2018年-查塔姆研究所_The_US_and_the_Laws_of_War_22页_218kb

Meeting Summary: The US and the Laws of War

Core Content

This meeting summary, presented by Hays Parks, a former Senior Associate Deputy General Counsel at the US Department of Defense, discusses the development and rationale behind the new US Law of War Manual. The presentation is part of a broader discussion organized by Chatham House on the US approach to international humanitarian law (IHL), with a focus on the forthcoming manual and its historical context.

Main Points

• Purpose of the Law of War Manual:
  The US has developed law of war manuals to provide guidance and consistency in the interpretation and application of IHL, rather than relying solely on treaty texts. These manuals serve to elaborate on legal provisions, clarify ambiguities, and provide historical and practical context to ensure that military personnel and legal advisors understand the law in a comprehensive manner.

• Historical Context:
  The first US law of war manual, Rules of Land Warfare, was published in 1914 and incorporated treaty texts. The 1956 manual, FM 27-10, was the first to be based on the 1949 Geneva Conventions, but it omitted explanations and historical context, leading to a narrow and treaty-focused interpretation. This approach was criticized for making IHL seem to rely solely on treaties, without consideration of state practice or historical precedents.

• Influence of Other Manuals:
  The 1914 US manual and the 1958 British manual, Manual of the Law of Armed Conflict, served as models for the new DoD manual. The British manual included explanations, footnotes, and references to state practice, while the US manual was more concise and focused on treaty provisions.

• Role of State Practice and Historical Analysis:
  Hays Parks emphasized the importance of historical practice in understanding IHL. He argued that relying solely on treaty texts can be misleading and that historical examples and battlefield practices are essential for a complete and accurate interpretation. For instance, the German manual from 1992, which included incorrect statements about certain bullets, highlighted the risks of using manual language without proper research and coordination.

• Challenges and Criticisms:
  The 1956 US manual was criticized for its lack of historical context and for being overly reliant on treaty texts. This led to a flawed perception of IHL as being solely based on treaties, rather than a combination of treaties, customs, and state practice. The new manual aims to correct this by incorporating historical analysis and state practice into its content.

• International Negotiations and Protocols:
  The development of the new manual was influenced by the evolution of IHL through various international treaties and protocols, including the 1977 Additional Protocols, the 1980 Convention on Certain Conventional Weapons, and the 2005 Additional Protocol III. These developments necessitated a more comprehensive and historically informed manual.

• Key Examples and Case Studies:

  • The My Lai massacre and Abu Ghraib detainee abuse were identified as failures of individuals, not of the law itself.
  • The use of white flags in warfare was clarified through historical examples, showing that their improper use can constitute perfidy.
  • The legality of medical aircraft was reinforced by historical state practice, such as the British actions in 1940 and the Falklands War, which demonstrated that the use of white markings for medical purposes was not routine or customary.
  • The practice of transferring prisoners of war to safer locations was supported by historical examples from the Boer War and World War II, illustrating the legality of such actions under IHL.

• Process and Timeline:
  The new DoD manual took 14 years to develop, with only about 15% of the time dedicated to its creation. This was due to the participants' regular duties and the operational demands of military conflicts. The manual was shaped by a review of earlier manuals and historical research, reflecting a commitment to a more nuanced and accurate understanding of IHL.

Key Information

• The new DoD Law of War Manual is intended to provide a more comprehensive and historically grounded interpretation of IHL, moving away from the overly treaty-focused approach of the 1956 manual.
• It incorporates historical examples and state practice to illustrate and reinforce treaty obligations, rather than contradicting them.
• The manual does not replace the Commander's Handbook on the Law of Naval Operations but requires that all future discussions of IHL in subordinate publications be consistent with its content.
• The 1977 Additional Protocols I and II, as well as other treaties and protocols, significantly influenced the content and structure of the new manual.
• The US has ratified several key treaties and protocols since 1956, including the 1997 Ottawa Convention and the 1998 Rome Statute, which necessitated a new, more detailed manual.

Conclusion

The new US Law of War Manual represents a significant shift in the approach to IHL, emphasizing historical context, state practice, and detailed explanations of treaty provisions. It aims to provide a more accurate and authoritative understanding of the law, ensuring that military personnel and legal advisors are better equipped to apply it in real-world scenarios.