LTG Charles N. Pede, The Judge Advocate General.
Practice Notes
Part I: Why the FM-27 Update Is Vital for Judge Advocates
By Lieutenant General Charles N. Pede
On 22 January 2020, Lieutenant General Charles N. Pede addressed members of the 68th Judge Advocate Officer Graduate Course, the Noncommissioned Officers’ Academy’s (NCOA) Basic Leaders Course, and the NCOA’s Advanced Leaders Course to formally announced the publication of Field Manual (FM) 6-27, The Commander’s Handbook on the Law of Land Warfare. What follows is an excerpt of his remarks.
It is a privilege to be here at our regimental home today to discuss—appropriately—a landmark publication for our Corps and Army: The Commander’s Handbook on the Law of Land Warfare. This handbook represents nearly three decades of work updating FM 27-10, originally published in 1956.
In 1991, in a far-away place, in an operation that began as Operation Restore Hope, which morphed after a time to Operation Continue Hope, and then in classic Soldier-humor descended to Operation No Hope, I consulted then-current FM 27-10 daily. In the “Dish”—as we called Mogadishu, Somalia—we used it to help us identify when and how, for example, to execute leaflet drops to minimize noncombatant casualties. We used the FM to address protective markings on hospitals and blood banks. We used it for a multitude of war fighting rules—in a peacekeeping/peacemaking operation. Twelve years later, I used it in Afghanistan in countless ground and air operations against the Taliban and al Qaeda. I am convinced that the FM’s critical role for commanders—and lawyers—is no less vital today than it was for me in “the Dish” nearly thirty years ago.
So when we gather like this to mark a renewal of this powerful resource—our purpose is deliberate and direct. So let me highlight three immediate reasons this FM is important.
First, the effort. This decades-long, dual-service, multiple-author effort harnessed the intellectual and institutional energies of countless attorneys and peerless professionals. We must do more than tip our hat to their great achievement—hence this moment.
Second, the world’s best warfighters and the world’s best legal advisors need a handy, pragmatic, easily-understood-in-a-single-reading law of war resource. I offer you Exhibit #1—this copy of FM 6-27. Make no mistake. In the world’s oldest and best law firm, which has as one of its core principles the mastery of law, your legal research only begins with this FM. To master the law, you must read the law—the treaty, the statute, and the binding order. But this FM is the wellspring. It answers the immediate questions clearly.
Third, this FM provides clear statements of state doctrine and state practice on the law of war—by a sovereign nation’s land forces. It is not an NGO’s aspiration—it is not a collection of academic theory. It clearly stakes out the law—and as a consequence—preserves our commanders’ legal maneuver space on “Battlefield Next.” So let me unpack these three reasons to explain their importance.
Let’s start first with the effort. Why are Geoff Corn, Mike Meier, and Joe Rutigliano here today, sitting on a panel to talk about this FM? These three gentlemen are why we have a new FM. Geoff retired from the Army and at one point served as the Special Assistant for Law of War Matters—the position Mike Meier currently holds. After retirement, Geoff embarked upon a very successful academic career. He provides perspective and critical context as an outsider with inside knowledge and experience. We are grateful to have Geoff here today as a friend, colleague, and honest broker on matters of the law of armed conflict. Mike Meier and Joe Rutigliano are, respectively, the Army’s and Marine Corps’s intellectual muscle—our foremost experts on law of war and the primary authors of the manual. Together, they have been the muscle to get FM 6-27 over the line. And I’d be remiss if I didn’t mention the herculean efforts of Colonel (Ret.) Dick Jackson, former Special Assistant for Law of War Matters to the Judge Advocate General who spent a number of yeoman years on this FM.
We must be ruthless in pushing back to declare what the law actually is—not what some individuals and organizations would wish it to be
You have in your hands an easily-understood statement of the law. This manual is only eight chapters and weighs in at but a few ounces. Think for a moment of all of the information available about the law of armed conflict—all of the first-hand sources alone; not to mention the treatises and the commentaries; the statements of the law and the eloquent speeches, articles, and even books written about the laws that govern warfare. This immense stack of information is consistently growing; multiplying on Lawfare, Lawfire, War on the Rocks, and in podcasts. And with every new article, blog post, and every podcast episode, the public sphere responds with its own commentary, and there, the information available grows and grows and the cycle repeats.
What we have done in an age of “information inundation,” in an age of overwhelming data, is to take everything that these learned scholars and hundreds more like them know of the law of armed conflict. We have culled that information, and we have distilled it down to a useable, digestible, portable format to put it in the hands of those who matter most—the commander on the ground. The person who has to make the decision on how to execute the battle.
This manual is at the heart of what we do as judge advocates. We take what seems complex and overwhelming, and rather than shrug our shoulders and say, “It all depends,” we give clear executable advice. We do “the math of the law,” and we wrestle with the facts, the assumptions, and the fog until we get to a solution for our client. And we have done that here. Clear, straight forward, and executable.
But your work does not end there. First, you must read this FM. It is not enough to scan it. You must understand it. You must be able to train it and help your commanders to train it. And, you must be able to understand the volumes of law that stand behind it. That is the unwritten charge to each of you. And then my third point: this FM helps us preserve our commanders’ legal maneuver space. What do I mean by legal maneuver space? Every day, an NGO or the ICRC or an academic publishes on the law of armed conflict. We face an ever-increasing risk that because of the frequency and volume of publications, the world will see the law represented in these opinions and aspirations, not as it should be, but by state practice. For example, if a prominent academic or international organization concludes that explosive weapons may not be used in cities, and they say it repeatedly—well then, it must be true! And this aspirational drumbeat then finds its way to the battlefield, and suddenly we find that it is the new standard. Not so.
We must be ruthless in pushing back to declare what the law actually is—not what some individuals and organizations would wish it to be. This is the essence of preserving commanders’ legal maneuver pace. Hence, our core principle to be masters of the law. Hence this FM. It goes back to that wealth of information out there about the state of international law and the law of armed conflict. Everyone has an opinion. The issue we now face is how those opinions—even the well-intentioned ones—operate to limit our commanders’ maneuver space. The constant drumbeat of opinion and aspiration risks that it will be mistaken for law—which will—wrongly limit our maneuver space.
States, not NGOs, IGOs, or even venerable and esteemed academics, make the law. If we do not master the law, others will limit commanders by their incessant drumbeat. It is important for these groups, our allies, and the world to understand how we—the United States—interpret the law of armed conflict. And while the DoD Law of War Manual remains the DoD’s authoritative position on the law of war, this FM reflects the Army and Marine Corps interpretation of how to lawfully, responsibly, and humanely conduct land warfare. This serves as evidence of our standard—the standard. As the foreword states, “adherence to the law of armed conflict . . . must serve as the standard that we train to and apply across the entire range of military operations.” This manual represents our state practice—our values. When there is divergence, disagreement, and the inevitable confusion with ICRC interpretive guidance, or a UNAMA report on CIVCAS, for example, this FM stands watch—with clarity and our department’s imprimatur. We simply cannot afford for our lawyers or leaders to be confused about the rules in warfighting. Clarity in the law and in standards is a precious commodity. Clarity in the law is exactly what this manual delivers and as a direct consequence, preserves our commanders legal maneuver space on “Battlefield Next.”
And yes, the FM goes further. Winston Churchill once said, “There is only one thing worse than fighting with allies—and that is fighting without them.” When we publish a manual like this, we help establish a baseline for our partners and allies. It also serves as proud notice to our enemies. This FM fuels dialogue about differences of opinions, it fuels the ability to train to one standard and, frankly, it helps to clarify decisions whether a particular State is one we want to partner with in operations. This has an impact strategically, at the national level, and can be a deciding factor on whether a state can or is willing to participate in a coalition. And of course, most fundamentally, like my memories of “the Dish”—this FM matters tactically—helping to guide when and how to employ lethal force on a battlefield. Transparency of standards builds a common legal foundation for combat operations, which in turn hastens mission accomplishment—lawfully.
We simply cannot afford for our lawyers or leaders to be confused about the rules in warfighting. Clarity in the law and in standards is a precious commodity
We must remember, our raison d’être—our purpose as an Army and Marine Corps—is to fight and win our nations wars—swiftly and lawfully. To do that, our leaders must be decisive. They require the ability to quickly, confidently, and lawfully do what must be done. When outside influences attempt to restrict lawful means and methods of warfare, ignore context, mis-cite facts, or selectively choose favorable facts to support biased opinions or positions about the conduct of operations, we risk the confidence of our commanders and operators to make life or death decisions. This FM affirms our commitment to and our interpretation of the law of armed conflict in a clear and concise battle ready readability.
So now that we have this manual, and we are here to celebrate it. Now what? We move boldly into the future—that’s why we have our second panel—Majors Collins, Liddick, Medici, and Capt. Iacobucci here, ready to present on a panel. They represent our future. Greg, Eric, Keoni, and Steph—indeed, all of you—will carry the manual forward, you will refine it (let’s hope it doesn’t take another sixty-three years like this one), and you will apply the words in training and on the battlefield. With that, I invite you to challenge us with your questions. I look forward to the exchange. And I charge each of you to Be Ready! TAL
LTG Pede is The Judge Advocate General, United States Army.