Soldiers of Bravo Company assigned to the 143rd Infantry (Airborne) returns fire with the Squad Automatic Weapon (SAW) during the Joint Forcible Entry exercise at Kelly Drop Zone, San Antonio, Texas on 23 Mar. 2019. The Joint Forcible Entry Exercise is an annual large scale Airborne drop and mobility mission that simulates a contested battlefield scenario as a way of training units for dangerous situations that occur while deployed. (U.S. Army Reserve Photo by Spc. Jeffery Harris)
Part II: Combating Enemy Lawfare on the Battlefield
By Major Matthew J. Aiesi
Conflict in the twenty-first century is evolving into areas outside the traditional battlefield into new domains like cyberspace, the electromagnetic spectrum, and space. New technologies like artificial intelligence and autonomous weapon platforms are emerging and further complicate state competition and warfare. The law is also becoming an increasingly contested domain. The law plays an integral role at all levels of military operations, from decisions by the national command authority down to the Soldier in the field about to squeeze his or her trigger. To some commanders and leaders, the extent to which the law plays a role in twenty-first century conflicts is a source of frustration.1 America’s competitors and rivals use and exploit the law against the United States and its allies. However, the law is also a powerful tool for achieving strategic legitimacy. Judge advocates in the field can play an instrumental part, institutionally and operationally, in combating the enemy’s use of lawfare during military operations, while ensuring that U.S. military operations maintain legal and moral legitimacy.
Recently, the National Security Law Department at the Judge Advocate General’s Legal Center and School (TJAGLCS), the Foundation for the Defense of Democracies (FDD), and the North Atlantic Treaty Organization (NATO)’s Supreme Headquarters Allied Powers Europe (SHAPE) Allied Command Operations (ACO) Office of Legal Affairs, hosted a multiday workshop at TJAGLCS and in Washington D.C. This workshop brought together academics, private- and public-service lawyers, and service members, including officers and representatives from allied countries, to address malign use and misuse of the law and legal processes against the United States, NATO allies, and Israel. This was the first time that such a group of lawyers from the interagency, academia, the military, and private practice met to discuss developing governmental responses to malign lawfare targeting the United States and allies. The workshop coincided with two other significant events: the formal roll-out of Field Manual (FM) 6-27 / Marine Corps Tactical Publication (MCTP) 11-10C–The Commander’s Handbook on the Law of Land Warfare; and a presentation led by Mr. Andres B. Munoz Mosquera, NATO senior legal advisor and his team on Russian lawfare in Europe against NATO. This article and its recommendations stem, in part, from these events and has benefited from the participants’ collective expertise.
Field Manual 6-27 and Lawfare
The publication of FM 6-27 serves many practical and strategic purposes. Practically, it gives commanders and service members a clear and concise explanation of the international laws that govern land warfare.2 In addition, the strategic messaging must not be overlooked. This document sends a clear message to the country, allies, and adversaries that the United States (U.S.) Armed Forces are committed to holding the moral and legal high ground during armed conflicts, even when others deliberately violate these laws. The publication of the FM 6-27 is the natural outflow of the U.S. military’s commitment to a society that cherishes the rule of law in its domestic affairs and to being a responsible actor in the rules-based international order for its foreign affairs. Unfortunately, not all state and non-state actors share the United States’ and NATO’s commitment to the rule of law. Instead, some state and non-state actors corrupt and manipulate the law to serve their own end–that is, they engage in lawfare.
The term “lawfare” has many uses and meanings.3 Lawfare, as it will be used in this article, adopts the definition used by Professor Orde Kittrie in the seminal book on this topic – Lawfare: Law as a Weapon of War.4 Under Professor Kittrie’s definition, for an action to qualify as lawfare, the action must meet two elements. First, it is used by the actor to create the same or similar effects as those traditionally sought from conventional kinetic military action.5 Second, the action is taken with the intent to weaken or destroy an adversary against which the lawfare is being deployed.6 Critically, this includes the use of lawfare to negatively impact key armed force decision-makers and/or the decision-making processes.7
Professor Kittrie identifies a distinct strand of lawfare to which the United States, other NATO countries, and Israel are particularly vulnerable. He calls this “compliance-leverage disparity lawfare.”8 This type of lawfare typically occurs on the battlefield, and it is designed to gain an advantage from the greater influence that the law of armed conflict exerts over an adversary.9 Said another way, the enemy exploits the targeting limitations inherent in adhering to the law of armed conflict (LOAC) to gain an advantage. It is no secret that the United States prides itself in its commitment to following the LOAC,10 thus making compliance-leverage disparity lawfare an effective tactic.
The Islamic State of Iraq and Syria’s (ISIS) use of human shields11 is an illustrative example of an enemy using compliance-leverage disparity lawfare. The use of civilians and other specially-protected persons to shield otherwise lawful military objectives from attack during armed conflict is a violation of international law. This is prohibited by the Geneva Conventions, the Hague Regulations, and customary international law.12 The Islamic State and other terrorist groups nevertheless use human shields frequently. They do so to 1) cause commanders to self-impose restraints that will render operations less effective, 2) erode will to fight, and 3) spur anger and public outcry by generating civilian casualties designed to appear attributable to United States or allied forces.
By illegally placing civilians alongside their own fighters and preventing civilians from leaving population centers they control, ISIS prevents U.S. and partner forces from attacking them–shielding one’s forces from an enemy’s attack is a traditional military activity. Furthermore, ISIS achieves this military effect by leveraging U.S. compliance with the LOAC— specifically the duty to take feasible precautions to minimize civilian casualties when practically possible and to not attack otherwise lawful military targets, even if the concrete military advantage does not cause excessive loss of life.13 Thus, ISIS’s use of human shields meets both elements to qualify as a successful lawfare action. However, the systemic effects from such lawfare is greater than any single engagement.
The prolonged result of successful lawfare actions against the United States results in the greater freedom of maneuver for ISIS. While ISIS gains freedom of maneuver, the United States suffers hesitancy to attack enemy sites that may have human shields because of a genuine concern over killing civilians during military operations. There would also be concern over anticipated criticism, accusations, and investigations of U.S. operations, if (and when) pictures were published of the aftermath of such a strike. Despite the fact in this hypothetical, the United States’ strike is legal, and that ISIS is violating the law of armed conflict, it is not hard to imagine the media headlines that would follow. Ultimately, the legitimacy of the United States’ actions would be diminished. The next sections give judge advocates practical advice to help them train, plan, prepare, and respond effectively to this lawfare vulnerability during military operations.
Moral Legitimacy Is Inseparable from Compliance with the LOAC
At its core, enemy lawfare is effective when it attacks the legitimacy of an actor and gains public attention. Successful enemy lawfare brings scrutiny from within the U.S. Government, friends, and allies. It breeds criticism from the same by creating a false narrative that is challenging to correct. The enemy’s use of propaganda, distortions, and manipulations of facts are designed to make actions appear illegal, and thus illegitimate. In turn, this causes decision-makers hesitancy to act due to the fear of an action being perceived wrongly. This invites more scrutiny and criticism, ultimately limiting the legal maneuver space available. The power of legitimacy to the success of a military mission or operation cannot be minimized. Military doctrine explicitly states that “legitimacy” can be a decisive factor in military operations, and it is based on the actual and perceived legality, morality, and rightness of the actions from the various perspectives of interested audiences.14 Conducting military operations in accordance with the LOAC gives actual legitimacy to U.S. actions.
Thus, any particular military action can fall into one of three relevant categories under this “legal-legitimacy” framework. First, a military action may be legal, legitimate, and perceived as legitimate. Second, the action may in fact be legal and legitimate but is nonetheless perceived as illegal or illegitimate due to enemy lawfare and/or the inability to effectively communicate the action’s lawfulness. Third, the action may be illegal and is illegitimate regardless of the perception.15 When military actions fall into the third category, like the prisoner abuses at Abu Ghraib, the strategic and moral consequences are manifest. Likewise, when actions are legal, legitimate, and perceived as such, like fighting Al Qaeda, there is minimal risk of falling victim to enemy lawfare. Therefore, the center of gravity in the legal-legitimacy framework is the second category of actions. To maintain the advantage, the military must proactively prepare to defend lawfare attacks that attempt to portray military actions as anything but lawful and legitimate. As enemies engage in lawfare, compliance will not be sufficient to maintain U.S. maneuver space. Effectively communicating compliance with the LOAC in the face of enemy lawfare is what will allow the United States to maintain operational legitimacy.
The need for legitimacy, or at least the perception of legitimacy, for one’s own cause, is also not entirely lost on the United States’ enemies.16 However, as one scholar at the workshop noted, “a lie can travel half way around the world before the truth even gets its boots on.”17 In other words, strategic legitimacy is inseparable from LOAC compliance.18 In the race to achieving the U.S. strategic mission, the enemy’s lawfare usually has a head start, and the enemy is more than willing to lie and cheat to win.19
Combating Lawfare in the Field
Judge advocates can play a vital role institutionally and operationally in responding to these enemy lawfare tactics. This section identifies three ways that JAs can be a force-multiplier for their commanders to defeat the enemy while maintaining legitimacy: (1) teach the law of armed conflict to commanders, staff, and Public Affairs Office (PAO) personnel; (2) develop courses of actions that allow commanders to dominate and control the narrative; and (3) train command and staff responses to these actions.
The recent publication of FM 6-27 and its emphasis on a commander’s role in ensuring compliance with the LOAC creates a perfect opportunity for JAs to begin LOAC education for staff and commanders. Over the course of nearly twenty years of counter-insurgency warfare, commanders and staff have learned and become accustomed to the policies implemented to fight those conflicts. Terms like standard operating procedures (SOP), rules of engagement (ROE), tactical directives, collateral damage estimation (CDE), pattern of life (POL), positive identification (PID), and hostile intent and hostile Act (HI/HA) have become common parlance. However, none of these are actual LOAC terms of art. Even the concept of “U.S. self-defense” under the ROE is a blend of distinct areas of international law, such as jus ad bellum, jus in bello, and human rights, and is quite distinct from law-of-war self-defense.20 While these policies serve important functions in the prosecution of an armed conflict, there are numerous reasons why these policies are ill-suited for a discussion of a challenged military in terms of lawfare.
First, many of these policies are classified and cannot be discussed in the detail necessary to respond to an accusation of an illegitimate military action. Second, the policies use terms and acronyms that have different meanings under international law (like self-defense under the ROE and jus ad bellum), which invites confusion when one side is talking LOAC and the other is talking U.S. policy. Next, as the LOAC is international law, its terms of art are common to all nations and non-state entities engaging in armed conflict.21 Since the LOAC is the common language, and responsible states have the duty to enforce the LOAC, it is proper to use the language of LOAC while defending against lawfare. Legitimacy on the international stage comes from compliance with the LOAC, not from internal policies designed to implement it. Therefore, practitioners and leaders should use terms like military necessity22, distinction23, and proportionality24 when discussing operations. The U.S. military has, on occasion, struggled responding to law-of-war questions with law-of-war answers, such as whether the deliberate use of white phosphorous is lawful to use directly against combatants25 (which it is).26 Finally, deliberate and continuous LOAC education—not check-the-block training—will institutionally benefit warfighters and commanders by merging the profession of arms and a deep and professional understanding of the law of armed conflict.27
Anchoring legitimacy to compliance with the LOAC is both the morally and strategically wise course of action
While it is certainly a best-practice to have the lawyers review press releases and talking points for the commander and the PAO, the JA is not omnipresent. By deliberately educating and training commanders and PAO officers on the LOAC and its language, commanders, staff, and the PAO will be better suited to respond to questions and prepare accurate statements regarding the legality and legitimacy of operations when faced with a lawfare attack. It is not easy to discuss the principle of proportionality of a particular strike or operation, especially with the limits of classified intelligence and operational secrets. It is harder, still, to convey the value of the concrete military advantage gained over the enemy that was not excessive to the harm caused by knowingly (and lawfully) killing civilians. Finally, it is nearly impossible to communicate these legal and operational issues while conveying the sincere value placed on human life without a professional knowledge of the LOAC. But this is what is required to respond to the narrative set by the enemy’s lawfare and prove, when challenged, that U.S. actions are lawful and legitimate.
In addition to educating commanders, staff, and the PAO on the LOAC, JAs can be instrumental in assisting the staff to pre-emptively respond to the enemy’s lawfare. Thinking back to the human shields example, imagine having intelligence showing ISIS illegally moving civilians into their facilities or commandeering vehicles containing civilians to use as human shields to deter an attack against a significant military objective. Judge Advocates can anticipate the narrative that will result if the commander orders the lawful strike—commonly referred to as the “CNN factor.” By working with the key staff officers in the planning phase of the strike, pre-strike full-motion videos and pictures can either be prepared in an unclassified form, or be rapidly declassified. Releasing this evidence will set the narrative factually, legally, and swiftly: that ISIS is responsible for the deaths of these civilians by violating the LOAC, and that the United States’ actions were necessary, legal, and legitimate. This type of anticipatory counter-lawfare planning is essential to maintain strategic legitimacy and keep the military off of the lawfare defensive. Any time intelligence indicates the enemy is using protected facilities (like schools, medical facilities, or places of worship) for military purposes (like command and control or weapon caching), the ability to decisively demonstrate the enemy’s illegal activity will put the focus on the enemy’s violations of the law and will delegitimize their conduct, thus ensuring the United States continues to hold the moral and legal high ground.
Education and deliberate planning are crucial for defeating the tactical uses of lawfare on the battlefield, but they are insufficient without training under stressful conditions. Between premiere training facilities, the NATO training facilities, and the numerous partnered exercises that the United States conducts globally, there is ready-made infrastructure to train U.S. and allied militaries in responding to, and defeating, enemy lawfare tactics. These exercises present a chaotic environment that stresses the individuals and the units to respond. By developing “lawfare injects,” commanders and staff will practice responding to these enemy tactics, making them more agile to deal with these tactics under the true chaos and stress of combat. In the long run, consistent and deliberate training, followed by critical analysis and thought, will begin to form tried and true tactics, techniques, and procedures (TTPs) for countering and defeating enemy lawfare operations. This cycle of education-stress training-assessment-TTP development will begin to form doctrine to counter the enemy’s compliance-leverage disparity lawfare to which the United States is most vulnerable.
Enemy lawfare is a fact of both the modern battlefield and the great-power competition between the United States and Russia, China, and others. By understanding how the law is used to undermine legitimacy, particularly the compliance-leverage disparity in the LOAC, the military and legal community can start to proactively help commanders defeat it. Legitimacy, and the perception of legitimacy, for military actions is so easily chipped away in the interconnected digital world. Anchoring legitimacy to compliance with the LOAC is both the morally and strategically wise course of action. Although the United States holds the moral and legal high ground, not all are proficient in effectively communicating the language of the LOAC. This requires a professional understanding of the LOAC and its terminology by commanders, staff, and PAO; FM 6-27 makes this clear. Judge advocates can, and must, serve that critical role in every formation. By consistent and deliberate planning and training, as individual units and with partners, the U.S. military can develop effective tactics to counter enemy lawfare and defeat the enemy in the legal domain. TAL
MAJ Aiesi is currently assigned as an associate professor of national security law at TJAGLCS.
Notes
1. Charles J. Dunlap Jr., Lawfare 101: A Primer, 97 Mil. Rev. 8-17 (May-June 2017), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6434&context=faculty_scholarship.
2. Michael W. Meier, Updated Law of Land Warfare a Vital Tool for Judge Advocates, Army Law., Nov. 2019, at 4.
3. See generally About Lawfare: A Brief History of the Term and the Site, Lawfare, https://www.lawfareblog.com/about-lawfare-brief-history-term-and-site (last visited Feb. 1, 2020). The most popular understanding of “lawfare” was articulated by then-Air Force Colonel (and later Major General) Charles Dunlap in 2001 in an article called Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (Carr Center for Human Rights, John F. Kennedy School of Government, Harvard University, Working Paper, 2001), https://people.duke.edu/~pfeaver/dunlap.pdf.
4. Orde F. Kittrie, Lawfare: Law as a Weapon of War (2016).
5. Id. at 8.
6. Id. at 8.
7. Id.
8. Id. at 11.
9. Id.
10. Dunlap, supra note 1, at 8-17.
11. Luis Martinez, Islamic State use of human shields slows final assault on ISIS-held town in Syria, ABC News (Mar. 4, 2019), https://abcnews.go.com/Politics/islamic-state-human-shields-slows-final-assault-isis/story?id=61456501.
12. See generally U.S. Dep’t of Def., DoD Law of War Manual, para. 5.12.3.4 (May 2016) [hereinafter Law of War Manual].
13. See, e.g., Photos Show IS Militants Fleeing Manbij with ‘Human Shields’, BBC News (Aug. 19, 2016,) https://www.bbc.com/news/world-middle-east-37129408; Ben Kesling, ISIS Herds Civilians to Mosul as Human Shields, Wall St. J. (Oct. 28, 2016), https://www.wsj.com/articles/isis-herds-civilians-to-mosul-as-human-shields-1477675640.
14. Joint Chiefs of Staff, Joint Pub. 3-0, app. A, para. L [hereinafter JP 1-04], https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp3_0ch1.pdf?ver=2018-11-27-160457-910.
15. This article is focused on the legitimacy for military actions that derives from compliance with the jus in bello rules during an armed conflict. Whether a state’s use of force in a particular circumstance can be “illegal but legitimate” from a jus ad bellum perspective is beyond the scope of this article, but see generally, Kosovo Report: Conflict, International Response, Lessons Learned, Indep. Int’l Comm’n on Kos. (2000); see also Roberts, Anthea, Legality vs. Legitimacy: Can Uses of Force be Illegal but Justified? in Human Rights, Intervention and the Use of Force (P. Alston et al. eds., 2008), https://ssrn.com/abstract=1518290.
16. Yousuf Basil and Catherine E. Shoichet, Al Qaeda: We’re sorry about Yemen hospital attack, CNN (Dec 12, 2013), https://www.cnn.com/2013/12/22/world/meast/yemen-al-qaeda-apology/index.html.
17. The workshop operated under Chatham House Rules to encourage open discourse. However the original sentiment of the quote, and the quote itself likely began in the late 1700’s. Niraj Chokshi, That Wasn’t Mark Twain: How a Misquotation is Born, N. Y. Times (Apr. 26, 2017), https://www.nytimes.com/2017/04/26/books/famous-misquotations.html.
18. Douglas A. Johnson, et. al., The Strategic Costs of Torture, Foreign Aff. (Sept./Oct. 2018), https://www.foreignaffairs.com/articles/united-states/strategic-costs-torture.
19. Andrew DeGrandpre, These Marines were falsely accused of war crimes. Twelve years later, they have vindication, Wash. Post (Jan. 31, 2019), https://www.washingtonpost.com/world/national-security/these-marines-were-falsely-accused-of-war-crimes-twelve-years-later-they-have-vindication/2019/01/31/4fa98b9c-1386-11e9-b6ad-9cfd62dbb0a8_story.html.
20. Generally, “self-defense” under the law of armed conflict is limited to the circumstance when the person claiming self-defense has no combatant immunity, but have a recognized protection under the law of war that is being violated. For example, a medic, displaying the Red Cross, who is exclusively engaged in humanitarian relief, but is unlawfully targeted. Self-defense for soldiers with combatant immunity is often limited to situations involving a threat to life that is not related to the armed conflict, such as a civilian who attempts to rob a soldier. While a full discussion on the nuances of this topic are beyond the scope of this article, an analysis of some of the problems of self-defense under the rules of engagement can be found here. See Randall Bagwell and Molly Kovite, It is Not Self-Defense: Direct Participation in Hostilities Authority at the Tactical Level, 224 Mil. L. Rev. 1 (2016), https://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/224-issue1-2016.pdf.
21. Prosecutor v. Tadić, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, (Int’l Crim. Trib. For the Former Yugoslavia Oct. 2 1995).
22. Law of War Manual, supra note 12, para. 2.2; U.S. Dep’t of Army, Field Manual 6-27, The Commander’s Handbook on the Law of Land Warfare, para. 1-23 (Aug. 2019) [hereinafter FM 6-27].
23. Law of War Manual, supra note 12, para. 2.5; FM 6-27, supra note 21, para. 1-34.
24. Law of War Manual, supra note 12, para. 2.4; FM 6-27, supra note 21, para. 1-44.
25. Anne Barnard, U.S.-Led Forces Said to Have Used White Phosphorus in Syria, N.Y.Times (June 10, 2017), https://www.nytimes.com/2017/06/10/world/middleeast/raqqa-syria-white-phosphorus.html.
26. Law of War Manual, supra note 12, para. 6.14.1.3.
27. See generally Sean Watts, Law of War Perfidy, 219 Mil. L. Rev. 106, 127 (Spring 2014).