A U.S. soldier assigned to the 1st Battalion, 503rd Infantry Regiment, 173rd Airborne Brigade Combat team exits a Russian Air Force helicopter during a multinational ground force training exercise (Credit: SPC Shardesia Washington).
No. 3
Ops and Interoperability
Back-to-back symposiums examined emerging legal issues in LOAC
By Strategic Initiatives Staff
From 28–30 May 2018, LTG Charles N. Pede, The Judge Advocate General (TJAG), U.S. Army, hosted nearly fifty multinational senior military lawyers at the 4th Major General John L. Fugh Symposium on Law and Military Operations (Fugh Symposium) and the Multinational Judge Advocate General Interoperability Symposium (MJIS). The biennial symposia convened at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. The events invited the most senior military legal officials and law of war experts from around the world to exchange views on current and emerging legal issues in the Law of Armed Conflict (LOAC).
AFRICOM, CENTCOM, EUCOM, NORTHCOM, PACOM, and SOUTHCOM all sponsored international military lawyers from their areas of operations to attend the symposia. The event was truly multinational as attendees included military legal experts from Argentina, Australia, Brunei, Brazil, Canada, Colombia, France, Honduras, Iraq, Kuwait, Lebanon, Mexico, the Netherlands, New Zealand, Poland, Qatar, Romania, Singapore, Sri Lanka, Taiwan, the United Arab Emirates, the United Kingdom, Uganda, Ghana, Malawi, South Africa, Cameroon, Nigeria, and NATO. The first day of the symposia was in honor of Major General John L. Fugh, and featured four academic panel discussions focused around the potential legal issues of future conflict. The second day was dedicated to the MJIS, where a series of roundtable discussions focused on legal interoperability issues in targeting in an urban environment, mitigation of civilian casualties, and the protection of soldiers under domestic criminal law. Historically, interoperability is not a new concept. During World War I, the Central Powers (Germany, Austria-Hungry, Bulgaria, and the Ottoman Empire) fought against the Allied Powers (Great Britain, France, Italy, Romania, U.S., Russia, and Japan). In the First Battle of the Marne fought in 1914, French and British forces checked the German advance and mounted a successful counterattack, driving the Germans back to north of the Aisne River. The defeat meant the end of German plans for a quick victory in France.
The 1917 Battle of Caporetto was a resounding victory for the Central Powers during World War I. After more than two years of indecisive fighting along the Isonzo River, the Austro-Hungarian command devoted more resources to strengthening the Italian front. Using new infiltration tactics and heavy artillery, the 14th Army overwhelmed its enemy for nearly two weeks, until the Italian line finally held up near the Piave River with help from the French, British, and later, American troops. Effective interoperability among the Allied forces would lead to the unraveling of the Central Powers and signing of the Treaty of Versailles.
Polish army Rak 120mm Self-Propelled Mortar Systems with 15th Mechanized Brigade fire for effect during a joint training exercise in Poland earlier this year with the U.S. and nineteen other countries. (U.S. Army photo by SPC Hubert D. Delany III)
Multinational coalitions are still common in modern military operations and play a central role in security strategies. The benefits of operating as a coalition are both practical in terms of the mass capabilities of the forces brought together to achieve mission success and political with respect to increasing the level of legitimacy recognized through collective action. However, managing differences between multinational partners brings additional complexity to any operation, thereby potentially causing adverse effects to the effectiveness of operating as a coalition. Thus, for a coalition to operate successfully, the key is interoperability. Both the Fugh Symposium and the MJIS served to continue solidifying the foundation for future collaborative work between militaries, ultimately in-creasing interoperability.
The inaugural Fugh Symposium occurred in 2011, followed by the second in 2014 and the third in 2016. In 2016, the JAG Corps sponsored the MJIS in conjunction with the Fugh Symposium. The positive response received from that inaugural pairing of symposia prompted the continuation of the tandem event this year.
The Fugh Symposium commemorates the late Major General John L. Fugh, the first Chinese-American General Officer in the United States Army, and TJAG from 1991 to 1993. The Fugh Symposium provides a forum for exploration and discussion of contemporary legal topics directly affecting the conduct of military operations and is geared for participation by a mixed audience of military, civilian, and academic legal community members.
This year’s symposium explored legal issues associated with the nature of future conflict. Specifically, the Fugh Symposium presented four panels of subject matter experts from around the U.S. to help facilitate candid and thought-provoking discussions. The symposium began with a panel on the nature of future conflict. This discussion helped establish a foundation for the rest of the day by exploring what future conflicts might look like. The panel addressed how LOAC may apply to new technologies, how the law can inform development policy and Rules of Engagement on the modern battlefield, and how the United States and its European allies have differed in their view of how conflicts are categorized (e.g., International Armed Conflict vs. Non-International Armed Conflict (NIAC)) in the fight against terrorist groups. The second panel addressed how existing laws apply to NIACs. The panelists led an engaging discussion on the importance of conflict classification and understanding these classifications as applied to the modern operational environment.
During the afternoon session, a panel convened on the weapons systems of future conflicts and the attempt to apply existing law to future weapons. Specific talking points included whether cur-rent laws of war set a minimal necessary degree of human involvement in war and new weapon systems, the Department of Defense Manual’s treatment of direct participation in hostilities and membership in armed groups, and the challenges for lethal autonomous systems (and their programmers) in complying with proportionality. Finally, the day ended with a panel on weaponizing cyber capabilities. The panel led the audience in discussion on the application of LOAC in cyberspace, what constitutes an act of war in cyberspace, the challenges of attribution in cyberspace, and finally, on whether existing international law principles, including the LOAC, are sufficient to address cyber operations.
On 30 May 2018, the MJIS brought together senior ranking multinational military lawyers to discuss the persistent legal issues involved with operating as part of a coalition during multinational operations, especially high intensity conflict. This year’s focus was on coalition interoperability in preparation for high intensity peer and near-peer conflicts. This event allowed for continued strategic dialogue that U.S. Army judge advocates began this past year with key allies on a variety of engagements around the world.
The MJIS emphasized the importance of close collaboration among military lawyers as a critical factor for coalitions to succeed and the raison d’être for establishing the MJIS forum. The MJIS forum by design allowed for a thorough discussion of lessons learned from recent multinational combat operations.
Following opening remarks by TJAG, COL Warren Wells—former Staff Judge Advocate, Combined Joint Forces Land Component Command, Operation Inherent Resolve—presented a brief on Operation EAGLE STRIKE, a nine-month campaign to liberate Mosul, Iraq’s second largest city, from the Islamic State, which involved some of the most intense urban warfare U.S. forces have seen since World War II. The result was a legally intensive operation that relied heavily on advice from judge advocates at all levels of command for ultimate success. The Islamic State in Iraq and Syria (ISIS) forces prepared extensive defensive positions in anticipation of the operation, including interconnected fighting positions, fortified buildings, obstacles, and underground shelters. These preparations alone would have made for a difficult campaign; however, ISIS also routinely used the civilian population against coalition forces both defensively as involuntary human shields and offensively as a means to create civilian casualty (CIVCAS) allegations. The result was a legally intensive operation that relied heavily on advice from military lawyers at all levels of command.
The first roundtable discussion, Targeting during Urban Operations, highlighted the expanded focus from counterinsurgency to a high-end, decisive action fight against a near peer adversary. This discussion provided a backdrop on the importance of the LOAC principles in the targeting process and interoperability during high-end, decisive action within an urban environment. The viewpoints of the multinational military lawyers on operating in such an operating environment proved critical to generating a greater understanding of how to conduct coalition operations more effectively, while respecting the applicable laws from coalition participants.
As the nature of warfare evolves and coalition partners continue to conduct operations in heavily populated environments, the risk of collateral damage persists. The second roundtable discussion addressed CIVCAS and highlighted the continued efforts by coalition forces to employ all feasible measures to avoid and minimize collateral damage.
The MJIS concluded with a roundtable discussion focused on the debate over legal treatment of certain actions by commanders and service members in the course of NIAC, with the requirements of international humanitarian law (IHL). Some nations have revised their criminal codes in order to ensure service members acting in a NIAC have either immunity or at least a defense in law for acts committed while conducting international security operations. These revisions protect service members from domestic criminal liability when acting in compliance with the requirements of IHL.
Overall, the MJIS succeeded in advancing the interoperability discussion by facilitating frank dialogue focusing on the ways multinational coalitions can best manage the threats associated with urban operations, specifically targeting in an urban environment, mitigating CIVCAS, and command responsibility as they relate to service member immunity from domestic criminal liability when acting in compliance with IHL.
These symposia were much more than academic exchanges. The events facilitated deep thinking at both the strategic and operational levels about difficult problems, and proved to be an ideal forum to engage with senior military legal advisors from around the world. We look forward to continuing the dialog with our military counterparts from across the Globe, and know that the event in 2020 will be as interesting and informative as the last. TAL