Small Wars Journal

Expeditionary Advanced Base Operations Deception: Legal Obligation to Protect Civilians

Thu, 03/31/2022 - 8:23pm

Disposition of USMC EABO Forces: Obligation to Protect Civilians

By LtCol Brent Stricker

The past 20 years of counterinsurgency operations employed precision strikes against an enemy force hidden among the civilian population. These operations required legal review to minimize incidental and collateral damage to civilians, civilian objects, and protected places. The U.S. Marine Corps’ shift toward Expeditionary Advanced Base Operations (EABO) now calls for a an alternative forward force posture based on a more difficult to target, low-signature, and dispersed forward-basing infrastructure.” This new focus will require careful planning as Marines operate in closer proximity to civilian infrastructure and maintain a low profile. Legal review will help to inform the disposition of Marine forces consistent with the law of armed conflict.


A brief discussion of EABO is needed to understand the problem presented. EABO is the Marine Corps’ answer to its pacing threat adversaries that would use a strategy of anti-access/area denial (A2AD) to prevent naval forces from maneuvering in the littoral spaces. To penetrate A2AD envelopes, Marines will use “high-speed, long-range, low-signature craft” operating within an enemy’s weapon engagement zone (WEZ) from Expeditionary Advanced Bases (EAB) that will act as strategic reconnaissance for the fleet and deter or destroy enemy warships, submarines, or military aircraft before displacing to establish another EAB, shifting locations every 48 to 72 hours.  Marines will confuse the enemy through decoys, false electronic signatures, and attacks from unexpected directions to overwhelm an enemy’s observe, orient, decide, and act (OODA) loop and turn their A2AD strategy against them.  The Concept for Stand-In Forces suggests that a deception strategy will be to leverage host nation infrastructure for logistics and communication and deception strategies using of civilian vessels or vehicles, civilian electromagnetic spectrum, or modified uniforms.


            Throughout the EABO planning cycle, judge advocates should be involved to ensure compliance with the law of armed conflict. Civilians and civilian objects must be protected during armed confcict. The 1907 Hague IV Convention on Land Warfare states that generally undefended towns may not be attacked or bombarded and if military necessity requires towns be bombarded, the attacker must issue a warning allowing for civilian evacuation. Articles 27 and 56 of Hague IV extends this protected status to other civilian objects to include hospitals and cultural and religious objects. This protected status remains so long as the locations are not used for a military purpose.


            The trend since Hague IV has been to expand the classes of protected persons and objects. The 1949 Geneva Convention (IV) on Civilians (GC IV) allowed the creation of hospital and safety zones for the wounded, sick, children under fifteen, expectant mothers, and mothers with children under seven. Such hospitals were to always be inviolate unless used for a military purpose and only with fair warning. These protections for civilians and civilian objects were further enshrined with Additional Protocol I (AP I) to the Geneva Convention which many countries accept as customary law.  


            The United States has codified its understanding of customary international law in a series of commander’s handbooks and manuals, which include the Army and Marine Corps Commander’s Handbook on the Law of Land Warfare, the DOD Law of War Manual, and the Navy, Marine Corps, and Coast Guard’s Commander’s Handbook on the Law of Naval Operations. These publications each incorporate the requirement to protect civilians and civilian objects from attack based on “the principles of distinction and proportionality including taking feasible precautions to avoid incidental harm to civilians.” This approach is reflected in AP I Article 57 for the attacker, but also includes principles from AP I Article 58 for the defender to protect the civilian population by removal or to avoid placing military objectives near them.


            EABO must therefore maintain its stealthy presence in a host nation while complying with the law of war. Military objectives and activities will take place amongst civilians, and as noted in Article 28 of GC IV, the presence of civilians will not necessarily “render certain points or areas immune from military operations.” Conversely, the use of human shields is expressly prohibited under both AP I Article 51(7) and United States policy. EABO’s deception plan must be careful to avoid this outcome because if it is too good, the enemy may incorrectly strike a protected civilian target and falsely accuse the Marines of using human shields to cover for its own LOAC violation.


            A review of permissible forms of deception under LOAC is informative for EABO. Prohibited acts of deception center around the notion of perfidy which Article 37 of AP I describes as “acts inviting the adversary to lead him to believe that he is entitled to or is obligated to accord, protection under the rules of international law.” The DOD Law of War Manual and Army and Marine Corps Commander’s Handbook on the Law of Land Warfare use similar definitions. This concept would include military forces disguising themselves as civilians. Other prohibited acts of deception include pretending to surrender, pretending to be wounded, or the misuse of symbols such as the Red Cross, the United Nations, or a neutral country. The only exception to this is the customary international law allowing the use of false flags while at sea until the moment of engagement when the proper national ensign must be displayed. This means that use of such symbols and flags, such as the surrender flag, may not be made to invite the confidence of the enemy. Deception at sea has a slightly different rule that would allow the Marines to make use of the false flag exception for warships in the deployment of their new Light Amphibious Warships (LAW).


The proposal for Marines and EABO to adopt civilian vehicles, modify their uniforms, and use civilian electromagnetic spectrum must be calibrated to avoid threats to civilians and civilian objects and avoid perfidy. Any violations places at risk the protected status of Marines as prisoners of war. Article 1 of Hague IV only grants protected combatant status to individuals wearing “a fixed distinctive emblem recognizable at a distance” and “carry[ing] arms openly” among other requirements. This definition is repeated in Article 13 of Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field (GC I). These rules are observed as customary law as well, and will be respected to avoid the risk losing protected combatant status.


In his planning guidance, the Commandant stated the key success for EABO “We disperse to reduce our signature to avoid detection.”  As noted in the EABO Handbook, this will be  a “Win the hider / finder competition.” Further work must be done to ensure the deception efforts within EABO are consistent with international law and the obligation to protect civilians.


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.


About the Author(s)

LtCol Brent Stricker, U.S. Marine Corps serves as the director for expeditionary operations and military professor of international law at the Stockton Center for International Law at the U.S. Naval War College.