Editing responsibilities were assumed by a young DOD attorney lacking military or law of war training or experience.
By way of example of State Department comments: The manual contains a chapter providing an explanation of each of the basic law of war principles. Even though they previously agreed to them, State Department lawyers complained that there was an unduly lengthy discussion of
military necessity while not providing sufficient discussion of and emphasis on
proportionality.
The law of war principle of
military necessity was contained in U.S. Army General Orders No. 100 written by Francis Lieber (e.g., articles 14-16). Because it often is misunderstood, a long explanation was necessary. In contrast,
proportionality was not a part of any law of war treaty until 1977, at which time it was adopted on the condition that the term
proportionality itself not be used in the treaty text because a vast number of nations – including the former Soviet Bloc, Middle Eastern (other than Israel) and African nations – declined to accept that the principle existed.
Ironically, the manual’s discussion of
military necessity was carefully researched and drafted by the late Edward Cummings who until his untimely death in 2006 was the State Department’s most senior and experienced law of war expert. The text had been endorsed by State Department lawyers as well as the international peer review.
Without consultation with the DOD Law of War Working Group, the new DOD editor deleted the discussion of
military necessity from the main body of the manual, copying it and inserting it as a footnote, apparently to “reduce its emphasis”; and placed the paragraphs on
proportionality ahead of the discussion of the principle of
distinction until it was brought to his attention that but for the centuries-old pedigree of the principle of
distinction there would be no principle of
proportionality.
By way of another example, State Department lawyers, wanted the term “belligerent” to be substituted for “combatant”.
As adopted and used by nations for more than a century,
combatant is the accepted law of war term. It was adopted in the Annex to the 1899 Hague Declaration II (ratified by the United States in 1902) and its successor, the 1907 Hague Declaration IV (ratified by the United States in 1909), and Articles 43(2) and 44 of the 1977 Protocol I Additional to the 1949 Geneva Conventions (signed by the United States in 1977 but not ratified due to objections not relating to use of the term
combatant). In contrast, the term
belligerent is not used in any law of war treaty insofar as reference to individuals is concerned.
Bookmarks