Bridge, Operations Law: An Overview, 37 A.F. L. Rev. 1 (1994)
Some 20 years ago, The Judge Advocate General's Department faced a dilemma; how should it meet the obligation to teach the law of war to members of the Air Force, as required by the Geneva Conventions Relative to the Protection of War Victims? [FN1] This training obligation had existed since the Conventions entered into force, [FN2] but the Vietnam conflict raised questions in the minds of many about how effective the Air Force law of war guidance and training programs really were. In fact, the Air Force did not even have a basic statement of its law of war policy. Senator Kennedy highlighted this deficiency when he asked during a Senate debate:
Why is it that the Air Force, for example, refuses to develop a set of rules-a manual for air warfare? The Navy does. The Army does. But the Air Force refuses to do it. They refuse to give instructions to the young men who are going out there [to Vietnam]-to make them sensitive and more cautious to civilian needs.
These types of questions, which were also raised in the media, combined with the war crimes investigation and court-martial of Lieutenant William Calley and others, placed mounting political pressure upon the Department of Defense (DOD) and the Department of the Air Force to put teeth into their law of war training requirements. One result was the publication of a DOD Directive on the law of war. Another was The Judge Advocate General's Department's creation of a first-ever Air Force pamphlet (AFP) on the Law of Armed Conflict, AFP 110-31. The Army and Navy already had quality law of war manuals that provided basic guidance for their members. The Air Force's counterpart, AFP 110-31, was designed to be and remains the primary reference work for the Air Force judge advocates responsible for interpreting and teaching the law of armed conflict (LOAC). Crafted to take a uniquely Air Force approach, even the term "law of armed conflict" distinguished the pamphlet from Army and Navy law of war policy. Finally, the DOD law of war policy was implemented by the Air Force by Air Force Regulation 110-32.
In an effort to catch up, a massive effort was mounted during the late seventies to train every Air Force member, including judge advocates, in the law of armed conflict. Nearly one hundred percent of the Air Force personnel received training on the LOAC. To ensure continued education in the future, blocks of instruction were placed in all of the accession training courses, from basic training at Lackland Air Force Base, Texas, to core curriculum at the U.S. Air Force Academy in Colorado Springs, Colorado.
Quite frankly, many of the initial efforts at training the front line personnel met with apathy-or worse. The training was hard for judge advocates to sell; not because line personnel did not want to do what was right; but rather, because they could not easily accept being told how to do their jobs by lawyers. It is very gratifying to say that since then a revolution in thinking has taken place. Today's commanders and front line personnel are more than willing to take their lawyers' advice on a wide range of subjects, not the least of which is how to wage war legally.
Three reasons led to the revolution. First, the world and the Air Force have become so complex that modern commanders have learned more than ever before the value of legal counsel in virtually every action they take. Second, over the past ten years, the leadership of the Department has taken great pains to mold the best possible legal team-in terms of both the caliber of personnel and training-to fill the Air Force's growing need for the very best legal counsel. Finally, Desert Shield and Desert Storm brought home to the American people and the U.S. military, on a scale not previously witnessed, the stark contrast between Iraq's illegal threats and practices and the legal methods of warfare employed by the United States and its coalition partners. From President Bush on down, the United States was committed to full compliance with the Geneva Conventions and the United Nations mandate in its prosecution of the war. As welcome as the revolution is, however, it is not over; much is yet to be done.
At the same time that the lawyer's role in wartime has become more accepted, the role has expanded beyond that of mere teacher and advisor on the law of armed conflict. The term "Operations Law" used now to describe that expanded role and the requisite expertise needed to practice law supporting warfighters. While the origins of the term are somewhat sketchy, it provides an apt description of what is arguably the most important and dynamic part of military legal practice. Just what is operations law? The concept of operations law as a distinct military law discipline is new and no generally accepted definition yet exists. Operations law crosses the lines of many subdisciplines within military law; it is partly practiced in a combat or contingency environment and partly practiced in the international environment. Operations law is more than the traditional law of armed conflict.
Here is a working definition that helps to conceptualize the breadth of the discipline:
Operations law is the domestic, foreign, and international law associated with the planning and execution of military operations in peacetime or hostilities. It includes, but is not limited to, the Law of Armed Conflict, the law relating to security assistance, training, mobilization, predeployment preparation, deployment, overseas procurement, the conduct of military combat operations, anti-and counter-terrorist activities, status of forces agreements, operations against hostile forces, and civil affairs operations.
Operations law is that body of law dealing with planning and executing the deployment and employment of U.S. forces in both peacetime and combat military operations. By its nature, it transcends traditional military legal disciplines and incorporates relevant aspects of international law, criminal law, administrative law, acquisition law, and fiscal law. Its function is to enable the judge advocate to provide a wider range of informed legal advice to the commander, thus, contributing in a more positive fashion to the overall success of the mission.
A review of the index to this edition gives an idea of the scope of the discipline. A wide spectrum of domestic law comes into play, including the law governing the call up of the Reserves, fiscal law, the Soldiers and Sailors Civil Relief Act, the Foreign Claims Act, the Foreign Assistance Act, the Arms Export Control Act, the Uniform Code of Military Justice, Posse Comitatus, and various statutory restrictions on DOD acquisition. International law issues include the law of armed conflict, status of forces and base rights agreements,
foreign criminal jurisdiction, foreign civil litigation, customs and duties, overflight and landing rights, and United Nations Charter interpretation.
A mind-numbing array of legal specialties seems to be required of the operations lawyer. Although the scope of his practice appears intimidating, in reality the operations lawyer is a generalist in the best sense of the word. His knowledge does not have to plumb the depths of each specialty. As in other broad areas of the law, the key is to be able to discern the issues and know where to find the solutions. The challenge to meet the commander's need for quick, creative solutions in the fastpaced environment of war is complicated by the lack of good research materials on the battlefield. This Operations Law Masters Edition of The Air Force Law Review is the beginning of an effort to fill that void. The Department learned many valuable lessons from its participation in Desert Shield and Desert Storm, not the least of which was that a better job needs to be done in preparing Air Force attorneys for the very rigorous demands of the practice of operations law. All of the authors in this issue of the Law Review had a direct role in supporting the efforts in the Gulf, either on the ground in the area of responsibility or at their duty stations in the United States or overseas; all are experts in their respective fields. Their effort is to provide helpful, practical advice. This edition coming at this time, is a major step toward preparing judge advocates to perform their role as operations lawyers.
Other help is available or on the way. The Air Force Judge Advocate General School offers an annual Operations Law Course-a one-week total immersion. In the near future, the International and Operations Law Division, with assistance from other divisions in the Office of The Judge Advocate General, the Air Force Legal Services Agency, and other offices throughout the Department, will publish a deployment guide. It is designed to give practitioners a quick and useable manual with frequently updated references for the most frequently encountered operations law issues. This Masters Operation's Law Edition is an invaluable reference tool; one that is designed to be taken by the judge advocate upon orders to deploy.