Department of Defense Issues Update to DoD Law of War Manual

 

I usually do not note the periodic revisions to the Department of Defense Law of War Manual. I do so now because its changes may well be required to be applied in one of several places in the future short to medium term. As such, its changes point to the calculus of response and its operationalization, though one that will vary depending on where it will be necessary to employ its guidance.

As to its substance, Caroline Krass, General Counsel of the Department of Defense (since August 2021),  provided a useful official summary with links that appeared on the website of Just Security (but also published in Articles of War and Lawfare. It follows below. 

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Department of Defense Issues Update to DoD Law of War Manual on Presumption of Civilian Status and Feasible Precautions to Verify Military Objectives

Caroline Krass

Today, the Department of Defense (DoD) released an important update to its Law of War Manual, including a revision to Section 5.4.3 (“Assessing Information in Conducting Attacks”) and a new subsection 5.5.3 titled “Feasible Precautions to Verify Whether Objects of Attack are Military Objectives.”

The Manual provides authoritative legal guidance for DoD personnel in implementing the law of war and executing military operations.  It reflects America’s long and deep tradition of respect for the rule of law and the law of war.  This is the third update to the Manual since it was first issued in June 2015.

The updated Manual substantially enhances the discussion of what the law of war requires when determining whether a person or object is a lawful target in planning and conducting attacks.  It describes the legal duty to presume that persons or objects are protected from being targeted for attack unless the available information indicates that they are military objectives.

The Manual also includes a new section discussing the obligation to take feasible precautions to verify that potential targets are military objectives, including providing examples of common precautionary measures.  The update affirms that the law of war does not prevent commanders and other personnel from making timely decisions and acting at the speed of relevance, including in high-intensity conflicts, based on their good faith assessments of the information available at the time.

As Secretary Austin has emphasized, protection of civilians and mitigation of civilian harm are both a moral necessity and a strategic imperative, vital to the success of our military operations to keep America safe.  Secretary Austin has also recognized that “there are still rules in war,” and he has affirmed that DoD efforts to protect civilians during armed conflict rest on a strong foundation of compliance with the law of war.  This updated version of the Manual provides greater clarity on the requirements of the law of war that are critical for protecting civilians and civilian objects during military operations.

Acting lawfully is an imperative that is fundamentally consistent with, and furthers, military success in the defense of our Nation.  The Department will continue to update the Manual to provide DoD personnel with the best possible resource for understanding and complying with the law of war.

Consistent with prior work on the Manual, this update was prepared by the DoD Law of War Working Group, and also reflects consultations with lawyers at the Combatant Commands and the Departments of State and Justice; consideration of comments from Members of Congress, academic commentary, and civil society organizations; and consideration of the expressed views and practice of allies and partners.  The Department-wide Manual reflects the views of the Department of Defense and does not necessarily reflect the views of the U.S. Government as a whole.

The Department appreciates the comments and suggestions that have been made on these and other sections of the Manual.  Comments on the Manual remain welcome and may be sent to osd.pentagon.ogc.mbx.ia-law-of-war-manual-comments@mail.mil.

The updated Manual is publicly available at www.defense.gov and the DoD Office of General Counsel website.