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American Forces Press Service

DoD, State Department Criticize Red Cross Law of War Study

By Jim Garamone
American Forces Press Service

WASHINGTON, March 8, 2007 – The top lawyers in the State Department and DoD have sent a letter to the International Committee of the Red Cross criticizing the methodology authors used in compiling a study that purports to be a definitive explanation of the laws of war.

The letter, signed by John B. Bellinger III, the legal adviser for the State Department, and William J. Haynes II, DoD’s general counsel, says the books, titled “Customary International Humanitarian Law,” – while noble – are flawed in execution.

Jean-Marie Henckaerts and Eric Mongelard, members of the ICRC’s legal division, authored the study. Their 10-year effort produced three volumes, which together are about a foot thick.

“We recognize that a significant number of the rules set forth in the study are applicable in international armed conflict because they have achieved universal status,” Bellinger and Haynes wrote in their letter. “Nonetheless, it is important to make clear -- both to you and to the greater international community -- that, based upon our review thus far, we are concerned about the methodology used to ascertain rules and about whether the authors have proffered sufficient facts and evidence to support those rules.”

The study is an ICRC attempt to define “customary international humanitarian law.” Even this term is somewhat contentious, officials said. In the letter to the ICRC, the U.S. officials state that the preferred term for this body of law is “the law of war” or “the law of armed conflict.”

The ICRC tried to pull together the practices of all nations with respect to the law of war and compile rules that the ICRC concludes reflect customary international law binding on nations, said Charles A. Allen, DoD’s deputy general counsel for international affairs.

“In doing so, however, they approached it in a way that was problematic, and we think, in terms of process and approach, they did some things wrong, as explained by Mr. Haynes and Mr. Bellinger, that call into question the validity of many of the rules articulated,” Allen said.

The United States is the first country to comment officially on the ICRC work, and many countries have looked to the United States for its take on the study, DoD officials said. “We have always had a leadership role in respecting and implementing the law of war,” said W. Hays Parks, DoD’s premier expert on the law of war and the chairman of the DoD Law of War Working Group.

The main problem with the study is what appears to be a lack of rigor and discrimination in assessing information that was gathered, Parks said. He likened the methods the authors used to performing an Internet search and then not assessing the results for applicability or accuracy. The authors took information from many sources without judging whether it accurately mirrored that state’s practice. For example, Parks said, one source the authors cited was a study prepared by an Air Force judge advocate for a class he was teaching. That study certainly was not official U.S. government policy, he said.

The study also fails to take into consideration what a country does, rather than what its officials say the country does. How military forces operate on the ground and how they put the law of war in practice are certainly more important than a “pie in the sky” government statement that does not reflect actual practices, Allen said.

The authors also seemed to give equal weight to statements of all countries. The statements by a country that hasn’t been in a war in a century is given the same weight as those of countries that have participated in armed conflicts through the 20th century, Parks said. U.S. officials believe the authors should have given the positions of countries with experience in the law of war on the field of battle more weight than those whose armed forces haven’t been involved in armed conflict, he said.

The U.S. letter detailed only four of the 161 rules the study published. “But there are problems with many others,” Parks said, “and we anticipate further work to identify the more serious additional shortcomings of the study.”

Although U.S. officials have issues with the report’s methodology and conclusions, they applaud the commission’s effort. “The law of war is extremely important and deserves our utmost attention in clarifying it and to ensure all of our forces understand their responsibilities for complying with it,” Allen said. “The United States scrupulously adheres to the law of war, and DoD policies are clear that the law of war is to be adhered to in all DoD operations.”

It is in part because of the importance of the law of war that the United States sees the need to bring to light the significant concerns the officials have with this study, he added.

“We work constantly with the ICRC in this and many other areas,” Allen said. “We look forward to continuing that work in the future.”

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