The Place of Judge Advocates on the Next Battlefield

President Biden refers to the current decade as “the decisive decade” in the National Security Strategy (NSS). Consistent with the NSS, the National Defense Strategy (NDS) articulates the Department of Defense strategy to obtain an advantage against its adversaries across all domains and, if necessary, to fight and win in armed conflict. As the Army prepares for large scale combat operations (LSCO), it recognizes the potential threats presented by peer and near-peer adversaries such as the Russian Federation and the People’s Republic of China. The security environments in Eastern Europe and the Indo-Pacific further highlight challenges the Army may face as part of the Joint Force operating in all domains (land, sea, air, space, and cyberspace).

The Army’s doctrinal shift toward LSCO presents an opportunity to discuss and reimagine the style and timing of legal advice that clients may need in competition and armed conflict, and to reevaluate the proper posture of judge advocates in military formations to meet future requirements, most notably in LSCO. This post recognizes that commanders must deliberately consider how to best employ their legal counsel in situations where the velocity, scale, and violence of combat exceed what is generally encountered during counterinsurgency operations. It then provides recommendations on where, when, and how National Security Law practitioners can maximize their effectiveness in support of their commanders.

For both audiences, the anticipated scope and intensity of LSCO demand greater emphasis on robust LOAC training well in advance of conflict because it is unlikely decision makers will have the luxury of the boutique legal advice once enjoyed in the counterinsurgency and counterterrorism fights. This post argues to better ensure battlefield success in LSCO, leaders must adopt a more diffuse, agile command structure that will sometimes require commanders to operate with reduced staff. This may call for relocation of judge advocates and, therefore, frustrate the near reflexive turn to legal advisors for guidance. If so, commanders may be required to improve their own proficiency with the law of armed conflict.

Where Do Law and Doctrine Require Legal Advisors?

International law requires legal advisors (in this article referring to “judge advocates”) be available to commanders in the field. Article 82 of Additional Protocol I states,

[t]he High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject. [Emphasis added.]

The United States acts consistently with this provision of AP I (albeit not ratified by the United States) and makes judge advocates available to commanders at appropriate levels. The law does not require that judge advocates provide legal advice on every targeting decision.  DoD policy requires that qualified legal advisors be available to advise on the law of armed conflict (LOAC) (see DoD Law of War Program), but where and howthat advice is provided is not set in stone. By examining U.S. Army doctrine, one may discern where legal advisors’ involvement in staff processes are most necessary.

Army doctrinal publications place judge advocates in various locations accessible to staff, groups, and boards during armed conflict. For example, Army Training Publication (ATP) 3-60 (Targeting) highlights the importance of judge advocates in targeting meetings and as part of the military decision making process. ATP 3.91.1 (The Joint Air Ground Integration Center [JAGIC]) states, “[t]he staff judge advocate may be involved with the JAGIC when executing sensitive targets or targets with the potential to produce collateral damage. In all instances, the division staff judge advocate must be easily accessible to the JAGIC.” Additionally, ATP 3.91 (Division Operations) notes where the staff judge advocate should be involved. The Army’s Field Manual on Legal Support to Operations (FM 1-04) lists in great detail where judge advocates should integrate during operations. It begins by indicating that “[Judge Advocate General’s Corps] leaders must evaluate and analyze the anticipated operations of the supported unit to best design the structure for legal support at their echelon.” The field manual also notes that “[t]raditional OSJA and [Legal Operational Detachment] division structure, centered on legal functions, may not adequately provide the legal support required of a dispersed and tactically focused corps or division headquarters.” In short, Army doctrine acknowledges the tailorable approach to judge advocate placement.

Both the law and policy help ensure commanders have the support they need to comply with LOAC. Given the complexities of international law, legal advisors are trained to help commanders and staff properly consider the legal challenges involved in both planning and executing military operations. The most effective commanders maximize the use of that capability.

Future Command Posts: Diffuse and Agile

The NSS highlights an intent to “modernize the joint force to be lethal, resilient, sustainable, survivable, agile, and responsive … .” Similarly, the United States Army must modernize the way it trains and operates to prepare for future armed conflicts. Specifically, future conflicts will require innovative and dynamic adjustments, at speed, to how units organize and exercise mission command in order to counter the enemy’s ability to find, fix, and neutralize our command and control (C2) nodes. Such adjustments will impact, among other things, the ways in which staff are arrayed within the primary loci of activity for the commander and staff during an armed conflict: command posts.

Command posts can be extremely vulnerable to detection from air, space, and in the electromagnetic spectrum (for observations from the Ukraine-Russia conflict, see this article and this report). Army forces must ensure command posts are difficult to detect, dispersed to prevent a single strike from destroying more than one node, and rapidly displaceable. Once a command post is detected it has only a few minutes to displace far enough to avoid enemy indirect fire effects. In order to retain their mobility and do everything possible to avoid detection, leaders often minimize the functions of command posts to promote enhanced agility. When the risk of enemy attack is high, commanders may consider decentralizing operations and dispersing command post nodes into smaller component nodes resulting in less identifiable electromagnetic signatures. Commanders may also seek to improve command post survivability by using existing hardened structures, restrictive terrain, and third-party electromagnetic activity to conceal signatures from headquarters equipment and vehicles.

These constructs, out of necessity, may restrict the number of staff permitted to travel with decision makers. When communications are degraded, staff members not present with the decision maker may be inadvertently sidelined by the commander and left out of the decision-making process. Commanders will need to balance their need for appropriate staffing with the imperatives of the battlefield. A small or low-signature footprint for survivability could impact the delivery of legal advice and require a reconceptualization of how, where, and when legal advisors provide advice. But given the potential need for minimized staffing in a diffuse, agile command post, where should commanders place judge advocates?

Where Should Commanders Expect Their Legal Advisors?     

To ensure LOAC compliance, every decisionmaker must understand the law and make the right legal decision without needing to consult a legal advisor at the point of crisis. To achieve this goal, commanders, with help from their servicing legal advisors, need to think about how to best prepare the force for a more contested operating environment. As combat decision-making paradigms adjust to accommodate the pressures of LSCO, so must legal support to those decisions. Legal advisors must acknowledge the distinct differences between the last and future conflicts and adjust our practice accordingly. Context matters when assessing LOAC compliance.

The speed, tempo, and intensity of the LSCO operating environment may render judge advocates incapable of advising the same way they did in the CT/COIN environment. Effective targeting will require speed and delegation, practically eliminating an attorney from dynamic legal reviews. Instead, commanders and legal advisors must preemptively and proactively educate and train the force on LOAC (and other legal matters of national security law) before conflict so they can assess legal risk without their advisor (see this critical piece by a former judge advocate about efficacy of Army LOAC training). Leaders and senior legal advisors can change their focus to training, as required by DoD policy, regulations, and manuals, such as in the DoD Law of War Manual, DoD Law of War Program (DoDD 2311.01), FM 6-27, FM 1-04, and Army Regulation 350-1, before the commander loses contact with her legal advisor. In fact, AR 600-20 (Army Command Policy) states,

Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish. In order to prevent law of war violations, commanders are required to take all feasible measures within their power to prevent or repress breaches of the law of war from being committed by subordinates or other persons subject to their control. These measures include requirements to train their Soldiers on the law of land warfare, investigate suspected or alleged violations, report violations of the law of war, and take appropriate corrective actions when violations are substantiated. [Emphasis added.]

As stated in FM 3-0, “[r]isk, uncertainty, and chance are inherent to all military operations. The pace and tempo of large-scale combat operations demands a high level of expertise for commanders and staffs.” This expertise evolves on the battlefield, but the baseline expertise comes through training—for everyone. Army Regulation 350-1 contains a similar message.

The Army is focused on developing leaders who can effectively exercise mission command and operate in complex and decentralized operational environments. To this end, leader development programs must be designed to produce and recognize leaders who have mastered the technical and tactical branch skills for mission accomplishment; are inquisitive, creative, and adaptable; and prepare leaders for exposures with, or operating with unified action partners.

Looking at one warfighting function, FM 3-0 states,

[e]xercising [command and control (C2)] with degraded connectivity does not begin when communications break down or when a crisis develops. It must be trained and rehearsed as part of an overall cultural norm designed to make friendly forces more difficult to detect. Commanders ensure staffs are trained on analog and manual C2, and that units have rehearsed reliable primary, alternate, contingency, and emergency communications plans.

Just as the commander will exercise C2 in a degraded environment, they must also ensure their forces are trained on relevant legal authorities in the likely event a legal advisor is unavailable.

Even more fundamentally, leaders must painstakingly ensure each of their soldiers goes through individual weapons training well before engaging with an enemy. Leaders train their formations knowing they will not be able to help every soldier fire their weapon on the battlefield. Ensuring formations understand their legal obligations similarly requires training before contact.

Warfighter Observations

In a recent Warfighter Exercise, a U.S. Army Corps experimented with multiple geographically dispersed command and control nodes. The commander’s intent was to create a mesh system most effective when working together, but with sufficient redundancy to operate independently in a degraded operating environment. To accomplish this, each warfighting function endeavored to staff the different nodes with one or more decision makers and a supporting team capable of operating in isolation. The staff judge advocate did the same, though the decision makers outnumbered the available legal advisors.

Observations from that exercise, and others, suggest distribution without enemy interference creates significant friction for all warfighting functions to advise commanders. This friction may come in the form of connectivity issues, unreliable power, or user error. Communicating between multiple command posts where the enemy can achieve effects against communication systems may prove even more challenging. Once a commander and her staff acknowledge they may lose contact across command posts, they must next assess mitigation strategies. Warfighter exercises highlight the legal complexities of armed conflict and challenges associated with placing a legal advisor with every decision maker. A product of those observations suggests legal advisors should treat LOAC training more like a leader treats basic rifle marksmanship—train well before first contact.

Conclusion

To ensure LOAC compliance across the full spectrum from competition to LSCO, commanders and their servicing judge advocates must commit the necessary energy to ensuring their units understand how to apply LOAC just as well as their soldiers know how to employ their assigned weapon. The role, location, and expectations of the judge advocate may conflict with doctrinal guidance and will most certainly look different than legal support in the last twenty years of armed conflict. Law and doctrine empower the commander not only to ask the question “where’s my lawyer,” but to follow up that question with requirements and resourcing to ensure the placement, posture, and accessibility of judge advocates in LSCO. The baseline requirement is the availability of these trained personnel to advise on the LOAC. Commanders should expect analysis from their legal advisors using a traditional staff estimate that provides the commander with (1) an appreciation of their legal capabilities at echelon and command post, and (2) an understanding of when their legal advisors can provide those capabilities. Judge advocates must proactively anticipate the legal issues of the next conflict and consistently train and rehearse LOAC compliance as part of their commander’s training priorities.

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Colonel Nate Bankson currently serves as the Senior National Security Law Observer, Coach, Trainer for the Army’s Mission Command Training Program.

Michael Keoni Medici is a Major in the United States Army and a judge advocate that serves as an Associate Professor of National Security Law at The Judge Advocate General’s Legal Center and School (TJAGLCS) in Charlottesville, Virginia.

Photo credit: U.S. Army Sgt. Lianne Hirano