Closing the Gaps: Pre-Deployment Role of the Military Legal Adviser

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As US involvement in wars in Iraq and Afghanistan comes to an end after twenty years, it is worth taking stock of how things stand in relation to the Law of Armed Conflict (LOAC). This law serves dual purposes: military necessity (which permits measures which are necessary to fulfil a legitimate military purpose provided they are not otherwise prohibited by LOAC) and the principle of humanity (which limits the effects of armed conflict on civilian populations and others who are hors de combat). Much could (and likely will) be written about the legal advice provided during combat operations over these past decades. Our focus here is the delivery of LOAC education and training to forces on a routine basis and for specific missions. 

As Laurie Blank and Gregory Noone express in their excellent United States Institute of Peace manual on law of war training, the Geneva Conventions require that states train their forces on the law of armed conflict. Blank and Noone aptly point out that there is a LOAC “knowledge gap” that they attribute “primarily [to] an absence of knowledge and opportunity.” Commanders and legal advisers can help close this gap through education and training that incorporates the law of armed conflict. 

But there exists another gap that legal advisers must acknowledge and address through LOAC training. As LTG Charles Pede, the 40th Judge Advocate General of the United States Army recently expressed, there is a gap between what the law of war requires, and what some may believe it requires; between lex lata and lex ferenda, or perhaps between IHL and a mixture of IHL and a broad reading of human rights law. For example, there is a debate surrounding what level of certainty commanders need before conducting targeting operations, with Adams and Goodman arguing that LOAC requires a “near certainty that the proper target is being engaged and civilian casualties are minimized.”

The term ‘near certainty’ also appeared in the US Presidential Policy Guidance on direct action against terrorist targets in 2013.  The guidance required ‘near certainty’ of target identification and ‘near certainty’ the “action can be taken without injuring or killing non-combatants.” While the former is ubiquitous in combat operations, the latter is not, at least to the extent that it requires zero non-combatant casualties. LOAC requires forces to take all feasible precautions to minimize civilian casualties; it does not require near certainty of avoiding them. As Marty Lederman astutely noted in 2016, the Presidential Policy Guidance’s requirement of ‘near certainty’ – that non-combatants would not be injured or killed – explicitly did not apply to areas of active hostilities, such as Afghanistan, Iraq, and Syria. Commanders operating in areas of active hostilities must understand that a baseline legal requirement to minimize civilian casualties remains, and that policy-based directives may add additional requirements.   

Acknowledging these gaps emphasizes the need for pre-deployment LOAC training not only to achieve LOAC’s dual purposes, but also to preserve the legitimacy of the law itself. As Pede explains, decades of policy-driven rules of engagement tailored to counterinsurgency and counter-terrorism operations have created expectations that they have become new normative rules. Moreover, these policy decisions might affect not only tactical decision-making, but also help manage interoperability as a recognition of partner-nation legal obligations, for example to Additional Protocols I and II, and the extraterritorial application of the European Convention on Human Rights. Policy choices may intentionally narrow the ‘legal maneuver space’ for a specific mission, but they do not change the law of armed conflict. Training will help commanders and troops understand the policy/law distinction and apply force consistent with LOAC and treaty obligations in future armed conflict.  

Dissemination, Education, or Training? 

The 1949 Geneva Conventions require states to disseminate the text of the convention to ensure that the principles are known by the ‘entire population’ (see, e.g., GC I, Art. 47). The article further requires the study of the conventions in states’ “programmes of military… instruction.”   

While educating the force on LOAC principles is a good start, embedding knowledge into the reflexes of military leaders and soldiers via training is a critical step towards ensuring compliance. As Elizabeth Stubbins Bates points out, the scholarly and practitioner consensus is that mere ‘dissemination’ is insufficient for LOAC compliance. According to the ICRC, LOAC must be ‘integrated’ into the training cycle and military decision-making as a whole. The Roots of Restraint in War study concluded that such training results in increased compliance on the battlefield. US policy also focuses on compliance, as Professor Chris Jenks confirms, DOD Directive 2311.01 requires the implementation of “effective programs… to prevent violations of the law of war.”

Indeed, effective training of LOAC within armed forces requires a multi-faceted approach, combining classroom instruction, and experiential learning through realistic scenario-based exercises. It is one thing to appreciate the law in a sanitized classroom environment; it is quite another to demonstrate understanding in a split-second decision on the battlefield. The Roots of Restraint study arrived at the same conclusion, noting that “adherence is best tested under duress.” For example, while soldiers may understand conceptually the obligation to respect civilians, the true test of internalization occurs when they encounter civilians on a mock (or real) battlefield. This latter practice-based level of understanding creates the muscle memory that will help fulfil the aims of the law of war.

What to Train?

Commanders rightly turn to their legal advisers for assistance in LOAC training but should be careful not to defer leadership in the effort. While legal advisers may aid in the training, law of war compliance is a commander’s responsibility, under Art 87(2) Additional Protocol I for those states which have ratified it, and as customary LOAC. As Craig Jones notes, legal advisers advise and commanders decide.  While Jones focuses on the operational setting, his observation is no-less relevant in the pre-deployment training setting. 

The Commander’s Handbook on the Law of Armed Conflict (US Army FM 6-27) invokes AP I language when it suggests that instruction should be “commensurate with duties and responsibilities.”  In one sense, instruction must be tailored to the level of command – the ‘duty’ part. But ‘responsibility’ also invites a prospective view on what might be required of leaders and soldiers alike on a given mission set. 

Just as Jones suggests keeping lawyers ‘in the loop’ throughout the targeting process, commanders should similarly keep their legal advisers involved in the development of pre-deployment training scenarios. Keeping a legal adviser ingrained with current and future operations is not only possible, but perhaps indispensable on the modern battlefield, an effort that should start before mobilization of forces.

Commanders, with the help of legal advisers, can tailor LOAC education and training to not only the level of command, but also to the type of mission. This allows commanders and legal advisers to anticipate legal issues based on planned or likely operational scenarios. For example, in 2003 coalition troops encountered many surrendering Iraqi soldiers during their initial movement into Iraq. Training for such a scenario would obviously require forethought regarding the LOAC dimensions of the operation. Providing initial education on legal requirements and embedding potential legal ambiguities into the training scenarios will help ensure the execution of the mission complies with the law.

How to Train?

Former Director General of the British Army Legal Services Branch A.P.V. Rogers wrote that “[m]ilitary effectiveness depends on the prompt and unquestioning obedience of orders to such an extent that soldiers are prepared to put their lives at risk in executing those orders.” Yet international criminal law (in addition to LOAC) does not permit the defense of superior orders where such an order is ‘manifestly unlawful.’ That adjective ‘manifestly’ recalls early twentieth century case law when subordinates were not systematically trained in the LOAC. Now that military training in LOAC is an obligation in treaty and custom, soldiers should be expected to obey all lawful orders, and identify the unlawful ones.

As I argued above, to ensure compliance, classroom instruction on LOAC and the rules of engagement must also be followed by realistic training that incorporates ambiguity to simulate the fog of war. This may be especially true when states ask soldiers to show restraint (perhaps, ‘courageous restraint’) through rules of engagement. A natural tension may arise between soldier and leader when orders restrict actions the law of war might otherwise allow, such as holding fire after an observed hostile act or perceived hostile intent. As Michael Walzer argues in Just and Unjust Wars, the “war convention requires soldiers to accept personal risks rather than kill innocent people.” Training helps soldiers and leaders know how rules of engagement complement the laws of armed conflict.  

In training soldiers on LOAC and ROE, commanders and legal advisers should take care to help soldiers understand when force may lawfully be applied, and that ROE supplements the LOAC based on strategic, policy, and perhaps tactical prerogatives. Giving soldiers the context of such orders will help lessen tension, avoid confusion, and boost morale because knowing the context leads to a better understanding of the mission.

Soldier LOAC References 

Commanders and legal advisers may wish to supply their forces with written materials to help facilitate their understanding of the rules that apply for a particular mission. History is replete with examples to include Francis Lieber’s famed 1863 code, a pocket-sized manual for troops in the field. Just as FM 6-27 suggests giving “instruction commensurate with… duties and responsibilities,” leaders should similarly tailor disseminated materials to the audience. 

While the Geneva Conventions require that authorities in positions of responsibility have access to the entire text of the conventions, legal advisers can help tailor additional references that serve as a reminder of key principles for soldiers.  Often termed ‘ROE cards,’ these condensed versions of the full rules of engagement can help reinforce LOAC and provide a good reference during training.

Closing (the Gap)

Legal advisers can help close the gaps of LOAC misunderstanding through pre-deployment education and training, enabling commanders to preserve their legal maneuver space and operate within the confines of the law, while distinguishing between the lata and the ferenda. Such understanding will help achieve LOAC’s dual purposes of military necessity and humanitarian protection, while also serving to ensure the viability of the legal regime itself.

The views expressed in this article are the author’s own, and do not necessarily reflect the viewpoint of the Department of the Army, Department of Defense, or the United States.

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