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.
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).