Large-Scale Combat Operations Symposium – Legal Considerations Before and During LSCOs

Editor’s note: The following post highlights a subject addressed during an expert workshop that the Lieber Institute co-convened alongside Harvard Law School’s Program on International Law and Armed Conflict and the International Committee of the Red Cross, focusing on some of the legal issues arising in large-scale combat operations. For a general introduction to this symposium, see Winston Williams and Jennifer Maddocks’ introductory post.

To some extent, what there is to say about future large-scale combat operations (LSCOs) is at once well supported by history and inherently speculative. We’ve certainly been here before, engaged in full-societal mobilization and complete leveraging of the military (and other) instruments of power during the First and Second World Wars. And subsequent conflicts in Vietnam, Korea, and the first Iraq war, though more geographically limited, also involved widespread weapons employment with devastating effects on combatants and civilians alike.

With the help of history books and Hollywood, we can remember and learn. And yet reimagining these types of conflicts against current peer or near-peer adversaries, particularly those with nuclear trump-cards to play like Russia or China, requires a bit of guesswork. Our assumption, however, is that Clausewitz’s conclusion remains valid: while the character and details of war may change with technology, the nature of war will always be a physical, violent clash of force over desired political (or geopolitical) outcomes.

Pre-LSCO Competition

Before addressing what lawyering in future LSCOs may be like, and what we should be doing as legal professionals to prepare, the legal considerations for pre-LSCO competition warrant some attention. The U.S. Joint Staff recently published its Joint Concept for Competing, and the coming months and years will inevitably bring myriad articles addressing its contents and merit. It is reasonable to conclude, in our view, that we need strategic competition with our major adversaries. In a multi-polar world with heavyweight powers, whose resource pools, supply chains, and overall markets are inextricably linked, there is a considerable disincentive for all-out war. However, the clash between autocratic and plural-democratic worldviews, as well as the struggle to preserve or eliminate the post-Second World War liberal international order, creates enormous friction. The resulting pressure and heat need somewhere to go, and competition below the threshold of armed conflict provides a release valve. It preserves stability, allowing global powers to make gains in the margins without resorting to catastrophic force.

Accordingly, military lawyers need to become increasingly familiar with the domestic and international legal considerations for pre-war competition. From a U.S. domestic law perspective, what we’re most likely talking about is activity that falls short of a Congressional authorization for the use of force. The activity is therefore within the President’s inherent authority as Commander-in-Chief and the related responsibility to protect U.S. personnel, under Article II of the Constitution. A key conclusion necessary to meeting this Article II standard is that the activity in question, which is limited in scope, duration, and impact, would not create an escalation with an adversary that rises to “war” in the Constitutional sense – the declaration of which remains solely in the purview of Congress.

The corresponding consideration in international law is whether the activity rises to the level of a “use of force” under Article 2(4) of the UN Charter. Member States must refrain from the use or the threat to use force against the territorial integrity or political independence of another State. While the United States interprets the use of force standard broadly, it may be that taking forceful military action against an adversary is otherwise permitted as an act of self-defense under Article 51 of the UN Charter, provided the action takes place in another country pursuant to its request or consent, or because U.S. defensive action is necessary without consent because the country in question is unable or unwilling to sufficiently address the threat. Overlaying the domestic and international law Venn diagrams here, pre-LSCO competition could indeed involve uses of force against adversaries, provided they are sufficiently non-escalatory to fall below the threshold of “war” in the U.S. Constitutional sense.

Public affairs activities, with their overt and fully-attributable advertising of U.S. objectives, accomplishments, and values, are typically right in the bullseye of permitted competition. Closely related but distinct information operations, aimed at influencing external audiences instead of just informing them, also fall within the competition space. If U.S. sponsorship is not apparent, additional legal concerns are implicated regarding compliance with the Covert Action Statute, or 10 U.S.C. 3093. Per the statute, activities to influence the political, economic, or military conditions abroad, where the role of the U.S. government is intended not to be apparent or acknowledged publicly, must be approved by the President as a covert action – unless, among other exceptions, it is considered a traditional military activity (TMA). Thankfully, Congress passed section 1632 of the FY2019 National Defense Authorization Act (NDAA), which affirmatively labels clandestine military activities or operations in cyberspace as a TMA. Military lawyers will find section 1632 (codified in 10 U.S.C. 394) a useful enabler for the entire gamut of cyber activity, but will still need to ensure the real-world effects of these activities remain compliant with the use of force and escalation to war analysis detailed above to remain in the competition zone.

And what about irregular warfare (IW)? While DoD doctrine and policy continue to refine their understanding of this term, Congress expressed a clear intent that DoD engage in IW as part of strategic competition. Section 1202 of the FY2018 NDAA authorizes support to foreign and irregular forces, groups and individuals, engaged in activities advancing U.S. forces’ IW objectives, provided the recipients remain in “competition short of traditional armed conflict” with targeted adversaries. This language has challenged section 1202 support in places like Ukraine, where would-be partners are clearly in an armed conflict with Russia, and are therefore ineligible. DoD is proposing a number of legislative proposals concerning 1202, and legal practitioners should pay close attention to developments here in the coming year.

Finally, we must not forget about security cooperation authorities. Most of these are consolidated into Chapter 16 of Title 10 and allow DoD and its components to spend money in support of the security capacity of foreign partners. This is a crucial tool of American influence and power. These programs play an outsized role in “economy of force” theaters like those governed by U.S. Southern Command or Africa Command. In theaters such as these, U.S. commands may lack large formations of warfighting assets, but can leverage security cooperation dollars to induce partners toward the U.S. cause and potentially prevent partner alignment with potential adversaries like China or Russia.

Preparing to Lawyer in LSCOs

Having worked through some pre-LSCO considerations, we return to the crystal ball effort of identifying key characteristics of future LSCOs and offer a few thoughts on how we as military lawyers can prepare for this environment. Notably, Ukraine’s ongoing effort to repel Russian aggression offers several insights in this area, not the least of which is the sheer volume of fires populating the modern-day battlefield. News outlets report tens of thousands of artillery shells fired from both sides in a single day. One practical observation for legal advisors in such a scenario is that it presents quite the math problem. In recent decades, U.S. operational lawyers have grown accustomed to a central seat in operations cells, advising engagement authorities controlling strike assets on applicable rules of engagement (ROE) and underlying law of armed conflict considerations during relatively limited, discrete kinetic operations.

The LSCO scenario, presumably spread over vast terrain and a multitude of headquarters empowered to launch offensive and defensive fires, will require some outsourcing. Lawyers will simply not have the capacity to advise on every major strike. Further, ROE are likely to be, of necessity, much more permissive than in recent counterterrorism campaigns, where minimization of civilian collateral damage has been central to overall success. All of this translates to a requirement for lawyers to ensure commanders are educated on the basics of necessity, distinction, proportionality, and unnecessary suffering, so that they can fulfill the mission both speedily and lawfully.

Likewise, a greater scale and scope of fighting will inevitably pressure communications. While we have great jamming or disrupting technology, the assumption is that our LSCO enemies will too, necessitating the ability of our legal professionals to act autonomously and unplugged (at least for temporary periods). The “smart-books” many of us built in the stone-age of the 2000s, along with hardcopies of the Army’s Operational Law Handbook and DoD Law of Manual, may prove to be timeless tools. On the flipside, operational lawyers best serve their commanders with consensus throughout the legal technical chain, ideally achieved through frequent coordination. For the battlefield-next, we should all be familiar with the commercial encrypted communication tools available—and be prepared to leverage them as back-ups when necessary and if appropriately cleared for official use.

We can also predict that future LSCOs will leverage the full spectrum of military capabilities. These will no doubt be affected by the rapidly expanding world of artificial intelligence and related autonomous weaponry. As our clients field such systems, it will be critical for lawyers to enable employment in lawful ways. This must include human judgment and decision-making in order to ensure feasible precautions, identification of valid military targets (even with dual-use nuances), and discrimination, among other principles. In addition to new technologies, we can also foresee a reemergence of old ones, to include the widespread use of mines. This will warrant a general refresh on the international legal parameters of Protocol II (amended) to the Convention on Certain Conventional Weapons, potential customary international law reflected in the Ottawa Convention, and U.S. domestic policies regulating mine usage.

Perhaps the most important thing our military legal community can do in preparing for LSCOs is to grow and season our personnel in the world of joint warfighting. Consider a potential conflict with the People’s Republic of China, which boasts an enormous navy and rapidly growing air force in addition to its ground force, as well as significant enablers in cyberspace and space domains. Such a fight would require thoroughly joint U.S. commands and task-forces, with personnel fluent in the capabilities, processes, and language of their teammates from other Services. As U.S. Army officers with many years in the joint environment during our careers, we are still learning facts on a daily basis about Air, Naval, and Space operations that are critical to successfully advising our senior leaders and policymakers. In the moment of crisis, these folks do not and cannot care what Service I hail from. Comfort in the joint legal world definitely benefits from time and repetition, and this must be a critical consideration for our Service talent managers.

Finally, the broader military legal community must continue to organize around operational law issues, cross-communicate, and build relationships amongst ourselves, our foreign military partners, and academia. To this end, organizations like the Lieber Institute are invaluable. With related conferences, seminars, and panels, they provide a forum for respectful dialogue and debate, challenging all of us to become more professional in our craft. This includes the craft of confronting the increasing presence of adversary lawfare. Preparing to succeed in the LSCOs of tomorrow is a team sport.

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Brigadier General Rob Borcherding is an active-duty attorney in the U.S. Army JAG Corps, currently serving as the Legal Counsel to the Chairman of the Joint Chiefs of Staff.  

Colonel Drew Kernan is an active-duty attorney in the U.S. Army JAG Corps, currently assigned to the Office of the Legal Counsel to the Chairman of the Joint Chiefs of Staff, with primary responsibility for advising the Deputy Director for Special Operations. 

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