Academic journal article Boston College Law Review

Training Army Judge Advocates to Advise Commanders as Operational Law Attorneys

Academic journal article Boston College Law Review

Training Army Judge Advocates to Advise Commanders as Operational Law Attorneys

Article excerpt


Imagine you are an Army lawyer-a Judge Advocate-who recently deployed to a Forward Operating Base ("FOB")1 in a remote corner of the Earth embroiled in conflict. You are assigned as a Brigade Judge Ad- vocate, and your unit, an Army Brigade Combat Team-approximately 3500 Army personnel capable of conducting unified land operations2- just assumed tactical3 control of the area from the outgoing unit. Your Brigade Commander, a seasoned Colonel in command of the entire unit, now bears upon his shoulders the daunting responsibility of ac- complishing the mission in an environment laden with legal complexity.

Late at night, you receive notification that one of the Battalion Commanders in the Brigade, located at a nearby FOB, wants to talk to you about a potential target for attack. After you pick up the phone, the Battalion Commander tells you that his tactical operations center cur- rently has an unmanned aerial vehicle ("UAV") flying a reconnaissance mission. His operators are presently observing three individuals, dressed in local attire, digging with shovels on the side of a road, several kilometers away from the FOB. The Battalion Commander notes that from time to time, there are also civilian vehicles driving by the site. Some vehicles have stopped; others just drive by.

The Battalion Commander reminds you that local insurgents some- times dig holes on the side of the road in the middle of the night to plant improvised explosive devices ("IEDs"). The objective of these ef- forts is clear: attack U.S. convoys as they pass by in the future. You are very familiar with IEDs. In fact, in the short time you have been in the country, IEDs have wounded a few soldiers in your unit. You also know, however, that local villagers sometimes dig irrigation ditches, which of- ten parallel the roads, in the middle of the night to avoid insurgent har- assment. Further, you are keenly aware of the high volume of local civil- ian traffic on this road, such that a kinetic strike at that site could injure innocent civilians driving by or damage the road, impeding transporta- tion and the movement of daily supplies to some local villages.

The Battalion Commander does not have ground forces close enough to the diggers to provide additional verification of what he is seeing on the UAV monitors, but he tells you that he is reasonably cer- tain4 about what the images on the screen are showing. He states he can lethally target the individuals with the artillery from his FOB. The Battalion Commander stresses that the three individuals will likely de- part the area within a few minutes, so the issue is time sensitive, and he must decide now. As a result, he needs your immediate advice, based on the Rules of Engagement ("ROE"), whether attacking these indi- viduals is a lawful option.5 Although he understands that he ultimately makes the decision, he wants your guidance. What do you say? Are you prepared to advise the Battalion Commander on these issues?6

Analysis of this hypothetical is complex. The answer cannot be found by simply consulting a legal treatise, or even an Army publication. Advising a commander on such a question, like almost all questions re- lated to the planning and execution of military operations, involves much more than just a basic understanding of public international law or the Law of Armed Conflict ("LOAC").7 These situations implicate myriad factors, including a nuanced grasp of the LOAC, an appreciation of the political and operational considerations embodied in the ROE, an understanding of the intelligence and targeting capabilities of the military, and prior integration into the staff processes.8 Moreover, analy- sis of a situation like this is fluid, often depending upon the location, date, and time of the incident. Today, commanders and the military lawyers assigned to advise them-Judge Advocates-find themselves op- erating in areas of extreme legal complexity, where political and strate- gic implications are often at the forefront, and where black letter law is rarely sufficient to render competent advice. …

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