In 2021, prior to the current conflict in Ukraine, Armed Forces of Ukraine soldiers assault an OPFOR-controlled mock village during training at Rapid Trident 2021. Rapid Trident 2021 involved approximately 6,200 personnel from 12 nations at the International Peacekeeping Security Centre near Yavoriv, Ukraine. Rapid Trident is an annual, multinational exercise that supports joint combined interoperability among the partner militaries of Ukraine and the United States, as well as Partnership for Peace nations and NATO allies. (Credit: SSG David Carnahan)
Court is Assembled
LOAC 101 in New Operational Environments
By Colonel Kristy L. Radio, Lieutenant Colonel Michael E. Schauss, Lieutenant Colonel Matthew B. (Blake) Williams, & Walter J. (Joey) Sepulvado
Staff Judge Advocates Must Prepare
for New Operational Environments
The U.S. Army faces advanced operational environments (OEs) in 2030, and legal
advisors must adapt accordingly in order to
defend the legitimacy of American combat
power. Getting ready for these new OEs
is the special responsibility of staff judge
advocates (SJAs) who deliver advice to
force generating commanders and training
organizations. As in the counterinsurgency
(COIN) environment of the past, the law
will remain the foundation of legitimacy
for U.S. policy and action. However, SJAs
cannot simply apply the systems developed
in the past to these emerging OEs. The new
OEs are complex and raise strategic issues
of neutrality, standardization, resource
sharing, care of detainees, and treatment
of civilians, which brigade level validation exercises do not always cover. To reduce
friction, SJAs should systematically build legal compliance into the operational design.
SJAs advising commanders at the operational level of war1
must recognize and
close gaps in judge advocate (JA) training
and knowledge by renewing their focus on
national security law (NSL) and the Law
of Armed Conflict (LOAC). Those who
invest in developing NSL expertise today
will stand ready to advise tomorrow at the
pace of war and defend the legitimacy of
American combat power.
The Nature of the Change in OEs
Since the fall of Kabul in August 2021, the
United States has shifted its focus from
COIN operations to the threat of long-term
strategic competition and International
Armed Conflict (IAC) with Russia and China. On 24 February 2022, Russia launched
an invasion of Ukraine, starkly reminding
the world modern warfare is anything but
restrained and policy-inhibited, and that
LOAC must play a critical role. Russia’s
actions initially seemed to achieve a level
of complexity not seen since the opening
stages of Operation Iraqi Freedom, with
multiple lines of advance and the employment of air, sea, and land power. However,
it became clear that Russia was failing to
effectively integrate joint and combined
arms maneuver, sequence logistics, and
synchronize effects. The enduring conflict
in Ukraine and the subsequent allegations
of Russian war crimes2
provide a unique
and timely insight into the role that LOAC
will play in our Nation’s ability to fight and
win future conflicts. However, it is imperative that we remember an IAC in the Pacific
would be immeasurably more challenging
on all fronts. Conflict in Ukraine is largely
land based and fought primarily with
technology developed in the 20th Century. Conflict in the Pacific would be multi-domain and likely involve below the threshold actions using 21st Century weapons.3
Accordingly, the Department of Defense
is expending tremendous effort to increase
readiness and speed modernization to
meet—and counter—existing and emerging
near peer competition below the level of
armed conflict.
The COIN Legacy
The length and scale of recent U.S. COIN
operations drove the Army to build intricate rule sets and systems around the use of
force. Unlike large scale combat operations
(LSCOs), COIN operations minimize the
application of deadly force by managing the
tactical level of war. These COIN systems rely on pre-deployment training on
restraint, Collateral Damage Estimations
(CDEs) focused on the tactical level reviews
of individual, tactical level engagements by
JAs and commanders, generous intelligence
collections relative to target sets, detailed
battle damage assessments (BDAs), and
investigations into unintended deaths. In
LSCO the center of gravity is unlikely to be
the goodwill of a civilian population and
more likely to be an enemy force. LOAC,
under the rule of proportionality, recognizes and permits incidental harm to civilians
and damage to civilian objects, which may
be greater than policy during the recent
COIN centric conflicts has allowed. Mission
commanders must feel empowered to
engage in attacks that cause foreseeable
civilian harm that is not excessive in light of
the anticipated concrete and direct military advantage. They also must be ready to
make these decisions without the guardrails
of CDE built upon extensive intelligence
and freedom of action. There will be more
pressure on the legal staff to get it right
because reduced constraints will place the
commander closer to the legal line.
It’s Hard to Overprepare for LSCO
As military leaders across the operational Army seek to apply lessons learned in
Ukraine to the Pacific theater, their efforts
will touch on synchronization, protection of command and control nodes and
logistics, offensive cyber, the impact of
unmanned systems at scale, and managing
high volume open source intelligence. Furthermore, the rapid destruction of command posts in Ukraine indicates that COIN
battle management systems of the last two
decades may be unmanageable impediments
to the operational tempo of LSCO.4
This
has immediate implications for both commanders and SJAs.
Like commanders, JAs must assess the
likely OEs and legal implications. Gaps in
preparation may reduce compliance with
the law and undermine strategic legitimacy. As The Judge Advocate General noted,
these new and complex OEs require “…
getting back to basics…5
” of the LOAC.
In addition, legal advisors in multi-domain conflicts need technical expertise
to apply the law to emerging technology
and familiarity with other international
law and norms applicable in IAC. Staff
judge advocates must be ready to manage
the support of operational headquarters
through the thoughtful assignment of talent
to staff planning cells, functional groups,
and command posts. Commanders at the
operational level are free to modify staff
procedures and command post distribution
as needed to meet mission requirements.
In such dynamic circumstances, SJAs must
exercise their professional judgment to
maximize the effectiveness of their legal
teams. Managing talent requires staff coordination, accurately assessing the OE’s legal
complexity, and not only understanding the
talents but also limitations of your team.
Finally, providing principled counsel
in a dynamic OE requires knowledge of
authorities and permissions that extend
beyond the rules of engagement and enable
interoperability. Interoperability requires
thoughtful joint, inter-agency, and multinational coordination prior to operations.
Judge advocates and their teams should
ask themselves the following: How does
the staff communicate needs with the joint
force command and staff? Who are the
legal points of contact? What authorities
exist to share equipment, supply, and
intelligence with other nations? Where
are these agreements managed? What
host nation laws impact the use of force?
What special international law, such as
regional human rights law, applies to the
operations? What are the variances in legal
obligations amongst allies? What policies
will be implemented to close these gaps?
Identifying and Reducing Friction
at Every Level of Command.
As an Army Service Component Command (ASCC) sets a theater for potential
future LSCOs, its legal advisors must
engage the staff regarding treaty obligations in the region. For instance, ASCCs
normally have special responsibilities for
managing Acquisition and Cross Servicing
Agreements (ACSA) and should be prepared to incorporate subordinate units into
the ACSA execution processes. The ASCC
Office of the Staff Judge Advocate (OSJA)
sits in the best position to understand the
legal aspects of the theater OE. Covering
gaps for inbound commands, the ASCC
OSJA can ensure organizational tools like
the Regionally Aligned Force repository
contain updated international agreements
and DoD policies. The ASCC can also
manage the permission matrices which
directly impact Army force posture.
A corps may be responsible for acting
as a multinational land force headquarters.
Judge advocates may face issues regarding
prisoners of war, multinational medical
services, refugees, or munitions, amongst
others. Following legal judgments in the
European Court of Human Rights, many
nations retain a strong political aversion
to detention.6
A corps staff may have to
work out not only the difficult logistics of
mass detention operations but also the legal
and political issues of allied participation.
Russia’s failure to properly conduct detention operations energized Ukrainians and
solidified resistance to Russia throughout
the international community. 7
In addition, ceasefire failures and
safe corridor violations have devastated
Russian legitimacy and endangered civilian
lives. While agreements with the stateless
enemy in a COIN environment are nearly
impossible, they are foreseeable in an IAC
where the LOAC encourages, and may even
require such arrangements.8
However, even
our most experienced JAs may not have
examined the authorities to sign ceasefire
arrangements and establish humanitarian
corridors. Commanders will turn to their
legal advisors to resolve these complex issues in preparing for and executing LSCOs.
Finally, a corps staff will also need to
manage the U.S. distribution and use of
weapons that allies may have either banned or regulated through treaty obligations.
Here, the legal nature of the ban and the
policy of the nation are both critically important. For instance, the Ottawa Convention only bans anti-personnel landmines,9
and the treaty on cluster munitions allows
additional room for interoperability that
nations may choose to exercise.10 Learning
the nuances of each nation’s domestic policies and attitudes and applying the knowledge to realistic training is key to ensuring
smooth legal operational planning.
Staff judge advocates at the division
and corps level bear special responsibility for addressing the legal aspects of the
operational environment. The Army closes
gaps through education, training, and
planning. In addition to self-study, there
are numerous courses and formal training
sessions available to the field. Training
applies knowledge and identifies deficiencies in systems and individuals. Staff judge
advocates must heighten their investment
in validation exercises to identify friction
and gaps. Only after conducting checks on
learning and on the systems they intend to
employ will SJAs be able to plan for operations in the new OEs. With a combination
of education, training, and planning, OSJAs
will “be prepared to provide the legal support required to support Army formations
executing large-scale combat operations.”11
Regardless of the OE, coalition operations
bring a great deal of potential friction to
operational planning and its legal analysis.
Successfully navigating these issues through
legal mission analysis can reduce friction,
enhance the commander’s effectiveness, and
maintain U.S. legitimacy.
The Law Remains the
Foundation of Legitimacy
The LOAC will be more prominent in
future OEs, not less. Respect for the law is
the foundation of U.S. operational legitimacy. An SJA must be prepared to apply
the law in a complex, fast-paced OE outside
of COIN. Furthermore, they must prepare
their officers to do the same. The intricate system of legal compliance developed
during the era of COIN was designed to
serve a mix of legal, policy, public affairs,
and operational aims to fit that environment. The ready legal advisor must
understand the difference. In renovations,
a contractor who cannot identify a load
bearing wall will inevitably create disaster
trying to please their customer. Likewise,
JAs who fail to understand the complexities
of international law can adversely impact
the legitimacy and effectiveness of strategic
operations. Legal success at the operational
level of war requires more than professional
military education. Judge advocates should
seek out LSCO training environments for
their officers and pay special attention to
qualifications during assignments. Using
the quill to save lives is fundamental to the
mission of the JAG Corps, and a lack of
readiness can cost lives and risk operational
legitimacy. TAL
COL Radio is the chief of the National Security Law Division in the Office of the Judge Advocate General.
LTC Schauss is the deputy chief of the National Security Law Division in the Office of the Judge Advocate General.
LTC Williams is the chief of International Law in the National Security Law Division in the Office of the Judge Advocate General.
MAJ Sepulvado is an attorney in the National Security Law Division in the Office of the Judge Advocate General.
Notes
1. Joints Chiefs of Staff, Joint Pub. 1, Doctrine for the Armed Forces of the United States (12 July 2017).
2. See, e.g., Ukraine: Deadly Mariupol Theatre Strike ‘A Clear War Crime’ by Russian Forces , Amnesty Int’l (June 30, 2022), http://www.amnesty.org/en/latest/ news/2022/06/ukraine-deadly-mariupol-theatrestrike-a-clear-war-crime-by-russian-forces-new-investigation/.
3. See, e.g., Denny Roy, On Taiwan, China meets its ‘grayzone’ warfare match Asia Times (Aug. 10, 2022), https:// asiatimes.com/2022/08/on-taiwan-china-meets-itsgray-zone-warfare-match/ (explaining that “‘grayzone’ refers to hostile activities below the threshold that would normally trigger military retaliation from the targeted country.”). See also Bonny Lin et al., A New Framework for Understanding and Countering Cina’s Gray Zone Tactics Rand Corp. (Mar 30 2022), https:// www.rand.org/pubs/research_briefs/RBA594-1.html (discussing the breadth of Chinese gray-zone activities and possible U.S. countermeasures).
4. David Axe, The Ukrainians Keep Blowing Up Russian Command Posts and Killing Generals, Forbes (Apr. 23, 2022, 6:13 PM), https://www.forbes.com/sites/ davidaxe/2022/04/23/the-ukrainians-keep-blowing-up-russian-command-posts-and-killing-generals/?sh=7d7cb284a350.
5. Strategic Initiatives Off., Off. of The Judge Advoc. Gen., SIO Sends: JAG Corps Strategic Messaging (Apr. 2022) (The Judge Advocate General’s Communication Priority and Intent). “Following almost two decades of sustained counterinsurgency and combat, the now years-long COVID-19 pandemic, and a constantly changing operational environment, our Regiment must get back to the basics . . . ”
6. See generally, Jochen Katze & Maral Kashgar, Legal Challenges in Multinational Military Operations: The Role of National Caveats, in The “Legal Pluriverse” Surrounding Multinational Military Operations 393 (Robin Geiß & Heike Krieger eds., 2019)(discussing the challenges varying legal cultures and constitutional norms amongst member states pose to NATO operations).
7. See, e.g., Jim Reed, Ukraine war: WHO says attacks on health facilities are rising daily, BBC (Mar. 26, 2022), https://www.bbc.com/news/health-60866669; Ukraine: Russian soldiers filmed viciously attacking Ukrainian POW must face justice, Amnesty Int’l (July 29, 2022), https://www.amnesty.org/en/latest/ news/2022/07/ukraine-russian-soldiers-filmed-viciously-attacking-ukrainian-pow-must-face-justice/; Emma Farge & Brenna Hughes Neghaiwi, Red Cross convoy to Mariupol turns back, to renew attempts Saturday, Reuters (Apr. 1, 2022, 1:47 PM), https://www.reuters. com/world/europe/red-cross-teams-way-mariupolwithout-aid-2022-04-01/.
8. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War art 17, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (requiring parties to a conflict to endeavor to reach agreements to remove “wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment” from areas under siege).
9. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211.
10. See, e.g., Int’l Comm. of the Red Cross, Convention on Cluster Munitions: Interoperability and National Legislation: The View of the International Committee of the Red Cross (2012), https://www.icrc.org/ eng/assets/files/2012/cluster-munitions-interoperability-icrc-2012-09-12.pdf.
11. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to Operations para. 2-1 (8 June 2020).