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Law of Warfare

Rules of Engagement and Undersea Incursions: Reacting to Foreign Submarines in Territorial Waters

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This article is part of a series that will explore the use and legal issues surrounding military zones employed during peace and war to control the entry, exit, and activities of forces operating in these zones. These works build on the previous Maritime Operational Zones Manual published by the Stockton Center for International Law predecessor’s, the International Law Department, of the U.S. Naval War College. A new Maritime Operational Zones Manual is forthcoming.

By LtCol Brent Stricker

“We have attacked, fired upon, and dropped depth charges on a submarine operating in defensive sea area.”–USS Ward (DD-139) December 7, 1941, Pearl Harbor, Hawaii.

Submerged foreign submarines in a nation’s territorial sea pose a unique situation that is inconsistent with the rule of innocent passage. Under certain circumstances, their concealed presence without the consent of the coastal state could be considered a threat to the territorial integrity or political independence of the coastal state. A modern submarine fulfills its peacetime mission and combat role while submerged. If the coastal state detects a submerged submarine in the territorial sea, it is faced with a dilemma on the appropriate measures that can be used to force the submarine to surface or leave the territorial sea. The recent sabotage of the Nord Stream pipeline and the vulnerability of the world’s vast subsea network of electricity and network cables highlights the danger posed by unknown submersibles.

Norway and Sweden have faced this problem for more than 50 years from suspected Soviet and later Russian submarines. Both countries have used warning shots in an attempt to signal the submerged contacts to surface or leave the area. Use of explosives in this manner, however, could be misinterpreted as an attack on the submarine. Balancing the protection of territorial sovereignty with avoiding escalation poses a predicament.

Innocent Passage

All ships, including warships, enjoy the right of innocent passage through the territorial seas of a coastal state without prior notification or consent. This rule was discussed in detail in the Corfu Channel case before becoming codified in the United Nations Convention on the Law of the Sea. The Corfu Channel is a narrow passage between Albania and the Greek island of Corfu. The United Kingdom’s Royal Navy was confronted by Albanian coastal artillery fire when transiting the channel in May 1946. In October 1946, two Royal Navy destroyers transited the channel while at action stations to be prepared to respond to coastal artillery fire or other threat posed by the Albanians. These destroyers struck naval mines laid in the channel. As a result, in November 1946, the Royal Navy conducted minesweeping operations to clear the channel.

The United Kingdom brought a case against Albania in the International Court of Justice seeking reparations for the loss of life and damages to its warships. The ICJ upheld the Royal Navy’s right of innocent passage through Albanian territorial waters, rejecting Albania’s arguments that the ships were not in innocent passage because they were sailing in formation and the sailors on board were at action stations. Rather, the Court found that sailing in formation and running at action stations were appropriate defensive measures. The Court found that the minesweeping operation was inconsistent with innocent passage and a violation of Albanian sovereignty, rejecting the British arguments that this was a measure of “self-protection.” Corfu Channel illustrates how innocent passage may include defensive measures. The case has long presented a conundrum because it determined that states are entitled to innocent passage, yet are restrained from taking defensive action, such as minesweeping, to exercise their right.  

Innocent passage is governed by the United Nations Convention on the Law of the Sea (UNCLOS). Norway and Sweden are signatories to UNCLOS, and the United States, while not a signatory, recognizes much of it as customary international law. UNCLOS codified the right of innocent passage in Articles 17-21. Innocent passage must “not be prejudicial to the peace, good order, or security of the coastal state.” A foreign vessel’s passage is not innocent if its actions constitute “any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State.” A special provision for submarines, Article 20, requires submarines engaged in innocent passage to “navigate on the surface and to show their flag.”

A coastal state that discovers an unknown submerged contact in its territorial sea is faced with a dilemma. Examples from Norway and Sweden of submerged contacts lingering in their territorial waters are inconsistent with the definitions of both passage and innocent passage. The coastal state, under Article 25 of UNCLOS, may “take the necessary steps in its territorial sea to prevent passage which is not innocent.” There is no agreement on exactly what steps are deemed necessary. Furthermore, these measures are limited when applied to sovereign immune warships. Thus, while an unknown submerged contact is not exercising innocent passage, it is unclear what measures a coastal state can apply to exercise its rights under Article 25. Articles 30 and 31 of UNCLOS allow a coastal state to require the submerged contact to leave its territorial sea and places liability for any damages on the flag state of the submerged contact. Armed force against an unknown submerged contact, however, may only be used in self-defense under Article 51 of the UN Charter. In most cases, use of force would not be justified simply because the submarine is submerged or refuses to surface and the mere presence of the submarine does is not tantamount to an “armed attack.” This determination is complicated when the submerged contact’s intensions cannot be ascertained.

Norway

Norway has been dealing with suspected intrusions by foreign submarines for more than 50 years. These contacts in Norwegian fjords are difficult to track due to the mixing of fresh water runoff and salt water in the fjords which can provide cover for submarines from sonar detection. Acoustic detection is complicated by the fjord’s subsurface structure, currents, and civilian surface traffic. For two weeks in November 1972, Norwegian vessels aided by Norwegian and British aircraft attempted to locate and force to the surface an unknown underwater contact, believed to be of Soviet or Warsaw Pact origin, in the Sogne Fjord using depth charges. Hand grenades and then depth charges were used to signal to the underwater contact to surface. Ultimately, the Ministry of Defense was given permission to sink the contact if it did not surface and identify itself.

For the Norwegians to use force against the unknown submerged contact, they would need to articulate how an otherwise benign submerged vessel posed an imminent threat that would justify the use of force in self-defense. Violating Article 21 of UNCLOS in and of itself does not constitute such a threat of imminent attack, even if the submarine is engaged in an intelligence or reconnaissance mission. Such a mission may be illegal under Norway’s domestic law, but it does not imply an illegal use of force, let alone an armed attack.

In limited situations, the location and duration of the unknown submarine in territorial waters could be considered as a threat, as noted in the radio transmission of the USS Ward when it engaged an unknown submarine in a defensive sea area. The Norwegians would be more concerned by the location of the unknown submersible if it were in such an area or in close proximity to another sensitive military exercise or base. The longer the submarine remained at depth, the greater potential one might consider it laying in wait to attack. Nonetheless, the Norwegians employed an escalating use of force in 1972 with attempts to signal with hand grenades and ultimately culminating with firing anti-submarine missiles at the suspected target. The Norwegians were ultimately unable to force the contact to the surface, identify it, or sink it.

Norwegian experiences with unknown submarine contacts continued over the decades. The official Norwegian policy on the use of force remained somewhat ambiguous. In 1983, Brigadier Asbjorn V. Lerheim stated on the use of force, “It is a tough decision, it is still peacetime, and you can’t really destroy a submarine . . . it is not an attack on Norwegian soil.” Norway seems to have adopted a set of measures to escalate the use of force against these intrusions. The first measure is to signal the submarine to surface. If the submarine complies, it would be taken under escort. If not, depth charges would be dropped within 300 meters from the submarine with a two-minute interval to indicate this was a signaling measure, not an attack. If this failed to surface the submarine, Norwegian captains were authorized to attack with depth charges, but torpedoes were prohibited in the attack because of the potential of catastrophic damage to the boat and loss of the entire crew. It is speculated that the anti-submarine missiles fired in 1972 used homing devices and proximity fuses and were not a real attempt to hit the submarine.

Suspected Soviet incursions into Norwegian territorial waters continued as late as 1990. Norwegian authorities received reports of suspected submarines in the summer of 1990 at Skipton, a Norwegian bay twenty-five miles from the Russian border. The area was put under surveillance when, in November 1990, a mini-submarine was observed briefly on the surface. The sea floor was examined and a series of tracks were found that indicated a submersible crawler had been deployed. Similar tracks were discovered elsewhere in Sweden and Norway near military installations. The Soviet Northern Fleet possessed such miniature submarines at the time. It was speculated that the miniature submarine was launched from a nearby mother ship to conduct a Spetsnaz training or reconnaissance mission.

As late as 2021, Norway was subjected to an undersea intrusion by unknown submersibles. The Norwegian Institute of Marine Research operates a network of undersea sensors in northern Norway to monitor the marine environment. It can also be used to monitor submarines in the area. These sensors are interconnected by a series of fiber optic cables. In April 2021, it was discovered that 2.5 miles of fiber optic cable had been cut and stolen. Several of the sensors had been tampered with and moved. The reason for the intrusion is speculative but includes the potential for reverse engineering.

Sweden

Like Norway, Sweden has been troubled by intrusions of foreign submarines in its territorial waters for a similar period of time. Unlike Norway, Sweden has actually caught one submarine on the surface in the infamous “Whiskey on the Rocks” incident in 1981. This incident noted increased intrusions throughout the 1980s that have continued as late as the 2010s. To date, the Whiskey is the only foreign submarine caught on the surface in Swedish territorial waters.

On October 27, 1981, a Soviet Whiskey class submarine, the U-137, was found grounded on a rock in Swedish territorial waters. The Whiskey was an early Cold War diesel electric submarine, not a nuclear-powered submarine. The Swedish Navy contacted the submarine’s captain, Captain Second Rank A. M. Gushchin, who claimed a navigational error. Captain Gushchin claimed he thought he was 20 miles off the Polish coast when the collision occurred. This claim is rather dubious considering the submarine had transited submerged through a “perilous series of narrow straits infested with rocks and islands” before the grounding. The submarine’s grounding within ten kilometers of the Swedish naval base at Karlskrona while a major naval exercise was being conducted was certainly not just a coincidence brought about by a navigational error. Upon inspection, Swedish officials found no problems with the boat’s navigational equipment and noted its logbook had been altered.

The boat remained grounded for eleven days while the Swedish authorities inspected the submarine and questioned the captain. The Soviet Union responded by sending a flotilla of warships that stayed just outside Swedish waters. The Swedish Prime Minister made a shocking announcement on November 5, 1981, that the submarine was suspected of carrying nuclear weapons. The Swedish government made demands to the Soviets before releasing the submarine. However, weather intervened and Sweden released the submarine before these demands were met. The submarine was exposed to gale force winds and was listing 17 degrees. Swedish authorities were concerned that the boat’s battery acid could spill and cause a fire or release chlorine gas that could kill the crew. Swedish authorities stopped the captain’s interrogation and boat inspection, refloated the boat, and the submarine left on November 6, 1981.

Following this incident, the Swedish government released the Submarine Defense Commission Report in 1983, which detailed the history of foreign submarines intruding into Swedish waters. Prior to the Whiskey incident, and even subsequently, critics had claimed these submarine scares were an excuse to increase the Navy’s budget. The report detailed how foreign submarines entered Swedish waters typically one to two times a year in the 1970s before a dramatic increase during the 1980s. These incursions were concentrated around naval facilities such as coastal defense points, ports, sensor networks, and minefields.

The Report and increased submarine intrusions led to a change in Swedish Rules of Engagement (ROE) applicable to submarine contacts. Prior rules prohibited a commander from firing on an unknown contact without authorization from the civilian leadership. The Swedish Navy was only allowed to make contact with the submarine to identify it and escort it out of Swedish waters. The new ROE allowed the submarine to be fired upon without warning. Initially, warning shots were to be used, either through the employment of depth charges or missiles. The ROE were intended to prevent the damage or destruction of the submarine, but the ROE made a distinction on the location and behavior of the contact. If the submarine was located in Sweden’s outer waters, these are waters beyond the internal archipelago to the 12-mile limit, it would be warned and escorted out. If the submarine was found in internal waters, these are waters of Sweden’s internal archipelago, and refused to leave or proceeded further, it could be treated as hostile and force designed to damage or destroy the submarine could be used.

The Swedish ROE may have contributed to their inability to force submarines to the surface. If they employed depth charges or other devices with an eye toward avoiding damaging the detected submarines, the submarines could simply ignore these attempts. There is evidence that the Swedish ASW may have damaged a submarine. In the summer of 1988, eight pieces of unknown foreign submarine rescue equipment were recovered in the Stockholm archipelago. Similar equipment had been recovered in the 1970s and 80s.

The Swedish Navy continued to deal with foreign submarines intruding into Swedish waters throughout the 1980s. The government stopped providing statistics on these incursions in 1987. Subsequent reports have been vague in their descriptions. This may be to avoid highlighting their inability to stop or deter these incursions.

There is evidence that these incursions did occur. The Swedish Navy noted that these incursions have become more sophisticated with the use of multiple submarines, miniature submarines, and divers. The evidence for these incursions comes from sightings, sonar, and magnetic detection from Swedish sensor networks. There has also been evidence of keel marks and track marks on the sea floor similar to the Norwegian miniature submarine event noted above.

The miniature submarines may have also allowed military forces to surreptitiously land on Swedish territory. Between 3 to 6 March 1984, Swedish forces fired at swimmers on the island of Almo. The island was searched and food caches were located. The Swedes have also noted attacks on their “submarine nets, break-ins ashore, to the disruption and destruction of underwater mine lines.” In one case, they were blamed for the theft of a naval mine. Most shockingly, in 1985 fisherman pulled a drowned swimmer up in their nets. The nets had been placed illegally near a naval mine. It is presumed the diver was scouting the mine when he became entangled and drowned. The fisherman did not recover the body and abandoned their nets. When Swedish authorities investigated, the body had been cut out of the net and removed by unknown persons.

Conclusion

This historic submarine incursions remain relevant today, particularly considering heightened tensions from the Russian invasion of Ukraine and the recent application of Finland and Sweden to join the North Atlantic Treaty Organization. Much like the Norwegian fjords, the Swedish archipelago would be an area for these submarines to operate. The reasons for the incursions remain relevant today for any NATO-Russian conflict whether it be to conduct reconnaissance or the insertion of Special Forces. If there is a repeat of one of these Cold War examples such as a stranded submarine like the Whiskey, or more concerning, NATO forces hunting a submarine contact, the consequences could be manifold. First, NATO forces chasing a submarine contact trying to force it to surface might be viewed as an attack on the submarine. The use of explosives to signal a submarine might accidentally damage it or injure the crew. These signals could be misinterpreted as an attack allowing or even requiring a submarine to respond in self-defense. Second, any hostilities in territorial waters directly implicates the collective self-defense clause of Article 5 of the North Atlantic Treaty.

The conduct of Russian submarine espionage in the territorial seas of its neighbors presents one of the greatest challenges to avoiding conflict in the Baltic Sea. These incidents reveal the gap between the law of the sea and the use of force in self-defense against an armed attack. The Nordic coastal states must walk a fine line between protecting their territorial integrity and avoiding escalation of an incident that might quickly spin out of control.

LtCol Brent Stricker, U.S. Marine Corps, serves as the Director for Expeditionary Operations and as a military professor of international law at the Stockton Center for International Law, U.S. Naval War College. The views presented are those of the author and do not necessarily reflect the policy or position of the U.S. Marine Corps, the U.S. Navy, the Naval War College, or the Department of Defense.

Featured Image: Russian Kilo-class submarine in the English Channel. (UK Ministry of Defence photo via Wikimedia Commons)

Law of Warfare

Expeditionary Advanced Base Operations: National Security Law at the Operational Level of War

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By Peter C. Combe II

In a recent piece for the Center for International Maritime Security (CIMSEC), Brent Stricker provided an excellent overview of legal considerations associated with the Marine Corps’ Force Design 2030, concepts for Stand-in-Forces (SIF) and Expeditionary Advanced Base Operations (EABO). Stricker provides a cogent introduction to targeting, deception and distinction questions if using non-standard platforms, and access, basing, and overflight (ABO) of regional states in the Pacific and South China Seas. This essay is intended to expand on additional legal considerations that the School of Advanced Warfighting student class of Academic Year 2022 encountered during the last year of study.

The Marine Littoral Regiment (MLR) is the Marine Corps’ contribution to the SIF concept. Foundational to the SIF concept is the ability to operate and persist within the enemy’s weapons employment zone (WEZ). In seeking to operate and persist within contested spaces, SIF need not always be Special Operations Forces (SOF), but in many ways they must be SOF-like. This includes not only size, and employment concepts, but enabling capabilities and the attendant authorities as well. 

Target Engagement Authority and Criteria

In addition to discussions of the ground, air, and maritime domains a discussion of the legal rules, and authorities associated with other domains and capabilities is relevant to the SIF concept. As important as what the U.S. Joint Force is legally permitted to do, is the question of the level at which those authorities lie.

Cyberspace presents a number of challenges to applying the Law of Armed Conflict (LOAC) because the United States and China hold different views about how it applies to cyberspace. The official U.S. position is that cyberspace operations can rise to the level of an armed attack if they have sufficient effects or impact systems of sufficient national importance, while the People’s Republic of China (PRC) takes a contrary stance, that LOAC (as a jus in bello matter) is inapplicable in cyberspace. Related is the determination of when and whether a cyberspace operation may rise to the level of an armed attack which justifies the use of force in self-defense pursuant to the U.N. Charter. While the United States and many other nations believe that a cyberspace operation may pose a sufficient jus ad bellum justification for self-defense, the PRC has remained silent on the matter. These divergent views on the jus ad bellum and jus in bello applicability in cyberspace pose the danger of miscalculation, which operational planners and national security practitioners must remain wary of.

The PLA Strategic Support Force (PLASSF) is the primary PLA organization tasked with the conduct of cyberspace operations. In a crisis situation it is possible that the PLASSF may seek to impose cyberspace effects on U.S. naval vessels in the South or East China Seas as a means of demonstrating resolve and on the rationale that such actions could not violate international law, as international law is inapplicable to cyberspace actions. However, the United States may view such an offensive cyberspace operation as equivalent to a use of force against a military vessel, and conclude that the right to use military force in self-defense pursuant to Article 51 of the U.N. Charter has been triggered.

In a deeper discussion of targeting, regardless of domain, we must also address who is authorized to engage a given target. For instance, where does the authority lie to employ various capabilities or to achieve certain effects? During the past 20 years of counterterrorism operations the authority to employ lethal fires was often held at the General/Flag Officer (GO/FO) or Joint Task Force (JTF) level. There were sound reasons for this including the operational imperative to limit civilian casualties and the tactical and operational patience required when dealing with a non-state actor on the other side of the globe. However, requiring GO/FO approval to employ lethal fires may be inappropriate when dealing with Expeditionary Advanced Base Operations (EABO) or Distributed Maritime Operations (DMO) in a communications denied/degraded environment against a near peer competitor. 

Degraded communications may prevent distributed tactical units from being able to contact a GO/FO to approve a strike. Similarly, the decision speed required may preclude the ability to fire effectively in modern salvo combat if a tactical unit is required to work through a Joint or Combined Task Force headquarters to take offensive strike decisions. Successful fires in a salvo combat model may require that an MLR Company Commander (i.e., a Marine Captain or Major) be authorized to approve offensive strikes against a PLA-Navy surface combatant.

A similar concern is the need to rely upon allies and partners for access, basing, and overflight (ABO) in any conflict in the Western Pacific. In those instances, the question is likely to arise: which allies and partners, or what other persons or infrastructure are U.S. forces permitted to use lethal force to defend? It is not uncommon for U.S. forces to be permitted to defend a particular partner while that partner is conducting one type of mission, but not others. Similarly, it is common that U.S. forces may be permitted to defend a partner force against some third party actors, but not others.

While national and tactical self-defense often includes the concept of collective self-defense, it is not something the Joint Force can take for granted. It may raise concerns about facilitating indiscriminate lethal targeting by an ally, or being drawn into a wider conflict, and thus limiting the circumstances under which U.S. forces may defend Saudi or Yemeni allies. It could generate concerns about the appropriate degree and level of support to non-state proxies and their compliance with international law. Congressional skepticism has also arisen based on the perception that U.S. forces use “collective self-defense” as a means to skirt Congressional authorizations to use military force. These are difficult questions – and what is operationally expedient may not be politically tenable. Operational planners must be prepared to scope self defense/collective self-defense rules of engagement to manage a number of competing tensions: what is legally permissible, what best serves operational requirements, and what is politically and diplomatically feasible. 

Aside from questions about the operational or tactical echelon at which targeting decisions are made, is the human commander’s role in those decisions. Artificial intelligence holds both enormous promise to increase the speed and quality of decision-making, while raising thorny ethical and quasi-legal questions about automation in decisions to use lethal force. Should artificial intelligence work primarily as a decision support tool, or with a “man-on-the-loop” for primarily defensive systems? This discussion is particularly pertinent when considering the possibility that the Marine Corps’ Marine Littoral Regiment (MLR) may be incorporated into the Navy’s Composite Warfare Command (CWC) structure – perhaps using a virtualized version of the Navy’s Aegis Combat System, which enables autonomous defensive engagements based on preset criteria. The Aegis Combat System may also permit automated offensive engagement in certain narrow circumstances.

These capabilities raise the possibility that an MLR/EAB commander may not be the final authority making firing or target decisions. Depending upon the availability of communications, and the MLR’s position within the CWC construct, the MLR may turn into essentially a maintenance and maneuver package for a Navy fires asset. It is further foreseeable that firing decisions are made not by a human (Navy or Marine Corps) commander, but made by automated systems and monitored by naval commanders and staff. 

Signature Management:
TAC-D, DISO, Joint MILDEC, Cover, or Something Else?

Signature management and deception also pose challenges, because responsibility to distinguish one’s own forces from civilians is borne by both attackers and defenders. Thus, signature management, including various levels of deception becomes both an imperative and a potential stumbling block. In addition to the distinction issues raised by Stricker’s article, there are administrative and policy requirements that the national security law practitioner must consider. Do certain signature management practices constitute Tactical Deception (TAC-D), Deception in Support of Operational Security (DISO), or Joint Military Deception (MILDEC)?

TAC-D is generally deceptive activity executed at the tactical level of command, for the purpose of influencing enemy commanders to take or forego actions favorable to achieving tactical level outcomes (battles and engagements). DISO targets adversary intelligence services rather than commanders or decision-makers, and seeks to create false indicators or observables that disguise or manipulate the true nature of a unit. Joint MILDEC sits atop the deception pyramid, is a theater level activity to support a Joint campaign, and is normally planned, approved, and conducted at the Combatant Command level in advance of and during a campaign. These are different, and not terribly well understood concepts within the larger Joint Force, and are approvable at different levels of command. Operational planners and national security law practitioners must understand the differences and most importantly the approval levels and timelines, as approving executions in support of Joint MILDEC may take months and require Joint Staff coordination prior to execution.

Other administrative signature management practices may prove no less challenging. The concept of “21st century foraging,” is pitched as a means to help Marine units persist within the PLA weapons employment zone (WEZ) without Joint Force or Marine Expeditionary Force (MEF) level logistics. As the PRC continues aggressive efforts to court (and coerce) neighboring countries, it is likely to attempt expansion of its cashless surveillance economy into those countries as well. In these instances, the use of cash may prove untenable and use of government associated credit cards may provide an easily traceable administrative signature. Attempts to use non-attributable credit accounts may implicate the need to staff and approve a cover or cover support plan, which can take significant amounts of time and resources, and will require coordination, approval, and resourcing from outside of Marine operating forces. Operational planners and national security law practitioners at the MEF, MARFOR, and Geographic Combatant Command (GCC) level must familiarize themselves with these concepts to make EABO and DMO feasible.

National Command Authority and Jus Ad Bellum

Other law of armed conflict considerations, more appropriate for the Joint Staff or National Command Authority, also bear consideration. A common scenario in discussions of EABO and SIF is the defense of Taiwan by U.S. forces. Operational planners and national security law practitioners need to understand that the U.S. abrogated the mutual defense treaty with Taiwan (the Republic of China / ROC) in 1979 as part of U.S. efforts to establish diplomatic relations with the PRC. The Taiwan Relations Act (TRA, passed the same year) also does not provide a domestic legal obligation to defend Taiwan, nor an international legal basis to do so. Rather, the TRA permits the Departments of State and Defense to essentially treat Taiwan as a state for Foreign Military Sales and Security Cooperation purposes. This remains an important distinction as fewer than 20 countries recognize Taiwan diplomatically, a number which does not include the U.S. or any permanent member of the U.N. Security Council.

With this context in mind, international law recognizes three traditional justifications for the use of force internationally: (1) under a U.N. Security Council Resolution (UNSCR), (2) self-defense, including collective self-defense of a third party country, and (3) consent of the state in whose territory force is used. The first and last justifications are non-starters in a Taiwan scenario as the PRC is a permanent member of the U.N. Security Council able to veto any potential UNSCR, and the U.S. “one China policy,” affords diplomatic recognition to the PRC in Beijing, not the ROC in Taipei.

Collective self-defense as a jus ad bellum justification is also typically applied to states, and unlikely for the reasons above. The U.S. has also never adopted the “responsibility to protect (R2P),” doctrine as an independent legal basis justifying the use of force in a third country to defend a non-state entity as a means to alleviate internal/domestic violations of International Human Rights Law (IHRL). Furthermore, recent events have called into question the degree to which the R2P doctrine may be falling out of favor in international law circles in the wake of Russia’s pretextual use of the doctrine to justify an aggressive war against Ukraine. However, that may not foreclose the discussion. An under-studied area of law with respect to international law justification is that of executive prerogative.

Presidential prerogative has a long history in the United States, with the country’s earliest presidents arguing over the contours of what the doctrine permitted, and whether or how those actions must be corrected or remedied after the fact in the absence of Congressional authorization. The concept of executive, or “Crown Prerogative,” also has a place in current and former English Commonwealth countries. Sir William Blackstone, the eminent 18th Century British jurist and legal commentator, described it separate and apart from the executive authority to administer the laws passed by Parliament. Because the U.N. Charter is not to the prejudice of Customary International Law (CIL) but rather acts as a sort of augment to existing CIL rules, the concept of executive prerogative may survive in some form as a distinct customary international legal basis to use force (or seize necessary territory) in a third country. These are questions that bear exploration as they relate to EABO specifically, and SIF more generally, especially in light of the President’s recent vow to use military force to defend Taiwan in the face of PLA aggression.

Furthermore, a core assumption of EABO and the Concept for Stand-in-Forces is the ability to operate from third countries in order to hold an adversary at risk. However, there is good reason to believe that many countries in the East and South China Seas will be reticent to ally with the U.S. during an armed conflict. In that case, is the U.S. then precluded from operating in those countries absent a non-consensual occupation of territory? The underlying question in this instance, obligations of an occupying power aside, is whether sovereignty is a rule of international law, or a foundational precept – but NOT a rule – underlying other international legal obligations. This question, combined with the question about presidential and executive prerogative, potentially bears great importance to the future success or failure of EAB operations in the event of armed conflict in the Western Pacific.

Conclusion

The EAB, DMO, and SIF concepts hold a degree of promise for peace time and conflict operations in the littorals and other contested maritime domains. Operational planners and national security law practitioners at the operational level of war must be familiar not only with the legal rules regarding targeting, deception, and signature management, but they must also understand where the authorities do (and should) lie with respect to those activities. They also need to understand how targeting practices have been adopted and adapted during 20 years of counterterrorism and counterinsurgency, both from a policy and law perspective. The time may soon arrive when authorities, capabilities and effects which were the domain of a GO/FO commander at a JTF are held at the battalion or even lower level.

Furthermore, U.S. forces will require ABO in third countries in the event of conflict heavily leveraged in the maritime domain, geography demands it no matter which ocean is host to the conflict. Consent from those third countries may be forthcoming, but others may remain reticent or even hostile to accede to U.S. requirements for ABO. Further exploration and understanding of legally available options for non-consensual operations (including lethal operations) is required to assure that ABO and enable effective employment of the new-look Marine Corps.

Lieutenant Colonel Combe is currently assigned to Judge Advocate Division, Headquarters Marine Corps. He recent’y graduated as a resident student at Marine Corps University’s School of Advanced Warfighting. His operational law experience includes serving in the International and Operational Law Branch, Judge Advocate Division and numerous operational deployments in support of conventional and special operations across multiple Combatant Commands. He has written several articles and blog posts on national security law.

The views presented are those of the author and do not necessarily represent the views of the Department of Defense, the Marine Corps, or any other military or government agency.

Featured Image: OKINAWA, Japan (July 8, 2022) – Reconnaissance scouts assigned to the Maritime Raid Force, 31st Marine Expeditionary Unit wait for a UH-1Y Venom to land during a tactical air control party training on Irisuna Island, Okinawa, Japan, July 8, 2022. (U.S. Marine Corps photo by Sgt. Andrew King)

USMC Transformation Week

Marine Corps Metamorphosis: Legal Considerations

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Transforming the Marine Corps Topic Week

By Brent Stricker

The ongoing transformation of the U.S. Marine Corps has raised some controversy and prompted wide-ranging discussions on the future of the Corps. Opponents of Expeditionary Advanced Base Operations, or EABO, are concerned that proven combat power like tanks and tube artillery, are being sacrificed to create a new force that is less flexible, and would provide a single tool fit for only one operational problem. EABO and the Marine Littoral Regiment (MLR) are supposed to be an answer to the Anti-Access/Area Denial (A2/AD) strategy of the People’s Republic of China (PRC). EABO is best understood as a virtual network of scout snipers extending the eyes and fires of the fleet. Marines, operating as Stand-in Forces, will hide in the littoral spaces inside an enemy’s Weapons Engagement Zone or “WEZ,” where they can support a friendly fleet that has to remain outside the WEZ. These forces will also rely on use deception and signature management, displacing every 48 to 72 hours using high-speed, low signature craft and use decoys that an enemy will struggle to target. Critics have also argued that TMEABO abandons the Marines Corps’ fundamental doctrine as described in MCDP-1 Warfighting. But this ignores the warnings of General Alfred M. Gray, 29th Commandant of the Marine Corps, in the preface to MCDP-1: “Like war itself, our approach to warfighting must evolve. If we cease to refine, expand, and improve our profession, we risk becoming outdated, stagnant, and defeated.” EABO is firmly based in the tenants of maneuver warfare where speed, surprise, deception, and ambiguity are essential. Preliminary doctrine for this force has been laid out in the Tentative Manual for Expeditionary Advanced Base Operations, or TMEABO, a publication that pays homage to the Tentative Manual for Landing Operations—and a previous effort to remake the Marine Corps for amphibious warfare during the interwar years.

Despite the breadth of conversation surrounding EABO, operational law has been largely ignored in the discussions, by both critics and proponents of the new concept. As the U.S. Marine Corps develops and transforms its doctrine for EABO, it must consider what impacts international law will have on future operations. Key factors to consider include targeting, degraded logistics, deception plans, and territorial access.

Targeting

 EABO will see the Marine Corps embrace a new form of targeting, particularly when integrated with the Navy. In the past, Marines were concerned with targeting military objectives on land, while limiting collateral and incidental damage to civilians and civilian objects. EABO will see Marines engaging naval platforms, like enemy submarines and warships, where the make-up of the vessel’s crew is irrelevant in the targeting process.

The Commander’s Handbook on the Law of Naval Operations provides a concise reference for the law concerning targeting such platforms. During conflict, enemy warships, naval auxiliaries, and military aircraft may be attacked or captured anywhere outside neutral territory without warning. Attacks on surface ships must cease when they have indicated an intention to surrender such as striking their colors, stopping, or surfacing if a submarine. A submerged submarine or disabled aircraft are subject to attack until destruction due to the uncertainty of surrender.

Enemy merchant vessels and civil aircraft are subject to capture outside neutral territory. They may be attacked if they are engaged in belligerent acts or conduct war-sustaining/war-supporting activity. If they actively resist visit and search or capture, persistently refuse to heave to after being ordered to do so, convoy with enemy warships, or are armed with weapons greater than needed for self-defense from pirates or terrorists, they may be attacked. In such case, enemy merchant vessels and civil aircraft are not innocently employed and they risk destruction.

Some enemy vessels may not be attacked or captured. Enemy hospital ships and medical aircraft may not be attacked, but they must be appropriately marked and registered. Other vessels are also immune based on their use. This status could include ships involved in prisoner exchange, or religious, scientific, or philanthropic use. Finally, small coastal vessels engaged in local fishing are immune from attack.

Contested Logistics

Marine Stand-In Forces will not be able to rely on a global supply chain and may be forced to subsist off the civilian infrastructure of a host nation or what may be seized from the enemy. As the Marine Corps develops new doctrine for EABO, it will need to consider how to requisition property in a host nation or in occupied enemy territory.

The initial question is where the property to be acquired is located, in host nation or enemy territory? In host nations, the Marine Corps will use local contractors and venders through contracting officers and purchase agents. If local property is seized or damaged, a Foreign Claims Agent will step in to pay compensation.

In the past, invading armies have foraged for their supplies. This allowed for the seizure of food and livestock to support an invading army. During the American Civil War, for example, the Lieber Code made a distinction between private and public property. Public property could be seized and used by the invading army. Private property was protected and could be seized only when military necessity required it. Even in such case, the property owner was entitled to fair compensation.

The 1907 Hague IV Convention for Land Warfare expanded the protection of both private and public property. In addition to a prohibition on destruction, unless required by military necessity, compensation was expected for damage or destruction. Hague IV also addressed the use of property during an occupation by a foreign power. An occupying army was only permitted to requisition property for its needs and the items taken had to be proportionate to the ability of the locality to provide them. Civilians were expected to be compensated in cash or issued a receipt.

The Hague Regulations were supplemented or superseded with four Geneva Conventions in 1949: 1. GC I (Wounded and Sick in the Field) ; 2. GC II (Wounded, Sick, and Shipwrecked at Sea) ; 3. GC III (Prisoners of War); and GC IV (Civilians). Article 34 of GC I notes that aid societies’ property be treated as private and subject to requisition only in “case of urgent necessity” and after the wounded and sick have been cared for.

GC III also makes a distinction between requisition of private and public property. Article 18 of GC III notes that POWs have the right to retain personal property including clothing, feeding utensils, and protective equipment. This was felt necessary because during the Second World War, many POWs were stripped of personal property and their issued equipment. This was an incorrect interpretation of a belligerent’s right to seize an enemy’s public property.

Since the right of requisition is tied to occupation of enemy territory, a discussion of what constitutes occupation is necessary. The 2016 Commentary to Article 34 of GC I notes occupation does not begin at the front lines. Article 42 of Hague IV defines occupation as control of territory. The DOD Law of War Manual requires that the occupation be actual, effective, and the territory must be under the authority of the hostile army.

GC IV (Civilians) placed certain obligations on an occupying power toward the civilian population. Article 55 discusses the obligation to provide food and medical supplies to civilians. Requisition may only be used to support the occupying force, not the war effort. If requisition does occur, compensation must be paid, and requisitions must consider the needs of the civilian population. The 1958 Commentary to Article 55 and Article 147 label excessive requisitioning a grave breach of the convention subject to prosecution as a war crime.

The Commander’s Handbook on the Law of Land Warfare provides a summary of the U.S. policy on protecting public and private property. It prohibits pillaging and the destruction of property “unless imperatively demanded by the necessities of war.” It notes that requisition may occur, but only in occupied areas and with the use of receipts and compensation.

Deception and Distinction to Protect Civilians

EABO relies on deception to ensure the survivability of Marines. The Stand-in Forces guidance suggests the use of civilian infrastructure to achieve this by using civilian vessels, vehicles, and civilian communication infrastructure. This deception plan must be balanced against the requirement to protect civilians and civilian objects. This principle is known as distinction where the law recognizes the protected status of civilians and civilian property from that of combatants and military objectives.

GC IV and Additional Protocol I represent what many countries accept as customary international law. The United States’ position on protected persons and places is contained in the DOD Law of War Manual and the Commander’s Handbook on the Law of Land Warfare. These publications note that commanders “must take feasible precautions to reduce the risk of harm to protected persons and objects” and to separate civilians from military operations where possible. Similar principles appear in Article 57 and Article 58 of AP I.

Any deception plan must be balanced with these requirements. Marines operating in and among the civilian population must ensure that they are distinct from noncombatants and do not place noncombatants at risk. Article 58(b) of AP I requires the parties to the conflict to avoid locating military objectives within or near densely populated areas. Moreover, the use of human shields is expressly prohibited by U.S. Policy and Article 51(7) of AP I.

The plan must also avoid perfidy. Marines may not employ a deception plan that leads the enemy to believe the Marines have a protected status. Perfidy is defined in Article 37 of AP I, the DOD Law of War Manual, and Commander’s Handbook on the Law of Land Warfare. Examples include the use of symbols of protected organizations, such as the International Red Cross; pretending to be a non-combatants, feigning surrender the use of flags of a neutral country. At sea, however, false flag operations are permitted until such time as naval combat is undertaken. For example, if Marines employ the Light Amphibious Warship, the law of naval warfare would allow the use of a false flag until hostilities commence.

Territorial Access

The Stand-in Forces guidance envisions the Marines defending the territory of an allied nation. EABO does not exclude seizing hostile territory, but it is more likely that the EABO A2/AD strategy will be used on a host nation’s territory in collective self-defense. The issue of access to this territory is key, and the stakes in international law are quite high. States exercise and enjoy sovereignty over their national territory and the territorial sea and the airspace above the land and the territorial sea.

East China Sea

The 1960 Japan-U.S. Security Agreement establishes a U.S. defense obligation to protect Japan and U.S. in Japan. Cooperation with Japan’s Self Defense Force must consider its limited authority. Article 9 of the Japanese Constitution was written to renounce war and the threat or use of force to resolve international disputes. A 2014 Japanese Cabinet Decision and the passing of the Armed Attack and Existential Crisis Situations Act potentially allows for Japan to act in what might be considered collective self-defense with the United States or another country when the situation poses a threat to Japan. The government has described three potential scenarios for the use of force: an anticipatory armed-attack, an actual armed attack, and an existential threat to Japan by an attack on a closely allied nation. This third scenario would likely include an attack upon the United States that threatens the U.S. ability to defend Japan. A crisis concerning Taiwan also might give rise to such a situation.

Security ambiguity is at the heart of U.S. policy toward Taiwan. Under the 1979 Taiwan Relations Act, the United States is authorized to provide Taiwan with weapons sufficient for Taiwan’s self-defense. The Act makes no commitment to defend Taiwan only stating an expectation that the One China policy must be peacefully resolved. Nonetheless, the United States would consider any effort to determine the future of Taiwan by other than peaceful means a threat to the peace and security of the Western Pacific area and of grave concern to the United States.

If the People’s Republic of China invaded or were preparing to invade Taiwan, both Japan and the United States may be drawn into the conflict. Japan exercises sovereignty and control of the Senkaku Islands adjacent to Taiwan. This claim is disputed by both the PRC and Taiwan. The United States acknowledges that its defense commitment extends to the Senkaku Islands under the administration of Japan. If an invasion crisis emerges in the region, the Marines may establish EABs on the Senkaku Islands to defend or deter aggression against the Ryukyu Islands or Japan proper. The inherent threat to U.S. forces in Japan would likely draw the Japanese Self Defense Forces into taking measures in concert with U.S. forces for collective self-defense.

South China Sea

The most likely country to allow the Marines ashore in the South China Sea is the Philippines. U.S.-Philippines relations have been turbulent dating back to the Philippine-American War when the United States invaded, and colonized the Philippines. Cold War pressures led to the Mutual Defense Treaty between the United States and the Philippines which provided for mutual support if there was an attack on the territory of either of the parties, island territories under their jurisdiction in the Pacific Ocean, or their armed forces, public vessels, or aircraft in the Pacific. The end of the Cold War and growing anti-American sentiment led the Philippine government to reject renewing a basing agreement and all U.S. forces were removed from the Philippines in the early 1990s. The subsequent Global War on Terror and continued bi-lateral training missions have seen U.S. forces return. U.S. service members are governed by the Visiting Forces Agreement (VFA), which has been a football in Philippine national politics. It was renounced by Philippine President Rodrigo Duterte on February 11, 2020 only to be reinstated July 30, 2021. Nonetheless, under the VFA, U.S. personnel may only be temporarily in the Philippines in connection with activities approved by the Philippine government. 

The ability of Marine forces to access key maritime terrain in the Pacific will ultimately be determined by diplomacy and legal agreements. Every country will weigh its own diplomatic, economic, and defense requirements before granting access to US forces. As events unfold in the struggle of competition, to crisis, to conflict, new partners may emerge and old ones may fall away.

Conclusion

The future codification and operationalization of EABO will be constrained by international law. Marines will have to adapt their targeting to a new missions which target platforms and not individuals. Degraded and contested logistics will increase the demands on purchasing and contract agents. Deception plans will be forced to consider the obligation to protect civilians. EABO will be conducted in cooperation with host nation forces granting access in collective self-defense. Ultimately, EABO is a transformational warfighting concept that requires careful input by legal advisers and USMC judge advocates to ensure it unfolds consistent with international law and U.S. policy.

LtCol Brent Stricker, U.S. Marine Corps, serves as the Director for Expeditionary Operations and as a military professor of international law at the Stockton Center for International Law at the U.S. Naval War College.

The views presented are those of the author and do not necessarily reflect the policy or position of the U.S. Marine Corps, the U.S. Navy, the Naval War College, or the Department of Defense.

Featured Image: U.S. Marine Corps Lance Cpl. Stephen Mathews, a Liberty, Indiana native, and rifleman with 3d Battalion, 3d Marines conducts a combat patrol during Bougainville III at Marine Corps Training Area Bellows, Hawaii. (U.S. Marine Corps photo by Cpl. Patrick King)