The Department of Defense (DoD) has published a manual covering the laws of war. The behemoth of a book is set to be the US military's bible of what's legal and what's not in warfare across land, air, sea, and anywhere else you can get to fighting.
The 1,204-page tome covers hundreds of possible scenarios commanders in the field might face, from the "Human Treatment of Detainees" to how to tackle "Ruses of War and Other Lawful Deceptions." It helpfully informs commanders which weapon systems are legal (standard guns, rockets, etc.), which fall into a gray area (nukes, cluster bombs, depleted uranium), and which are definitely illegal (lethal chemical weapons, biological weapons, and "blinding lasers").
The manual, which has taken more than 20 years to complete, was put together by officials from the DoD, State Department, Justice Department, and experts from the think tank world. The DoD declined to tell VICE News how much the creation of the manual cost the taxpayer, apparently because the bill "wasn't itemized."
DoD General Counsel Stephen W. Preston is very proud of the result. "[The manual] reflects the US military's long-standing commitment to the rule of law and represents an important milestone in our ongoing implementation of the law of war," he said.
While the DoD is saying this is their first law manual as a department, individual services have each previously had their own manuals. Even generals have issued their own legal guidelines. And legal experts have pointed out that the DoD previously published a comprehensive guide in 1956.
But a lot has happened since then, including the growth of asymmetric warfare, drone strikes, and modern counterinsurgency operations. As the conflicts in Iraq and Afghanistan have shown, these elements hover in a legal gray area — and the new manual makes no effort to clarify this type of ambiguous warfare.
For example, drones, or "Remotely Piloted Aircraft," barely warrant a mention, despite some estimates putting the figure of casualties in Pakistan, Yemen, and Somalia at more than 4,000. In those sections that do mention drones, the manual is unequivocal that drones, whatever their use, are legal.
Pentagon spokesman Lieutenant Colonel Joe Sowers told VICE News that this is because what's legal comes down to the weapon system used on a drone, not the drone itself. "This manual is not unique in explaining the law in this way," he said. "The DoD manual's approach is consistent with the law of war manuals of other countries, such as the 2004 UK manual or the 2013 German manual."
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Some experts have criticized the operational value of a manual that is pretty much the size of small SUV — while still doffing their hats to the academic value of such an endeavor.
Mike O'Hanlon at the Brookings Institute compared the length and practicality of the book to the counterinsurgency manual developed by General David Petraeus, which has become a bit of a military legend.
"The new manual is certainly well intentioned," O'Hanlon told VICE News. "It's designed so officers can know a way out of messy situations. But as it stands, it's not practical in the field. It would need to be heavily indexed. The Petraeus manual set the bar. The beauty of Petraeus's book was that it was relatively short, and the opening chapters were accessible, clean, and inviting. It was easy to understand."
Petraeus wanted to ensure that while the manual was rigorous and relevant, it was also appreciated and actually used by the troops in the field. Something the Army's previous manual was not, O'Hanlon explained.
"Petraeus was keen to right the wrongs of General [Stanley] McChrystal's law of war manual," O'Hanlon said. "The way [McChrystal's manual] was written, US field commanders were too cautious. They'd avoid calling in air support if it meant in any way harming civilians. I think it's pretty accepted that US troops died as a result of McChrystal's rules of engagement."
The legendary status of Petraeus's law of war booklet is due not only to its practicality, but to its massive caveat: troops were to ignore everything written in the book if their lives were in danger. That message seems to have grown out of McChrystal's overly cautious rules of engagement.
'It's designed so officers can know a way out of messy situations. But as it stands, it's not practical in the field.'
"Petraeus made it crystal clear: if you feel like you're in danger, the rules go out the window," O'Hanlon told VICE News, explaining the manual's mythic status in the military.
So far, the only mythic status this new manual is heading for is how quickly it's being overtaken by events on the ground.
David E. Johnson, senior political scientist at the RAND Corporation and a retired US Army colonel, is clear about how the manual has sidestepped the real legal wrangling that is fast approaching on the horizon. He argues that warfare is evolving too fast for the government to keep up.
"The manual is based on precedent, so it's tough to legislate for what we're up against today," Johnson told VICE News. "We are facing unprecedented unconventional threats. Take Ukraine. We don't even have a word for what's happening there. Some people are calling it ambiguous warfare; others are calling it hybrid warfare. So the theory is always chasing the practice."
Legal black spots like drone strikes, special forces targeted killings, and, most of all, cyber warfare are increasingly dominating military engagements. Yet the manual has two useful loopholes to navigate choppy legal waters when it comes to cyber warfare. The first is good old-fashioned legalese. On page 996, the manual states: "Specific law of war rules may be applicable to cyber operations, even though these rules were developed long before cyber operations were possible."
The key word there is "may."
The second loophole was made clear by Sowers. "This is a guide or a reference," he told VICE News. "The manual is not a definitive explanation of all law of war issues, nor is it a substitute for the careful practice of law. We anticipate that commanders will consult their legal advisors when seeking legal advice on cyber operations."
So, the much-heralded bible of the laws of war written in the best tradition of US justice? It's apparently more of a guidebook — and not legally binding at all.
Follow Ross Cypher-Burley on Twitter: @RossCypherB
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