The Magazine

Where Is the Law of War Manual?

Some questions for State and DoD legal adviser ­nominees

Jul 22, 2013, Vol. 18, No. 42 • By EDWIN WILLIAMSON and HAYS PARKS
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Such a change would impose restrictions on U.S. forces in combat so that deadly force could be used only against an enemy who had refused a surrender opportunity or who posed an “imminent threat.” These requirements would place our fighters on a footing comparable to a police officer in the United States in a peacetime environment and at an extreme and unprecedented risk of being killed by the enemy or facing “war crimes” allegations by human rights activists.

Justice Department efforts toward the draft manual echo its continued post-9/11 view of the battle with al Qaeda entirely (and incorrectly) from a law enforcement perspective. It seeks to bring the manual text into conformity with terms and arguments it uses in court (many of which are inconsistent with the law of war).

A change Justice Department lawyers sought involved civilians on the battlefield. Under the law of war, a civilian loses immunity from direct attack if he or she “takes a direct part in hostilities.” The working group agreed that this participation does not, however, necessarily constitute criminal activity. Without consulting with working group experts or senior DoD or State policymakers, Justice Department attorneys have asserted that it does. This extreme (and incorrect) position would place at risk of enemy prosecution the substantial number of U.S. and foreign civilians who accompany our armed forces in the field in time of war and whose support is a major basis for the way in which the United States—with congressional approval—determines its military force structure. Justice Department lawyers created new law to enable the department to win its cases against al Qaeda, disregarding battlefield consequences for civilians lawfully accompanying our own forces.

We do not know whether the proposed changes are the cause of the 30-month delay in publishing the manual. The interagency transparency that existed during the 14 years of manual preparation has ceased without explanation. 

We are concerned about the delay, the lack of transparency, and the changes being made to the manual by political appointees without law of war experience, which could endanger the lives of our fighting men and women. The silence of the judge advocates general of the four services, whose predecessors stood up against measures used by the Bush administration that they thought were inconsistent with traditional U.S. law of war positions and practice, is disturbing.

As one law of war authority said in expressing his disappointment that “this project has truly collapsed,” the law of war “is in the midst of a potentially transformative period, and it is remarkable and risky for the U.S. government in general and the Pentagon in particular to sit quietly on the sidelines.”

We believe the confirmations of the new State Department legal adviser and DoD general counsel offer the Senate the opportunity to get answers to these troubling issues.

Hays Parks, a Marine Corps officer in Vietnam, was the special assistant to the judge advocate general of the Army for law of war matters from 1979-2003 and DoD senior associate deputy general counsel, international affairs, from 2003-2010. He chaired the DoD law of war working group during the 14-year preparation of the Law of War Manual. Edwin Williamson, senior counsel at Sullivan & Cromwell LLP, was the State Department legal adviser from 1990-1993.

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