The Army Lawyer | November/December 2018View PDF

null Readiness, Technology, and the Law


The Army Lawyer


Readiness, Technology, and the Law


Warfare's Evolution During WWI Provides a Roadmap for JAs Today

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(Credit: Marco M.)

Gas! Gas! Quick, boys! – An ecstasy of fumbling,
Fitting the clumsy helmets just in time…1

It feels like a ball of red-hot fire,
Turned loose from hell’s own door,
There seems to be no relief for me,
It’s hurting more and more…2

Owen’s and McCollum’s dark, poetic memories of World War I (WWI) captured the horror of new weapons that drove treaty law in the years that followed. But not all new technologies that found their way onto WWI’s battlefields required new laws. On today’s battlefields, the continuous, relentless development of new technologies and weapons, and their employment to impose one’s political will on adversaries, remains the same. Today’s judge advocates face new intellectual challenges in addressing threats in a new domain—cyberspace. And they do so against the loud echo of the historical refrain to create new laws to address them. While new threats and the accompanying clamor for new rules for their use are timeless, unchanged are the enduring Law of Armed Conflict (LOAC) principles that will guide us through these changes. Also unchanged is the reality that judge advocates must work closely with coalition partners to ensure a shared understanding of how established legal principles will apply to new weapons and to understand existing treaties in the context of issues never contemplated by their drafters.

Before WWI, leaders were aware of the potential for the use of poisonous gases in combat, but those leaders naively believed that discussions held during the 1899 Hague Conference about prohibiting their employment would prevent their use in future wars.3 Their misplaced reliance on the durability of the agreements reached during the Conference reflected a failure to grasp both the emergence of new technologies and the changing character4 of war. By June 1925, under the auspices of the League of Nations, the High Contracting Parties declared, “So far as they are not already Parties to Treaties prohibiting [the use in war of asphyxiating, poisonous, or other gases], [the High Contracting Parties] accept this prohibition, [and] agree to extend this prohibition to the use of bacteriological methods of warfare . . . .”5 Thirty-eight countries signed on to the Protocol and it entered into force on 8 February 1928.6

But the Allies’ hard lesson learned in WWI was the failure to foresee the changes in technology and the failure to timely understand the impacts of those impending changes. The Allies’ pre-WWI failure to think about and develop doctrine and law that captured the future of warfare7 was initially disastrous. The cost for the failure to plan for future combat and the subsequent collective delays in learning was millions in uniform dead. Sadly, the arc of history tells us it is usually only after significant failure that armies adapt.8

Not every change in the character of warfare requires changes to the law. Although much hyped at the time of its first appearance in combat as revolutionary, airpower proved to simply be evolutionary; it required no new body of law as applied in combat. While the 1899 Hague Conference prohibited the launching of explosives from balloons “or other new methods of a similar nature”9 (e.g., airplanes), it was merely a temporary prohibition driven by the enduring LOAC principle of discrimination. While no new body of law was required to address the evolution of airpower in combat, what was required were leaders—and lawyers—who could apply enduring principles to new technology. The original discrimination concerns regarding use of airpower were quickly overcome by technologically-driven improvements in aerial bombing accuracy.10 While airplane bombing can be said to have “ultimately changed the whole character of war,” its misuse (e.g., German bombing of hospitals) was, even at the time, seen by military leaders as a violation of LOAC and not as something fundamentally different.11

For the U.S. and its allies, WWI was a lesson in interoperability. American forces simply were not ready for the new era of warfare, and were forced to lean on British and French officers to help train new recruits before they even left the U.S.12 A lack of U.S. readiness—intellectually, doctrinally, and in training—made fighting as a coalition force during WWI an initial impossibility. The U.S. and its allies eventually overcame those shortfalls, but at a cost in human lives we can never directly measure. As the Chief of Staff of the Army (CSA) has noted, the last time warfare changed as radically as it is now changing was during the 1920s and 1930s.13 Judge advocates must address these changes and be ready for what comes next. The CSA reminds us that staying on top of emerging technologies is what ensures our position of dominance in the next fight.14 And in the fight after next.

Our readiness in the face of these ever changing challenges mandates deliberate thought about the future, particularly in the context of our broader military and legal histories. To do that, we must know our history. We must know how to use that history to help us answer questions like, “Why does use of chemical weapons require a new legal framework, but use of airpower does not?” Only with that perspective can we adequately analyze new changes and challenges and provide commanders accurate advice. An understanding of history alone, however, is insufficient. We must also understand the evolving technology that is being applied in warfare, as well as the technology that may be applied in the future. We need not be engineers, code writers, or technical experts, nor need we be early adopters of every new technology that emerges. But refusal to actively contemplate the technologies, challenges, and changes looming just beyond the horizon will only ensure we fail our clients.

Perhaps most importantly, we must not contemplate these changes in a vacuum. We need to understand the positions of our enduring partners, as well as the legal and political strictures under which those partners operate. We must shape how all of our current and future partners, adversaries, and third parties (e.g., non-governmental organizations) think about the law’s application in warfare. To do that, we must not only be a part of the discussion—in blogs, at conferences, and everywhere it occurs—we must lead that discussion. We owe our commanders maximum lawful, moral, and ethical maneuver space on today’s and tomorrow’s battlefields. To that end, we must be knowledgeable about our technology, our clients, our partners, and our enemies. Ultimately, our success will depend on being well-read students of history and active architects of the law’s development in the face of emerging technology. TAL


BG Berger is the Commander of the United States Legal Services Agency and Chief Judge of the U.S. Army Court of Criminal Appeals.


1. Wilfred Owen, Dulce et Decorum Est, The War Poetry Website,

2. Lee Charles “Buck Private” McCollum, Gassed, in History and Rhymes of the Lost Battalion 16 , 16 (1929).

3. General Pershing notes in his memoir those discussions “created a feeling of security” against the use of poisonous gases. See John J. Pershing, My Experiences in the World War 165 (1931).

4. The nature of war is violent and fundamentally political; it is, by nearly universal agreement, unchanged since the dawn of time. War’s character describes “the changing way that war as a phenomenon manifests in the real world” as “influenced by technology, law, ethics, culture, methods of social, political, and military organization, and other factors that change across time and place.” Christopher Mewett, Understanding War’s Enduring Nature Alongside its Changing Character, War on the Rocks (Jan. 21, 2014), In short, the character of war gets at how we fight, while the nature at why we fight. See id.

5. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Jun. 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65. [hereinafter Geneva Protocol].

6. The Geneva Protocol was later supplemented by the Biological Weapons Convention of 1972 and the Chemical Weapons Convention of 1993.

7. Pershing notes the Japanese use of machine gun units and heavier artillery “had not escaped the notice of German observers, and her experts were quick to take advantage of [those] lessons.” Pershing, supra note 3, at 4.

8. The Allied Powers would soon, once again, fall behind their enemies. In WWII they failed at El Alamein to timely grasp the change in war’s nature manifest in Germany’s Blitzkreig doctrine.

9. Declaration on the Launching of Projectiles and Explosives from Balloons, Jul. 29, 1899,

10. Id.

11. Francis A. March, History of the World War 226 (1919).

12. See Michael S. Neiberg & Harold K. Johnson, Pershing’s Decision: How the United States Fought its First Modern Coalition War, U.S. Army (Dec. 10, 2010),

13. David Thornton, Army Trying to Keep up with Changing Character of War,, (Jun. 25, 2018, 6:00 PM), (quoting General Mark Milley at the 21 June 2018 Capitol Hill National Security Forum).

14. Id.