Overview of the Law of War
The Law of War (also sometimes referred to as the Law of Armed Conflict) is a critical body of rules that sets out the legal limits of warfare. The principles upon which the law is based mirror the fundamental tenets of humanity and military necessity; that while it is lawful for the military to pursue its objective and take necessary military action, it is not permitted to inflict unnecessary suffering and destruction.
While separate from International Human Rights Law, the principles of the Law of War derive from a number of binding international agreements. The Geneva Conventions, which are considered to be the foundation of the modern Law of War, forms one of the primary sources of guidance. The intent of the Conventions, which were adopted in 1949 and revised in 1955, is to ensure a minimum standard of treatment not only for the wounded and sick, but also for those who do not take part in hostilities.
The Maritime and Air Laws also include Conventions that apply to armed conflicts at sea and in airspace. They include the Hague Conventions of 1907 , which govern the conduct of hostilities on land and include provisions particular to naval warfare. There are also several modern treaties and customary international law that set out relevant obligations.
The importance of the principles that underpin the Law of War cannot be understated; it is essential that members of the military understand the implications of the Conventions when undertaking military operations. There may also be considerable overlap between broader humanitarian law and the Law of War. That is, some of the guiding principles of the Law of War are not regulated solely by the rules that deal exclusively with armed conflict but also with protection for human dignity. For instance, the Non-binding Resolution on the Protection of Civilians in Armed Conflict sets out fundamental principles for the protection of individuals.
Ultimately, the key reason why those involved in military operations should have a grounding in these principles is twofold: first, because it is essential to military effectiveness, and second, because it is the law. As military operations are becoming increasingly complex, the blurring of roles, expanding threats and rapid advance of technology all place an unsustainable burden on military personnel; all whilst there is a continuing and growing legal apparatus governing military operations. Understanding the extent to which these principles relate to the day-to-day role of the military, including in planning, is essential.
Objectives of the Joint Staff Law of War Pretest
As part of its efforts to promote adherence to the Law of War by the Armed Forces of the United States, the U.S. Military has introduced the Law of War Educational Assessment and Evaluation. This program is known as the "Joint Staff Law of War Pretest." The purpose of the Pretest is to assess service member knowledge of the Law of War prior to their first year of service in the field. The Law of War establishes binding rules governing the conduct of armed forces during conflicts and, due to the practical concerns of warfare, provides significant discretion in its application. That discretion is only sustainable if personnel understand the contemplated scope of their discretion under the law and the underlying policy and ethical justifications for the law. Should the Pretest fail to identify an immediate need for education, the periodic administration of the Pretest is designed to provide useful information to the Joint Staff on a more longitudinal basis, (1) to determine if appropriate Law of War training and education is being conducted, and (2) to monitor deficiencies in the practical understanding of the Joint Staff Law of War instruction, and Joint General Staff Training and Education.
Pretest Organization
The Joint Staff Law of War Pretest is a 50-question, 90-minute, online, open-book assessment consisting of 12 questions covering doctrine, 8 questions covering law, 5 questions on administrative concerns and 25 knowledge-based questions. The doctrine-based questions will likely cover Joint Pub 1, Joint Pub 3-0, the Law of Armed Conflict Desk Reference, Commanders’ Handbook on the Law of Armed Conflict, applicable U.S. Army field manuals and Marine Corps warfighting publications. The 8 law-based questions will probably include questions ranging from rules governing anticipated collateral damage in civilian areas, when the U.S. military need not issue warnings in connection with strikes, prohibitions against perfidy, whether the Supplemental Policy on Targeting applies to MGOs and similar topics. The administrative questions will likely concern distribution of pretest completion notices for individuals who took the pretest, warrior ethos guidance and related topics. The knowledge-based questions are likely to cover the ethics of lawyers in The Judge Advocate General’s Legal Center and School Associated Officers course, Code 60 (Lawyer’s Compass, Military Justice) and related topics.
Topics Included
Multiple areas of the Law of War were included on the pretest. The JCO produced multiple versions to ensure that the same study material was not used by soldiers taking the test. The first area covered was, in fact, rules of engagement. ROE questions are generally included in every test but it is an important subject as it serves to show the evolving nature of LOAC. As wars have become more urban, and involve more non-state actors, the ROE have had to expand to include this new battleground. ROE questions may use scenario-based questions, state rules only, or use a mix of both.
The second topic included was the treatment of EPWs. Questions in this area may involve discussion of the Geneva Convention requirements for accounting for EPWs and destroyed equipment upon capture , or questions about the orders and treatment of EPWs while in detention.
The third topic included was the protection of civilians. Questions in this area mostly revolve around the obligations to civilians in terms of warning them of the impending use of weapons and accepting them into protected areas (for instance the neutral zone). Other areas of questions include civilian objects that could be potentially destroyed in an operation, but are not combatants, and the protection of journalists operating in an area of conflict in accordance with Article 79 of Additional Protocol I to the Geneva Conventions.
Pretest Preparation Suggestions
In order to best prepare for the upcoming Joint Staff Law of War Pretest (JSPOT), we highly recommend the following: First and foremost, ensure that you understand the test format and the specific materials from which the test is drawn. SCOT and the KOCT Abstracts are a good source for the type and level of information that will be asked, but review them carefully with the intent of coming up with the answers to the questions; don’t just read them and assume they are the "answers to the questions." Similarly, the International and Operational Law Working Group annual survey results will reveal the questions that were answered incorrectly by test takers. Especially those questions that are answered incorrectly on the pretest provide good insight into the nature of the questions that are asked and very often are actual pretest questions or are very similar to the questions on the test. In addition to the SCOTS and KOCT Abstracts, there are a number of other useful resources. The Marine Corps has a study guide specifically for its OCONUS assignments. In addition, we suggest you look at Courts Martial 101 and some of the International Law and OCONUS assignment resources that the U.S. Army JAG School places online. You can find these resources on their websites in the online training sections. Finally, last year the Army JAG School provided access to an online training program that is now being updated and expanded. Once this is ready, it will be available to everyone who subscribes to Course Mill. (More information on Course Mill will be posted soon.)
Summary
While passing the Joint Staff Law of War Pretest does not guarantee that a member of the military will adhere to lawful behavior while engaged in operations, it does provide for a measure of assurance that an individual understands the general scope and limitations of the Law of War . Ongoing education, thorough preparation and assessment of individual conduct based upon the laws governing armed conflict is an excellent means of maintaining assurance that a member of the military adheres to the law while engaged in combat.