Changes to the Department of Defense Law of War Program

Army Lawyer, August, 2006 by John T. Rawcliffe

Introduction

On 9 May 2006, Deputy Secretary of Defense Gordon England signed Department of Defense Directive (DODD) 2311.01E, (1) marking another chapter in the long and distinguished history of the Department of Defense (DOD) Law of War Program. In the modern era, (2) the Program was established in 1974 and renewed in 1979 and 1998. (3) The latest version yields several notable changes, addressing the types of operations during which the U.S. military will apply the law of war, as well as clarifying reporting requirements for violations of the law of war.

"Comply with the Law of War"

The 1998 version of the DOD Law of War Program, DODD 5100.77, stated that heads of DOD components would "[e]nsure that the members of their DoD components comply with the law of war during all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all other operations." (4) In the 1990s, U.S. forces were heavily engaged in operations that did no qualify as armed conflict. (5) The requirement that forces would nonetheless comply with the principles and spirit of the law of war caused much consternation among practicing judge advocates. (6) During this time, well-intentioned practitioners struggled to determine the true meaning of DODD 5100.77, paragraph 5.3.D. Indeed, members of the International and Operational Law Department at The Judge Advocate General's Legal Center and School (TJAGLCS) published a series of notes in The Army Lawyer attempting to resolve the precise parameters, and resulting restrictions, of the principles and spirit of the law of war. (7) In the past year, while discussing this language with students at TJAGLCS, the author has observed students reach the following two conclusions: first, that the "principles and spirit" language can serve as useful ammunition in the right to promote increased application of the law of war and second, that language can also serve to justify nearly any deviation from what would be binding international law were the law strictly applied.

The newest edition of the Law of War Program removes any ambiguity stating, "Members of the DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations." (8) Thus, this source of angst for judge advocates has been removed.

Yet even if judge advocates no longer struggle to determine the principles and spirit of the law of war, an honest reading of the Program may still raise eyebrows: What exactly is the law of war, and how is it applied? (9) According to DODD 2311.01E, the law of war is

   [t]hat part of international law that regulates the conduct of armed
   hostilities. It is often called the "law of armed conflict." The law
   of war encompasses all international law for the conduct of
   hostilities binding on the United States or its individual citizens,
   including treaties and international agreements to which the United
   States is a party, and applicable customary international law. (10)

Before attempting to define the parameters of the law of war for the purposes of DODD 2311.01E, one must first explore the classic organization of the law of war, which can be categorized in two different ways. First, the law of war consists of both the jus ad bellum, which regulates decisions to wage war, and the jus in bello, which regulates the conduct of war. (11) Further, both the jus ad bellum and the jus in bello include customary international law and codified, or conventional, law. The distinction between customary international law and conventional law, however, is not always clear. Treaties may be written to codify existing practice; also, treaty provisions may themselves over time become customary international law. The Law of War Program's applicability to jus ad bellum is of much less importance to judge advocates, as decisions to wage war or deploy forces are reserved to civilian policy makers. It is instead the jus in bello that forms the mainstay of military legal practice.

In an attempt to explore the meaning of "the law of war," this note will consider both conventional and customary law. To simplify the analysis, this note will explore their ramifications separately, first addressing the application of conventional law, and only then considering the implications of customary law. In the modern era, the jus in bello is embodied in multiple sources of conventional law. Nearly all nations are party to the four Geneva Conventions of 1949, (12) which were enhanced by Additional Protocols I and II in 1977 (13) and Additional Protocol III in 2005. (14) Referred to as the Geneva Tradition, these and prior treaties (15) have provided protections for the victims of war. The so-called Hague Tradition, (16) on the other hand, regulates the means and methods of warfare. (17) What all these treaties have in common, however, is a trigger for application of the substance of the treaties, a trigger that invariably is some version of the term "armed conflict." For example, article 2 common to the four Geneva Conventions (Common Article 2) triggers the substantive application of each of these treaties during international armed conflict; and article 3 common to the four Geneva Conventions (Common Article 3) operates as a "mini-convention," (18) containing both a trigger and substantive rules for applicable during internal armed conflict. Protocols I and II contain their own triggers, which are the same, with some amplification, as the triggers contained in Common Articles 2 and 3. (19) Protocol I addresses the law of war during international armed conflict, while Protocol II increases the protections applicable during internal armed conflict. Other law of war treaties contain similar triggers for application. (20)