The Department of Defense’s In Extremis Legal Challenges During Modern Warfare
A Department of Defense (DoD) lawyer has for a client an organization with a remarkable number of dilemmas, all of which must be resolved (or at least addressed) lawfully, consistent with the norms and duties of the profession of arms, and in full view of an often-skeptical public, in addition to regulatory oversight and rulemaking by Congress.
To name just a few, the DoD is: watching two major wars unfold (in Ukraine and Israel) and trying to learn lessons from one theater while trying to advise the other; training to fight in a war it hopes never happens against a “near-peer” (China); continuously engaged in deterring aggressively hostile conduct by States (Iran, North Korea) and non-State armed groups (ISIS, Houthis); adapting to promises and perils of new warfighting technologies (cyber, AI, space); and expecting its leaders—and the public—to reframe how they view civilian collateral damage and military casualties in the event of a major war, the tempo, violence, and (tangible and intangible) cost of which would far exceed the more surgical, sterile, and less-intense combat since 2001. Moreover, the DoD grapples with these challenges all while reengaging with the moral and strategic value of greater sensitivity to civilian harm caused by armed conflict.
Some of these dilemmas are contradictory, like preparing for a major war but planning for it to be highly attuned to preventing civilian harm. Some of these dilemmas are age-old, like learning how to incorporate, and defeat new technologies that make fighting more efficient, more effective, or more dangerous. All of these dilemmas have legal implications, however, none of these dilemmas has only legal implications.
Should siloed legal experts try to counsel their clients on each in extremis dilemma? That approach seems woefully inefficient, shallow, and reactive. Thinking of this challenge as one ripe for a preventive law—or “regulatory compliance”—program might prove more reasonable under these operational circumstances.
Background
Recently, the United States dramatically changed its UN Security Council position on the polarizing question of a ceasefire between Israel, one of its closest allies, and Hamas, described by the U.S. State Department as a Foreign Terrorist Organization for almost thirty years. The impetus for the diplomatic shift is a frank and uncomfortable assessment of the scale of destruction and humanitarian crisis caused by a combination of Israel’s arguably undisciplined high-intensity air and ground campaign in Gaza—which it defends as both tactically necessary and completely lawful—and Hamas’s use of human shields and difficult-to-access underground tunnel networks to store weapons, maneuver, and shelter its leaders and hostages. At least to the United States, Israel’s means and methods of war—which closely, but not perfectly, mirror the United States’—risk isolating it and further antagonizing its neighbors. The United States is now cautioning its ally to avoid mistakes the United States made (and about which it perhaps wishes it had been cautioned) in the wake of the 9/11 attacks.
Meanwhile, the DoD is busy preparing itself and the armed services for the worst-case scenario of fighting in “large-scale combat operations” against a near-peer adversary. It is simultaneously shifting its emphasis away from the kinds of small wars of counterinsurgency it has practiced for a generation. And in what looks superficially like a contradiction, the DoD is rolling out an ambitious and unprecedented policy on the protection of civilians from harms during conflict, an effort that began long before Hamas’s attack last October (and even Russia’s invasion of Ukraine in early 2022) based on lessons learned from failures (or perceived failures) during two decades of fighting in relatively low-intensity counter-insurgency (COIN) and low-density counterterrorist operations far from our own shores.
Complicating matters further given military support from the United States to Ukraine and to Israel in their own respective wars, President Biden’s new National Security Memorandum (NSM)-20 demands that executive branch agencies “engage with foreign partners to share and learn best practices for reducing the likelihood of and responding to civilian casualties, including through appropriate training and assistance,” because “[t]he United States must maintain an appropriate understanding of foreign partners’ adherence to international law, including, as applicable, international human rights law and international humanitarian law.”
And where the United States has provided defense articles and services to our foreign partners, NSM-20 creates an obligation on the Secretaries of State and Defense to report to Congress any:
[C]redible reports indicating that the use of such defense articles and, as appropriate, defense services, has been found to be inconsistent with established best practices for mitigating civilian harm, including practices that have been adopted by the United States military, and including measures implemented in response to the Department of Defense’s Civilian Harm Mitigation and Response Action Plan.
Controversial tactics and indiscriminate use of military weapons provided by the United States risks the manner and extent to which Israel may continue to engage in “security cooperation” programs under United States law and policy.
These parallel developments raise an important and difficult challenge: the problem of the DoD’s compliance with the Law of Armed Conflict (LOAC) in media saturated, polarized and partisan, and densely urban hostilities that fluctuate between high-intensity and low-intensity, international armed conflict and non-international armed conflict (sometimes in the same space), using conventional and unconventional forces and weapons. What kind of proactive and preventive advice can military legal professionals give to leaders pondering, preparing for, or living through this kind of operating environment?
As Israel’s war in Gaza demonstrates, simply having a just cause and legal grounds to go to war—and a formalistic legal defense for how they conduct their military operations despite the density of the civilian population—is not enough to keep all of your friends (or make new ones). Indeed, a just cause and legally-sufficient combat (giving the benefit of the doubt now for the sake of making this point; evidence could certainly prove otherwise later) are clearly insufficient to control the narrative of why and how they are fighting this campaign. Some observers believe it is a clear-cut good vs. evil, historically unprecedented scenario in which Israel is doing only what the circumstances suggest it should do. But to quote the late (albeit fictitious) Harvey Dent, Gotham City’s former District Attorney: “you either die the hero or you live long enough to become the villain.” Through action, omission, or obstinance, Israel may yet prove that fighting long enough in their preferred manner yields, if nothing else, the appearance of morphing from victim into villain.
The DoD’s own compliance challenge includes a very large number of implied or derivative legal questions with which the DoD is, or ought to be, wrestling. These include:
– the effects and implications of modern technologies on otherwise traditional battlefields (like civilians using cell phone apps that act as air defense artillery spotters and using drones to accept surrenders);
– the role of the law of armed conflict in reinforcing certain values and norms (rather than just imposing rules on conduct that can be criminalized and punished);
– what makes for a healthy and effective cooperation between the civil government that decides to engage in armed conflict and the military professionals that are duty-bound and trained to ably execute and manage the violence of hostilities as agents to the civilian authority; and
– the extent to which we expect military commanders will ably comply with the nuances of LOAC during hostilities that are faster-paced, more violent, and hindered by potentially spottier methods of communication and intelligence gathering, given authorities would be pushed down to far lower levels of command than in armed conflicts of the recent past.
This is no doubt a small sampling of the myriad questions that need concrete, actionable answers for people who will make life-and-death judgment calls as a matter of course. If DoD lawyers were to think of themselves as “compliance officers” who design, implement, and manage a compliance program that addresses “concrete problems of executive power,” how would they start? In the spirit of providing a general approach to thinking about such compliance challenges, the DoD should consider three basic principles and four rules or imperatives that might help military lawyers adhere to those principles when advising military and civilian decision-makers.
Three Principles
First, from the perspective of civilian and military leadership, it is acceptable (maybe even obligatory) to take as a premise that a strategic victory in war is worth the cost of assuming tactical risk to your own forces or even suffering tactical losses. As then-General Stanley McChrystal noted in his 2009 tactical directive in Afghanistan, “We must avoid the trap of winning tactical victories, but suffering strategic defeats, by causing civilian casualties or excessive damage and thus alienating the people.”
This priority of strategic victory over tactical success, while apparently callous and insensitive to the cost of losing friends and family who fight in war, seems so intuitively and historically correct that it is as good as axiomatic and universal, not limited to COIN operations. Call it the First Principle.
Second, for something as dynamic, volatile, and public as the modern operating environment proves to be, the responsible attempt to use force within it must be flexible, responsive (not reactive), and scalable in application; that is, equally valid, practical, feasible and suitable to a tank platoon leader, to an artillery battery commander, to a Special Operations team leader, to an infantry brigade commander, to an air wing commander, to the NATO Supreme Allied Commander, and to the political heads of State. We have long-recognized the presence and impact of the “strategic corporal.” Use-of-force decisions will be made by each echelon of decision-maker at the intersection of strategy, morality, legality, and public perception. Call this the Second Principle.
Finally, no belligerent party in a conflict operates in a vacuum. Each is tied to other States and organizations diplomatically, economically, through military aid, or directly as coalition allies. Actions by one party induce actions or responses by the others, varying in both their predictability and in their consequences for the war effort. This general interdependence is also beyond question, as it is a bedrock assumption of modern international law and the United States’ evolving engagement with Ukraine and Israel during their wars are proof in action. Call this the Third Principle.
Four Imperatives
Put these three recognizable but complex principles together and, ironically, they call for a relatively simple framework for a compliance program involving only a handful of essential tasks. While these prescriptions or “imperatives” individually are simple enough to state, practicing them and doing them all consistently and with intention is the complicated part, requiring professional attention and skill in execution. No less an authority than Clausewitz warned, “Everything is very simple in war, but the simplest thing is difficult. These difficulties accumulate and produce a friction, which no man can imagine exactly who has not seen war.”
Imperative 1
Be the “good guy.” This sounds trite, but it is really a prescription to follow the rules of war at a macro scale of jus ad bellum (e.g., the UN Charter’s prohibition on using force unless in self-defense or with a Security Council authority) and the micro scale of jus in bello (the rules of the Geneva and Hague Conventions and what we accept as customary international law). Every decision about the use of force (at any level of decision-making and at any scale of force) should be assessed against the question: did we do the right thing for the right reasons in the right ways? This shows up as a normative direction (or affirmation?) in the DoD “Law of War Program,”
Members of the DoD Components comply with the law of war during all armed conflicts, however characterized. In all other military operations, members of the DoD Components will continue to act consistent with the law of war’s fundamental principles and rules, which include those in Common Article 3 of the 1949 Geneva Conventions and the principles of military necessity, humanity, distinction, proportionality, and honor.
Imperative 2
Following Imperative 1 isn’t enough, however. You must be seen to be the good guy. Even appearing to external observers (traditional news media, the local population, one’s own domestic population, non-governmental organizations, social media influencers, international organizations, our allies and partners) as being the party that does:
– the wrong thing (but for the right reasons) in the wrong way; or
– the right thing for right reasons (but in the wrong way); or
– the right thing for the wrong reasons (but in the right way)
all undermine the ability to follow the “First Principle.” This is a prescription to go above and beyond the conditions, constraints, and obligations imposed by the law, and may mean doing more than what they require and less of what they permit. This takes a current form in the DoD’s new Civilian Harm Mitigation and Response Action Plan, which says, “The U.S. military routinely implements heightened policy standards and processes that are more protective of civilians than, and supplementary to, law of war requirements, without such standards and processes modifying or creating new legal requirements.”
Imperative 3
Self-promote your “goodness.” Here, humility and quiet professionalism are self-defeating. This is a prescription to advertise your effective compliance with Imperative 1 (being the good guy) in order to satisfy Imperative 2 (being known as the good guy). If nobody sees you taking affirmative steps to be the good guy, you risk losing the narrative of your just cause and mischaracterizing your lawful warfighting tactics into war crimes.
Imperative 4
Cajole, induce, incite, and reward others, friends included, into following the prescriptions of the first three imperatives. This particular prescription is implied by the Third Principle. Nobody works alone; failure by a single actor or node in the network can cascade along the links inducing failure by (and harm to) others, or, depending on how big the failure is and how central and connected that node is, renders the whole endeavor for which the network exists a failure. If one party has the capacity to lead (that is, influence “by providing purpose, direction, and motivation while operating to accomplish the mission and improve the organization”) and is assumed to be doing so, then they need to lead from the front, from the back, or from the middle, with carrots or sticks as the case may be.
One way to see this in action is NSM-20’s emphasis on inducing partners and allies to employ best practices for mitigating civilian harm above and beyond that which is required by LOAC rules. Another example is the Foreign Assistance Act of 1961, and its linking of security assistance to the recipient nation’s care for human rights (22 U.S.C. § 2304), and in laws regulating “building partner capacity” programs that promote “observance of and respect for the law of armed conflict, human rights and fundamental freedoms, the rule of law, and civilian control of the military” (10 U.S.C. § 333).
Failing any one of the first trio of imperatives puts our ability to follow the First and Second Principles in jeopardy. It renders any attempt at following Imperative 4 to be hypocritical, ineffective, or both. And this itself conflicts with the reality of the Third Principle.
Conclusion
All this is not to suggest or offer some all-encompassing and prescriptive “theory of victory.” The goal of posing three principles and four rules is much more modest. It is to help military legal advisors at any echelon in the chain-of-command think about the question posed at the outset: as a military legal professional, what kind of proactive and preventive advice can we give to leaders pondering, preparing for, or living through this kind of operating environment? This ought to be thought of as the preface or preamble to a what could be called a “LOAC Compliance Program for Modern War.”
Failing to satisfy these four imperatives is, of course, not the only way to earn a strategic loss. Even tactical mistakes, though well-intentioned and law-abiding, can negatively shift a public narrative about the virtues, legality, and efficacy of the military effort writ large, especially if it appears we want to hide that mistake from view. But recommending that we “not make mistakes” is an absurdly unreasonable demand in the context an armed conflict. Indeed, LOAC accounts for this very problem and holds commanders legally accountable only for what they could reasonably foresee at the time of the decision, and based on information they knew or should have known at the time, not after the fact. If we are to prepare military leaders for the in extremis legal challenges we see produced in Ukraine and Gaza daily, the best we can do is to blur the lines normally dividing those who think about strategy from those that think about morality, about legality, and about public perceptions. These three principles and four imperatives deliberately blur those divisions.
Ultimately, the generalizable advice at the intersection of a law of war “compliance program” and “good business sense” that ought to work as well for my teenagers as it does at each echelon of command decision-making is to not only have a legal argument ready for defending yourself as the proverbial good guy, but to go out of your way to convince others you’re the good guy, to selfishly self-promote your good guy status and your good guy deeds, and try to sway your friends to do the same.
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Dan Maurer is an active-duty Army Lieutenant Colonel and judge advocate, currently a professor of national security law at The Judge Advocate General’s Legal Center and School. He has published widely in law reviews and in popular media on military justice theory and reform, civil-military relations, the law of armed conflict principles, war crimes, and constitutional separation of war powers. The views presented here are his own unofficial views and do not reflect the official policy or positions of any part of the U.S. Department of Defense.
Photo credit: Senior Airman Steven Ortiz
