The aspects and characteristics of wargaming as a way of training military decision-makers and gaining insights into potential future developments relating to armed conflicts has already been much discussed. A recent post on War on the Rocks has recently featured the Marine Corps Command and Staff College professional military education wargames and the way in which law is integrated. The authors demonstrate the importance of this inclusion. This post seeks to analyze in what ways the international Law of Armed Conflict (LOAC) may actually require this and simultaneously constitutes a best practice towards better LOAC compliance.
Introduction to Wargaming
There is no uniform definition of “wargaming.” Overall, it is an adversarial fictional military operational scenario on some strategic or tactical level. There are many variations of wargames. An important distinction is that wargames generally do not involve actual troop movements, as they happen entirely “on paper.” The legal issues discussed in this article are for the most part equally applicable to theoretic wargames as to actual “live military exercises.” A further distinction is between wargames used to plan future strategies and those to predict developments in warfare. This article focuses mainly on wargames employed to train military decision-makers. (For more info on wargaming generally, see here and here)
For reasons of practicability, wargames need to be as close to reality as possible. They need to be somewhat open-ended, but obviously the overall structure remains guided or scripted. Many factors can or should be included, including operational law. Beyond considerations of usefulness, particularly including international LOAC into wargames may even be prescribed by international treaties themselves.
Dissemination of and Instruction in the Law of Armed Conflict
The main sources of the international law of armed conflict (LOAC) or International Humanitarian Law (IHL) are the 1907 Hague Regulations on Land Warfare, the Four Geneva Conventions of 1949 and their Additional Protocols I and II of 1977. The Geneva Conventions have been universally ratified by all 194 member states of the United Nations. While states are bound by international treaties, which they have become a party to, they are also bound by rules of customary international law. It has long been acknowledged that many of the norms contained in the relevant LOAC treaties listed above have become customary international law as well, at least with respect to international armed conflicts. The precise customary law status of each rule is still subject to intense debate and projects of (non-binding) codification. The law relevant for the topic of this article can mainly be found in Additional Protocol I of 1977 to the Geneva Conventions of 1949 relating to the Protection of Victims of International Armed Conflicts (AP I).
Generally, Article 80 of AP I prescribes the state parties to the treaty and parties to a conflict to take immediate and necessary measures to implement the Conventions and its Protocols and ensure their observance, in particular by giving orders and instructions (e.g. military penal codes, general standing orders, military manuals, etc.).
Article 83 of AP I sets out the main rule for the dissemination of the Conventions and AP I and their relevance for military training:
1. The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed forces and to the civilian population.
2. Any military or civilian authorities who, in time of armed conflict, assume responsibilities in respect of the application of the Conventions and this Protocol shall be fully acquainted with the text thereof.
Most importantly, this obligation is already applicable in peace-time. While it is important to also give refined and specialized instructions for specific conflicts and even single operations once armed conflict has started, peace-time training is crucial. Focusing only on the military instruction, this article stresses the importance of inducing a default position of LOAC compliance, particularly in highly stressful situations. Just as individual soldiers and commanders are used to following orders and specific procedures, which they train for over and over again, they need to be trained to instinctively consider and comply with LOAC in their actions and decisions. The degree of LOAC training should increase progressively with the rank and responsibilities of an individual service member. While, for example, basic knowledge of the treatment of POWs/detainees is crucial for all military personnel, in-depth instruction would likely be required for military police personnel.
Military commanders have specific responsibilities when it comes to LOAC compliance. Under the international criminal law principle of command responsibility, they may be held criminally liable for violations of their subordinates (see also Arts. 86, 87 of AP I). They also carry a positive obligation to ensure their subordinates “are aware of their obligations under the Conventions and this Protocol” (Article 87 of AP I). States also have a larger organizational responsibility to provide for military decision-makers with legal advisors, at least at the higher levels of decision-making. According to Art. 82 of AP I, these advisors both advise on operational decisions as well as the instructions on LOAC to be given to military personnel. The Protocol also specifies this to be a peace-time obligation.
The very fact that, contrary to most international treaties, the Geneva Conventions and their Additional Protocols devote more than an entire section on the ways and means of implementation emphasizes the importance of these peace-time obligations and limits the usual discretion, which states normally enjoy when it comes to domestic implementation of public international law. This should be reflected in the content and methods of instruction used to disseminate the Convention and its Additional Protocols to military personnel. Mere classroom instruction is not enough. These obligations of implementation of the Conventions and its Protocols are mostly due diligence obligations of conduct. The object and purpose of these obligations is to achieve increased knowledge of and compliance with LOAC. When interpreted in light of their object and purpose, compliance with these obligations requires more than attaining some predetermined objective result. As the above analysis indicates, LOAC itself requires more than distributing rule-of-engagement cards or the text of the Geneva Conventions to service members. In order to achieve the most effective result possible under the circumstances, LOAC needs to be trained in the same way as, for example, infantry tactics. Just as wargames and military exercises in general are an effective way to train troops in tactics, decision-making and military procedures, they also are effective in simulating the real-life application of LOAC. Thus, in the interest of fulfilling their continuous due diligence obligation of conduct, states must include LOAC into their military training/exercises/wargames the same way as they include other topics.
Article 36 of AP I demands that state parties must determine the LOAC compliance or LOAC-compliant use of new weapons, means or methods of warfare. Thus, if used to anticipate future conflict scenarios, weapons and tactics, wargames need to consider and include LOAC to contribute to LOAC compliance of states.
The effectiveness of legal advisors depends crucially on the conditions of their organizational inclusion into the armed forces and their decision-making. If wargames are used to train military decision-makers, legal advisors need to be included in a real-life manner, in order to train commanders to consult with them in a productive and appreciative fashion, particularly in stressful situations.
These obligations are also relevant for non-international armed conflicts. Even though watered down, a similar core obligation of dissemination can also be found in Article 19 of the Additional Protocol II of the Geneva Conventions relating to the protection of the victims of non-international armed conflict as well as customary international law. Furthermore, the minimum guarantees for non-international armed conflicts enshrined in Common Article 3 of the Geneva Conventions are covered by the implementation obligations of AP I.
Human Rights Dissemination?
Human rights law requires that state agents must receive effective human rights training. This notoriously includes instruction on limits posed on police actions by, for example, the right to life, the right to liberty and security of person, the prohibition of torture, etc. Generally, human rights obligations continue to apply during armed conflict. According to the International Court of Justice, in the Wall Advisory Opinion, paragraph 106: “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.” As far as human rights law applies to their actions, military service members need to be effectively trained in human rights compliance as well, such as through inclusion of human rights into wargames.
Challenges for LOAC Instruction and Wargames
Beyond the extent of military capacities in personnel and equipment, many factors limit military decision-makers, ranging from ethical to political and public relations considerations, to legal restrictions. All these factors need to be included in the training of effective decision-makers. Rules of engagement may often limit operations even further than LOAC, but commanders still need to be trained to recognize precisely what aspects of those rules may be changed and which are required by international law. The more professional, elaborate and potent a military force is, the more does the due diligence obligation of dissemination require from it. If wargames are conducted as a very effective way of training military personnel, LOAC requires states to include training in the application of LOAC.
Wargames may serve to highlight and train for all kinds of real-life issues a modern state military force is facing, such as asymmetric conflicts, strategic non-compliance by opposing non-state armed groups, interwoven issue of counterterrorism and military operations. In the interest of both practicable and effective preparation of service members for such scenarios and compliance with LOAC, wargames should include a strong legal component.
Author Biography: Michael Friedl is Deputy Moderator-in-Chief of the International Law and Policy Brief (ILPB) at The George Washington University Law School. He obtained a first law degree from the University of Vienna (Austria) and currently pursues a LL.M degree in National Security and U.S. Foreign Relations Law as a Fulbright scholar at The George Washington University Law School.