I’ve been privileged the last couple of days to be in Austin at the annual symposium of the Texas International Law Journal, which this year is a consideration of the model “Air and Missile Warfare Manual.” The model manual is the product of an expert group midwifed by the Harvard Humanitarian Policy and Conflict Research Program, and headed up by the HPCR’s redoubtable director, Claude Bruderlein.
The process of putting the model manual together over the last eight years has involved a number of expert meetings, in which experts from states, universities, such organizations as the International Committee of the Red Cross, and others came together in their individual capacities to see if they could put together a model practice manual, aimed at the needs of officers and JAG in the field, reflecting the consensus views of the experts as to what the law of air and missile warfare is today. Claude Bruderlein gave a wonderful presentation at the conference this morning, describing in exceptionally candid detail what the process of getting a group of diverse experts in the laws of war to reach consensus on some air war basics.
Claude Bruderlein’s presentation stressed, however, that the model manual was not intended to be more than a statement in deliberately less-than-full lawyer mode in order to make it accessible and usable at the operational level. That seems to me a crucial way to see the model manual. I was on this same panel, in which the discussion was not merely about this manual, but instead reached out to ask what the function of military manuals should be, whether put out as training and operational documents by a particular military, or model manuals put out by experts.
I have long thought that a problem with military manuals and such deliberately non-technical documents is what they are intended to do on the “front end” as an operational or training document – and what the consequence turns out to be in the hands of lawyers afterwards using the document as “evidence” of what international law is, on the “back end.” For one thing, in general such operational documents, especially intended to instruct non-lawyers down the chain of command, stress easy to convey, bright line rules that can be followed by a 19 year old soldier or young officer.
But for that same reason, they deliberately do not state the full extent of legal scope that is available under the law. A manual in these circumstances might easily be cited to a court as evidence that the state actually understands the law to be narrower than it is or the state understands it to be. If one fears that one’s training or non technical operational manuals will be cited in this way on the back end by lawyers, then one either doesn’t issue such manuals at all or else issues manuals that have been so lawyered-up to be bullet-proof in litigation that they are not useful, or worse, in training or operational uses. Those are not good results.
The problem is particularly acute given the fact that so many of the rules in air warfare involve issues of proportionality – “to the extent feasible” or “as permitted by the circumstances” or other locutions that involve “relative” criteria. If one looks at, say, the Goldstone Report or Human Rights Watch’s reporting on air and missile warfare by Israel in Gaza, the pattern is to state a proportional-type rule – feasible precautions, for example – and then to impose a standard of negligence that is seemingly so stringent that the result is best described as “functional strict liability.” The statement of the rule follows the literal wording and its “proportional” nature, but in actual applications somehow appears to apply a standard so stringent as to be strict liability in actual fact. It is possible in principle, of course, that in each case the standard of negligence was not met, but not likely – it is more likely that a different rule is being followed, but not admitted.
What to do? Well, it was interesting to see that Claude emphasized that the model manual is intended to be used on the front end; the commentary to the manual emphasizes this as well. My own view is that this is right – we need such manuals, and we also need to have manuals that do not have to be drafted with an eye for how they might be bruited about as a lawyer afterwards in legal proceedings – not necessarily criminal proceedings but, for example, civil litigation through the Alien Tort Statute. Were I Claude (and of course I’m not speaking for him), I would be very worried to see the model manual being offered in one judicial or quasi-judicial setting (meaning anything related to post-hoc legal liability), because I would fear that this would cause recoil by those I wanted most to use the manual – on the front end, in training and operations.
So … at the end, I think the commentary’s statement that it is about the “front end” needs to be put less elegantly and more brutally. If I were drafting such a statement, I would put up front in all such manuals, model manuals or military manuals, in big letters:
“This manual is not intended for citation in legal proceeding of any kind, domestic or international. Any judge who does so should be reversed in a really embarrassing way by higher courts. Any lawyer who cites this as evidence of international law, including custom, should be sanctioned by the court and is a Very Bad Person.”
There were many other important discussions by very smart and knowledgeable people, and they included excellent discussions of “direct participation in hostilities,” targeted killing questions and UAVs under the model manual, and much else besides. One particularly interesting discussion was on the question of CIA participation in drone attacks. The discussants, coming from military backgrounds, tend to skepticism on the lawfulness of CIA participation – or if not skeptical as a matter of law, then skeptical as a matter of legal policy or legal best practices.
I myself have a less skeptical legal view – I don’t think the CIA is engaged in violations of the laws of war, to take the most basic issue, and the question of whether its agents are “privileged” in any particular instance depends on several things I won’t try to explore here. But I’m also sympathetic to the idea that in the interests of consensus among the agencies on best practices, the agency should take up changes, as I am sure it is. But I think the CIA does itself no good at all by not having lawyers from the agency’s legal counsel office able to go out publicly and articulate the agency’s legal views – it has them, and I’ve discussed them sometimes with people informally, but they don’t get aired in public. I’m sympathetic to what I understand to be its legal views, but don’t consider myself the ideal person to state them. This idea that what the CIA is doing in AfPak is still somehow undiscussable is silly. Call it the category of the “deniable” rather than the “covert,” if one likes, but even if it is not acknowledged, not because it is secret, but because in order to maintain a legal and diplomatic fiction with Pakistan, then the law behind the legal fiction should still be discussable at least as a hypothetical. It would have been a good thing to have an agency lawyer at this conference, but I have no sense that the CIA would ever do that. I think that in relation to its actions in Pakistan, it is pretending to itself that it still lives in a covert world rather than a merely deniable one, and that seems to me a mistake.
The agency has serious advice of serious counsel inside government on the legality of its uses of force in international and domestic law, and the president would not have tasked it to act under his orders without such advice as well. It would be a useful thing to articulate the rationales for that in public, and in public conversation with people who come to this from a JAG or DOD background. And it might well result in (further) changes in how the CIA obtains advice on targeting issues.
(It was a great conference, a pleasure to take part and a privilege to be invited. My thanks to the conference organizers.)