Changes to the Department of Defense Law of War Program
Army Lawyer, The › Nbr. 8/2006, August 2006
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Summary
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 fight 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.
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Extract
Changes to the Department of Defense Law of War Program
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 attempt...See the full content of this document
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