Failing our troops : a critical assessment of the Department of Defense law of war manual
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The Yale journal of international law, Vol. 42, issue 2, 2017, p. 215-278
David Glazier... [et al.]
In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing the U.S. military its first unified guidance on the law governing armed conflict. Unfortunately, despite some positive attributes including an unequivocal condemnation of torture, it is badly flawed. This article provides the first comprehensive critique to date, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” The manual’s substantive shortcomings are significant, including basic errors in international law. Its treatment of the principle of distinction essentially allows attacks on any target to be justified based on even a remote potential for future military use, and it endeavors to shift the primary burden for avoiding civilian casualties from the attacker to the defender. It makes a poorly supported claim of a U.S. right to use expanding bullets despite universal recognition of doing so as a war crime. And it fails to enumerate which provisions of, the First and Second Additional Geneva Protocols of 1977 are binding on U.S. forces even though that was the original impetus for developing a joint U.S. manual.