Guest Post: Dave Graham reviews “The Future Law of Armed Conflict” (Part 2)

Today’s post is Part 2 of Dave Graham’s review of West Point’s Lieber Institute’s excellent new work,The Future Law of Armed Conflict.”   As I said in introducing Part 1, given the prestigious authors involved with this volume, only one of the world’s top law of armed conflict experts could do the review. Fortunately, Dave Graham agreed, and as you can see from his bio below, he’s the perfect person to take on this formidable task. 

In Part 1 of his review, Dave introduced his essay this way:

The United States Military Academy’s Lieber Institute for Law and Land Warfare has recently released Volume 7 of The Lieber Studies, “The Future Law of Armed Conflict”. In the introduction to this work, co-edited by Professor Matthew C. Waxman and Lieutenant Colonel Thomas W. Oakley, Professor Waxman alerts the reader to the fact that the book deals, essentially, with four overlapping categories of change particularly relevant to the future formulation of the Law of Armed Conflict (LOAC), often alternatively referred to, as the Law of War (LOW) and International Humanitarian Law (IHL):

      • Novel technology, such as digital systems-– artificial intelligence, and hypersonic weapons that work to alter military capabilities and vulnerabilities,
      • New and changing domains of conflict-– particularly cyber and space, as well as the large-scale information operations of “hybrid warfare”, all of which change where and how future conflicts will be waged,
      • The evolving roles of actors other than States—particularly non-State (or loosely affiliated) armed groups, civil society organizations, and private corporations,
      • Shifting geopolitical realities—such as the rise of China and the proliferation of weapons of mass destruction, factors that will alter strategic calculi, as well as the distribution of power.

In the review below Dave continues his chapter-by-chapter expert analysis of the book.  You’ll learn a lot about the cutting-edge LOAC issues!

A Review of  “The Future Law of Armed Conflict” (Part 2)

by Colonel David E. Graham, USA (Ret.)

On December 2, 2022, Part 1 of my review of West Point’s Lieber Institute’s most recent publication, “The Future Law of Armed Conflict”, appeared on Duke Law’s “Lawfire” website. What follows is Part 2 of that review.

The Future Law of Naval Warfare-Some Vessel Status Issues

Rob McLaughlin introduces this subject by noting that, given the high cost and lengthy build time of high-end warships, it is inevitable that States will pivot to the use of lower cost merchant vessels and auxiliaries for certain naval operations.

Current examples of this development, he notes, are The People’s Republic of China’s (PRC) increasing use of a fishing vessel-based “maritime militia” and the U.S. proposal to turn merchant vessels into arsenal ships.

This trend, coupled with the ongoing development and use of maritime autonomous ships (MAS), he submits, will give rise to legal questions regarding the naval combatant status and rights of such vessels-a development that is sure to challenge and, perhaps, erode concepts and interpretive biases embedded in the current Law of Naval Warfare LoNW).

Yet, in keeping with a theme evidenced throughout this publication, he insists that the manner in which the LoNW is to be applied to such vessels in the future must be grounded on State practice and an informed interpretation of existing legal concepts-rather than new law.

With this in mind, he examines the status and characterization of these vessels by focusing on two substantive matters-the possible status to be afforded maritime militia and the characterization of MAS under the LoNW.

Turning first to the status and characterization challenges associated with the potential increased use of maritime militias, McLaughlin notes that the principal concern, here, are those fishing vessels employed, interchangeably, between fishing and State-directed maritime operations, as evidenced by the PRC’s use of such vessels.

That is, how does the LoNW view a fishing vessel employed as a maritime militia vessel? And, in dealing with this issue, he first highlights the differing liabilities associated with the targeting of enemy auxiliaries and enemy merchant vessels under the existing law.

He then contrasts these vessels with small coastal fishing and trade vessels, noting, with respect to the latter, that these are generally exempt from attack, due to the very limited, cumulative, conditions under which targeting liability may arise for such vessels.

McLaughlin next submits, and explains why, no current PRC-sponsored maritime militia vessel type is entitled to the protections accorded coastal fishing and trade vessels and that, accordingly, they must default, under the LoNW, to the status of (enemy) merchant vessel or (enemy) auxiliary.

Subsequently, following a discussion of several challenges that arise in attempting to apply the LoNW to auxiliary vessels, specifically, he finally concludes that the takeaway in any assessment as to the manner in which the LoNW might be applied to maritime militia is the need to focus on the indicators of function, continuity, and the operational nexus of these vessels at sea.

In terms of MAS, McLaughlin contends that there appears to be a growing consensus that at least some MAS are, or soon will be, considered as vessels in and of themselves, as opposed to mere systems or adjuncts of a parent platform-and will thus be subject to regulation as such.

And, in this regard, he notes that the International Maritime Organization (IMO), in dealing with Maritime Autonomous Surface Ships (MASS), has identified four “degrees of autonomy”, taking into account the human element, technology, and operational factors associated with each of these autonomous designations.

With this IMO analysis in mind, he notes that it would be difficult to not arrive at the determination that some MAS must be categorized as vessels-with legal entitlements and obligations similar to those of crewed vessels.

Having come to this conclusion regarding at least some MAS, McLaughlin next poses two questions: Can MAS, if they are fully entitled vessels, be warships? And, regardless of the answer to this first question, can MAS, nevertheless, be auxiliaries? He then answers the first question with a “Probably” and the second with a “Certainly”, followed by a discussion as to his reasoning underpinning these responses.

McLaughlin concludes with the observation that, though beyond the scope of this chapter, still another LoNW challenge that must be addressed in the near future is that of “… the relatively opaque state of the rules around belligerent rights at sea, and, more particularly, the limits and permissions that attend the allocation of belligerent rights as between warships, auxiliaries, and merchant vessels.” And, in his closing paragraphs, he offers insight into several of the issues that must be addressed in dealing with this subject.

Though somewhat narrow in its scope, this chapter should prove to be beneficial to even those familiar with the LoNW.

The Second Space Age-The Regulation of Military Space Operations and the Role of Private Actors

Transitioning from the sea to space, Christopher J. Borgen advise the reader that this chapter will focus on what space activities are, what they might be in the near future, and the implications for the interaction of space law with the laws governing the use of force and LOAC.

Moving quickly, then, from what he denotes as the First Space Age-ranging from the late 1950s to the early 21st century, and one in which humanity began to expand and integrate its use of global satellite communications into first, government, and subsequently, our daily lives (think GPS), Borgen takes up his discussion of what he deems a Second Space Age, beginning with an assessment of the current and possible future activities of commercial space.

In doing so, he identifies and discusses two areas of particularly important technological development: advances that have decreased the cost of launching payloads and people into orbit and increased access to space (Space X/Blue Origin); and innovations in the design and production of smaller and cheaper, but more powerful, satellites.

Indeed, he notes, the present and near future of space technology in cislunar space-the area between the Earth and the Moon- is being increasingly defined by private actors, responding to the demands of States, companies, NGOs, and non-State actors. As a result, he cautions, this increased participation in space activities may well give rise to conflicts.

Speaking to this conclusion, Borgen notes that warfare has become increasingly high-speed, networked, and data-intensive, as well as autonomous or remotely piloted. These advances, he submits, will significantly impact how power will be projected beyond the earth’s atmosphere.

To the greatest extent possible, spacefaring States, as well as non-State actors, will attempt to use remotely controlled and increasingly autonomous systems to conduct their space operations. With this in mind, he then poses the all-important question: What role will law play in this environment, given that the relevant treaty regimes recently celebrated their seventieth (the Geneva Conventions) and fiftieth (the Outer Space Treaty [OST]) anniversaries?

In responding to this question, Borgen posits that consideration must be given to how the treaty regimes of LOAC, the use of force, space law, and general public international law overlap-and potentially conflict. What follows is then a very thoughtful discussion of both how certain obligations under the principal outer space treaties may be triggered in connection with a State’s actions in and around an armed conflict, as well as the manner in which LOAC does, or does not, easily translate into military space operations.

This discussion is driven by two particularly relevant queries: First, as a general matter, do the obligations of the OST apply during an armed conflict? And, secondly, if the OST is applicable, how should possible inconsistencies between space law and LOAC be resolved? These questions, in turn, lead to a brief assessment of how the rules of Treaty Law might be applied in addressing these concerns.

In examining the relevant Treaty Law, Borgen acts on the assumption that at least some provisions of the OST and other sources of Space Law are, in fact, applicable during an armed conflict and, accordingly, then moves to a look at the rules of treaty interpretation, to include that of the canon rule of treaty construction, “lex specialis”, to address whether such rules might be useful in resolving potentially inconsistent obligations levied by Space Law and LOAC on States.

Concluding that there exists no definitive answer to the utility of this approach, he thus poses, quite logically, the overriding question of whether LOAC does, in fact, pose any obligations on State activities in space. And, while certain commentators have asserted that this legal regime cannot be applied to State space activities, he notes that the U.S Department of Defense has stated that LOAC, of both a codified and customary nature, does indeed regulate the conduct of hostilities in outer space.

Borgen next takes on the task of examining the applicability of specific obligations and general phrases of the OST to military space operations, to include an assessment of the prohibition of the placement of weapons of mass destruction in orbit, on celestial bodies, or the stationing of such weapons in outer space; the meaning of the term, [the use of space for] “peaceful purposes”; the prohibition against the national appropriation of any element of outer space; the legal status of astronauts; and the extent to which a State is responsible for its activities, as well as those of certain non-State actors, in outer space. And, here, the reader benefits from the fact that each of these matters is dealt with in a relatively detailed fashion.

Looking to the future, Borgen examines potential LOAC concerns that may well arise, given the ever increasing intertwining of commercial and military space (for example, over 80% of all governmental satellite communication traffic is conducted by commercial satellite systems).

Reflecting the overlap of LOAC, space law, and the interplay of States and non-State actors, he thus engages in a careful analysis of the issues of the LOAC principles of distinction and proportionality, as these relate to dual use space technology; the application of the law of neutrality to satellites; State responsibility for actions taken in space by non-State actors operating within that State; the risk and regulation of rendezvous and proximity operations (RPOs)-the ability to maneuver one satellite into close proximity to another; and the applicability of the principle of distinction, coupled with the LOAC prohibition against a method or means of warfare resulting in severe damage to the environment (that is, the potential environmental and indiscriminate effects of a weapon system employed in the zero-G vacuum of space-effects which may differ significantly from those resulting from the use of such a system on earth).

In closing this chapter, Borgen speaks to the possibility of crafting new treaties-or amending current agreements-that will serve to regulate the conduct of military operations in space; that is, the translating of obligations formulated for terrestrial warfare into space-based conflict.

Again, however, as in the case of others contributing to this publication, he sees no possibility of this occurring, “… given the steadily growing cast of characters with an equally expansive set of competing interests in outer space.” Accordingly,  In his view, for the foreseeable future, the regulation of military space operations will continue to be based on the interpretation and application of existing “space law” and LOAC treaties, as well as on the possible evolution of customary international law.

Coalition Warfare and The Future Of The Law of Armed Conflict

As I read Major General (Ret.) Blaise Cathcart’s chapter on coalition warfare and encountered, time and again, his dominant theme, I could not help but think: “And he authored this essay prior to Russia’s invasion of Ukraine!” Why so? Because Cathcart, well before February, 2022, envisioned a very bleak future for LOAC.

In his view, “Coalitions, State and non-State alike, have played a major role in the weakening of LOAC through a growing lack of compliance.”

Indeed, he submits, the ICRC and the great majority of States now recognize that the ongoing failure to comply with LOAC, by individual States, as well as coalitions, represents the greatest current challenge to its continued credibility and legitimacy. This is a decidedly stark assessment of the contemporary viability of LOAC. As such, what factors have led Cathcart to this conclusion?

The chapter begins with an explanation of what coalitions are-“an ad hoc arrangement between two or more nations for common action”, and an explanation of the need for coalitions in today’s operational environment.

Discussion then moves to the concepts of “interoperability”-defined by NATO ( a coalition principally referenced by Cathcart) as “[t]he ability to act together coherently, effectively, and efficiently to achieve Allied tactical, operational, and strategic objectives” and, next, to that of “legal operability”-a term lacking any definition under LOAC or international law, in general, but one referred to by a NATO Legal Adviser as a mechanism essential to “… ensuring that within a military alliance, military operations can be conducted effectively consistent with the legal obligations of each nation.”

It is this phrase, “… consistent with the legal obligations of each nation”, that embodies a coalition (NATO) process that Cathcart views as a root cause for the diminished validity of LOAC. But, more on this, later.

Following a brief look at what Cathcart sees as the future operational environment, which has given rise to new terms to describe the changing nature of armed conflict ; i.e., “hybrid”, “grey zone” “asymmetric”, and “proxy” wars, he concludes that these “new wars” essentially present many of the same operational and legal challenges, albeit perhaps more of them, as the “old wars”.

The real challenge, he posits, in returning to the thematic message of this chapter, is that of whether LOAC can be effective in dealing with these future types of conflicts, “… when there is, today, a clear disregard for LOAC, including by coalitions.”

And, in demonstrating the validity of this contention, he makes reference to the litany of LOAC violations that have occurred in the ongoing conflicts of Syria, Yemen, Iraq, Somalia, and the South Sudan, as well as in the past conflicts involving the former Yugoslavia, Rwanda, Nicaragua, and Vietnam. (Tellingly, Russia’s ongoing disregard for essentially every aspect of the LOAC in conducting its military operations in Ukraine further supports this assessment).

Cathcart next moves to a discussion of what he deems the two principal reasons for the prevailing lack of State, as well as non-State, compliance with LOAC. And, here, he first posits that the State-centric vision of war is to defeat an enemy, while “voluntarily” complying with LOAC.

However, today, he notes, the great majority of hostilities occur as non-international armed conflicts (NIACs), fought by non-State actors who find LOAC antithetical to their aims and largely based on Western ideology, laws, and ethics. Secondly, he submits that non-State actors and States possessed with less military capability often resort to asymmetric means and methods of warfare to counteract this existing disparity, often resulting in breaches of LOAC.

However, in the view of these actors, he concludes, LOAC simply acts to legitimize all States’ means and methods of conflict, while outlawing the largely asymmetric tactics that they must employ. The common basis for these two causative factors, Cathcart opines: the inconsistent application and interpretation of LOAC by States.

He identifies three principal reasons for this inconsistency: the interaction of LOAC and international human rights law (IHRL), the asymmetry of LOAC in NIACs , and the ratification (or not) of LOAC treaties, particularly the 1977 Protocols (APs) I and II to the Geneva Conventions. Each of these topics is then discussed, in some detail.

In terms of the interplay between LOAC and IHRL, Cathcart speaks to the ongoing debate as to whether IHRL applies during armed conflict, highlighting, in this regard, the impact that decisions rendered by the European Court of Human Rights (ECHR) have had on the actions of the European members of NATO.

This has led, he submits, to diverging and confusing, rather than converging, NATO State views on LOAC and IHRL, resulting in operational plans riddled with “national caveats”-manifested in mission Rules of Engagement-that place limitations on the manner in which contributing States’ forces might be employed.

Turning to the issue of the asymmetry of LOAC in NIACs (triggering the associated matter of the legitimacy of the parties to the conflict), Cathcart notes that most States have attempted, by analogy, to apply the LOAC of IAC to NIAC.

This approach, he opines, has two weaknesses: first, the lack of clarity as to how various coalition States interpret the LOAC of IAC, much less that of NIAC, particularly given the fact that, significantly, the U.S. has chosen not to ratify AP I dealing with IAC, while its coalition partners have; and second, even when there does exist agreement as to which AP I provisions apply to a given NIAC operation, coalition members often interpret and apply these provisions in differing ways.

This has led, in his view, to States’ coalitions cherry-picking IAC LOAC norms that advantage their NIAC operations, while disadvantaging those of non-State organized armed groups (OAGs).The most controversial example, he submits- a State’s refusal to accord combatant immunity to OAG personnel, while claiming it for their own. Such an approach, in his view, renders a body blow to the credibility and legitimacy of LOAC.

Cathcart next deals with the subject of the disparate ratification of LOAC treaties in the context of, primarily, APs I and II, noting that, while 27 of the 29 NATO members are parties to these agreements, Turkey and, importantly, the U.S. are not. And, while this situation is somewhat mitigated by the fact that certain key Protocol provisions are considered as binding customary law-and recognized as such by the U.S., the manner in which members have reserved to, and interpreted, these obligations has often differed.

And, here, he offers, as examples, the ongoing debates surrounding, among others, such fundamental LOAC concepts as “military necessity”, “proportionality”, “precautions in the attack”, “incidental loss” of civilian life and objects (collateral damage), and “military objective.”  This lack of agreement on the LOAC obligations mandated by these principles and, thus, the manner in which they are to be applied, has, once again, he submits, seriously damaged the credibility of LOAC as a whole.

Not surprisingly, Cathcart closes this chapter with a plea that State coalitions, certain to be the principal participants in any future armed conflict, achieve greater LOAC compliance and credibility by working toward legal interoperability grounded on a foundation of a unified interpretation and application of basic LOAC norms. And, he offers specific recommendations as to how this might be accomplished. Absent this, he contends, LOAC will experience a growing trend toward being largely ineffectual, ignored-and viewed, by many, as illegitimate.

This chapter is made all the more timely and important when its content is considered in the context of the ongoing Russian actions in Ukraine-and the manner in which the international community, as a “coalition”, has chosen to assist Ukraine’s self-defense efforts.

Transatlantic Legal Cooperation and The Future Law of Armed Conflict

In introducing this chapter, Steven Hill advises that LOAC is but one of many areas of international law in which there exists both consensus and disagreement within the transatlantic community.

With this in mind, he then poses what he regards as the fundamental question that must be addressed, in this context: Will it become more difficult for the transatlantic partnership to work together in resolving future LOAC matters?

And, in responding to this query, he focuses on three distinct considerations: the ongoing debate between Europe and the U.S. regarding “burden sharing”; the technique employed by NATO States to manage differing legal views-“legal interoperability”; and the application of this technique to three transatlantic trends that he views as posing future challenges to this concept.

Hill’s concern with the issue of the ongoing debate on burden sharing ,not surprisingly, is that it will extend beyond financial  matters and into the legal realm. This self-evident consideration merits-and receives-very little discussion. It is on the latter two identified considerations that he devotes far more thought.

In dealing with the subject of “legal interoperability”, Hill notes that NATO, an alliance of 30 States, arrives at its decisions by means of consensus on the part of all of its members. Yet, he observes, these States have different domestic legal systems, as well as different international legal obligations. Moreover, they often have their own understanding as what international law obligations apply to them-and under what conditions.

How, then, are these allies to act together, without violating the legal obligations of individual States? Enter the concept of “legal interoperability”. And, while this term has no agreed definition, it has generally been understood as “… the ability of the forces of two or more nations to operate effectively together in the execution of assigned missions…and with full respect for their legal obligations, notwithstanding the fact that nations…have varying legal obligations and varying interpretations of these obligations.”

So, Hill asks-How does “legal interoperability” actually work, in practice? He begins his response to this question by noting that the need for legal interoperability first came to the fore in the Western Balkans in the 1990s, when operational challenges, such as “detention”, arose. Subsequently, then, the requirement for such became even more evident during NATO’s operations in Afghanistan.

In making this concept work, he observes, the first step is to identify areas of legal divergence, noting, however, that an assessment of whether a legal interoperability issue exists may not always be a straightforward exercise. Some of this ambiguity he attributes to an uncertainty concerning potential legal issues that may arise in the context of emerging technologies. Too, he notes, States may not wish to publicly make known their legal positions on contentious matters.

Assuming that divergences in legal positions can be identified, however, Hill advises that the next procedural step is, not surprisingly, “to deal with them”. And, how is this done? In the words of the NATO Legal Advisor: “NATO addresses legal questions pragmatically, rather than doctrinally. Rather than requiring adherence to a single common body of law, the Alliance’s expectation is that all States participating in a NATO or NATO-led operation will act lawfully within the legal framework applicable to them.”

And what, if any, is the practical effect of such an approach toward achieving legal interoperability? In this regard, Hill acknowledges that this “lowest common denominator” mechanism is certainly subject to criticism, with States simply “out sourcing” to other States those tasks that they are legally constrained from performing. Nevertheless, he contends, this “practical” solution does enable a multilateral operation to move forward. And, he posits, there are perhaps two other specific advantages to this approach.

First, he submits, the need for legal interoperability serves as a “forcing function”-pressuring States to be more transparent-and more public-regarding their justifications for their legal views on contentious legal matters.

Secondly, this need often results in a coalition adopting a measure as a matter of policy, rather than one of legal obligation, thus eliminating prolonged-and often futile-legal debate. And, here again, Hill offers up, as an example of this approach, the “96-hour detention rule” adopted, as a matter of “policy”, by the NATO coalition in Afghanistan.

Hill next moves to a discussion of what he views as the three transatlantic trends that will affect the future of LOAC. The first of these, he notes, is a growing demand, within NATO States, for legal accountability for NATO decisions to employ force, stating that this is particularly true in the case of several European allies. Too, he observes, national investigations of various jus in bello issues arising in NATO operations are also a more frequent occurrence.

This accountability environment, he submits, is driven significantly by an enhanced involvement of both the European Court of Human Rights and various European national courts in LOAC matters. And, while he recognizes that these developments may make it more difficult to generate political support for NATO operations in some States, he opines that this increased oversight may well result in more attention being given to LOAC compliance.

Additionally, as he looks for more, not less European Court and national court review of LOAC matters in the future, he suggests that the time may have come to accommodate the impact that these courts will increasingly have on legal interoperability.

The second transatlantic trend identified by Hill as affecting the future of LOAC is that of the recent move to increase European defense capabilities. This revival of the concept of European strategic autonomy has been seen by some non-European NATO States as a needless duplication of NATO capabilities-and thus a harm to the transatlantic relationship.

Indeed, he observes, several current European cooperative defense projects will impact NATO interoperability outside the European Union, which, in turn, may well affect the manner in which these States deal with LOAC matters.

And, here, he offers the example of an increased European demand for the establishment of a legal and ethical framework for the use of artificial intelligence. Should EU norms regarding the manner in which AI can be used in military operations prove to be incompatible with those of non-EU allies, he notes, this could adversely affect NATO interoperability.

In a much similar vein, Hill observes that there exists no agreed transatlantic approach, in either policy or law, regarding how to address a wide range of data-related legal issues, a fact that he views as a primary challenge to transatlantic effectiveness.

And, as an example of this, he opines that, with data sharing critical to defense applications such as AI and machine learning, the EU desire for data-related regulations, coupled with a U.S reluctance to adopt such a regulatory framework, may well make it difficult to negotiate future data-sharing arrangements.

Hill closes with an assessment of the ways in which senior U.S. and European government civilian and military lawyers have met, over the years, to discuss mutual LOAC issues.

He notes that these discussions have never been institutionalized, however, and, for the sake of greater transatlantic legal interoperability, he recommends that the U.S., the EU member States, and NATO allies establish a senior-level Transatlantic Strategic LOAC Dialogue-consisting of senior lawyers from the ministries of foreign affairs and defense, as well as the armed forces of each State. As is all the content of this essay, the establishment of such a forum provides ample food for thought.

Who Gets to Make International Humanitarian Law in the Future: A Pluralist Vision

Alex Moorehead champions a decidedly pluralist view regarding the entities that should shape International Humanitarian Law in the future. And, he sets the tone for this approach by beginning his chapter with a quote from an individual with a markedly different approach—Former General Counsel of the U.S. Department of Defense, Paul Ney:

“International law is law made by States and for States. Other actors, such as nongovernmental organizations (NGOs) and academics, can play an important role, but States have the primary responsibility for developing and implementing international law…[t]he law of war must be made, in particular, by States that conduct military operations. The law of war is, foremost, law that is implemented by armed forces during military operations. States that actually conduct military operations have critical expertise and a perspective that are essential in these discussions.”

With an eye toward transparency, I must admit that this is a an excerpt from remarks that I could well have drafted for the GC. I, as well as, I venture to guess, any number of other military attorneys who have provided advice to warfighters would share a similar mindset.

With this quote, however, Moorehead adroitly presents, for discussion, the ongoing tension that exists between what he denotes as the humanitarian view of IHL and one more heavily weighted toward the principle of military necessity on the battlefield.

That States are, and will remain, the primary subjects and makers of IHL is a truism that Moorehead clearly supports. However, he is equally adamant in his belief that, in order for IHL to remain relevant and to be deemed legitimate by the international community at large, a pluralistic approach toward formulating this legal regime must be embraced.

And, in making this argument, he discusses, in tandem, those entities that currently shape LOAC (he uses, interchangeably, the terms, IHL and LOAC); the impact that will be made by adopting a pluralist vision of IHL making; and the players he envisions as shaping IHL in the future.

Moorehead offers a fairly extensive overview of the multiple actors he sees as now participating in both crafting and interpreting LOAC: an increasing number of States; international organizations; nongovernmental organizations (NGOs); corporate entities; academics; and experts in the field.

While noting that the few prominent and powerful States (those which have historically crafted IHL) continue to play a dominant role in formulating IHL, due to their resources and expertise, as well as their tendency to be those States involved in armed conflicts, he also speaks to the specific ways in which the other identified players have increasingly made their way onto the IHL scene.

And, here, he makes special note of the ICRC, human rights NGOs, the International Law Commission, and experts who provide IHL advice to smaller States heretofore lacking the resources and expertise to fully participate in the LOAC-crafting process.

Moorehead next addresses the recurring debate concerning the merits of the State-centric view of LOAC ( that only the opinion of “specially affected States” impacts IHL) and that which contends that any number of  other actors must now have a say in LOAC creation and interpretation.

And, the debate, here, may really be reduced to the contention that, what he refers to as “civil society organizations”, have attempted to shape IHL in a way that tends to be so “humanitarian” in nature that it fails to meet the realistic military and operational needs of the warfighter.

It is in this context, then, that he next engages in a comprehensive analysis of what he views as the key factors to consider in assessing the value and impact of pluralistic IHL formulation-the approach he deems essential to achieving “consensual compliance” with this legal regime.

Among these considerations are: the need to strive toward universal acceptance of IHL; the possibility that greater participation in IHL formulation by civil society and experts will beget enhanced State participation in the process; the possibility that greater participation in IHL creation will result in a wider enforcement of IHL norms; the concern that restricting the crafting of IHL to “specially affected” States will result in LOAC being almost exclusively informed by States more likely to be of a “belligerent” nature, and with a very narrow view of the law; and the need to increase greater civil society and expert participation in establishing IHL norms in order to strike the appropriate balance between military necessity and humanity.

Having engaged in an extensive analysis as to who will craft IHL in the future, Moorehead arrives at the conclusion that States will remain the primary makers and subjects of the law; the ICRC will remain the primary guardian of LOAC; and that new States and actors will play an enhanced role in IHL formulation-a development that he sees as essential for this legal regime’s continued vibrancy and legitimacy. No surprises there.

Moorehead closes his essay by offering some recommendations for increasing IHL pluralism. The first of these centers upon his now familiar contention that, while States with experience conducting military operations must have a role in shaping LOAC norms, this function cannot be left to these States alone.

In order to feel ownership over, and to attribute legitimacy to IHL, other States-those not seemingly engaged continuously in conflict-must have a seat at the table. And, he urges these States to speak out on IHL issues more frequently-making greater use of the multilateral institutions available to them.

As for the civil society entities he has identified, he encourages these to identify LOAC issues that States have overlooked (or perhaps ignored)-and, in so doing, help shape agendas for reform and norm interpretation.

Additionally, he calls upon experts in this area of the law to contribute to the global discussion regarding the interpretation of the existing LOAC and to publish papers and advise smaller States on key IHL matters. And, finally, he once again calls for a recognition of the need for a truly pluralistic approach toward LOAC development in order to even the odds in the ongoing debate over how “humanitarian” and how “militarily necessary” this law must be.

The Future of Military and Security Privatization

Having dealt with the subject of this chapter fairly extensively over the course of my active duty career, I found this essay by Laura Dickinson to be one of the best I have read on this topic. In a very concise fashion, she deals with the most relevant issues associated with the impact that “contracting out”, from both a U.S. and international perspective, has had-and may have-on LOAC compliance.

Detailing the substantial number of functions for which governments have contracted with non-State actors (contractors) to perform in military deployment situations, Dickinson submits that, in the absence of a coherent legal framework and system of oversight and accountability purposed to govern these entities, these pervasive private military and security contractors (PMSCs) have engaged in significant abuses of both LOAC and IHRL.

Having noted this, however, she proceeds to a discussion of the efforts made to address this situation over the past 15 years. First, she observes, a number of States have used domestic regulation to prevent contractors from performing those activities most likely to result in LOAC and IHRL violations, such as offensive combat and interrogation functions. Secondly, she opines, civil and criminal mechanisms of oversight and accountability, as well as new managerial accountability mechanisms, have been refined and implemented.

Notwithstanding these developments, Dickinson contends that these improvements have come only for contractors who provide logistics and defensive security in democratic States committed to LOAC and IHRL values. And, while she sees even greater accountability and oversight occurring in these States, she identifies two other categories of contractors very likely to evade such regulation.

First, she posits, even those States committed to LOAC compliance will resist regulation initiatives for contractors engaged in cybersecurity and machine learning functions, as such initiatives would entail significant transparency.

Secondly, it is most probable that powerful nondemocratic States, such as Russia and China, will expand their use of contractors in offensive combat operations and detainee interrogations, resulting in blatant LOAC violations from which these States can, at least to a certain degree, distance themselves. (Of course, in the case of the ongoing conflict in Ukraine, initiated after this essay was penned, there has been no real attempt by Russia to deny its contracting of the Wagner Group, perpetrators of numerous conflict-related LOAC grave breaches.)

And lastly, she notes, nondemocratic States will increasingly turn to contractors to meet their needs in the sphere of cyberspace and military intelligence technologies-enabling these States to exploit armed conflict threshold requirements for the purpose of evading the applicability of most, if not all, LOAC. That is to say,  privatization will fuel “hybrid war.”

With this as background, Dickinson proceeds to provide an overview of the current status of military and security privatization, illustrating some likely trends, and identifying risks that privatization poses to what she deems, core LOAC values.

And, to do so, she focuses on the U.S. and Russia, States she views as exhibiting competing approaches toward LOAC. (Again, note that this essay was authored prior to the Russian invasion of Ukraine and its follow-on conduct therein, actions that have now raised the question of whether, when acting in its own self-interest, Russia will ever choose to comply with LOAC norms.)

Dickinson observes that, from the Balkans in the late 1990s, to the post-9/11 conflicts in Iraq and Afghanistan, the U.S. has utilized military and security contractors on a massive scale, at one point employing a total of 260,000. Functions performed included constructing military bases in conflict zones; feeding troops; maintaining weapon systems; clearing land mines; serving as translators; training local troops; guarding bases, diplomats, and military convoys; and—conducting interrogations.

As of 2020, however, while U.S. contractors still perform a broad range of functions, their number had decreased to just over 50,000, and the U.S.-in the wake of Abu Ghraib- has essentially banned the use of DOD contractors as interrogators. Moreover, the U.S. has long had a policy against outsourcing offensive combat. Importantly, however, Dickinson highlights the fact that U.S. contractors are now performing new functions that impact the battlefield, such as operating unmanned aerial vehicles-both for intelligence gathering and targeting purposes.

As to Russia, while, ironically, its law has long prohibited the use of mercenaries to perform military functions, Russia has increasingly employed military “volunteers” since 1992, with the turning point in its privatization efforts occurring with its utilization of PMSCs in its intrusion into the Ukrainian Donbas region in 2014. Principal among these (and currently playing a dominant role in the ongoing Russian invasion of Ukraine) is the above referenced Wagner Group.

And, while, technically, Wagner is not “Russian”, as it is registered in Hong Kong, it is Russian-funded, commanded, and, largely, Russian-manned. And, unlike other Russian PMSCs, it engages, substantially, in direct combat operations.

Dickinson details a number of reasons as to why she envisions a continued and, most probably, increased U.S. use of contractors in the future. The most telling of these is the fact that military personnel will not possess the requisite expertise to exploit the evolving military technologies of cyber, machine learning, AI, and autonomous weapons systems. Too, she also sees an enhanced Russian use of PMSCs, given, again, the skills required by new military technologies, the proven “success” of the Wagner Group, and a Russian willingness to employ PMSCs to perform offensive combat functions.

Moving to the risks posed to LOAC compliance by military and security privatization, Dickinson notes that, tellingly, LOAC does not prohibit this practice, and that the several international attempts to limit a State’s use of “mercenaries” have been unsuccessful. Yet, she submits, the utilization of contractors to perform certain use of force functions, such as those working in security or interrogation, inherently gives rise to potential LOAC violations.

Why? Because, in her view, these individuals are not inculcated in the values undergirding LOAC to the same degree as uniformed troops. Moreover, she contends, notwithstanding the Military Extraterritorial Jurisdiction Act, contractors fall outside the military chain of command, lack this form of disciplinary control, and, for a variety of reasons, are not subject to the same penalties within the military justice system.

And, finally, she concludes that future use of force decisions based on algorithms and machine learning will make it difficult to hold any single individual responsible for a use of force determination gone wrong. Thus, the increased use of contractors in this domain will, in her view, only serve to exacerbate this problem.

The remaining portion of Dickinson’s essay assesses the current and potential efforts to protect LOAC values through the regulation of military and security privatization. In terms of current international efforts, she highlights the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to the Operations of Private Military and Security Companies During Armed Conflict and its offshoot, the International Code of Conduct for Private Security Providers, and discusses why these initiatives have proven to be quite useful in both articulating standards for certain categories of contractors and for providing an implementation framework for States and the private sector.

With respect to domestic regulatory efforts, Dickinson observes that the U.S. has moved toward increasingly strong regulation, developing well-crafted rules and standards for different categories of contractors, together with a broad range of accountability and oversight mechanisms.

These latter measures include restricting the military from using contract interrogators, except in very limited circumstances, and an executive prohibition against the outsourcing of “inherently governmental functions” (a term about which still another essay could be written). In contrast, Russia-while it has “officially” banned the use of military contractors altogether-continues to use them increasingly, absent any form of regulation.

As for future regulation, Dickinson sees two very different paths being taken- and offers insightful reasoning for this conclusion. For those types of contractors already the focus of regulatory efforts at both the international and domestic levels, she predicts increasing accountability and oversight.

However, for those performing offensive combat functions and operating in the areas of cyber operations and new military and intelligence technologies and capabilities, she envisions increasing deployment, but very little regulation, in the decades to come. This, she says, does not bode well for LOAC compliance.

Given her less than optimistic outlook for effective regulation of contractor use in terms of the approaches now being taken, Dickinson concludes her essay with a discussion of several alternative regulatory regimes. First, rather than focusing on an unworkable ban on the use of “mercenaries” in armed conflict, she recommends specifically defining when contractors are directly participating in hostilities-and when they are not. This approach, she submits, builds on a well-accepted category within LOAC.

Secondly, work toward a prohibition on outsourcing offensive combat. While defining this offensive/defensive line might prove to be difficult, she opines, U.S. practice in doing just this might be drawn upon, and such a ban, even if not universally accepted, could help to delegitimize this growing practice (see Russia) of contracting out combat functions.

Finally, Dickinson contends that governments should have an accurate accounting of the number of contractors now being employed to develop and operate the newly evolved military and security technologies. And this count, she notes, should include contractors performing functions that impact conflict zones around the world, to include those not physically located within such zones.

Additionally, she urges, an assessment must be made of the extent to which these contractors are providing input into use-of-force decision making. If such contractor involvement is significant, additional oversight and accountability mechanisms, such as training in LOAC, should be pursued. Each of these regulatory initiatives, if taken, she submits, will serve to protect the public law values of LOAC.

As I initially indicated, Dickinson has provided a concise, but most informative, discussion of the major issues associated with a State’s “contracting out” military and security functions. Moreover, the significantly expanded Russian use of the “contractor”, Wagner Group-which functions not only as Russia’s most effective combat component, but also as its most consistent violator of LOAC norms-within the ongoing conflict in Ukraine, makes this a particularly topical read.

A Discursive Analysis of The Chinese Party-State’s Potential Impact on the LOAC

John Gregory begins his essay, the last chapter in this Lieber Institute publication, with this somber warning: “However encouraging some may find the Chinese Party-State’s professed commitments and self-reported record on LOAC, a closer examination of the Party’s approach to LOAC, reflective of its overall approach to public international law, does not bode well for the future of LOAC.” And, with this as prologue, he then makes a compelling case as to why this is true.

In demonstrating that the Chinese Party-State’s only interest in LOAC is to co-opt it for the Party’s own political and military goals, Gregory first examines the manner in which the Party has seized upon the moral authority of LOAC to support its own legitimacy.

That is, given the Party’s ability to completely control the LOAC narrative within China, when the People’s Liberation Army (PLA) praises its LOAC training and implementation, this should not be interpreted as the PLA viewing LOAC as any form of “restraining law”. Instead, this should be seen as the PLA simply affirming that, as a moral-perfected instrument of a morally perfected Party, it is a model adherent to LOAC.

It is this self-credited view of perfection and moral superiority that China takes into the international discursive surrounding LOAC, touting its own “complete adherence” to LOAC norms, while criticizing the “violations” of other Western-oriented States. And, of course, its complete lack of transparency makes it difficult to challenge the Party’s claim of uniform LOAC compliance.

Gregory submits that, as China obfuscates, lies, and seeks to control the manner in which LOAC should be interpreted and applied, its singular aim is to reshape this legal regime in a way that supports its strategic goals. Thus, jus ad bellum’s distinction between IACs and NIACs is not recognized by the Party-State. It simply redefines its territorial ambition of seizing Taiwan as a looming NIAC in which China will “liberate” and reclaim a portion of its “established” territory.

In providing a bottom line to his contention that China’s sole interest in LOAC is to use it for the Party-State’s exclusive purposes, Gregory submits that any practitioner seeking to understand China’s potential impact on LOAC must grasp the reality that the Party “…will never tolerate LOAC being used to judge the Party-Army, and it will shape LOAC institutions so that they are incapable of doing so….”

Gregory next moves to a discussion of the manner in which the Party is able to co-opt and distort LOAC for its sole advantage, based on the internal structure of Chinese law-itself nothing more than a specialized form of political discourse. And, in this regard, he notes that the Party-State has encouraged Chinese academic involvement in LOAC, has sponsored international conferences, established a national level IHL committee, created a PLA LOAC Department, and has even included LOAC questions on the national bar exam.

He submits, however, that all of this has been done for the distinct purpose of creating and sustaining the Party LOAC narrative. No dissention; no criticism of this narrative within the academic community is tolerated. This results, he contends, in an internal LOAC discourse which acts as no real constraint on China’s actions. Rather, it is  formulated in such a way as to justify politically motivated armed attacks in the international community.

This shaping of the LOAC discourse is intentional, Gregory opines, for the Party views LOAC as an important aspect of “discourse power” and has placed a priority on wrestling away this mechanism from liberal democracies in order to exercise increasing influence over the development of future LOAC norms-all in an effort to establish legal support for the achievement of its political agenda. It is this thinking, he contends, that pervades every aspect of Chinese participation in LOAC international conferences and scholarship.

This approach, Gregory asserts, will turn the humanitarian focus of LOAC on its head by restructuring it as a pretext for armed attack. Additionally, he opines, the credibility of international institutions will be compromised-rendering them unable to serve as credible voices on LOAC issues-and LOAC rules, themselves, will become suspect.

As a result, he once more contends that, in the decades to come, China’s increased participation in global LOAC processes may-in contrast to the optimistic view of this development taken by many in the international community-actually serve to undermine regional stability and substantially decrease the credibility of LOAC as a legal regime.

Concluding observation

The ongoing conflict in Ukraine serves as a stark reminder of the importance of LOAC compliance in today’s world. As I noted at the outset of this review of “The Future Law of Armed Conflict”, this publication has much to offer on a broad range of particularly relevant LOAC subjects. It is a most timely initiative and will serve as a ready-and valuable-reference for all who add it to their resource libraries. The authors of the various chapters are to be congratulated for their significant contributions to the LOAC literature.

Again, the first installment of this review of “The Future Law of Armed Conflict” is found here.

About the author:

Colonel (Retired) David E. Graham is the former Chair of the International/Operational Law Department–the Judge Advocate General’s School of the Army (TJAGSA), where he played the seminal role in developing the field of Operational Law; the former Director of the Center for Law and Military Operations, TJAGSA; the former Chief of the International/Operational Law Division—Office of The Judge Advocate General, Department of the Army; the former Executive Director—The Army’s Judge Advocate General’s Legal Center and School; and the former Associate Director, Center for National Security Law, the University of Virginia School of Law.

Currently, he is a Special Advisor to the ABA’s Standing Committee on Law and National Security; serves on the Editorial Board of the “Journal of National Security Law and Policy”; and is a Senior Fellow at the Georgetown Law Center’s Center on National Security. He is a Distinguished Graduate of the National War College and  holds a B.A. from Texas A&M University, an M.A. in International Affairs from The George Washington University, a J.D. from the University of Texas School of Law, and a Certificate from The Hague Academy of International Law.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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