The Dilemma of “Tactical” Surrender

Winter-Spring 2024 The Dilemma of “Tactical” Surrender by COL David Krynicki, MAJ Christopher Gamble, MAJ Joseph Lambert and MAJ Matthew J. Smith As the training focus shifts from coun terinsurgency (COIN) to large-scale combat operations (LSCO) in the near-peer strategic environment, a different set of dilemmas with legal implications will present themselves to maneuver leaders. Most maneuver leaders are not strangers to conducting detention operations in a COIN environment, and some have recently experienced de tention operations associated with a LSCO environment at one of the com bat training centers (CTC). However, the concept of a “tactical” mass sur render by enemy forces in the vicinity of the forward line of troops (FLOT) is a dilemma that maneuver leaders should be aware of as they prepare their formations for a LSCO fight. The concept of the enemy purposeful ly utilizing their forces to inhibit the maneuver of an adversary’s formation is always a planning consideration. However, the idea of the enemy ac complishing this via the execution of a “tactical” mass surrender is an uncon ventional but distinct possibility. Whether the adversary’s decision to execute this course of action (CoA) is due to their enemy organization being undertrained and out of supplies or simply because they believe this CoA is their best option to delay friendly forc es, options and implications associated with this CoA should be understood throughout respective formations. A brigade combat team (BCT) experi encing a “tactical surrender” of an en emy battalion tactical group (BTG) with all their associated personnel, weap ons, vehicles, and equipment at their FLOT could extensively impact an op eration. This impact could be exponen tially compounded if the affected BCT is enroute to a time-sensitive objective that is a critical element of the higher headquarters mission. The dilemma: a relatively isolated ma neuver unit encounters a number of Figure 1. A Soldier in 1st Battalion, 26th Infantry Regiment, 101st Airborne Division (Air Assault), strips a surrendering en emy combatant of weapons during Exercise Southern Vanguard 24 in Oiapoque, Brazil, on Nov. 15, 2023. (U.S. Army photo by SPC Joseph Liggio) personnel who are willing and able to surrender, which amounts to 25-35 percent of the friendly maneuver force on the ground and that will be on the ground between four to 36 hours (400 personnel surrender to a 1,455 Soldier ground force). In a LSCO environment, the options for maneuver leaders posed with this di lemma are extensive thanks to reason ableness and the risk that must be as sumed due to military necessity. The initial tactical decision that the maneu ver leader must make is whether they detain the surrendering personnel. If the decision to detain is made, ensur ing that applicable international law is followed is the next challenge.1 What the “detention” of the surren dering personnel will look like over time will be heavily mission and situa tion-dependent, especially for a rela tively isolated unit. Maneuver leaders need to understand their options con cerning the detention of personnel in a LSCO environment should a similar

Winter-Spring 2024 situation present itself, and how these options can be tailored with respect to what is required by the applicable law when military necessity is factored in. I encourage maneuver leaders to con sult their legal teams and explore this dilemma (at scale) during training events, as this is a dilemma that should be experienced and understood as we prepare to fight and win in a LSCO en vironment. Traing for what this dilemma could look like Examining this unique dilemma in an example may offer more context. Through the lens of the 82nd Airborne Division (hereinafter “82nd”), we will explore this dilemma with respect to the joint forcible entry (JFE) operation. The JFE is a significant capability of the 82nd, and due to the nature of these operations, a mass surrender incident occurring during the execution of the JFE could be detrimental to the success of the operation. The JFE doctrinally has five phases: Preparation and De ployment (Phase I), Assault (Phase II), Stabilization of the Lodgment (Phase III), Introduction of Follow-On Forces (Phase IV - situational dependent), and Termination or Transition Operations (Phase V).2 This article will focus on phase III of the JFE for analysis. Fur ther, the mission of the hypothetical JFE we will analyze includes time-sen sitive follow-on objectives intended to expand the lodgment achieved during the assault phase. For the hypothetical JFE, the personnel encountered that are willing and able to surrender is a BTG-minus comprised of 400 combat ants and their associated individual equipment and weapons systems (no vehicles). The mass surrender occurs during Phase II (assault phase) of the JFE, while only the alpha echelon has reached the objective. The alpha ech elon is comprised of approximately a brigade-sized element that arrives on the objective via air drop capabilities. JFE Phase II (assault): Inserting enemy actions into any plan complicates the execution of an operation. However, this is exacerbated when enemy forces use unexpected non-doctrinal means to cause dilemmas for friendly forces. During the assault phase of the JFE, a brigade minus will be the first wave to reach the objective, doctrinally known as the alpha echelon. Alpha echelon’s paratroopers and their associated equipment arrive at the objective and begin to establish security on the ob jective, assemble, and accomplish fol low-on tasks to ensure the feasibility for the airland arrival of bravo and charlie echelons of the JFE. Within the first 90 minutes, in the vicinity of the objective, the alpha echelon makes contact with approximately 400 com batants waiving white flags, weapons slung (not in hand), verbally confirm ing their intent to surrender (for this scenario the 400 combatants surren der is “genuine” and “clear and uncon ditional”).3 Currently, with roughly 1,200 paratroopers on the ground and the tasks to expand the lodgment and secure/improve the objective for the arrival of the bravo echelon (second wave) in approximately four hours, the commander comes to the staff asking for his/her options for dealing with the dilemma they are now facing. 1,200 Paratroopers on the ground with countless tasks to accomplish for the mission to succeed, no support expect ed for hours, and now 400 combatants are attempting to surrender in the vi cinity of the JFE Objective. As the staff and subordinate commanders begin offering solutions, the BDE CDR asks the Judge Advocate, what are my left and right limits legally? The initial wave of Paratroopers encounters a relative ly large number of enemy forces that are attempting to surrender. What is the capability of this finite number of troops to manage detainees and the continued needs of the mission? JAG: As the Judge Advocate on the ground, what do you advise? In refer ence to international humanitarian law, is it feasible to accept surrender? If surrender is accepted, what require ments does that trigger? CDR: As the commander, what are you comfortable doing? Where will you as sume risk? Detention operations: expected challenges during JFE Detention operations: The implied standard is for U.S. servicemembers to always treat all detainees humanely, and a detainee is any person captured by or transferred to Department of De fense personnel pursuant to the Law of War. Detainees’ status can vary from combatants (lawful and unlawful) to noncombatants, and civilians.4 De pending upon their status, detainees are afforded different protections. Of note, the presumption, until proven otherwise, is that all persons taken into custody by U.S. Forces will be pro vided with the protections of prisoners of war (POWs) under the Geneva Con vention (GC). In summary, when de tainees are under the control of the United States, the detainees and their property must be protected, and they must be provided adequate food, wa ter, shelter, medical care, hygiene fa cilities, sufficient clothing, and the ability to exercise their religion.5 Detention operations requirements are cumbersome, and the scale of the de tention operation can accentuate the associated challenges. In an austere environment with limited assets, what options are available to commanders regarding detention operations, espe cially when these operations impact the potential success or failure of the mission? There are options, and these will be heavily fact/situation depen dent. However, the first time this di lemma is contemplated should not be during a kinetic operation amid a con flict, but rather during a training exer cise or professional development dis cussion. JAG: As the judge advocate, what are the legal requirements, and where can the requirements expressed in law or regulations be reasonably flexible re garding military necessity? CDR: As the commander, what is re quired for the mission, and what risk is willing to be assumed? Isolated unit with limited assets, supplies

• Providing detainees with adequate food, water, and shelter. Detainees are to be always treated humanely, inherent to this is an adequate supply of food and water. During the initial phases of the JFE operation, supplies are extremely limited. Paratroopers plan to insert loaded with limited supplies on their person and no

Winter-Spring 2024 “shelter” capability. The ability to provide these limited supplies to personnel outside the formation is a risk to the welfare of the paratrooper and the mission. This supply issue pertaining to detainee operations is an area where specific facts/ circumstances can lay the grounds for military necessity as to the temporary abandonment of the requirements for providing detainees with food and water. The time will be limited, and the decision on what can/will be provided should be reevaluated continuously as the operational environment evolves. In the hypothetical JFE, it would be reasonable for the commander of the alpha echelon element not to provide the 400 detainees with food, water, and shelter during the infancy of the operation; however, this decision should be reevaluated as the operation matures and airland elements arrive. The analysis may be a math problem that will change upon the arrival of bravo and charlie echelons in phase III (stabilization of the lodgment). At this point in the JFE operation, there would be multiple battalion-sized elements on or within the vicinity of the JFE objective to assist with the 400 combatants willing to surrender.

• Detainees and their property must be protected. The JFE operation is likely in the vicinity of an airfield or open area that could support the airborne insertion of the assault force and subsequent airland operations. Until the lodgment is stabilized and improved, there will likely be limited cover and concealment available for detainees. Commanders should protect their detainees reasonably during this phase of the operation. They need not provide the limited battle positions offering cover to these detainees nor construct assets providing cover during the infancy of the operation. However, this decision on protection and what constitutes protection for the detainees should be reevaluated periodically. In the hypothetical JFE, it is reasonable for the commander to not provide the detainees with covered positions during Phase II and Phase III of the Figure 2. Soldiers with the 2nd Brigade Combat Team, 2nd Infantry Division, watch over a detained enemy combatant dur ing training as part of Decisive Action Rotation 17-09 at the National Training Center on Fort Irwin, CA. (U.S. Army photo by SPC J.D. Sacharok)

Winter-Spring 2024 operation as the lodgment is stabilized. However, a prudent legal advisor would recommend that this decision is reevaluated periodically, and that the opportunity and tools are reasonably provided to the detainees to construct their own covered positions (foxholes) to provide themselves protection.

• What “type” of detainee? Once a surrender occurs that is genuine, clear, and unconditional, and it’s feasible to accept, the ground force commander will have a number of detainees to care for. The first step in understanding the legal requirements tied to caring for these detainees is understanding what type of detainee you have within your control. Generally, the categories of persons detained will be combatants (lawful and unprivileged belligerents), noncombatants, and civilian internees. Each respective classification has nuances for the required rights and privileges associated with their status; when there is any doubt as to the status of the detainee, provide the status with more privileges in the interim (typically POW status). Then, when feasible, use the tools available such as a GC III Article V tribunal to determine the detaine[s] status. However, understand that no matter the classification of detainee or conflict, humane treatment is the minimum standard of care. Military necessity can dictate the level of care provided, as practicable consult with your servicing judge advocate when dealing with detainee operations. Takeaway This limited analysis of a hypothetical JFE operation was to provide an exam ple and drive the discussion as to what the dilemma of a “tactical mass surren der” may mean to your respective or ganization. Whether during the execu tion of a JFE, a Defense in Depth, or a convoy operation. The dilemma of a “tactical mass surrender” can delay and disrupt friendly forces and the mis sion. Operations encountering a sur render is an operation with a unique legal role. Ensuring our commanders understand their options when dealing with this potential situation is para mount as we shift into the LSCO envi ronment. Commanders have options: insert this dilemma or similar dilem mas into your organization’s training plan. COL David J. Krynicki is the Staff Judge Advocate, 82nd Airborne Division, Fort Liberty, NC. His military schools include Command and General Staff College (2017), and Judge Advocate Officers Graduate Course (2012). He holds a Ju ris Doctor degree (Doctor of Law) from West Virginia University College of Law and a bachelor’s of science degree from West Virginia University College of Business and Economics. MAJ Christopher Gamble is the execu tive officer for 2nd Battalion, 508th Para chute Infantry Regiment, 2nd Brigade, 82nd Airborne Division, Fort Liberty, NC. His previous assignments include oper ations officer, 75th Ranger Regiment, Fort Moore, GA; commander, Company C, 1st Battalion, 77th Armor Regiment, 3rd Brigade Combat Team (BCT), 1st Ar mored Division, Fort Bliss, TX; executive officer, the Sabalauski Air Assault School, Fort Campbell, KY; and platoon leader, Company F, 4th Battalion, 101st Aviation Regiment, 159th Combat Avia tion Brigade (CAB), 101st Airborne Divi sion. MAJ Gamble’s military schools in clude the CGSC, Fort Leavenworth, KS; Maneuver Captain’s Career Course, Fort Moore, GA; Infantry Basic Officer Leader Course, Fort Moore; Ranger School, Fort Moore; Airborne School, Fort Moore; Jumpmaster School, Fort Moore; Air Assault School, Fort Camp bell; and Pathfinder School, Fort Camp bell. MAJ Gamble has a bachelor’s of science degree in biology from The Cit adel and a master’s degree in opera tional studies from CGSC. MAJ Joseph Lambert is the battalion operations officer (S-3), 2nd Battalion, 325th Airborne Infantry Regiment, 2nd Brigade, 82nd Airborne Division, Fort Liberty, NC. His military schools include Ranger School and Jump Master School, Fort Moore, GA; and CGSC, Fort Leavenworth, KS. MAJ Matthew J. Smith is a Graduate Course student, The Judge Advocate General’s Legal Center and School (TJA GLCS), Charlottesville, VA. His previous assignments include chief of national security law for the 82nd Airborne Divi sion, Fort Liberty; military justice advi sor, 82nd Combat Aviation Brigade (CAB), 82nd Airborne Division, Fort Lib erty; aide-de-camp to the Armor Com mandant, U.S. Army Armor School, Ma neuver Center of Excellence, Fort Moore; and platoon leader, both tank platoon and mortar platoon, 3rd Infan try Division, Fort Stewart, GA. MAJ Smith’s military schools include the 72nd National Security and Law of Armed Conflict Course, TJAGLCS; 11th Emergent Topics in International & Op erational Law Course, TJAGLCS; Judge Advocate Officer Basic Course, TJA GLCS; MCCC, Fort Moore; Ranger School, Fort Moore; Airborne School, Fort Moore; Pathfinder School, Fort Moore; and Armor Basic Officer Leader Course, Fort Moore. He has a bache lor’s of science degree in political sci ence from The Citadel, The Military College of South Carolina; a master’s in public administration degree from Columbus State University; Juris Doc tor degree (Doctor of Law) from Boston College Law School; and a graduate certificate in cyber security policy and governance from Boston College. Notes 1 Applicable dependent upon the classifi cation of the conflict, International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC), the proper provision[s] of the Geneva Convention (GC) and Depart ment of Defense Directive (DoDD) 2310.01E, DoD Detainee Program; Joint Publication (JP) 3-63, Detainee Opera tions; and Field Manual 3-63, Detainee Operations; are followed; GC III, Article 12, 118 apply to prisoners of war (POW) in an International Armed Conflict (IAC), and GC Common Article III and Additional Protocol II* in a NIAC. 2 Joint Publication 3-18. 3 DoD Law of War Manual 5.9.3.3. 4 Detainee classification will also be de pendent upon the classification of the conflict, International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC).

5 Requirements are nested in Common Ar ticle 3 of the Geneva Conventions, and further directed in DoDD 2310.01E and Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian In ternees and Other Detainees.

• See ACRONYM QUICK-SCAN,

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Winter-Spring 2024 Acronym Quick-Scan

• continued from Page XX BCT – Brigade Combat Team BTG – battalion tactical group (enemy) CGSC – Command and General Staff College CoA – course of action COIN – counterinsurgency CTC – combat training center FLOT – forward line of troops GC – Geneva Convention IAC – International Armed Conflict JFE – joint forcible entry LSCO – large-scale combat operations NIAC – Non-International Armed Conflict POW – prisoner of war TJAGLCS – Judge Advocate General’s Legal Center and School Figure 3. U.S. Army Soldiers assigned to 2nd Brigade Combat Team, 2nd Infantry Division, detain a simulated enemy combatant during Decisive Action Rotation 17-09 at the National Training Center in Fort Irwin, CA, Sep. 12, 2017. (U.S. Army photo by SPC JD Sacharok, Operations Group, National Training Center)