LTG Pede on the COIN/CT “hangover”; ROE, war-sustaining targets, and much more!

At our 25th Annual National Security Law Conference  we were honored to have LTG Charles “Chuck” Pede, the U.S. Army’s Judge Advocate General, as our speaker at the conference dinner.  We are pleased to bring you his remarks as he makes many vitally important points.  For example, he observes that after 19 years of counterinsurgency (COIN)/counter-terrorism (CT) operations, commanders (and, really, their lawyers as well) are imprinted with habits formed by fighting under highly-constrained rules of engagement (ROE). 

Such rules may be prudent and laudable in the COIN/CT setting, but they could be breed disastrous hesitation on future battlefields in high-intesity combat against peer and near-competitors.  As he says, “habits [appropriate for] one battlefield…may get you killed on another.”

Accordingly, the Army – to include its Judge Advocate General (JAG) Corps – is working hard to be able to “nimbly pivot from CT to full-tilt warfare…at a moment’s notice” – and to apply the right legal architecture when it does so. While strict compliance with the law of armed conflict will not diminish in future conflicts, policy-based restrictions so often found in contemporary ROE that operate to limit what LTG Pede calls the commander’s “legal maneuver space” will need to be adjusted.

LTG Pede points out that the Army has recently issued Field Manual 6-27 “The Commander’s Handbook on the Law of Land Warfare” to help commanders get a clear understanding of the law.  He also mentions the Army JAG School’s “Battlefield Next” program.  (Note: the school’s Future Concepts Directorate has a “Battlefield Next” podcast series [found here] to help “field a JAG Corps that is ready to conduct future multi-domain operations.”)

He also warns that the “the sheer volume and density of writing and publishing and commentary on the law of armed conflict presents the very real danger that people will no longer be able to tell the difference between what the law is, and what someone wants the law to be.”  LTG Pede cites several particularity egregious examples, including the misguided campaign by the International Committee of the Red Cross (ICRC) to ban explosive weapons in populated areas. 

The reality is, as he says, that the ICRC’s position is “not just unworkable in the next war – it is not the law.”  He’s right, of course, and I’ve railed against the ICRC’s phantasm myself (see here).

LTG Pede also takes on the recent United Nations Mission Afghanistan report that claims that the law of war does not permit the targeting of drug labs that sustain Taliban combat operations. 

Not only are the UN’s conclusions factually suspect (see here), LTG Pede points out that the UN “did not cite to one single source of legal authority for that proposition” adding that they “did not, because they could not” as “their conclusion is not the law.” 

I agree with him (and will be writing more in future post) as I’ve long believed that striking war-sustaining targets is increasingly a better way to protect civilians and still undermine an enemy’s warfighting capabilities than trying to root him out from his civilian population centers where he embeds himself (see e.g., here).

Returning to his concerns about the “sheer volume” of the often-flawed commentary regarding the law of war, LTG Pede asks “our academic and NGO communities to remember and understand the existential nature of nation-state warfighting.” 

This is truly worthy of a more in-depth discussion as there are many reasons for the growing disconnect between the views of nation-states actually engaged in warfighting, and the assertions of academics and NGOs (see e.g. here and here).  In my view it is especially disturbing when organizations like the UN and the ICRC seem to be drifting away not just from their supposed apolitical stance, but also appear to be losing their technical expertise about weapons, warriors, and warfighting. 

But don’t just take my analysis of LTG Pede’s remarks; rather, I urge you to carefully read them yourself as they raise some of the hottest issue in the law of war today…and they provide a thoughtful forecast of those we should expect to find in tomorrow’s battlespaces. Here are his views in his own words:

(Note all photos and illustrations are my “adds” and were not part of LTG Pede’s presentation, and the bolding was also my “add”.

Good evening and thank you.  It’s been an invigorating day of learning and dialogue.

I’m often asked what keeps me up at night.  It is true that we have a great many issues to resolve for our army every day.  Whether it is the authority to spend money on a new weapon system, or whether that new weapon system complies with the law of armed conflict (LOAC), or whether we have the right information moving ‘at the speed of war’ – which as many of you know is getting faster every day.

Practicing law at the speed of war

Before I tell you what keeps me up at night, let me give you a quick example of how we practice law in the Army – at the speed of war –  and this might also whet the adventurous appetite of some aspiring lawyer to join the best law firm in the world as well.

On Tuesday of this week, I had to have a piece of information from the senior lawyer at our mighty 18^th Airborne Corps.  Those are the soldiers who jump out of perfectly good airplanes to get where they need to be on the battlefield.

So we called Colonel Wells for the information.  He didn’t take the call, but he immediately texted us back with these words: “sorry I can’t take your call. I’m about to jump so will be out of comms for a few minutes – call you when I’m on the ground.”

He was midflight, over the drop zone, exited his aircraft, descended, regrouped on the Landing Zone, and then called us with the information we needed.

And this was a pedestrian day for this senior paratrooper-lawyer.  Just an awesome example of practicing law at the speed of war. 

If you think you want to join soldiers like Colonel Wells – see me after my remarks!

The risks of a counterinsurgency “hangover” and the challenge of “Battlefield Next” warfighting

Let me now return to what keeps me up at night.  Although, as you might imagine with soldiers like Colonel Wells in the field there is actually very little that troubles me.

But in short – it is whether we’ll have enough legal maneuver space on Battlefield Next.  What do I mean?

I intend to be a little bit provocative – between the coffee and the cake.

We’ve spent the last 19 years fighting wars in Iraq and Afghanistan and we’ve all got a bit of a hangover.  You and me.

We call it a counterinsurgency (COIN) hangover or counter-terrorism (CT) hangover.  Whatever you want to call it – we all need a bit of rehab.  And we all know the first step in rehabilitation is admitting we have a problem.

So I call this problem 19 years of internal wiring, or habit.

Rules of Engagement (ROE)

Our Army today is spending its time training out the habits formed from fighting in highly constrained rule sets.  We know these rules sets as rules of engagement, or ROE.  ROE are typically more restrictive than the law of armed conflict.  Think of the law of armed conflict as a doorway, and ROE as the eye of the needle. 

ROE are essential on asymmetric battlefields with an enemy that blends into the population – and where a single civilian casualty can threaten host-nation relationships and the success of the entire operation. 

But ROE can also create habits on one battlefield that may get you killed on another.

We’re accustomed to fighting a certain way after 19 years in Iraq and Afghanistan.  We’re used to operating in command centers on secure bases, waiting for hours of overhead surveillance “soak” over a target to confirm an enemy’s presence – to establish ‘patterns of life’ which we heard about today – and mapping out exactly when and where to strike with precision guided munitions so as to minimize any possibility of collateral damage, to frankly unprecedented of degrees of “certainty.” Our noncombatant casualty values may sometimes be zero. 

Conducting high-intensity combat

In some training exercises we might have infantry commanders in high-intensity combat not return fire they are taking from cities because they don’t believe that they can lawfully – or worse – because they believe they’re firing in self-defense.  Of course, they are not firing in self-defense.  The combatant privilege in war allows them to kill the soldiers of the enemy nation on sight.  They need not wait for counterinsurgency notions such as hostile intent or hostile action. 

On seeing a column of tanks will the commander ask “who has release authority for the bomb?  What level of command can approve the civilian casualties we’re anticipating?”  Hesitation creeps in.  As Dr. Dean Cheng highlighted in our session this morning, there is a deliberate effort by some of our peer competitors to do what?  So create misinformation “… to cause the decision maker to hesitate.”

Clearly that commander must conduct his or her own assessments under the law of armed conflict – distinction, necessity, proportionality, unnecessary suffering – but he won’t have time to consult a 26-page tactical directive that echelons munition release authority and limits civilian casualties to zero.

This is the hangover – the baggage from 19 years of warfighting – imprinted on commanders who began the wars as captains who are now colonels and generals.

I’m not criticizing ROE; please don’t mistake what I am saying.  ROE are indispensable to a responsible fighting force – and we will have ROE – even in state on state fighting.  But that joint force must know the war it is in and nimbly pivot from CT to full-tilt warfare – from the eye of the needle to the LOAC doorway – at a moment’s notice.

But we do have to recognize the impact of this internal wiring – this habit.  What difference does it make on the battlefield?  Does a commander and his staff operate differently?

Maintaining legal maneuver space and preparing to fight the next war

The short answer – and potentially fatal answer – is yes.  These ‘habits’ may unnecessarily shrink our legal maneuver space.  The law of armed conflict allows for much greater use of force in state on state warfighting.  This is the legal maneuver space we must preserve and regenerate in our thinking and our culture.

You may recall the tragic example in the Donbass region of Ukraine in 2014.  According to published reports, a drone hovered over two Ukrainian mechanized infantry battalions for 30 seconds before Russian artillery began pummeling the units.   The Ukrainian commanders hesitated to return counterbattery fire against the Russian artillery because they had been warned not to be provocative.  That hesitation cost them.  Within three minutes, both battalions were destroyed by Russian artillery, including 23 dead, 93 wounded.  That is the speed and character of nation state, near-peer fighting – and our National Defense Strategy demands that we be ready for it.

So we cannot fight the last war – the wars of the last 19 years.  Our job is to prepare for the next one.  I’m fond of remembering former Secretary of Defense Robert Gates, who said “when it comes to predicting the nature and location of our next military engagements, since Vietnam, our record has been perfect.  We have never once gotten it right . . .”   

And of course, there are the pragmatic words of [Chairman of the Joint Chiefs of Staff] General Milley who said we don’t have to get the next war right – we just have to get it less wrong than the other guy…

So we don’t know what the next war will bring, although it will likely be a combination of everything – from counter-terrorism to near-peer warfighting. 

So we must prepare for the worst.  Our National Defense Strategy tells us that the primary concern in U.S. national security is now inter-state strategic competition.  Great power competition. 

So no matter what the future holds, we must be able to quickly identify the kind of war we’re in and pivot to face it.

And we do this through training.  Since 2012, our training in the Army has included fighting high-end and hybrid warfare against near-peer threats.  This is hard work.  We want to eliminate hesitation – so we must train near-peer decisive action conflict back into our minds and develop different habits.  We want commanders and their counsel to have the confidence to apply the right law for the operation.   And we are making good progress.  But make no mistake – it is hard work to rewire entire formations to be ready for a fight in which hesitation could result in an existential failure – not just a missed target that we’ll ‘get the next time he surfaces.’

Making clear what the LOAC is…

We also fix our hangover by talking about it – and making clear what the LOAC is…

This is what we do as Judge Advocates.  We make the law clear to our commanders.

In the waning days of WWI, the Germans caught two U.S. Soldiers in different locations in France carrying shotguns –used to clear trenches.  On September 19, 1918, the German government protested.  The Germans sent the US a cable stating that shotguns violated the law of war because they caused unnecessary suffering. 

The Judge Advocate General at the time analyzed Article 23 of the Hague Conventions, and wrote an opinion demonstrating that the shotgun pellets were not calculated to cause unnecessary suffering.  U.S. commanders and forces continued to use the shotguns confidently for the remainder of the war, and the Secretary of State was armed with an expert analysis with which to respond to the Germans. 

Today, we continue this tradition of being clear and authoritative about the law of armed conflict.  Just six months ago, we published Field Manual 6-27 – The Commander’s Handbook on the Law of Land Warfare.  It’s a perfectly clear handbook of LOAC for use by commanders, judge advocates and every Soldier and Marine.  If you want to know what we are using to educate the force on the law of armed conflict, this manual is it.  It’s free and I commend it to you.

So that’s my hangover and what we’re doing about it.  Making sure the Army is ready and trained to apply the law of armed conflict is our focus. It’s job #1 for me and my Corps. 

Now, if you’ll permit me, let me talk about your hangover. 

Whether you know it or not, you’ve been drinking the same CT cocktail, and you have a hangover too. 

In short, the sheer volume and density of writing and publishing and commentary on the law of armed conflict presents the very real danger that people will no longer be able to tell the difference between what the law is, and what someone wants the law to be. 

High explosives in cities

Let me give you a few examples of what I’m talking about: 

High Explosives in Cities.The International Committee of the Red Cross (ICRC) and other nongovernmental organizations advocate regularly that wide area effect weapons in urban areas should be prohibited.  There are commentaries. There are conferences.  There are even stick figure videos trying to advocate to change the law.

All well intentioned, but frankly naïve and wrong.  I contend this part of the hangover is the result of our success.  Our ability to fight with precision weapons in highly surgical warfighting environments clouds our view of more conventional warfighting – where near-peer enemies will use cities deliberately, at scale to defend.  Think of Stalingrad, or Berlin, or any of the countless other examples of nation-states fighting over territory.

Notions that high explosives in cities violate LOAC are not just unworkable in the next war – it is not the law.  That is why I push back publicly on such notions – and during after dinner remarks no less.  I highlight that it is a symptom of a ‘hangover’ from the last 19 years of CT.  Of thinking, frankly, that if you have a precision weapon, you must use it.  But that is not the law of war.

We know that the soldier’s job is to bring a swift end to the war – with the least possible damage to civilians or property. 

The battle of Mosul is a good example.  Precision weapons for individual targets makes sense, but urban fighting with a dug-in enemy is brutal business.  House-to-house fighting with precision or direct fire only weapons will bring every building to the ground, extend the battle, and generate far greater loss of life for both sides and the local population. 

War-sustaining military objectives

Another example.  War-sustaining military objectives.  A recent UN Assistance Mission in Afghanistan (UNAMA) report concluded that the law of war does not permit targeting military objectives that have a war-sustaining function – like a drug lab used to fund Taliban operations.  Or oil trucks used to fund ISIS pay checks.

They did not cite to one single source of legal authority for that proposition.  

They did not, because they could not.  Because their conclusion is not the law.   

The law of armed conflict permits targeting “any person or object which by their nature, location, purpose, or use, make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”  That is the law.

UNAMA’s report was an attempt to rewrite the law.  An attempt to constrain commanders responsible for winning wars. 

To which I would respond just as the DOD General Counsel, Mr. Fred Buzhardt, did in 1972 on behalf of the Judge Advocates General of the Army, Navy and Air Force, when a group of scholars tried to change the law on the same point in the same way:  “as in other branches of international law, the law applicable to armed conflict develops only to the extent that governments are willing to accept new binding restraints.  Put simply, only states make law.  And they will only accept law regulating armed conflict when it is reasonable for them to do so.”

The volume of commentary mistaken as law.

My last example of the volume of commentary mistaken as law.  The ICRC recently published a piece titled “Guidelines on investigating violations of IHL: Law, policy and good practice.”  To my point on confusing law with policy, these guidelines do not clearly distinguish between what is legally required and what may be good practice in counterterrorism. 

Moreover, in the next fight these CT-centric aspirations will likely be unrealistic.  The guidelines require commanders to collect and record information related to military operations, to secure and preserve evidence at the scene of an “incident,” and so forth.  Think back to the Donbass example.  Simply, existential and sustained firefights will not always lend themselves to evidence preservation protocols.

We will comply with the law of armed conflict in that fight, even when our enemy does not, but we are not going to have investigative teams co-located with the company commander to collect evidence and document what happened.  That commander is fighting and moving, trying to advance rapidly and cover miles, and keep her force alive, intact, and combat effective.  That commander cannot be confused about what is required of her.

I’m asking our academic and NGO communities to remember and understand the existential nature of nation-state warfighting.  To look back at the LOAC as written in law, not in policy.  To distinguish between policy and the law in warfighting, and to call out any deliberate effort to conflate the two.  To remember the clarity of our former TJAG when he educated the world on what the law is, responding to the German complaint about shotguns. 

Near-peer, state-on-state fighting will be existential.  It will be violent, vicious, and fast, and we must not tie our hands as we end the last war – hoping the next will be the same.  This is the context in which we may find ourselves.

As our Army Chief of Staff drumbeats: Winning Matters.  In war, we do not go to participate. We do not just try hard.  There is no second place or honorable mention in combat – certainly not in the kind of combat we will face.  We go to win.  Winning will look different in the next fight, and we have to be ready for it.

As Douglas MacArthur once observed, “The Soldier above all others prays for peace, for it is the Soldier who must suffer and bear the deepest wounds and scars of war.”

But we know the unfortunate truth with most any conflict, and certainly large-scale conflict:  it is a brutal and ugly business.  Our legal and moral obligation is to minimize suffering to the greatest extent possible, but also to win the war. 

Call for engagement and discourse towards common goal

I close with this final thought:

In spite of our collective hangover, I’d like to raise a glass to Charlie Dunlap. 

By bringing us together to engage with each other, in person and in our writings, we help each other and improve the quality of the discourse. 

After all, we have a lot in common, including the resolute desire to protect civilians from the harmful effects of war.  

Lieutenant General Charles N. Pede earned his undergraduate degree at the University of Virginia, as well as his J.D.  He holds a LL.M in Military Law and a Masters Degree in National Security and Strategic Studies. His many assignments include service in OPERATION RESTORE HOPE in Mogadishu, Somalia and in OPERATION ENDURING FREEDOM in Afghanistan. His awards include the Defense Superior Service Medal, the Legion of Merit with three Oak Leaf Clusters, the Bronze Star with Oak Leaf Cluster, and the Meritorious Service Medal with six Oak Leaf Clusters. He is also entitled to wear the Parachutist Badge and the Army Staff Identification Badge.

The views and opinions in this article are those of the author and do not necessarily reflect those of the U.S. Department of Defense, the Army, or any component of the U.S. government.  Guest posts also do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Still, as we like to say on Lawfire^®, gather the facts, examine the law and the arguments, and decide for yourself!