Writing in the most recent issue of the Weekly Standard, Edwin Williamson and Hays Parks ask: what ever happened to the Department of Defense Law of War Manual? As many of you know, Hays Parks is widely considered to be one of the leading U.S. voices in the Law of War, and he was the moving force behind the Pentagon's creation of a consolidated Law of War Manual for the entire Defense Department. Although each of the individual service branches has published manuals and handbooks in the past, the goal was to create an updated and consolidated statement of the law of war, which would be authoritative across the Department of Defense. The project was largely complete when Hays Park retired from the Pentagon, but then the manual was never published. Many have wondered, what ever happened to it?
Now, Williamson and Parks explain why. They complain that the process was hijacked at the last minute, with officials from the State Department and the Justice Department holding up the process with ideologically driven objections to specific statements in the manual. Williamson and Parks are particularly annoyed by this late delay, because they say that the inter-department working group process that created the Manual already included feedback from these departments. The objections showed up at the very last minute, and aren't even legally supportable objections. Williamson and Parks think they are more political than anything else.
They point to two major objections, but of which involve legal issues discussed on this blog before. First, they assert that some State Department officials -- Parks and Williamson also refer to human rights activists as a possible source -- object to the use of the phrase lex specialis in the Law of War Manual. This is a technical Latin term, but these two words signal a huge foundational debate in public international law right now.
The draft Law of War Manual states that the law of war is lex specialis, meaning that it provides a special body of law that applies during situations of armed conflict. Although there are different interpretations of what this phrase means, one version enails that these special rules "knock out" the more general rules, say of human rights law, that apply during peacetime. Another version of the lex specialis argument entails that human rights are universal, but the content of human rights law is provided by the codified and customary rules of warfare embodied in the laws of war. Simply put, the law of war just is "human rights law during armed conflict." Either way, both versions of the doctrine suggest caution before importing specific rules of human rights law into the domain of armed conflict. According to some legal scholars, such importation runs the risk of upsetting the meaning and content of the already existing norms in the law of war.
Whether the State Department has really objected to this phrase, I have no idea. But Parks and Williamson are surely correct that this is no mere philosophical debate. It has practical consequences -- and one of them involves the capture-vs-kill debate. As I have argued in several essays and law review articles, the military concept of necessity allows the government to kill any legitimate target during armed conflict, regardless of whether capture is feasible. (Of course, if the target has successfully communicated his surrender then he is hors de combat and not a legitimate target). In other words, there is no generalized duty to capture in the law of war. However, the concept of necessity works differently in human rights law, and means engaging in the least restrictive means to achieve the particular result. That would mean attempting capture prior to killing as a last resort. According to Parks and Williamson, several human rights-oriented officials in the State Department object to the description of the law of war as lex specialis, and would rather promote the importation of human rights norms into situations of armed conflict. If this report is true, one wonders what these officials think of the U.S. targeted killing program.
There was a second problem, according to Parks and Williamson, although this one comes from the other side of the ideological spectrum. Allegedly, officials from the Justice Department objected to the draft manual's conclusion that civilians taking part in hostilities are not automatically guilty of war crimes. Again, this sounds technical, but it is of immense importance. Consider a civilian who is participating in an armed conflict and doesn't have the privilege of combatancy (because he refuses to wear a uniform or display his weapon openly). If he kills an enemy soldier, can he kill be convicted of a war crime? If yes, which one? At some points in the past, the U.S. has argued that such individuals are guilty of "murder in violation of the law of nations" -- even though that phrase appears nowhere in the major conventions on war crimes (Geneva, Rome, etc.). The correct view, of course, is that this isn't a war crime at all, although it may constitute a violation of domestic criminal law (since there is no combatant immunity for the killing). But if it isn't a war crime, then it can't be prosecuted before a military commission (arguably), which should be limited to international law of war offenses.
So one could see why the Justice Department would be sensitive to this issue, since it has implications for cases at the military commissions. But this legal theory was mostly associated with the Bush Administration, and it was thought that the Obama Justice Department had abandoned it. In any event, a letter from the General Counsel of the Department of Defense claims that the statements attributed to the Department of Justice simply aren't true.
The DoD General Counsel letter also claims that the final manual will be forthcoming, but does not give a precise date.