The following is from the Oxford University Press's Academic Insights for the Thinking World for Jan. 25, 2016, and was co-written by SMU Assistant Law Professor Chris Jenks and Law Professor Geoffrey S. Corn of the South Texas College of Law.
January 27, 2016
By Chris Jenks and Geoffrey S. Corn
From the perspective of military legal advisors, law serves as an enabler in achieving logical military outcomes. Rather than simply focusing on a restatement of law, it is important to offer insight into how Judge Advocates (military lawyers) think about the relationship between law and effective military operations.
Based on the consistency between legal compliance and operational effectiveness, law should not be thought of as impeding military operations. While there are legal and moral reasons a military commander seeks to ensure the conduct of hostilities and other aspects of military operations comply with international and domestic law, first and foremost such compliance enhances the probability of mission accomplishment.
No competent military commander wants to waste resources, whether munitions, personnel, time, effort or morale on actions that are not intended to produce effects that contribute to mission accomplishment. Instead, the efficient allocation of such resources is central tenet of effective military operations, and ultimately rapid and efficient mission accomplishment. What military legal advisers understand is that legal compliance will ultimately contribute to mission effectiveness and resource efficiency, even when the law may be perceived as an impediment to achieving micro-level success.
Law also provides the essential foundation for a well-disciplined force, and the individual and unit accountability. It is this, “good order and discipline” which is the hallmark of a professional military, a component of unit readiness that all military commanders should strive to achieve. True good order and discipline is built on respect for and compliance with law, a foundation that ensures operations are executed effectively not only from the perspective of achieving a tactical outcome, but also from the perspective of doing so in a manner that contributes to strategic legitimacy.
Desired operational effects range from lethal (killing an enemy belligerent) to non-lethal (improving local governance and the corresponding attitudes and perceptions of those in local towns and villages). If a commander doesn’t know what his or her units are doing in the pursuit of these effects; if subordinates are permitted to stray into the inevitably self-defeating abys of an, “ends justify any means” mentality in the conduct of operations, both discipline and mission effectiveness will inevitably be compromised. As a result, commanders must hold subordinates accountable, and law provides the foundation for this accountability.
For example, when an inauspicious incident occurs, it is the commander who has the greatest interest in investigating, establishing true facts, and where appropriate, imposing disciplinary sanctions. Of course, there will frequently be others interested in investigating and assessing responsibility for such incidents. And, when an incident seems to be consistent with a pattern of legal violations, or where there is objective evidence of willful blindness on the part of the military command, external investigation may certainly be appropriate. But for professional armed forces, and certainly US armed forces, this has (and should) rarely be the case.
It may be difficult for those outside the military to appreciate this relationship between law, accountability, and operational effectiveness. Commanders want to know, indeed must know, that they are operating in accordance with law and policy if they are to achieve the desired effects in the battle space. This legal and policy framework impacts every aspect of military operations, not just the conduct of hostilities.
Contemporary discourse on military legal issues often creates the impression that law is the dominant consideration in military operations. This is misleading, not because law is not important in the conduct of operations, but because it distorts the true primary focus of military action: mission accomplishment. Law and policy must, therefore, be understood within this broader context. The nature of contemporary military operations demands commanders who understand this essential relationship between law and mission accomplishment.
Like General McCrystal, the very best commanders understand this nuanced relationship between law and military operations, and the role of military and civilian legal advisors in mission-oriented implementation of legal obligations. Such commanders are fully vested in the actions their unit takes and constantly assess their efficacy, inevitably relying on law and legal advisors to aid in this process.