Weak Spots for Human Rights Protections in Defense Department Law of War Manual

By Carolyn Tackett

Last month the Department of Defense (DOD) released its first Law of War Manual since 1956. The 1200-page document is a comprehensive account of how the armed forces interpret their obligations under domestic and international law.

This is a big deal. Who participates in armed conflicts and how they do so has changed a lot since the early years of the Cold War, raising serious questions about how the law of war applies in these new contexts. And documents like this don’t just describe the law as it stands—they also shape what the law will become. This update, while much needed, brings into relief troubling shortcomings in U.S. human rights policy.

First, some background. International law has two main sources: treaties and custom. Treaties, written down and officially ratified, are easier to point to for holding states accountable. But customary international law—universal principles adopted through state practice and a shared sense of legal obligation—is no less binding. Official statements of state practice and understanding of law like the DOD Law of War Manual play an important role in shaping customary international law.

In the manual the DOD acknowledges the most widely accepted principles of international law, but it leaves much to be desired, particularly when discussing “non-binding” sources like the additional protocols to the Geneva Conventions—which the United States has not ratified but are otherwise nearly universally adopted.

The DOD uses lawyerly language to indicate that while some of the provisions may be good ideas, they aren’t legally binding. In other instances, the DOD firmly rejects provisions’ status as customary international law, undercutting the rules’ authority internationally and creating domestic precedent inconsistent with international law.

Bottom line: failing to uphold and advance important protections in customary international law makes it more difficult to protect human rights, especially for at-risk individuals involved in or surrounded by armed conflict.

This is especially clear in the chapter on detention. The DOD outlines its minimum standard of treatment for detainees across all military operations, including a ban on cruel, inhuman and degrading treatment. What’s discomforting, though, is the choice to describe certain critical protections as things that the DOD “should” do, rather than what it “shall” or “must” do.

For example, according to the manual, detainees must be informed of the general reason for their detention (i.e., “We think you pose a threat to national security.”) But officials only have to give detainees specifics about their case—information that’s critical for detainees to be able to participate in their review procedures in a meaningful way—when it’s “feasible” to do so. Under these guidelines, the following hypothetical exchange would be perfectly acceptable:

“Why do you think I pose a threat to national security?”

“That’s classified.”

Even explicit requirements from the Convention against Torture (CAT), to which the United States is a party, are deemed optional. CAT Article 13 requires state parties to ensure that individuals are able to submit complaints and to have their case heard promptly by an impartial authority. Instead, the DOD settles for suggesting detainees “should be permitted” to submit complaints to the detaining authority itself, and says nothing about their investigation.

Further, CAT Article 3 prohibits extraditing individuals to states where there are substantial grounds to believe that individual will be at risk of being subjected to torture. The manual adopts a quite different standard (deferring to U.S. policy), saying the obligation only applies if it is more likely than not the person will be tortured in the receiving country.

There are also serious concerns about the manual’s description of how the United States conducts hostilities. The DOD recognizes the overarching principles requiring the military to distinguish between combatants and civilians when planning attacks and to weigh potential risk to civilians against perceived military necessity. However, the manual rejects the international customary law rule that says, when presented with two targets of equal military value, the attacker must choose the target less likely to harm civilians. Instead, it provides a very pliable standard requiring “feasible precaution.” Basically, if taking a precaution to avoid civilian casualties is riskier, more expensive, less convenient, poses long-term strategic concerns, etc., the military probably doesn’t have to do it.

This becomes even more problematic in light of how the manual blurs the lines between combatants and civilians. The United States has relied heavily on the classification of “unprivileged belligerents” (also known as unlawful combatants) in its War on Terror legal theory, but the category isn’t recognized by any major instrument of international law—including the Geneva and Hague Conventions, which are foundational to law of war. Under this structure, if you are part of an enemy non-state armed group (and by “part” I mean anyone who has participated in the group’s activities or supported its operations), then you can be subjected to military attacks, detained until the end of hostilities, and prosecuted in “special or emergency courts for cases involving … offenses related to the non-international armed conflict.”

And now that the Obama Administration has authorized strikes against ISIS through the 2001 Authorization for the Use of Military Force (AUMF) originally intended to target those responsible for the 9/11 attacks, it’s hard to see where this rights-stripping categorization ends.

The DOD Law of War Manual inadvertently showcases the variety of ways the United States is failing to lead on important human rights issues. Congress, the president, and the relevant executive agencies should all work to strengthen legal wartime protections, ensure the United States is at the forefront of compliance with international humanitarian and human rights law, and lead the international community in advancing those protections.

To lead the world in respect for human rights, the United States must hold itself to the absolute highest standard in law, policy, and practice. The message from the Law of War Manual is clear: we still have work to do.