP and its implementing DODI are legacy items for current Defense Secretary Lloyd Austin. For a military specialist at a pacifist advocacy organization such as PAX, which Marc was until very recently before transitioning to the newly-established DoD Civilian Protection Center of Excellence, this was intended to be a positive characterization.
Marc is correct that these and other recent developments related to advancing the civilian protection movement within the DoD have shaped the legacy of Secretary Austin. However, this encouraging reception does not seem to resonate quite as well within the ranks.
I am fortunate to maintain nearly daily contact, even after my retirement from the U.S. Army in 2018, with a significant number of friends and former colleagues who remain in military service today. The characterization I have encountered most often in these interactions when discussing recent doctrinal developments related to civilian protection is that Austin has developed the reputation as a Secretary of Defense who is seeking to “convert the DoD into an NGO.”
This quote has been conveyed to me nearly verbatim by at least five separate sources at various echelons of command, and I have encountered the sentiment much more widely even if it is not expressed precisely in these words. My impression from these interactions is that this reception is widely held throughout the ranks—from the tactical to the strategic levels.
The latest update to the Manual is an indelible component of Secretary Austin’s legacy, as are the CHMR-AP and its implementing DOD Instruction. Time will tell whether future doctrinal revisions to the Manual will further contribute to this perception within the military.
Conclusion
The stated purpose of the DoD Law of War Manual is to be a “DoD-wide resource for DoD personnel.” The effort to “clarify” and “strengthen” the Manual should be centered on the perspective of the military operator, not “leading scholars and practitioners” from outside the DoD as the Living Document series seeks to accomplish.
Experienced practitioners understand that personnel at the strategic level work to serve, support, resource, and coordinate efforts at the operational and tactical levels—not the other way around. Suggestions for clarifying and strengthening the Manual can be developed from within the ranks, and these should be the center of gravity for future revisions.
Endeavoring to source such updates from leading scholars and practitioners external to the DoD gives the impression that military decision-makers and their advisors are perpetually wandering blindly through the forests of LOAC implementation, and all they need is enlightenment from leading scholars and practitioners who are not in military service to show them the way.
However, many of these external experts have never served in the military and, therefore, have never been required to develop a comprehensive and balanced perspective that is necessary to engage with LOAC effectively in the applied context. Popular suggestions to revise the Manual sourced from all leading scholars, even the few with military experience such as some recommendations analyzed herein, demonstrate a discernible bias in favor of humanitarian restraint and civilian protection.
From my perspective as a law professor with 22 years of diverse military experience before transitioning to academia, many (though not necessarily all) analysts outside military service could use some enlightening from seasoned and experienced military practitioners on the topic of applying use of force law and policy in practice—not the other way around.
In practice, maintaining the delicate balance between military necessity and humanitarian considerations is vitally important to mission accomplishment and force protection. Current contributions to the Living Document series fall short of these expectations, as does the most recent update to the Manual related to the presumption of civilian status.
If the Living Document series persists and the suggestions for updating the Manual presented therein are to be taken seriously by GC DoD Caroline Krass and personnel in the OGC at the strategic level, perhaps an improved focus on the purpose of the Manual and an enhanced commitment to maintaining the delicate balance between military necessity and humanitarian considerations can be expected in the future. Practitioners within the DoD for whom the Manual is published and maintained deserve nothing less.
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!
