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.

The notion of “direct participation in hostilities” is crucial to the law of war, because it denotes the process by which nominal civilians may render themselves liable to deliberate attack. “Direct participation,” therefore, goes to the heart of the principle of distinction, which holds that soldiers must differentiate between military and civilian objects, targeting the former while sparing the latter.

When a civilian directly participates in hostilities, two consequences result: First, the civilian loses protection from direct attack “for such time as” the participation lasts. Second, the directly participating civilian need no longer be factored into the “collateral damage” assessment when deciding whether and how to launch a particular operation.

The ICRC’s guidance on direct participation contains several elements that the U.S. simply cannot abide, a result presaged by the withdrawal of numerous experts from the project in protest. The U.S. government, however, has not formally responded to the document’s publication, and the stalemate over the DOD manual has prevented the dissemination of an authoritative accounting of U.S. views on the overarching principle of distinction. Meanwhile, several of the ICRC’s recommendations continue to cry out for a U.S. rebuttal.

For example, the ICRC report claims that only individuals who occupy a “continuous combat function” can be considered members of an “organized armed groups” who are subject to attack at any place and time. This affords irregular forces greater protection than regularly constituted armies, whose combatant members remain persistent lawful targets regardless of whether they are snipers or cooks and whether they are fighting or sleeping. The ICRC’s formulation explicitly excludes “recruiters, trainers, financiers, and propagandists” from the threat of constant assault, providing a relative blanket of security to the likes of Anwar al-Awlaki. (The U.S. may have possessed intelligence that Awlaki’s propagandizing had morphed from mere incitement to direct plotting, but in practice the line may not always be clear-cut.)

Furthermore, the ICRC guidance promulgates an under-inclusive and overly complex understanding of what constitutes direct participation and how long it lasts. The report exempts voluntary human shields from automatic loss of civilian immunity, thereby enabling the very strategy of purposefully placing unarmed individuals in the line of fire to take advantage of law-abiding forces.

Moreover, the narrow window of direct participation envisioned by the ICRC consciously promotes a “revolving door” between civilian protection and belligerent action, preventing commonsense judgments about who poses a legitimate threat. The ICRC’s claim that a civilian’s repeated hostile acts do “not allow a reliable prediction as to future conduct” both denies the possibility of recidivism and fails the straight-face test.

Finally, the ICRC’s suggestion that soldiers have a duty to capture rather than kill civilians directly participating in hostilities contradicts the reality of war, in which lethal force is wielded between enemies as a measure of first resort. It also distorts the principle of military necessity, which dictates not that soldiers must use the least-restrictive means necessary to subdue each enemy fighter, but rather that each target they attack must constitute a valid military objective.

Given that the ICRC’s findings are already being utilized by the United Nations and other organizations as a basis to critique targeted killing and other U.S. counterterrorism activities, it is high time for the U.S. government to respond with a unified voice and clarify its legal position. The draft DOD manual represented an ideal vehicle to accomplish this task in a holistic manner that tethers the concept of direct participation to the historic principle of distinction and contextualizes its place in the law of war. Perhaps this effort can be resurrected as suddenly as it was dissolved.

If the United States speaks, it can help shape the law. If the government remains silent, it both abdicates that responsibility and foregoes a significant opportunity.

It is one thing to lose. It is quite another to never even take the field.

Charles G. Kels is a major in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. Opinions expressed in this article are those of the author alone and do not necessarily reflect those of the Departments of Homeland Security, Air Force or Defense.

Image: Wikimedia Commons/Mbiama. CC BY 3.0.