British Brigadier Darren Stewart, Head of Operational Law at British Army Headquarters, visited the U.K. Legal Advisers supporting 2nd Brigade Combat Team, 1st Cavalry Division, during Combined Resolve XIII at the Joint Multinational Readiness Center at Hohenfels, Germany in January 2020. Also pictured: COL J.J. Merriam & LTC Justin Marchesi, U.S. Army judge advocates. (Credit: SGT Fiona Berndt)
Court is Assembled
Foundations of Multinational Legal Interoperability
By Lieutenant Colonel Justin M. Marchesi
In a world of constant competition and rapid change,
the United States stands with its allies and partners across the globe
on defense matters of all varieties. This steadfast commitment to our
shared security and prosperity provides a critical strategic advantage
over the oppressive authoritarian regimes of our most problematic
strategic competitors.1For our armies, it requires that we hone and maintain our ability to act together coherently, effectively, and efficiently to achieve a myriad of tactical, operational, and strategic objectives.2
While multinational interoperability is most visibly pursued through equipment compatibility and standardization programs, essential human and procedural dimensions exist alongside these other more tangible efforts.3 By striving to achieve mutual understanding and respect for our national cultures, histories, and traditions, we enable the fundamentals that allow unity of effort and operational success in a coalition environment. To these ends, the Judge Advocate General’s (JAG) Corps is uniquely suited to proactively develop our capacity for legal interoperability with our allies and partners by leveraging the appreciation for the rule of law and the rules-based international order that is deeply engrained in our national identities.
As a practical application of our mastery of the law,4 we must be able to successfully support the integration of allied and partner capabilities into a single, lawfully-conducted, unified operation across each and every warfighting function. While we are more alike than we are different, important nuances in our legal, policy, and cultural frameworks impact the operational capabilities and limitations of each nation’s forces in a coalition environment. These include issues such as subtle, but important, differences in our concepts of self-defense and the law of armed conflict; the intricacies of regional human rights regimes that might impact detention, intelligence, and civilian risk mitigation strategies; variances in substantive and procedural due process requirements for criminal and administrative investigations; and the inherent constitutional constraints imposed by fiscal law that can counterintuitively limit U.S. operations in ways that differ significantly from the more permissive rules that apply to most of our allies and partners.
While complex, our differences are not insurmountable. Year after year, the JAG Corps consistently refines the robust strategic engagement programs already in place with many of our closest allies and partners in an effort to foster mutual understanding. These efforts include long-term military personnel exchange program positions;5 short-term training and exercise integration opportunities;6 information and lesson sharing arrangements;7 and many other formal and informal engagement events.
Significant organizational effort is committed to each of these institutional lines of effort, but success of the legal interoperability program writ large also depends on a cultural commitment within the JAG Corps itself. In line with the guiding principles of the JAG Corps Constants,8 individual Judge Advocate Legal Services members have a responsibility to master the legal aspects of their practice areas and to consider the broader application of that law on future operations the Army might be called upon to conduct. Through institutional education, organizational training, and a personal commitment to lifelong learning, we must grow our understanding of each practice area into cross-disciplinary mastery that can be further informed through simple comparison with the laws, policies, and practices of our allies and partners.
This is a progressive process that should take place over the course of an entire career as we tap the reservoir of our intellectual curiosity to develop an understanding of how our laws, policies, and cultural identities might mesh with those of our international allies and partners. In most cases, this will not begin with deep, formalized, and time consuming comparative study. Rather, in the course of our normal duties, we should strive to simply take a few moments to consider how other countries might approach the same challenges we grapple with every day. Leaders and mentors play an important role in stoking the fire underlying our innate thirst for knowledge, and they help create an unremitting cycle of actively sought-out experience and guided self-development across the Judge Advocate Legal Services community.
Taken in the aggregate, these legal interoperability efforts enable the delivery of holistic legal advice to the combined force that creates an invaluable degree of certainty to commanders: reasonable expectations, verified operational facts and assumptions, and reliable behavior by every element of the collation. This naturally reduces the friction of ill-founded legal and cultural assumptions and makes clear the true operational potential of the whole force. By deliberately creating a base of understanding and shared multinational experience amongst the legal leaders of tomorrow, we will be ready and able to provide world-class legal support to multinational efforts and to ensure conditions are set for success in what will undoubtedly be the coalition environment of battlefield-next. TAL
LTC Justin Marchesi is the Solf-Warren Professor and Chair of the National Security Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Notes
1. See, e.g., U.S. Dep’t of Navy et al., Advantage at Sea: Prevailing with Integrated
All-Domain Naval Power
(2020); U.S.
Dep’t of Def., Summary of the 2018 National Defense Strategy of
the United States of America (2018).
2. See U.S. Dep’t of Army, Reg. 34-1, Interoperability para. 1-6.a (9 Apr. 2020) [hereinafter
AR 34-1]; NATO, AAP-06, NATO Glossary of Terms and Definitions (English and
French)
(2013).
3. AR 34-1, supra note 2, para. 1-8.c.
4. The Judge Advoc. Gen.’s Corps, U.S. Dep’t of Army, Four Constants (2021), https://www.jagcnet.army.mil/Sites/jagc.nsf/0/46DCA0CA1EE75266852586C5004A681F/$File/US%20Army%20JAG%20Corps%20Four%20Constants%20Smart%20Card.pdf [hereinafter Four Constants].
5. At present, four formal Military Personnel Exchange Program positions have been established under Army Regulation 614-10 for majors and lieutenant colonels in the United Kingdom, Australia, and Poland, with future expansion to other allied and partner countries under consideration. See U.S. Dep’t of Army, Reg. 614-10, Army Military Personnel Exchange Program with Military Services of Other Nations (14 July 2011).
6. Coordinated primarily through the geographic Army Service Component Commands, these efforts span the range of exercise opportunities during Combat Training Center rotations, major allied and partner nation exercises, and various local training events.
7. These were coordinated and executed through the Unified Combatant Commands, Army Service Component Commands, and the Center for Legal and Military Operations.
8. The Four Constants are Mastery of the Law, Principled Counsel, Servant Leadership, and Stewardship. Four Constants, supra note 4.