For the first time since 1976, the United States military will publish a law of war manual, one that will embrace and enunciate controversial and new issues such as cyber war and the rights of that wonderful new legal class known as "armed non-state actors." Of course, most of us just call them terrorists.
This will be the first truly joint law of war manual for the U.S. military and is designed for the age of privates, sergeants and captains calling in and executing artillery, naval and air strikes. "This decision was taken for a variety of reasons, not the least of which was emphasis on joint operations resulting from the 1986 Goldwater-Nichols Act," Hays Parks, the Pentagon's top international lawyer for many years, told a gathering of the American Bar Association's national security division. Parks, now retired, discussed the manual he has led the effort to produce for some 14 years through two wars, a host of counterinsurgencies and whatever we end up calling those nasty fights that tore the Balkans apart.
The chapter of cyber war includes information operations and is only 17 pages long. Parks said one of the reason's for its brevity is the fact that any discussion of cyber warfare veers rapidly into classified areas. In a quick chat after his presentation, Parks said the chapter does not address the fundamental policy question of what constitutes an act of cyber war. The chapter was authored by Gary Sharp, senior associate deputy general counsel for intelligence.
One of the major issues dealt with is just what weapons are legal. The last military manual to deal with this issue contained one page of discussion. The forthcoming manual includes 96 single-space pages, Parks said. Among the issues discussed during the work on the manual is whether fragmenting bullets are legal. Parks said he had had extensive discussions with Belgian and German experts about this during which he noted that modern high-velocity bullets can fragment although they are not designed to do so, Parks said.
Another area of law that gets substantial treatment is that governing wars such as counterinsurgencies -- legally speaking "non-international armed conflict." "inasmuch as the United States military has fought three conventional armed conflicts for a cumulative time of less than four years since the end of World War II. In the same time," Parks said, "it has engaged in counterinsurgency operations in three major armed conflicts lasting a cumulative 23 years."
The new manual is not intended for Pentagon lawyers, Parks made clear. In editing it, the former Marine applied a basic test -- could any Marine read it and understand it. "We also tried to use as many monosyllables as we could," he said.
The 1,100- page manual is basically ready to go. The chapters will be given to the law of war working group by the end of November. They have one month to comb it for any problems and to get approval for any needed changes. Then it goes to the Pentagon's general counsel, Jeb Johnson, who will check it and pass it up to Defense Secretary Robert Gates for final approval.