Failing Our Troops: A Critical Assessment of the Department of Defense Law of War Manual

In June 2015, the Department of Defense (DoD) General Counsel issued a 1,200-page volume, styled The Department of Defense Law of War Manual, endeavoring to provide U.S. military forces their first unified guidance on the law governing armed conflict. Critical reaction to date has largely focused on a handful of substantive issues with the Manual, such as its treatment of journalists and of the principle of proportionality. DoD subsequently released two modest updates in response. This Article takes a broader view, evaluating the Manual's overall suitability as a primary reference for U.S. military personnel before concluding that it fails to meet this need due to its significant shortcomings in both substantive content and form. The Manual's uncertain hierarchical standing within DoD and lack of interagency concurrence, for example, leave readers unsure of its credibility. Methodologically, its treatment of international law uses problematic sources, misunderstands customary international law (CIL) formation and legal concepts such as "persistent objector," and overstates the power of lex specialist to override the application of human rights law in conflict situations. Substantively, its approach to the principle of distinction effectively guts the law of its restraining value as to what can be attacked; its resurrection, meanwhile, of "honor"--even as the United States employs drones, flown remotely by invulnerable operators--hands media-savvy adversaries a public relations bonanza exploitable to U.S. detriment. And its claim of a U.S. right to use expanding bullets--despite universal recognition of doing so as a war crime--places U.S. personnel who might employ them at significant risk of prosecution. Shortcomings in content, form, and style, including its failure to identify authoritatively the full scope of recognized war crimes or the provisions of the 1977 Additional Geneva Protocols that bind U.S. forces, coupled with its excessive length, fragmented discussions of key issues, and lack of meaningful indexing further undermine the Manual's functional utility as a resource for U.S. warriors. The Article concludes that collectively, these deficiencies are so significant that the Manual should be withdrawn from distribution until DoD can complete a comprehensive rewrite.