What is the main objective of this chapter?
The idea behind this text is to present and discuss how the position of the United States (US) – reflected in its Department of Defense Law of War Manual – is not the only position one can take on the law; it stresses the importance of taking into consideration the perspectives of the wider international community. I wanted to point out that the people and states with whom they are working through military operations have different views on many of the issues that are addressed in the Manual.
Hence, even if the US considers that its view is correct, if it wants to form a coalition or a joint operation with another State and that State is operating with a completely different perspective on the same or a similar rule, then the US needs to know what other people think about that rule. Thus, whether or not one State or another State’s own interpretation of a particular set of rules is correct, there are many people who think differently, and it is important to understand those views if you want to work with them.
For instance, some of the big issues that are addressed include whether States are obliged to respect human rights abroad, the so-called extraterritorial application of human rights law. In this regard, the US has declared that they do not consider they are obliged to respect human rights treaties when acting abroad, but many other States they are working with would be looking to ensure that their actions abroad are in conformity with human rights law. Accordingly, the US needs to understand those other positions if they intend to have a joint operation, or in the jargon “interoperability”.
In this chapter, you also refer to the US persistent opposition to the assertion of jurisdiction by both other States’ domestic courts and the International Criminal Court (ICC) over US nationals and US personnel for war crimes. You also remark on the feasibility of the prospect of investigations, indictments or arrest warrants with regard to actions carried out in Afghanistan as well as on the territory of other State Parties to the Rome Statute. Is this prospect affected by the decision of the ICC Pre-Trial Chamber last April to reject the request of the Prosecutor to investigate alleged crimes against humanity and war crimes in Afghanistan?
Part of my argument is that even if the US considers that it would be illegal for the ICC to prosecute its personnel, in a military manual it would be misleading to discard this prospect as, actually, this could happen.
Although it is true that the most recent decision of the ICC Pre-Trial Chamber has said that the Prosecutor cannot go forward, we should keep in mind that, first, this decision is possibly subject to appeal and might therefore be revised and overturned; second, the way the Manual is written could lead to the impression that not only US nationals cannot be prosecuted before the ICC, but also that they cannot be prosecuted in other countries based on the argument that the US does not agree with the principle of universal jurisdiction. But the fact that the US does not agree with the assertion of jurisdiction does not mean that if one of its nationals is captured in another State, she or he will not be prosecuted.
Though the US is very powerful and there could be a significant political cost for a State to carry out such prosecutions, it would be misleading in a military manual to include wording that could be interpreted as suggesting to soldiers that, even if they commit war crimes, they cannot be prosecuted, either in the ICC or abroad. On the contrary, a military manual should be explaining to the members of its armed forces that they should not commit war crimes.
If we compare the Union Army disciplinary code “General Orders 100 Instructions for the Government of the Armies of the United States in the Field” of 1863 – known as the Lieber Code – and the Law of War Manual, would you see a form of continuity in the US approach regarding what it considers to be acceptable?
It seems that the US perspective on the law of war has not changed as much as one might presume, and this is one of the critiques of the chapter. For example, the Manual seems to assume that if you are in a war-like situation you can detain people based solely on that ground. Whereas for other States, in particular those States which are bound by the European human rights treaties, in a non-international armed conflict you need to have some authority to detain based on law, not just based on war.
Part of my critique is that it seems that the US is still thinking about its civil war and the permissions described in the Lieber Code, whereas other States have transcended that mentality and have realised that it is necessary to have a legal basis to detain, and that does not come from the mere fact that there is a civil war.
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Full citation of the chapter:
Clapham, Andrew. “Detention and Prosecution as Described in the DoD Manual.” In The United States Department of Defense Law of War Manual: Commentary and Critique, ed. Michael A. Newton, 282–97. Cambridge: Cambridge University Press, 2018. doi:10.1017/9781108659727.013.
The chapter is freely available to members of the Graduate Institute by clicking here.
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On the quest for asserting the extent of human rights obligations and accountability
- read also “Human Rights Obligations for Non-State Actors: Where Are We Now?”, Professor Clapham’s contribution to a Festschrift in honor of Louise Arbour, freely available to members of the Graduate Institute by clicking here.
- and come to this evening with Louise Arbour:
