The Pentagon's Unwise Silence on the Law of War

Bureaucratic deadlock has let international organizations take the lead.

While the media’s attention has lately been fixated on the Justice Department white paper on targeted killing of certain U.S. citizens abroad, arguably the most important legal document of the last half century on how the United States wages war never even came to fruition.

Late last year, a principal author of the draft Department of Defense Law of War Manual essentially delivered a requiem for this ambitious undertaking, which had spanned fifteen years and comprised over one thousand pages of official U.S. commentary on the rules governing warfare. He attributed the manual’s demise to internecine bureaucratic squabbling, as evidenced by departmental rivalries that deadlocked interagency review and the politicization of the historical discussion included in the text.

Whatever the reason for the manual’s arrested development, its failure to achieve publication signifies a major strategic setback for U.S. interests. This is not simply because the current definitive U.S. guidepost, the Army’s Law of Land Warfare, is both service-specific and nearing its sixtieth birthday. Nor is it because the draft DOD manual was the product of an extraordinary process of peer review by leading government experts, academics and senior officials from major U.S. allies.

The harm inflicted to U.S. interests by the manual’s apparent dissolution has to do with the nature of how international law is made, coupled with recent troubling developments emanating from major international organizations.

The Sources of Law

For international law to become binding upon nations, it must be either encapsulated in treaties or reflected in the customs of states. The latter category, called customary international law, is informed both by how countries behave (state practice) and by their motivation to behave that way as a matter of legal obligation (opinio juris).

The subjectivity inherent in the concept of opinio juris highlights the importance of states publicly clarifying rationales for their actions. It also explains the limited utility of secretive legal memoranda. National-security clients need and deserve confidential legal advice on sensitive matters, but that does not obviate the imperative to make clear statements about U.S. perspectives on the application of international law. Presumably this is why top Obama administration officials have given a series of speeches on counterterrorism strategy, and why there was so little new in the much-ballyhooed Justice Department white paper.

A byproduct of the need to speak clearly is the obligation to object persistently when customary law appears to be heading in an undesirable direction. For example, when the International Red Cross (ICRC) published its study on the customary international law of war in 2005, the top Bush administration lawyers at DOD and the State Department penned both an open letter and a formal article detailing U.S. points of disagreement and concern.

The ICRC is not, and should not be, a lawmaking organization. Only states can conclude treaties and make binding custom. However, the ICRC has historically played an important role in shaping and interpreting humanitarian law, and the documents it produces necessarily carry weight.

It is not surprising that the legal interpretations advanced by the ICRC would sometimes be at odds with U.S. positions. As the preeminent humanitarian nongovernmental organization, the ICRC’s noble mandate is to safeguard victims of war. As the preeminent war-fighting country, the U.S. must assert and defend its national interests, while doing so in a way that complies with applicable law and is consistent with its own values.

There will inevitably be times when ICRC guidance seeks to protect victims at the expense of operational realities. It is precisely at these moments when responsible nations, if they disagree with the ICRC’s framing of legal obligations, must make clear statements of opinio juris in order to prevent the formation of adverse customary law and promote a viable alternative. The draft DOD manual provided just such an opportunity to do so in a comprehensive fashion.

The Problem of “Direct Participation”

The void left by the DOD manual is particularly acute in light of a problematic and influential ICRC study on Direct Participation in Hostilities published in 2009. While acknowledging that its guidance cannot constitute binding law, the ICRC made plain its desire for the study’s recommendations to prove “persuasive” for states and other actors, thus ultimately enshrining those tenets in custom.