Operational law is "[t]hat body of domestic, foreign, and international law that impacts specifically upon the activities of U.S. forces in war and operations other than war . . . It is a collection of diverse legal and military skills, focused on military operations. It includes military justice, administrative and civil law, legal assistance, claims, procurement law, national security law, fiscal law, and international law."[1]
The term "operational law" was coined in the aftermath of Operation Urgent Fury in Grenada.[2] At that time, military lawyers at the United States Army Judge Advocate General's School began a reassessment of the legal advice and support due commanders.[3] The long-term result may be a profound change of direction in the practice of military law.[4] There is now an accelerating military professional interest in operational law that goes beyond the Army JAG Corps.[5] This growth in the stature of military operational law is a response to the same environmental factors that led to the development of the doctrinal rubric Operations Other Than War (OOTW).[6] An institutional phenomenon, operational law (like OOTW) reflects the changing nature of sovereignty, the increasing reach of legal norms into military affairs, and the great variety of missions assigned to military organizations.
1. International and Operational Law Division, Operational Law Handbook (Charlottesville, Virginia: The Judge Advocate General's School, 1994), A-1. (The Operational Law Handbook is now used at the Judge Advocate General's School and at the Army War College in Carlisle, Pennsylvania as a text reference. At the War College it has replaced Theater Planning and Operations for Low Intensity Conflict Environments: A Practical Guide to Legal Considerations.).
2. See David E. Graham, "Operational Law--A Concept Comes of Age," The Army Lawyer (July 1987): 9. "Lest there be any doubt, OPLAW is a new concept. It is not simply a modified form of international law, as traditionally practiced by Army judge advocates, dressed up in battle dress uniform and given a çatchy'name." Ibid; "By its nature, OPLAW transcends normally defined military legal disciplines and incorporates, for the first time in one legal regime, relevant substantive aspects of international law, criminal law, administrative law, and procurement-fiscal law." Ibid., 10.
3. A foundation had already been laid within the Judge Advocate General academic community for the construction of operational law doctrine. Department of Defense Directive 5100.77 of 10 July 79 required all US forces to abide by the law of war. (In 1977, President Carter had signed the 1977 Protocols to the Geneva Conventions) As a result, the international law division of the JAG school gained status and positions, though the scope of interest remained fixed on law of war issues. Shortly before the Grenada intervention, Joint Chiefs of Staff Memoranda 59-83, of 1 June 83, (and a later memorandum--MJCS 0124-88, 4 Aug 88) required lawyers to provide advice on both restraint and the right to use force, and to assist in operational plans and orders. These instructions, as well as FORSCOM Message, Subject: Review of Operations Plans, 29 October, 1984, provided the official mandate on which operational law doctrine was developed.
4. Although the Operational Law Handbook includes national security law as one of its elements, it is also correct to conclude that operational law is a practitioner bi-product of national security law. National security law has become a major area of legal study, like domestic law or tax law, that is individually recognized by the American Bar Association. Over eighty law schools in the United States now offer some course work in national security law. This body of legal study reflects legislation and court decisions that have shaped all aspects of national defense during the past half century. It is an area of study that involves scholars, policy makers, and legal practicioners well beyond those in military uniform. The development by military lawyers of military operational law doctrine was a unavoidable consequence of this larger academic movement. Rather than just relating operational law principles based on experiences from military deployments (although this is important), military legal faculty must prepare unit JAG officers to incorporate the lessons of national security law into their military practice. The future of military law is now tied in great measure to the evolution of national security law. The range of this discipline can be seen in the contents of one of the major national security law texts. See, e.g., John Norton Moore, et. al., National Security Law, (Durham, North Carolina: Carolina Academic Press, 1990). Materials in Moore's text cover 1200 pages in 28 chapters ranging from international conflict management to emergency preparedness.
5. As part of its annual senior service college curriculum, The Army War College at Carlisle, Pennsylvania now offers a 30 hour advanced course to prospective senior officers and civilian leaders on legal aspects of defense and military decisions. At the Command and General Staff College at Ft. Leavenworth, Kansas, the follow-on generation of military leaders is now offered a 30-hour elective on operational law.
6. See Headquarters, Department of the Army, Field Manual 100-5, Operations (Washington: U.S. Governmant Printing Office, 1993). FM 100-5 is a periodically updated capstone document for U.S. Army doctrine. This latest edition includes a chapter titled "Operations Other Than War" where a mission list is offered that includes: noncombatant evacuation operations, arms control, support to domestic civil authorities, humanitarian and disaster relief, security assistance, nation assistance, support to counterdrug operations, combatting terrorism, peacekeeping operations, peace enforcement, show of force, support for insurgencies and counterinsurgencies, and attacks and raids. The manual's glossary defines the term OOTW as "military activities during peacetime and conflict that do not necessarily involve armed clashes between two organized forces." FM 100-5 is more definite about what the Army feels OOTW are not . An OOTW apparently cannot be 'limited' war or 'general war,' although OOTW can occur simultaneously or within either of these. Limited war is an armed conflict short of general war, the example given being Operation Just Cause in December 1989 in Panama. General War is defined as "armed conflict among major powers in which the total resources of the belligerents are employed and survival is at stake." Ibid., 2-1. At the time of the writing of this article, a new Army Field Manual on Operations Other Than War was still in draft.
Operational Law - Early History
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