Operational Law-A Concept Matures

• Author: Lieutenant Colonel Marc L. Warren
• Pages: 02

Wore soldiers uho happen to be I O I I L ~ T S .

-Majar General Michael J. Nardotti The Judge Advocate General. U S Army

1. Introduction

   This article describes the context of conternporar) military operations and suggests an operational focus for the Army Judge Advocate General's Corps It endorses a broad definition of the maturing concept of operational law and examines selected legal ISSUBS in recent operations Finally, It posits B ~isionfor the ArmyJudge Advocate General's Corps of the future--a Corps based on aperat1onal law

   11. The Operatmnal Context

   The United States military routinely conducts extraordinary mmsmns Khile existing fundamentally to fight and win the nations are,^ the United States military's recent utility has been in diverse polincal-military operation^,^ which blur the distinction between combat and noncombat and between war and peace From Somalia to Macedonia. Northern Iraq to Haiti, and Bosnia to Liberia. these operations present ISSUBS of enormous political, mill- tary and legal complexity For better or for worse, the United States militmy is inexorably involved in what the United States military cammumty jointly calls "military operations other than war," or NOOTW. a term first coined by the Army that made its official Department of Defense appearance in 1993 in Joint Chrefs of Staff

   Publication 3-0,

   Doctrine for Joint Operations.6 Wule doctrine and doctrinal terms for joint operations are m flux. changing in response to threats, technology, and objectives, throughout this article I use the current officml Department of Defense term MOOT\+' to collectively describe the many and complex United States joint milltar). efforts short of

   Military operations other than war present numerous and diverse legal ISEUBS. Just as types of missione vary widely within

   hlOOlV', so do the legal issues which pertain to them There 1s no"law of MOOW.": There are, however, numerow laws and policies that impact-and frequently defineh100TW

   As thekmy faces new and sophisticated challenges, its leadership requires advisors who focus an concomitant political, mditary, and legal issues. To face these challenges, the Army mente a cadre of advisors who are competent in military and legal skills, participants in operations, and mindful of the depth-and limitation-f them r01ee.~ The focus of the advisors is to lawfully facilitate rnm~ion accomplishment, thereby enhancing the versatility of already capable units to meet diverse mission requirements. That cadre is the Army Judge Advocate General's Carps. Thew focus is operational law.

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   111 Operatlallal Law

   In hia seminal article on operational lay Colonel David Graham identified the discipline as "that body of law., both domestic and international, impacting upon legal issues associated with the planning far and deployment of US Forces overseas in both peacetime and combat emironments."' Colonel Graham noted that operational h w 'transcends normally defined legal disciplines" and constitutes a 'comprehensne. ?et structured approach touard resolvmg legal ISSUBS evolring from the overzeas deployment of US milit forces 'lo Colonel Grahamk defmitian. with slight modification. repeated in the field manual on legal operations. "Operational ]ai the application of domestic, international, and foieign law to the planning far. training for, deployment of. and employment of United States military farces '11

   The Operational Lou. Handbook, published by The Judge Advocate General's School. offers B more contemporary and comprehensive u,orking defimtion of the discipline. "Operational law E that body of foreign. domestic, and international law which impacts spemfically upon the actnities of US Forces in war and aperations other than The School's definition of operational law ISremarkabl? broad-and deliberatel? ea The role of the judge advo-cate in militaq operations since Operation Urgent Fup in 1983 ithe crucible far the definition and practice of operational law) establish-es rhe merdiiciplmar) and interprofessional depth and breadth of operational law From running the 'weapons for cash" turn-in program in Grenada to mestigating war crimes m Kuwait. from trying courts-martial in Saudi Arabia to advising detainee interrogators in Haiti. from participating in targeting cells in Somalia to sitting on

   joint military cammiesmns ~n Bosma,l4 judge advocates constantly expand the scope of the practice of operational law

   If the essence of the Army is its operations in the field, then operational law is the essence of the military iegal practice Operational law exists to provide legal support and selvicee to corn-manders and soldiers in the field. It is not a ~pecialty,'~nor is it a

   discrete area of mbstantive law. It IS a discipline, B collection of all of the traditional areas of the military legal practice focused on mill-tary operations. Practicing operational law involves military justice, administrative lax,, claims, contract law, fiscal laa, legal assistance, international law, and the law of armed conflict Operational law also includes proficiency in militaly skills. It is the ramn d'etie of the uniformed judge adwcate. Every judge advocate must be an operational lawyer l6

   This broad view of operational law is mdu&mary, not exelu&nary, and evolutmnary, not revolutionary It requires more of a thematic than a structural revmun of the Corps. Our central focus must be to facilitate operations Staff judge advocates, regional defense counsel, and other leaders must stress the legal and mill-tary roles of their judge advocates" and tram their subordinates as soldier-lawers in apnt, combined. and interagency environment

   Mqar Peter Zolper & Captain Mike Imam The ioinf .Milifan Commirrkon-A Pafrnfial Dacisiir Point, CEXILR FOR Ann' LLEEOIS LEUiiiD #CALLI UEXSLLTIFR. Jan -Feb 1996. at 8 Jomi mdita" c~mmi~eiunrare specified under kficle VI11 ai

   Annex 1A h h h t a ~

   Aspects of the Peace Settlement, of the Agreement on General Framework Agreement for Peace ~n Bosnia and Herregorins 'Implementing the Daytan Peace Aecarde), 15 December 1995. Repvblic of Bosnia and Her2egwlna. Republic of Croatia. Federal Republic aiYugoslavia [hereinafter the Dayfan Agreement1 printed an THE JUDGE %vociii Gruin~rs SCHOOL,

   M ~ T E R M L E ON

   Operations training should include legal noncommissioned officers and stress pint headquarters tactics. techniques. and procedures -5

   Operational lawyers must be decathletes, not boxers ?@ They

   must be consummate generalists. well schooled in all aspects of this discipline. Substantive specializatmn. although necessary m some areas Ifor example. acquisition law), should continue to be the excep. tion rather than the rule in the Corps.Z1

   Vereatility of the Corps' personnel enhances the versatility afforded by the Corps to the Army, As operations are increasingly executed by joint and interagency task forces and, in combined environments, judge advocates are likely to deploy BE pert of a composite legal wppmt section. Because of the composite, complex nature of modern operations, judge advocates supporting combat support or combat serwce support umts may be as likely to deploy as those assigned to combat unite. Such was the case in Haiti. Somalia, end Rwanda. Soldier.lauyrs must be physically fit and mentally pre. pared to deploy whether they are aeslgned to the Pentagon or to a division.

   .Army doctrine mandates the assignment of judge advocates to combat units and provides some constants concerning their location and mmmn First, judge advocates mll deploy as far fornard as possible The mienon of the Judge Advocate General's Corps 16 "to

   support the commander on the battlefield by promding professional legal services BE far forward as possible at all echelons of command throughout the operatianal continuum."22 Within the discipline of ~perational lan, judge advocates advise commanders on the law of armed conflict. and an other international and domestic law and

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   policy which impact upon the actiwties of Umted States forces ~nwar and MOOTw23

   Second, judge advocates will deploy \r.ith the lead elements of combat units. The field manuals governing the operatione of the infantry division m the field provide a description of the SJAsectian in the rear, mam, and assault command posts of the division 24 The SJA of the 82d Airborne Division airlanded in Grenada with the division's assault command post in Operation Urgent Fury in 1983. The SJA parachuted into Panama with the division's assault command post in Operation Just Cause in 1989. Judge advocates are a key component of the advance party and main body in MOOTWZ6 A judge advocate deployed with the first rotation of soldiers in Operation Able Sentry in Macedonia in 1993. Presently. many judge advocates serve with the NATO Implementation Force (IFORI in Bosnia.

   Third, judge advacates will deploy with maneuver brigades and larger units.26 Judge advocates participated In combat with brigades, regiments, and divisions in Operation Desert Storm and in

   Panama and Grenada.27 Judge advocates bere an the ground and offshore in Somalia and Haiti In what mal- have been a first, at least for an Army judge advocate, an attorney was aloft in the air-borne command post far the Ham operation.

   The role of the deployed judge advocate hac changed. No longer solely an advisor on discrete aread of law. the SJA increasingly serves in B broader capacity analagous to that of corporate general counsel Subordinate judge advocates serve as operational law ad\,,-sors to their commanders All judge ad\ocates provide legal and poli. cy advice and serve as multifunctional personal and special staff

   In Ham for elample. on the first morning of...