Texas and Rhode Island National Guard Soldiers from the 56th Infantry Brigade Combat Team train alongside partner nations during a crowd riot control training exercise, Operation Bronze Shield, at the Joint Multinational Readiness Center in Hohenfels, Germany, on 14 June 2023. The crowd riot control exercise was one of many training exercises conducted by the joint team. (Credit: SGT Gauret Stearns)
Practice Notes
LOAC Babies and COIN Bathwater
By Major John P. Policastro
In March of 2021, the Military Review published an article titled The Eighteenth Gap, in which then-Lieutenant General Charles Pede and Colonel (COL) Peter Hayden reiterated the U.S. Army Judge Advocate General’s (JAG) Corps priority of preserving legal maneuver space for commanders during the transition away from counter-insurgency (COIN) to large-scale combat operations (LSCO).1 Overcoming the eighteenth gap requires the JAG Corps to message the difference between law of armed conflict (LOAC) constraints and the extra-legal policy limitations developed during years of COIN. Experience at Warfighter Exercises reveals that the JAG Corps has successfully messaged this need for legal maneuver space to division and corps leadership.2
However, as the JAG Corps continues to message against unnecessary constraints from COIN “hangover,” it should also ensure that commanders do not throw the baby out with the bathwater. Some commanders still suffer from this COIN hangover, but other commanders and staffs have swung to the opposite end of the pendulum and believe that none of the legal frameworks they learned during COIN are useful.3 But, commanders and practitioners should not avoid useful tools and analytical frameworks merely because they were emphasized during COIN. This fallacy manifested during recent Warfighter Exercises, when some leaders resisted accurate, LOAC-based legal advice because the attorney used terminology that reminded them of COIN-based analyses.4 To assure commanders, NSL practitioners should communicate how to apply LOAC legal standards in LSCO while incorporating every appropriate, useful tool, including those emphasized during COIN. To avoid confusion, this may require coining (pun intended) new terms to describe certain COIN concepts that still apply in LSCO.
New terms to describe certain COIN concepts that still apply in LSCO. (Credit: Jani Riley, TJAGLCS)
Positive Identification and Distinction
One of the concepts that carries significant COIN baggage is “positive identification” (PID).5 The legal principle of distinction requires an attacker to distinguish “between unprotected and protected objects.”6 Intuitively, to comply with the law and distinguish between unprotected and protected objects, combatants must first identify the object of their attack. A judge advocate’s advice in LSCO to positively identify the vehicles as enemy vehicles before you target them is legally accurate.7 However, commanders may resist this advice because of the connotation between PID and COIN-era heightened identification requirements.8
The Department of Defense Law of War Manual articulates that 2013 U.S. policy guidance, which required Soldiers to have “near certainty” that an enemy was present and that non-combatants would not be injured, exceeded the legal requirements.9 As COL Gail Curley and Lieutenant Colonel (LTC) Paul Golden observed in their 2018 The Army Lawyer article, “Restrictive positive identification policies assume[] U.S. forces own the sky, which is not realistic in a [high-intensity conflict], particularly against a peer or near-peer enemy that possesses credible offensive air, defensive air, space, and cyber capabilities.”10
Therefore, although it may be technically legally accurate to use the term “positive identification” in a LSCO distinction discussion, judge advocates should consider using alternative terminology to avoid the perception of a COIN-policy paradigm. Instead, practitioners should focus on clearly describing the minimum legal standard required by LOAC. As the Law of War Manual describes, the standard for factually distinguishing between lawful targets and protected objects/persons is “good faith and based on [the decision maker’s] assessment of the information available to them at the time.”11
One possible alternative to PID is to follow COL J. J. Merriam’s 2016 proposal in the Virginia Journal of International Law to use “affirmative target identification” to describe the minimum legal requirements of distinction.12 Practitioners typically define PID as “a reasonable certainty that the proposed target is a legitimate military target.”13 In contrast, COL Merriam defined affirmative target identification as “an honest and reasonable belief—based on such affirmative evidence as is reasonably available at the time—that the object of attack is a lawful military target.”14 Colonel Merriam persuasively argued that affirmative target identification meets standards of international law for both the informational and decisional aspects of distinction.15 Even if practitioners do not adopt affirmative target identification, those who advise commanders on distinction in a LSCO environment should consider describing the legal distinction requirements using LOAC terminology to avoid the negative, policy-based connotation of PID.
Collateral Damage Estimation and Proportionality
Similarly, the term “collateral damage estimation” (CDE) carries significant COIN-policy connotations. Policy considerations led to elevated approval authorities for accepting collateral damage risk during COIN.16 However, the underlying legal principle of proportionality applies in both COIN and LSCO.17 The law of armed conflict requires that commanders must determine and articulate “the expected military importance of the target and why the anticipated civilian collateral injury or damage is not expected to be excessive.”18 In order to determine whether the anticipated collateral damage is excessive, the commander must have some method of estimating what collateral damage to anticipate. Therefore, the CDE methodology can help commanders make informed collateral damage risk decisions. However, experience during recent Warfighter Exercises reveals that commanders and staffs associate CDE methodology so heavily with COIN, that they may not even deploy with the Digital Imagery Exploitation Engine software19 necessary to conduct the CDE analysis in a LSCO setting.20
The COIN-based policy requirements to conduct CDE (and the associated elevated authorities) will likely not apply in a LSCO environment.21 However, staffs preparing to fight in LSCO should not eschew readily available tools that could help their commanders employ fires confidently while avoiding unnecessary risk of strategic disaster.22 To encourage using all available tools while avoiding the perception of COIN limitations, legal advisors in LSCO should consider replacing the term “CDE” with “proportionality analysis” while also encouraging fellow staff members in the fires cell to maintain proficiency and availability of the CDE analysis tools. Although not required as a method, Digital Imagery Exploitation Engine is an efficient means of evaluating whether the risk to civilian life and property is proportional to the distinct military advantage commanders seek and quickly demonstrating the benefit of potential weaponeering mitigation options.23
Ultimately, the precise estimates that CDE methodology provides will enable commanders to use fires more permissively since a lack of information would likely lead to unnecessary risk aversion. Research conducted by Carnegie Mellon University’s Center for Behavioral Decision Research indicates that decision makers avoid risk when a knowledge gap exists and the knowledge gap is unpleasant to think about.24 In LSCO, firing into an urban area without the benefit of a CDE creates a knowledge gap for the commanders; they would be uncertain exactly how much civilian damage the strike is likely to produce. In addition to making it practically difficult for the commander to do the proportionality analysis LOAC requires, the atrocious possibilities associated with this knowledge gap would be unpleasant for any commander to contemplate. The Carnegie Mellon research indicates that most commanders will be more likely to avoid the risk by choosing not to fire.25 Conversely, access to precise collateral damage estimates will lessen the knowledge gap, allowing commanders to make informed decisions to fire when appropriate.
Of course, many targets in an LSCO fight will not allow sufficient time for targeteers to conduct an in-depth estimate,26 but maintaining the capability to conduct either hasty or deliberate collateral damage estimates, target mensuration, and weaponeering mitigation may enable commanders to accept calculated, well-informed risk and kill the enemy even in an urban environment.
CPT Javier Diaz, a judge advocate with Headquarters and Headquarters Battalion, 1st Armored Division, does research to solve legal dilemmas during the Command Post Exercise III at Fort Bliss, TX. CPT Diaz analyzes the battle plan and advises the commander regarding LOAC. (Credit: PFC Charlie Duke)
Escalation of Force
Another concept that evokes COIN memories is escalation of force (EOF) procedures.27 Yet, this popular COIN topic may still be useful in certain LSCO situations. The Escalation of Force Handbook, published by the Center for Army Lessons Learned in 2007, defined EOF as “sequential actions that begin with nonlethal force measures (visual signals to include flags, spotlights, lasers, and pyrotechnics) and may graduate to lethal measures (direct action) that include warning, disabling, or deadly shots to defeat a threat and protect the force.”28 It goes on to state that rules of engagement (ROE) “may limit EOF options”29 as it often did during COIN operations.30 Hence, commanders with COIN experience may associate the EOF procedures with the restrictive COIN ROE that accompanied EOF-focused training.
However, EOF procedures can be useful in a LSCO environment with a more permissive ROE. As the Center for Army Lessons Learned recognized, EOF “helps commanders and Soldiers apply . . . self-defense, use of force, military necessity, proportionality, and unnecessary suffering.”31 These principles still matter in LSCO, and EOF can help units apply them in a way that benefits mission accomplishment.
Then-LTC Randy Bagwell’s 2008 article, The Threat Assessment Process (TAP): The Evolution of Escalation of Force, recognized two useful roles of EOF.32 Traditionally, EOF ensures a proportional use of force in self-defense to defuse a threat that is not declared hostile (such as rioting civilians).33 During COIN, Soldiers began to use EOF procedures as a tool for identifying whether an apparent civilian had a hostile intent.34 In LOAC terms, EOF became a tool for conducting a distinction analysis in a scenario where the enemy is not readily identified.35 To avoid confusion, COL Bagwell recommended using two different terms to refer to these two different processes.36 The traditional riot control or peace-keeping process used to deescalate a situation should still be called EOF, while the distinction process used to identify a hostile intent should be called the “threat assessment process” (TAP).37 This alternative terminology may also be useful for communicating the benefits of distinguishing between threats and non-threats in a LSCO conflict’s contested urban terrain.
In LSCO training scenarios, units focus on engaging large enemy formations with direct and indirect fires,38 but realistically training these scenarios also includes planning for the effect of displaced persons on route management, non-uniformed armed groups, and special-purpose forces that blend into the local populace.39 The threat assessment process is essential to managing these parts of the LSCO fight while avoiding civilian casualties or otherwise feeding an adversary’s information warfare efforts. Unlike in COIN, protecting the force amidst these ambiguous distinction problems will not be the focus in LSCO.40 Rather, evaluating threats that may be looming among throngs of fleeing civilians will be an unwelcome distraction from targeting an advancing armored formation.41 Therefore, commanders should wisely train on every tool, such as TAP, to help their Soldiers efficiently assess these threats. Practitioners should communicate to commanders that TAP is a useful tool that Soldiers should use when it helps meet LOAC requirements, but that it is not a rigid requirement.
A U.S. Army advisor assigned to 1st Security Force Assistance Brigade listens to a radio at Fort Irwin, CA. U.S. Army advisors train alongside role players and actual partners to prepare to advise, support, liaise, and assist during LSCO. (Credit: MAJ Jason Elmore)
Conclusion
Preserving legal maneuver space for commanders in LSCO requires messaging that many COIN-based policy constraints no longer apply. However, analytical tools developed during COIN are separate from the restrictive policies they helped implement; the analytical tools may still prove useful in LSCO. The community of practitioners should carefully communicate using terms and descriptions that precisely describe commanders’ LSCO legal requirements but do not connote overly restrictive COIN policy. Doing so will ensure that commanders and their legal advisors have a shared understanding of the legal framework for the wide array of LSCO threats.
MAJ Policastro is a national security law observer coach trainer conducting corps and division Warfighter Exercises with Mission Command Training Program at Fort Leavenworth, Kansas.
Notes
1. Lieutenant General Charles Pede & Colonel Peter Hayden, The Eighteenth Gap: Preserving the Commander’s Legal Maneuver Space on “Battlefield Next,” Mil. Rev., Mar.-Apr. 2021.
2. This assertion is based on the author’s recent professional experiences participating in Corps and Division Warfighter Exercises as an Observer Coach Trainer with the Mission Command Training Program from 7 July 2021 to 16 June 2023 [hereinafter Professional Experiences].
3. Id.
4. Id.
5. Off. of Gen. Couns., U.S. Dep’t of Def., Department of Defense Law of War Manual para. 5.4.3.1 n.87 (12 June 2015) (C2, 13 Dec. 2016) [hereinafter DoD LoW Manual].
6. Id. para. 2.5.
7. For instance, a judge advocate may advise targeteers to use other collection methods to confirm ground moving target indications of enemy vehicles. See generally U.S. Dep’t of Army, Field Manual 2-0, Intelligence para. 4-19, tbl.4-2 (6 July 2018) (describing theater intelligence collection capabilities).
8. See The White House, Fact Sheet: U.S. policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (2013) (establishing heightened identification requirements to justify the use of force in counterterrorism operations).
9. DoD LoW Manual, supra note 5, para. 5.4.3.1 & n.87.
10. Colonel Gail A. Curley & Lieutenant Colonel Paul E. Golden, Jr., Back to Basics: The Law of Armed Conflict and the Corrupting Influence of the Counterterrorism Experience, Army Law., Sept./Oct. 2018, at 23, 24.
11. DoD LoW Manual, supra note 5, para. 5.3.2.
12. John J. Merriam, Affirmative Target Identification: Operationalizing the Principle of Distinction for U.S. Warfighters, 56 Va. J. Int’l L. 83 (2016).
13. DoD LoW Manual, supra note 5, para. 5.4.3.1 & n.87.
14. Merriam, supra note 12, at 85.
15. Id. at 140-44.
16. See Joint Chiefs of Staff, Joint Pub. 3-24, Counterinsurgency, at III-13 (30 Apr. 2021).
17. Nat’l Sec. L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, Operational Law Handbook ch. 3, para. V.C (2022) (describing proportionality as one of the “basic principles of the law of armed conflict”).
18. DoD LoW Manual, supra note 5, para. 5.10.2.2.
19.
The Digital Imagery Exploitation Engine (DIEE), a tool that enables users to plan and execute strikes by seamlessly performing the following Advanced Target Development steps: 1) geographically locate and characterize the target, 2) weaponeer the target using JMEM Weaponeering Software (JWS) and perform target coordinate mensuration, 3) estimate collateral damage effects using the Digital Precision Strike Suite Collateral Damage Estimation (DCiDE) tool, and 4) produce output graphics to the appropriate databases.
Dir., Operational Test & Evaluation, FY22 Annual Report 344 (2023).
20. Professional Experiences, supra note 2.
21. See Pede & Hayden, supra note 1, at 6-7.
22. As discussed above, the DIEE is a useful tool for avoiding excessive collateral damage. For further discussion on the negative strategic effects of excessive collateral damage (including loss of domestic support, loss of international legitimacy, and enemy exploitation), see Patrick M. Shaw, Collateral Damage and the United States Air Force (Jan. 6, 1997) (thesis, School of Advanced Airpower Studies, Air University, Maxwell Air Force Base, Alabama), https://apps.dtic.mil/sti/pdfs/ADA391809.pdf.
23. See Dir., Operational Test & Evaluation, FY 2016 Annual Report 430 (2016).
24. Russel Golman et al., Information Gaps for Risk and Ambiguity, 128 Psych. Rev. 86, 86 (2021).
25. See id. at 86, 98 (finding that participants are more averse to risk and ambiguity when the information gaps are unpleasant to contemplate).
26. See Pede & Hayden, supra note 1, at 7.
27. See U.S. Dep’t of Army, Field Manual 3-24.2, Tactics in Counterinsurgency para. 5-150 (1 Apr. 2009) (“All forces must understand and adhere to rules of engagement (ROE) and escalation of force (EOF) procedures.”).
28. Ctr. for Army Lessons Learned, Escalation of Force Handbook: Tactics, Techniques, and Procedures 1 (2007) [hereinafter EOF Handbook].
29. Id.
30. Pede & Hayden, supra note 1, at 7.
31. EOF Handbook, supra note 28, at 1.
32. Lieutenant Colonel Randall Bagwell, The Threat Assessment Process (TAP): The Evolution of Escalation of Force, Army Law., Apr. 2008, at 5, 5.
33. Id.
34. Id.
35. See DoD LoW Manual, supra note 5, para. 2.5.
36. Bagwell, supra note 32, at 5.
37. Id. at 5, 9.
38. See generally U.S. Dep’t of Army, Field Manual 3-0, Operations ch. 6 (1 Oct. 2022) (discussing Army operations during large-scale conflict).
39. For instance, consider the impact of these factors on the Ukrainian conflict:
[M]any of the feared civilian impacts of a Russian invasion have come to pass, with particularly acute consequences for [internally displaced persons]. Finding durable housing solutions is challenging because of the difficulty and danger of moving within areas of active fighting . . . . Indiscriminate shelling and missile attacks have targeted and destroyed critical civilian infrastructure.
Erol Yayboke, Anastasia Strouboulis & Abigail Edwards, Update on Forced Displacement around Ukraine, Ctr. For Strategic & Int’l Stud. (Oct. 3, 2022), https://www.csis.org/analysis/update-forced-displacement-around-ukraine. “Spetsnaz missions vary from battlefield reconnaissance and behind-the-lines sabotage to training guerrillas . . . . Spetsnaz forces are especially geared toward ‘political warfare’ operations, reflecting Moscow’s particular interest in integrating conventional military missions with covert ‘active measures.’” Mark Galeotti, Spetsnaz: Operational Intelligence, Political Warfare, and Battlefield Role, Sec. Insights (Feb. 2020), https://www.marshallcenter.org/en/publications/security-insights/spetsnaz-operational-intelligence-political-warfare-and-battlefield-role-0.
In the Donbas since 2014, the Spetsnaz have been used for a mix of roles: sometimes battlefield reconnaissance and combat support but often more-political missions. In particular, they (or their counterparts from the Federal Security Service) are widely assumed to have been behind the assassinations of several more-independent-minded or otherwise troublesome local militia commanders, although these deaths are officially blamed on Kyiv.
Id. “‘The Wagner Group’s first operation was helping Russia annex Crimea in 2014,’ says Tracey German, professor of conflict and security at King’s College London. In the weeks before Russia’s invasion of Ukraine, it is thought Wagner carried out ‘false flag’ attacks to give the Kremlin a pretext for invading.” What is Russia’s Wagner Group of Mercenaries in Ukraine?, BBC News (June 12, 2023), https://www.bbc.com/news/world-60947877.
40. See U.S. Army, Army Multi-Domain Transformation: Ready to Win in Competition and Conflict, Chief of Staff Paper #1, at 5-9 (2021) (describing the challenges of large-scale combat and how the Army will overcome them).
41. See id. at 6-7 (outlining the Army’s strategy within battlespace).