Lieber Workshop 2024: International Law and the Future of Multi-Domain Operations in the Indo-Pacific
Editors’ note: The views expressed in this post are those of the authors and not necessarily those of any other workshop participants.
From October 28 to 31, 2024, the Lieber Institute for Law and Warfare hosted its eighth annual Lieber Workshop at its institutional home, the United States Military Academy. Scholars from around the world, representing a variety of disciplines and backgrounds, gathered at West Point to discuss and debate some of the most pressing legal questions that could arise in the event of conflict in the Indo-Pacific. These included issues arising in all domains of warfare, in a potentially large-scale, peer-on-peer conflict: a scenario that States have not previously had the need to address. The workshop’s discussions on these subjects will form the basis of a forthcoming volume in our Lieber Studies book series edited by Professors Douglas Guilfoyle and Jennifer Maddocks.
Regional Alliances
The workshop’s first panel focused on alliances in the Indo-Pacific. There is no multilateral defense cooperation agreement in the region equivalent to NATO. Instead, between 1951 and 1971, regional States entered five distinct defense alliances. Three of these are bilateral arrangements between the United States and regional powers, namely Japan, South Korea, and the Philippines, while the remaining two (the Five Power Defense Arrangements and ANZUS) are multi-lateral. These defense alliances endure today. However, it is likely they will be tested significantly in the event of conflict.
One workshop participant highlighted this web of alliances from China’s perspective. China views itself as surrounded by States that have a defense partnership with the United States. Yet, China holds various advantages in the event of conflict, including the size of the forces at its disposal and geographic proximity to the conflict. The United States, in contrast, would leverage its proficiency in conducting joint and multi-domain operations, as well as its regional allies and partners. These relationships would be critical to provide the United States with legitimacy, as well as rights of access, basing, and overflight.
One enduring question is whether those allies and partners would allow the United States to operate offensively from their territory in times of conflict. Many regional States may wish to stay on the sidelines of any fight and maintain their neutral status. As such, complex questions of strict versus qualified neutrality may arise, as they have in the context of the conflict in Ukraine. One participant noted the difficulty States may face in maintaining their neutrality in any meaningful sense without damaging relationships with allies.
A further potential challenge concerns legal interoperability between regional allies and partners. States in the Indo-Pacific region are subject to different treaty commitments and may interpret the law in varying ways. In the maritime domain, for instance, divergent views regarding the law of naval warfare are evident in the San Remo and Newport Manuals. These differences will need to be understood and resolved in the event of conflict.
A related practical concern is how to ensure the free flow of information between allies. This is key to the AUKUS partnership between Australia, the United Kingdom, and the United States. Signed in 2021, the agreement’s two pillars were the subject of considerable discussion during the workshop. The first pillar supports Australia’s acquisition of nuclear-powered submarines, while the second focuses on cooperation in critical technologies. Legal challenges related to the agreement include reconciling the manufacture of nuclear-powered submarines with States’ nonproliferation obligations, and export control issues related to sharing highly classified information regarding advanced technology.
Legal Challenges in Large-Scale Combat Operations
If hostilities break out in the Indo-Pacific region, they will pose unique challenges for all belligerents. First, large-scale combat operations (LSCO) will involve significant formations of personnel and equipment. In view of increased transparency on the battlefield due to the proliferation of sensors, land forces will face a huge challenge: not only to achieve surprise and employ mass but also to ensure they are not seen and destroyed by the enemy. This raises legal issues related to masking. In other words, how can large formations “hide in plain sight” without violating the principle of passive distinction or the perfidy rule?
Any LSCO would also raise the prospect of escalation. A conflict could escalate horizontally, to include additional geographic areas, or vertically, for instance if a belligerent used tactical nuclear weapons. One participant discussed this latter possibility and the potential implications under the law of armed conflict (LOAC) and the jus ad bellum. This scenario suggests a potential correlation between conflict escalation and States’ willingness to abide by their legal obligations; the greater the escalation, the greater the associated threat to LOAC compliance. Fighting on this scale could also see States choosing to withdraw from some of their treaty obligations, for example, those related to land mines or cluster munitions (as Lithuania has done, given the threat of Russian aggression).
Workshop participants nevertheless highlighted a perceived “mentality gap” related to fighting LSCO against a peer adversary. Otherwise known as a “COIN hangover” or the “eighteenth gap,” some participants raised concerns that decades of counter-insurgency (COIN) fights might lead to a reluctance on the part of military commanders to use force to the full extent that LOAC allows. Others, however, countered that militaries have over-corrected when preparing for LSCO, therefore, the real “eighteenth gap” relates to States’ preparedness to ensure effective civilian protection during such operations.
On a related note, discussions centered on public perceptions of lawful harm in light of the situation in Gaza. It is apparent from this conflict that public opinion will not readily accept the large scale of civilian deaths that are likely in any LSCO. Thus, even if civilians are killed and injured via lawful strikes that comply with LOAC, militaries must be prepared for unprecedented levels of scrutiny.
Accordingly, belligerents cannot ignore the digital and cognitive domains. The conflicts in Ukraine and Gaza have demonstrated the importance of information in shaping perceptions of conflict and both domestic and international support for military operations. The same is likely to be true in any conflict in the Indo-Pacific. It is evident, in particular, that China has a robust approach to cognitive warfare. Any LSCO will inevitably involve allegations of war crimes, and each belligerent will seek to use these to their own advantage. A further challenge may be the impact of artificial intelligence (AI) on information operations, such as the use of generative AI and deep fakes. In a complex conflict environment, these developments may be particularly difficult for commanders and military units to counter.
Legal training is essential to ensure that military personnel at all levels of command are equipped to address challenges arising in both the cognitive and physical domains. Conflict drives innovation, as the ongoing operations in Ukraine and Gaza vividly demonstrate, therefore militaries will need to ensure their troops are properly trained to operate lawfully in the new combat environment. Moreover, in LSCO, commanders will need to become comfortable in applying LOAC without a lawyer present. Effective training is essential to ensure that commanders instinctively understand LOAC and how it applies.
In sum, fighting a peer adversary in the Indo-Pacific region would involve high levels of complexity. Irregular warfare, involving non-State actors, would likely remain a salient feature of the hostilities. Cognitive warfare would complicate decision-making and seek to hinder popular support for the fight. Detention operations would be highly complex and involve inter-alliance coordination. And belligerents would have to fight in every domain of warfare: land; sea; air; space; and cyber.
Multi-Domain Operations
Given the geography of the Indo-Pacific, the maritime domain is likely to be of particular importance during any conflict in the region. One of the workshop panels therefore focused exclusively on legal issues arising at sea. Participants discussed a range of challenges including the protection of undersea cables and pipelines from future sabotage; the attacks on the Nord Stream pipeline highlight some of the legal issues that may arise in this context. The status of vessels is also key. For instance, one participant addressed the concept of auxiliary vessels and their operational rights during conflict. Auxiliaries are distinct from warships and merchant vessels and are likely to play a critical role in any conflict in the region to sustain military operations at and by sea.
Another participant addressed the air domain, including issues related to archipelagic overflight. Indonesia’s stance towards air and sea passage over and through its strategically positioned archipelagic waters could be critical to the conduct of hostilities in the region. Discussion also focused on potential legal questions arising in the space domain. In this context, issues of distinction arise due to extensive commercial operations in space and the widespread State practice of using commercial space assets for military purposes.
Similar issues emerge in the cyber domain due to militaries’ use of dual use infrastructure and the role of the private sector in pushing forward innovation. Workshop discussions additionally addressed the perennial questions of when a cyber operation constitutes an attack for LOAC purposes and whether data is an object. As in any LSCO, States will have to grapple with such complexities in the event of conflict in the Indo-Pacific.
Conflict on the Island of Taiwan
One workshop panel focused on legal issues that may arise in the event of conflict on the island of Taiwan. These relate principally to Taiwan’s status and whether it qualifies as a State. The answer to this question impacts the classification of any conflict that may arise, and whether other States could lawfully act in Taiwan’s collective self-defense.
Taiwan’s status also has significant implications for the conduct of hostilities. For instance, the classification of the conflict as either international or non-international in character would impact the belligerents’ obligations towards detainees, particularly whether they are entitled to the protections afforded to prisoners of war. Even if the conflict is international in character, the question remains whether prisoner of war status would apply to members of Taiwan’s armed forces. If detained by China, they are likely to be deemed nationals of the detaining power, meaning that their entitlement to prisoner of war status remains in doubt.
Any conflict on the island of Taiwan would likely be large in scale and thereby raise many of the challenges related to LSCO outlined above. It is also possible that Taiwan might adopt a policy of “total defense.” This would raise conduct of hostilities issues related to civilians’ direct participation in the fight and how they should be treated if detained.
Concluding Thoughts
The Lieber Workshop was a fascinating event, and we are grateful to all those who attended. The discussions were wide-ranging, as outlined in this post, yet they only scratched the surface of the legal issues that could arise in the event of a LSCO in the Indo-Pacific region. Some of these will be addressed in greater depth in the forthcoming volume of the Lieber Studies, which will include contributions from many of the workshop participants.
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Jennifer Maddocks is an Assistant Professor in the Department of Law and Philosophy at the United States Military Academy, West Point and the Managing Editor for Articles of War.
Thomas Wheatley is a captain in the U.S. Army and an editor for Articles of War. He is also an Assistant Professor in the Department of Law at the United States Military Academy, where he teaches U.S. constitutional and military law.
Photo credit: Prof Mark Wellmann
