Lawyers, Guns, and Twitter: Wargaming the Role of Law in War
The 1983 movie War Games left educators with a timeless tagline about nuclear war: “The only winning move is not to play.” But when it comes to preparing the next generation of military commanders and national security professionals to fight in the information domain, the only way to win is to play … wargames. Lots of wargames. Long used to improve decision-making by military leaders, wargames are a highly effective pedagogical tool to explore and reinforce key lessons for legal and ethical decision-making across a contested operational and information environment.
Tasked by the chairman of the Joint Chiefs of Staff and the commandant of the Marine Corps to make professional military education more rigorous and competitive, the Marine Corps University-Command and Staff College added more educational wargames to the 2020 to 2021 curriculum. Creative, innovative, and dynamic outcomes-based wargames challenge students and evaluate their ability to think, innovate, and decide against a thinking adversary. Wargames provide a healthy way to channel and encourage competition and prepare students to make better decisions when real lives are on the line. Gaming reinforces the chairman’s and commandant’s efforts to increase academic rigor and accountability in pursuit of the big picture: to develop more lethal warfighters who are critical thinkers, creative problem-solvers, and ethical leaders.
Enter the law. Just as the law of war is a fundamental component of effective military operations, so it should be — and is — deeply embedded into military planning and training from start to finish. One innovation of this year’s Marine Corps Command and Staff College curriculum was the incorporation of a wargame that combines legal and operational decision-making, providing an ideal opportunity for professional military education students to train as they will fight. Not only did the wargame teach students about compliance with the law of armed conflict, it also prepared them to face adversaries who will exploit that compliance for their own tactical and strategic gain (see here, here and here). Perhaps just as important, it helped the students understand that although compliance with the law is essential to legitimacy, it is not a panacea. Imagery from even the most legally justified application of force can still undermine strategic success.
The educational challenge — preparing the military’s current and future leaders for the challenges and decision constraints of the dynamic information environment and the adversary’s adroit exploitation of that environment and the law — is formidable. Compliance with the law has long been the bedrock of the ethical application of military force and an essential and uncompromising foundation for all U.S. military operations. Understanding the role of the law and judge advocates remains vital — but in today’s warzones, this understanding alone is no longer sufficient.
Multiple pressures — particularly those wrought by the revolution in the information environment — are changing the face of battle and, correspondingly, the education that today’s military leaders need. Unceasing and uncensored images of war’s destruction have dramatically changed how key constituencies view the use of military force. When such damage and death are seen as unjustified, unnecessary, or excessive, these pictures delegitimize U.S. military operations, even when such actions were lawful based on the information available at the time. A critical piece of retaining legitimacy is ensuring not only that operations actually comply with the law of war, but also that they are perceived, by internal and external audiences alike, to comply with the law. In this way, the informational and military instruments of national power are intertwined as never before. Properly preparing future operational commanders to understand the impact of this connection — between law, kinetic operations, information operations, and legitimacy — on their operational decisions and options is a strategic imperative. A wargame that can trigger and expose these challenges provides future commanders the opportunity to analyze, assess, and hopefully internalize these challenges.
In partnership with National Defense University and the Emory University School of Law’s International Humanitarian Law Clinic, the Marine Corps Command and Staff College implemented National Defense University’s “Burning Sands” wargame for the student body of 213 midcareer military officers and civilian counterparts. Burning Sands was created by faculty at the National War College and designed by National Defense University’s Center for Applied Strategic Learning for the university’s War Crimes and Strategy elective. As students simulate a joint force command staff tasked with liberating an Islamic State-controlled city in North Africa (a fictional scenario based on Israel’s experience during its 2014 “Operation Protective Edge”), they navigate war’s changing character —and recognize its enduring nature.
At the start of the wargame, the students received an order with three mandates. First, they were tasked to secure the town as quickly as possible. Second, U.S. and coalition casualties were to be kept to a minimum. Third, students had to comply with strict rules of engagement, including stringent limitations on civilian casualties. None of these demands were surprising, at least initially. Political pressure to achieve military objectives rapidly and with minimal casualties is hardly new. Minimizing civilian suffering maintains coalitions, undergirds military ethics and the profession of arms, and is central to the just war idea. To accomplish the mission, students were provided a variety of military forces and weapons, ranging from special forces to cruise missiles.
Through a series of injects, students faced immediate operational dilemmas that raised legal questions and, in due time, presented challenges to the legitimacy of U.S. and coalition actions. Students quickly ascertained that, as several put it, “I can get you two, ma’am, but not all three mandates.” Students were required to assess the legal, operational, and policy issues and brief the joint force commander accordingly. To be clear, none of the options were close to ideal. Each time the coalition attacked a target, the results were immediately captured on video and broadcast to the world. For example, when the game started, students learned that the Islamic State was operating its main command and control node deep inside the city’s only hospital. As designed, the students wrestled with whether and how attacking the hospital would be legal once the Islamic State was using it for military purposes, as well as the accompanying moral and operational considerations. To start, the target could be destroyed with minimal coalition casualties with a large air-delivered ordnance. However, this decision would increase the prospect of civilian deaths. Alternatively, the students could recommend a ground assault on the hospital to neutralize the command and control node, limiting civilian casualties but increasing the risk to coalition forces. Most students asked for more time and intelligence reports, but the joint force commander reminded them of the time pressure imposed by Washington. Students would have to make a timely decision, as they would in the real world, in the absence of complete information.
At the start of the second turn, the students quickly encountered the complexities that today’s information environment adds. Having determined that the hospital was a lawful target based on the intelligence available at the time regarding its use for military purposes and the small number of civilian casualties expected to occur, most students ordered a strike on the hospital with appropriate precautions to minimize harm to civilians as much as possible. However, in the game’s second turn, the students learned that hundreds of civilians died in the strike — the Islamic State had filled the hospital with civilians to exploit their demise. Images of death and destruction spread quickly over social media, provoking an anger impervious to the context of both a strike that was lawful at the time and the Islamic State’s unlawful use of civilians as human shields. The international uproar intensified and, within days, the coalition’s European partners quit the coalition in the face of domestic political opposition. Here then was perhaps Burning Sands’ most important lesson. Despite strict compliance with the law of armed conflict and an operationally successful attack, the strike’s impact shattered the coalition. Today’s warfighters should now consider an adversary’s ability to exploit the informational environment in the aftermath of an otherwise appropriate application of fires. This development — a change in the character of war — adds enormous complexities to and constraints on the operational maneuver space.
Lessons Learned: Law, Legitimacy, and the Information Arena
The wargame thus crystalized a key lesson for those preparing to operate in today’s information environment. Before the game, the students understood that legality was a necessary condition of any decision-making process and were well versed in operational “lessons learned.” The hard-fought takeaway from the game was that the enemy’s most effective weapons are no longer limited to bullets and rockets. Rather, smartphones, Twitter uploads, and YouTube broadcasts that exploit the effects of legally permissible fires have become the enemy’s principal tool for attaining political objectives. Non-state actors, especially violent extremist organizations or insurgent groups, rarely, if ever, can defeat an advanced state military on the battlefield. However, if graphic footage of loss and destruction can negatively shape international perceptions and strike a body blow to legitimacy, the adversary can still achieve a limited but powerful victory. Military commanders are forced to react in a contested information environment with dueling narratives about the mission and its legitimacy. Accordingly, the students left with a key takeaway: Although compliance with the law of war is essential and foundational to just war, it is only one piece of the law’s role in modern operations. The law’s role is now critical not only for proper application of the military instrument of power, but for wielding and countering the informational instrument of power as well.
Professional military education has long prepared commanders to apply the law of war across the spectrum of military operations. For decades, the United States has invested heavily in weapons systems, methodologies, and doctrine to limit civilian casualties. Social media and modern communications, however, have changed how its enemies wage war. Just as U.S. adversaries have developed anti-access/area denial weapons systems to counter U.S. technical and tactical advantages, so they increasingly use real-time, unfiltered footage of war’s destruction and suffering to attack the moral and legal basis for U.S. military operations, seeking to undermine the will of the American people and erode support from U.S. allies. Tragically, some U.S. enemies deliberately place civilians in harm’s way. Their objective is clear — compel the United States to either refrain from striking a target to protect those civilians from harm, or to respond to allegations of law of war violations and the corresponding hit to legitimacy from what appear to be illegal and/or immoral acts. Although U.S. commanders should understand and be prepared to emasculate and counter the adversary’s transactional and exploitative view of the law, they should also guard against seeing law merely as a tool rather than a robust normative framework designed to protect soldiers and civilians alike in times of war.
The wargame also highlighted the role of the operational lawyer on a commander’s staff, which can be opaque to junior military officers, as can the interactions between law, strategy, and policy underlying the rules of engagement. By emphasizing the importance of the law of war through the Burning Sands wargame, the Marine Corps Command and Staff College hopes to make that role more transparent. Students will enter squadron and battalion command with not only a deeper understanding of how the law of war informs and enables operational planning, but of why law compliance alone is only part of the analysis. Although violating the law obviously can have devastating effects on U.S. legitimacy, following it scrupulously is not sufficient alone to ensure success. In war, the enemy gets a vote — and when the enemy deploys social media and human shields to portray war’s violence as unjustified and unlawful, operational decision-making should go beyond questions of law and morality. The wargame format was a unique and effective way to teach students how to make the kinds of ethical decisions they will face in their careers, decisions made increasingly complicated by war’s rapidly changing character. In addition, in wrestling with the immediate lessons of how law informs and regulates military operations, how to maximize effective interaction between legal and operational considerations, and how to manage legitimacy in the information environment, the students tackled the overarching challenge of war’s enduring nature. War is always violent, interactive, and political. Although the law cannot and should not be expected to change that nature, it does have a critical role to play in regulating and mitigating war’s inevitable brutality and suffering.
One additional feature of the Marine Corps Command and Staff College’s execution of Burning Sands also helped prepare future squadron and battalion commanders for planning conditions they will face in their future careers: The exercise occurred entirely online to mitigate risk from COVID-19. This format tested the students’ ability to analyze problems and make decisions without the benefit of physical proximity, simulating a future distributed planning environment. Over the past year, the Marine Corps Command and Staff College has become adroit at online wargaming in a pandemic and collaborating with other colleges and universities remotely, and the online execution allowed for new collaborations and greater access to subject matter experts as well. Eight judge advocates from throughout the joint force dialed in to support the wargame. Working with National Defense University and Emory also reinforced the value of cooperation with other professional military education and civilian academic institutions. National Defense University’s and Emory’s other iterations of Burning Sands, including variations designed for use as a more law-centered exercise, have highlighted these benefits time and again: Civilian law students briefing a brigade commander; junior judge advocates collaborating with civilian law students; mixed groups of law students from the United States, Israel, and Europe wrestling with how to provide legal advice — education far beyond the law of war and the nature of military operations happens in these settings.
Building on the success of Burning Sands, the Marine Corps Command and Staff College has redesigned its capstone exercise, “Pacific Challenge-X,” to highlight these complex operational, legal, ethical, and policy challenges. In May, the College will once again partner with Emory and other professional military education institutions and host a great power competition wargame in which the students will counteract a variety of efforts to undermine the legitimacy of U.S. and coalition military operations in the South China Sea in the course of kinetic and information operations. As the student commanders wrestle with tactical implications of penetrating the adversary’s anti-access/area denial defenses to reopen the Straits of Malacca and the imperatives of ethical decision-making, they will be pressed to remain mindful of how the actual and perceived legality and legitimacy of their actions will feed a greater battle of narratives in war.
Col. Thomas J. Gordon IV is the director of the Marine Corps University-Command and Staff College.
Adam Oler, J.D., is associate professor and chair of the Department of Security Studies at the National War College/National Defense University. He is a retired Air Force colonel and judge advocate. Professor Oler created Burning Sands in 2015.
Laurie Blank is clinical professor of law; director, Center for International and Comparative Law; and director, International Humanitarian Law Clinic, Emory University School of Law.
Jill Goldenziel, J.D., Ph.D., is associate professor at the Marine Corps University-Command and Staff College, and senior affiliated scholar, Fox Leadership International & Partnership for Effective Public Administration and Leadership Ethics, University of Pennsylvania.
The views expressed here are the authors’ own and do not necessarily represent those of our universities, the Department of Defense, or any other arm of the U.S. government.