International Humanitarian Law (IHL), in a fundamental sense, has always been a translation project. As Jean Pictet observed in shaping the post-war Geneva regime, humanitarian concerns had to be rendered into practical rules capable of guiding conduct in war, rules usable by military institutions operating under conditions of uncertainty, time pressure, and lethal force.Footnote 1 That requirement for practical usability meant that IHL’s core principles are framed in sufficiently general and flexible terms to allow for application in varied and uncertain operational contexts, a feature that has been central to their acceptance by states and to their capacity to function in practice.Footnote 2 That pragmatic orientation—the rendering of humanitarian principles into indeterminate standards applicable across varied operational contexts—is central to IHL’s influence. As the International Committee of the Red Cross (ICRC) puts it, IHL seeks to “limit the effects of armed conflict for humanitarian reasons,”Footnote 3 grounding legal regulation in a commitment to limiting suffering and protecting those not taking part in hostilities. But the same pragmatic architecture that makes IHL influential also makes it vulnerable: rules designed to be operationally usable can be turned to operational ends, recast from limits on violence into frameworks for administering it. This article argues that IHL became influential in United States military operations not primarily through codification or formal commitment, but through institutionalization: the embedding of legal advice within the institutional sites where force is planned, authorized, and reviewed. That embedding was achieved through a process of translation. However, translation alone does not explain law’s influence. Legal norms could only be translated once military lawyers secured sustained access to command decision-making and established the professional authority to participate in operational planning. Translation, in this sense, operates as the mechanism through which law becomes usable within those institutional conditions.
Translation, as used here, is an analytic concept developed in this article. By translation, I refer to the process through which legal norms are rendered operationally usable within military institutions, and in the course of that process, acquire a practical meaning shaped by the roles, relationships, and decision-making routines through which those norms are applied. This usage differs from linguistic translation, where equivalence across texts is the goal, and where the act of translation is not expected to transform the practical meaning of the text. In the context of IHL, the generality of legal standards requires that their practical meaning be specified through institutional processes of application. Legal texts provide starting points, but their operational meaning—for example, what proportionality requires in a specific targeting decision, or what distinction demands in a fluid battlefield—is produced through the decision-making practices and professional interactions that apply those texts in operational contexts.
Translation builds on and extends a socio-legal tradition concerned with the gap between law as written and law as operative. Roscoe Pound’s foundational distinction between “law in books” and “law in action” established that legal doctrine and legal practice diverge, and that the gap between them is analytically significant.Footnote 4 Lauren Edelman’s concept of organizational mediation advanced this insight by specifying the mechanism: organizations actively construct the meaning of compliance in response to ambiguous law, rather than passively implementing legal mandates, and in doing so become the site at which legal meaning is practically produced.Footnote 5 Mediation, however, operates at the level of organizations as collective actors and tracks the production of legitimacy—it leaves underspecified the practitioner-level mechanism through which norms are actively rendered usable within specific decision-making environments, and the constitutive consequence of that process for the norm itself. This concept of translation addresses that gap.
Translation must be distinguished from two adjacent concepts. It differs from implementation, which presupposes a fixed norm awaiting faithful execution downstream.Footnote 6 It also differs from interpretation, understood as the hermeneutic activity of determining the meaning of legal texts. The question here is different: not only what a norm means in the abstract but how that meaning changes as the norm is taken up by specific institutional actors and embedded in decision-making processes. In this sense, translation names a process of institutional mediation through which legal rules become consequential in practice only by being recast in forms that are intelligible and usable to those exercising operational authority. This process is mutually constitutive: legal norms shape institutional routines, and those routines shape how norms are authoritatively applied in practice.
This mutually constitutive character of translation gives rise to the article’s central paradox. Law becomes influential by becoming useful—but the process of making law useful to commanders necessarily reshapes what law means in practice. Military lawyers made law influential by reframing legal restraint in terms that commanders found operationally intelligible: by framing legal limits as structuring permissible courses of action, shaping targeting and detention choices, and carrying political and reputational consequences for command. In doing so, legal norms entered military decision-making in a form shaped by the institutional contexts in which they operated. Law acquires influence by becoming usable within strategic decision-making, and that usability situates ethical restraint within the decision structures through which force is evaluated and authorized.
In the U.S. military, translation succeeded when three conditions were met: legal advisors achieved sustained institutional access to command decision cycles; professional role identities gave legal advisors both the standing and the incentive to speak in operational terms; and commanders were shown that legal compliance serves, rather than merely constrains, their objectives. Where these conditions were absent, legal norms remained on the books but operationally marginal. Where they were met, law became genuinely influential, though, as this article shows, that influence was not ethically straightforward.Footnote 7
The temporal gap at the center of the United States case makes this dynamic unusually visible. In 1949, the Geneva Conventions marked a renewed international commitment to codifying the laws of war. One year earlier, the United States had created a separate Judge Advocate General’s (JAG) Corps, institutionalizing legal expertise within the military. In practice, however, legal advice remained marginal to operational planning for decades. It was not until the 1991 Gulf War—widely described as the most “legalistic”Footnote 8 conflict the United States had fought—that legal review became a routine and authoritative component of military decision-making. Codification and professionalization were necessary conditions for this to happen but alone were not sufficient. What was missing was translation.
This article sits alongside, but is distinct from, two major strands of scholarship on law in war. Normative and constructivist accounts emphasize diffusion, professionalization, training, and socialization, arguing that IHL constrains violence as it becomes embedded in military culture and internalized by soldiers and officers.Footnote 9 Critical scholarship, most prominently associated with socio-legal accounts of “war lawyers,” warns that the growing proximity of law to military operations risks transforming legal norms into instruments of governance and legitimation, blurring the line between restraint and enablement.Footnote 10 Samuel Moyn’s Humane offers the most ambitious version of this critical argument: the progressive humanization of American warfare has not constrained violence but sustained it, making war more tolerable and therefore more endless, with legal expertise functioning less as a brake on force than as the machinery of its legitimation.Footnote 11 The constructivist account explains why formal commitment and professionalization matter; the critical account, and Moyn’s humanization thesis in particular, identifies the implications of law becoming operationally indispensable. However, neither strand specifies the institutional mechanism through which legal norms become operationally consequential in the first place, nor does either account for the transformations in meaning that accompany that process. The constructivist literature asks whether law constrains; the critical literature argues that it enables. This article asks how legal norms acquire the influence that makes either outcome possible and what the institutional route of that influence does to the meaning of restraint in practice.
The article draws on New Institutionalist perspectives—particularly James March and Johan Olsen’s emphasis on institutional arrangements, role identities, and routinized practices—to treat “institutionalization” as the embedding of legal judgment within decision procedures and professional relationships, rather than the linear implementation of rules.Footnote 12 From this perspective, institutional arrangements are constitutive forces that shape how legal norms can be articulated and applied. The 1948 separation between legal and operational domains not only delayed legal influence, it also configured the professional identities, social relationships, and normative vocabularies through which law would eventually have to operate. Military lawyers were treated as active institutional agents who negotiated access, cultivated credibility, and shaped the interpretive frames through which law was applied. Professional identity matters: JAGs understood themselves as responsible for upholding legal and humanitarian standards within the military, while commanders viewed legality primarily as a constraint on, and resource for, the exercise of operational authority. These different role identities shaped how legal arguments were made, received, and translated into practice.
The article traces this institutional and professional transformation through historical process-tracing across four inflection points, selected as analytically revealing episodes that illuminate different phases and dimensions of the translation mechanism. The first is the post–Second World War creation of an independent JAG Corps, which professionalized military law by insulating lawyers from command influence, but also entrenched a structural division between legal and operational domains that would constrain legal influence for decades. The second is Vietnam, where military lawyers encountered civilian harm through claims investigations while remaining excluded from the planning processes that produced those harms—an institutional configuration that generated ethical exposure without operational influence, and that reveals what translation’s absence looks like in practice. The third is the Grenada invasion, treated here as a formative hinge: a poorly planned operation whose legal consequences forced JAGs into operational roles they had never previously occupied, demonstrating their value as problem-solvers and permanently altering commanders’ perceptions of legal utility. The fourth is the rise of Operational Law (OPLAW) and its institutional consolidation in the Gulf War, when legal advice became embedded throughout command structures and legal review became routinized across planning, rules of engagement, and targeting. The article then traces the durability and limits of this institutional settlement in the decades after 1991, examining how the translation mechanism functioned under the more volatile conditions of counterterrorism operations and the detention debates of 2002–2004, before concluding with the broader implications of the argument.
This analysis makes two contributions. Empirically, it provides an account of how the United States military, often treated as a paradigmatic case of “operational lawyering”Footnote 13 became such a case through a professional project of institutional translation that progressively embedded legal expertise into command routines, rather than through doctrinal adoption alone. Theoretically, it specifies a mechanism that links institutionalization to ethical transformation. Law constrained because it was made useful to commanders, but that utility also enabled law to function as legitimacy management and as a structured means of authorizing violence within the language of necessity and proportionality. The argument is not that IHL is simply a facade nor that legalization straightforwardly humanizes war. Rather, it is that law’s influence is conditional, institutionally mediated, and ethically ambivalent: the same pathway that makes law consequential also reconfigures what restraint means.
The stakes of this claim are practical as well as conceptual. The institutional arrangement that makes law influential also creates structural pressure on legal advisors to prioritize operational utility over principled constraint. Efforts to strengthen IHL’s influence that focus on codification, training, or doctrinal mandate alone risk reproducing the familiar pattern of “law on the books” without “law in action.”Footnote 14 But if embedding IHL requires strategic translation, then the ethical content of IHL cannot be assumed to travel intact into practice. The institutionalization of IHL in the United States was neither the simple triumph of humanitarian norms over military necessity nor an inevitable story of legal co-optation. It was a contingent professional and institutional transformation whose gains and risks remain intertwined because law matters most when it can be made operationally useful, and that usefulness is never ethically neutral.
Institutional Foundations: The Creation of the JAG Corps and the Law-Command Divide
The separation between commanders and lawyers was not metaphorical. In 1948, Congress deliberately created an internal chain of command for the JAG Corps that ran parallel to, and independent of, the operational chain of command. This was a structure specifically designed to insulate legal proceedings from command interference.Footnote 15 Prior to this reform, there had been no requirement that judge advocates be qualified lawyers: any commander could be designated a law officer, and legal duties were routinely performed by line officers alongside their other responsibilities.Footnote 16 The 1948 reform changed this fundamentally, requiring that JAGs be legally qualified and that their time be devoted exclusively to legal matters. Lawyers, for the first time, became a permanent institutional presence in the military with their own professional hierarchy.
The depth of military resistance to this arrangement reveals how significant the structural change was. General Eisenhower opposed the creation of a separate JAG Corps so strenuously that he took the unusual step of requesting permission to appear in person before the full Congressional committee to argue against it, a departure from normal procedure that the committee granted. His objection was institutional: separating lawyers from the officer corps, he argued, would be contrary to service harmony.Footnote 17 So acute was this concern that the Congressional subcommittee felt it necessary to explicitly reassure the Army that, as William T. Generous put it, “The mission of the Army and its JAG Corps were identical: the winning of wars.”Footnote 18
That reassurance, offered to secure passage of the reform, contains in miniature the tension that would define the next four decades. Congress created a structurally independent legal corps staffed for the first time by legally qualified professionals.Footnote 19 The military accepted the reform on paper but in practice proceeded to sideline, isolate, and largely ignore the new legal corps. The institutional separation was real and consequential, as commanders had not yet accepted that law had anything useful to say about the conduct of war.
This produced a double bind. Legal expertise was introduced into the military and insulated from improper influence, but in doing so, those most capable of applying legal restraint were positioned at a distance from operational power. JAGs were excluded from operational decision-making, with their responsibilities centered on courts-martial, disciplinary matters, and administrative legal functions. Unlike civilian lawyers, military attorneys do not serve individual clients, nor does attorney-client privilege apply in the same way. Instead, JAGs serve the institution itself. As a result, commanders often viewed them less as partners in decision-making and more as agents of compliance, “a nuisance, at best.”Footnote 20
From an institutionalist perspective, this represents an incomplete form of institutionalization. As March and Olsen argue, “institutionalization” involves more than the formal codification of rules; it requires the embedding of norms, practices, and role identities within institutional routines and social relationships.Footnote 21 The post-1948 reforms formalized legal authority but did not integrate it into the operational life of the military. What emerged was a durable separation between law and command that shaped how legal norms were interpreted, who was authorized to interpret them, and whether legal restraint could meaningfully inform the practice of war.
This separation also shaped professional role identities in ways that would prove consequential for the subsequent history of legal institutionalization in the U.S. military. Drawing on March and Olsen’s account of institutions as sites of role formation, the creation of a distinct JAG Corps constituted a new kind of legal actor within the military: one whose authority derived from legal expertise rather than from command, and whose professional identity was organized around law as a fundamental interest rather than an operational constraint. David Luban’s account of lawyers’ “role morality”Footnote 22—a special professional responsibility to promote justice—found particular expression in the military legal context. JAGs describe themselves as having “internalized and seek[ing] to operationalize the core values inscribed in international law: respect for human rights and the imposition of limits on the use of force.”Footnote 23 For some, this extends to understanding themselves as “guardians of ethics within the military”Footnote 24—a self-conception that grounds their agency not in rank or command authority but in their capacity to interpret and apply legal rules with professional discretion, shaping the “law in action” rather than merely transmitting the “law on the books.”Footnote 25 As one JAG put it: “When your job is to fight and kill, you try to do it with some sense of integrity.”Footnote 26
Commanders, by contrast, relate to law through a different institutional logic. This is not to suggest that commanders lacked moral commitments or were indifferent to legality. The role of command requires the pursuit of military objectives within legal bounds, and many commanders took that requirement seriously. But as Travers McLeod observes, international law’s influence for commanders is felt primarily through legitimation: law matters insofar as it enables action to be justified and sustained.Footnote 27 For commanders, legality is an instrumental concern: it is important, but subordinate to operational imperatives. Whereas for military lawyers, it is constitutive of professional identity. This asymmetry matters for the argument that follows. The translation of legal norms into operational vocabularies was not simply a strategic communication choice; it was a negotiation between two genuinely different institutional roles, each with its own relationship to law’s authority. That the negotiation succeeded is remarkable; that it required JAGs to move substantially toward the commanders’ register is what gives the paradox its ethical weight.
These institutional and professional tensions would become most visible during the Vietnam War, when JAGs remained structurally excluded from operational planning while being placed in direct contact with the consequences of unrestrained violence. The separation designed to protect legal independence ultimately constrained the capacity of law to function as a source of restraint, setting the conditions under which ethical exposure would exist without institutional influence.
Ethical Exposure Without Influence: Legal Marginalization in the Vietnam War
Despite the U.S. government’s formal commitment to the Geneva Conventions, the laws of war played little practical role in guiding operations in Vietnam.Footnote 28 Law of war training for U.S. troops was minimal, consisting of a single two-hour lecture, typically delivered during basic training by commanders themselves.Footnote 29 In practice, it was the Rules of Engagement (ROE) that served as the operational guidelines for troops on the ground. These rules, which were drafted by commanders, neither reflected the principles of IHL nor reliably constrained violence, and legal oversight of their implementation was almost non-existent.Footnote 30
Structurally, the logic of the war incentivized killing over discrimination.Footnote 31 Civilian protection was subordinated to a strategy of attrition: “search and destroy”Footnote 32 missions, the “body count” as a metric of success,Footnote 33 and institutional pressure to meet “kill quotas”Footnote 34 created a battlefield logic that blurred, and often incentivized, the erasure of the distinction between combatants and civilians.Footnote 35 The systemic dehumanization of the Vietnamese population,Footnote 36 the covering up of war crimes, and command indifference all allowed indiscriminate violence against civilians to become pervasive.Footnote 37 By the war’s end, between one and three million civilians had been killed, and more than eleven million displaced.Footnote 38 This cannot be understood as simply a breakdown of individual ethics, but rather of an institutional architecture that deprioritized restraint. Here, civilian casualties were outcomes of a system oriented toward maximum enemy elimination, not in line with the laws of war.
Institutionally, the limited involvement of lawyers, and scant attention given to international legal considerationsFootnote 39 in Military Assistance Command Vietnam (MACV) during the conflict is demonstrated by the fact that the “law of war” division within MACV consisted of only a solitary judge advocate. Instead, the majority of legal personnel were administratively based within the U.S. Army Vietnam (USARV), a corps-level support command with no operational control over battlefield decisions.Footnote 40
One of the administrative responsibilities of JAGs was the investigation and payment of claims for civilian property damage. This role meant JAGs witnessed firsthand the aftermath of conflict. To investigate a claim, they travelled into destroyed villages where they would meet village leaders, listen to stories about the deceased (including speaking with parents of children who had been killed), participate in funerary rites, and organize medical care for the injured.Footnote 41 Here, among grieving survivors, they documented property damage, gathered testimony, and attempted to assess the legality of the conduct that produced the damages to ascertain whether compensation claims were payable.
Compensation claims were not payable if the damage resulted from actions deemed part of combat operations. This legal threshold placed military claims lawyers in the difficult position of having to determine whether the destruction they witnessed was legally excusable as a function of war. They were routinely confronted with unsettling legal and ethical dilemmas rooted in the logic of “search and destroy” missions and permissive rules of engagement. Did the deliberate firing into civilian villages, under the mantra of “kill anything that moves,” constitute lawful combat? Could the razing of entire villages be justified as a necessary military objective?
In adjudicating such claims, JAGs found themselves not only interpreting compensation law but also implicitly judging whether the U.S. military was operating within the bounds of the laws of war. Yet their proximity to suffering was not matched by institutional authority: they lacked the power to influence the operational decisions that caused the harms they were tasked with assessing. This asymmetry between ethical exposure and operational exclusion rendered their role both morally fraught and institutionally constrained.
Post-Vietnam Reform: Doctrinal Change Without Operational Integration
In the wake of the Vietnam War, the role of law during war came under increased scrutiny, prompted by the My Lai massacre and its subsequent investigations. The Peers Commission, which investigated the massacre, assigned blame to inadequate training of U.S. troops in the laws of war and to the absence of a reporting system for wartime abuses.Footnote 42 Both of these inadequacies were the responsibility of the U.S. military command structure during the conflict. As Steven Keeva and co-author Forrest Cates note, “After the My Lai massacre in 1968… it became clear that the soldiers responsible barely had an inkling of what actions were and were not allowed under the law of war.”Footnote 43
The Peers Commission helped catalyze a broader post-Vietnam effort to embed the law of war more firmly within U.S. military practice. Within that reform process, the Joint Chiefs of Staff in 1979 required “all operations plans, contingency plans, and rules of engagement undergo a legal review.”Footnote 44 This directive assigned the JAG Corps three new responsibilities: ensuring strict compliance with the law of war in all U.S. military operations, establishing a procedure for reporting abuses, and officially designating the JAG Corps as responsible for all law of war training. The intent of these orders was to deepen the U.S. military’s commitment to the law of war in practice.Footnote 45 This domestic push for legal oversight mirrored international developments. At the negotiations for the 1977 Additional Protocols to the Geneva Convention, for instance, experts recognized that many of the IHL violations in Vietnam occurred due to “unfamiliarity with the rules involved,”Footnote 46 leading to the creation of Article 82, which formally called for legal advisors to be available to commanders. However, this provision, like its domestic counterpart, remained largely unenforced in practice.
Despite these doctrinal changes introducing significant responsibilities to the JAG Corps during the planning stages of military operations, it is important to note that the DoD Directive did not immediately integrate military lawyers into the core of such operations. Military lawyers did not provide legal review for the invasion of Grenada. Although the 1979 Directive established a legal framework for integrating law into command, it lacked operational traction as the relationship between law and command remained unchanged. The persistence of this gap reflected not only institutional inertia but also commanders’ reluctance to cede perceived operational autonomy, illustrating how doctrinal change without cultural buy-in leaves integration incomplete. Effectively, commanders had not yet internalized the value of legal oversight, and therefore, military lawyers remained peripheral to planning. It would take the experiential rupture of Grenada for these reforms to begin translating into practice.
The Grenada Invasion: Operational Crisis and the Rise of Legal Relevance
The 1983 U.S. invasion of the Caribbean island of Grenada, codenamed “Operation Urgent Fury,” marked a turning point in the evolving relationship between military commanders and legal advisors. Following the coup and execution of Grenadian Prime Minister Maurice Bishop by hardline faction leader Hudson Austin, the Reagan administration intervened citing the safety of approximately one thousand American medical students at St. George’s University,Footnote 47 though Cold War anxieties about Cuban influence in the Caribbean were widely understood as the primary motivation.Footnote 48 Despite the formal requirement for legal review, the unfolding crisis that emerged due to poor operational planning created space for legal advisors to demonstrate their value to commanders in real-time. Combat operations lasted three days, from October 25 until dusk on October 27, when the primary objective of securing the American medical students was accomplished. A State of Emergency was then declared for eighteen days, followed by a stabilization phase that lasted until December 15, 1983, when all combat troops were withdrawn.Footnote 49
This was the first major military operation since the U.S. military’s defeat in Vietnam, and each of the military sectors wanted “a piece of the action.”Footnote 50 The result was an overwhelming use of force, aptly described as using “a sledgehammer to crack a nutmeg.”Footnote 51 The operation was widely considered a debacle, coming “within a hairsbreadth of being a military disaster.”Footnote 52 The major shortcomings of Operation Urgent Fury were primarily rooted in the flawed operational planning process.Footnote 53 The U.S. military saw nineteen troops killed and 116 troops injured, with less than one-third of these fatalities attributed to enemy fire, and 20 percent of the wounded personnel were victims of friendly-fire incidents.Footnote 54 The impact of Urgent Fury extended beyond U.S. forces. The operation also resulted in the loss of 70 Grenadian and Cuban lives and injuries to 417 others, underscoring the toll inflicted upon the local population.Footnote 55
This exclusion of military lawyers from operational planning reflected the entrenched institutional division between law and command.Footnote 56 It was Lt Col. Richardson who, during a briefing on Urgent Fury, convinced the Chief of Staff of the need for a legal advisor to deploy to Grenada.Footnote 57 This decision met resistance, as it required another staff commander to remain behind, a sacrifice that some commanders were unwilling to make. Many still viewed JAGs primarily as prosecutors and assumed that traditional military justice matters would not be a major concern during Grenada because of the troops’ preoccupation with combat operations.Footnote 58 Lt Col. Richardson and his colleagues assumed a range of unforeseen responsibilities in Grenada that served to highlight their value to commanders as “force multipliers.”Footnote 59
When Lt Col. Richardson arrived in Grenada on the second day of combat operations, it became immediately clear that key legal considerations, such as the classification of hostilities and the treatment of detainees, had been overlooked in the planning phase. Common Article 2 of the Geneva Conventions for the Protection of War Victims stipulates that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”Footnote 60 As a result, the United States was obliged to abide by the Geneva Conventions, and the U.S. military was required to treat all captured persons as prisoners of war.
Recognizing the importance of upholding these legal obligations, Lt Col. Richardson provided on-the-ground legal advice regarding prisoners of war, including making key decisions. Lt Col. Richardson ensured that the conditions and treatment of prisoners adhered to the Geneva Convention and facilitated the inspection of the camp by the Red Cross.Footnote 61
The most significant legal matter with which JAGs assisted commanders following the invasion was the bombing of the Richmond Hill mental hospital by the U.S. Navy, which had resulted in the death of twenty-one patients and staff members,Footnote 62 and which was being widely reported on as a “war crime” at the time.Footnote 63 Major Normand Hamelin, a JAG specializing in international law, conducted an investigation of the incident and was able to demonstrate that the bombing was not a violation of the laws of war. He did this by arguing that the hospital did not have a red cross painted on its roof, marking it as a hospital, unlike other hospitals in Grenada. Instead, the hospital was marked with the symbol of the People’s Revolutionary Army (PRA), as the hospital was attached to the PRA headquarters. Additionally, as shots had also been fired from within the hospital and from anti-aircraft batteries parked adjacent to the hospital, the building was considered a legitimate target.Footnote 64
In a post-Vietnam political climate sensitive to legal accountability, Hamelin’s legal justification of the bombing provided critical protection for commanders. His report affirmed their compliance with IHL and helped avert public backlash. This legal account helped to counter the narrative of the “Vietnam Syndrome” (the reluctance of the American public to support foreign military intervention following Vietnam),Footnote 65 and restore public confidence in the military, a key objective of the Reagan administration.Footnote 66
What we can see from the way things played out is that after a messy and costly invasion in Grenada, which saw the legitimacy of the armed force’s actions placed under great scrutiny, the commanders were much more open to the strategic value that the JAGs could provide. They began to see that legal advice could provide protection for commanders and soldiers against political and reputational risk. The Grenada episode was among the earliest demonstrations of this dynamic in practice: law mattered not only as a constraint but as a resource commanders could deploy to manage legitimacy. JAG Colonel Charles Dunlap, writing in 2001 from inside the U.S. military institution, observed that public perceptions of lawfulness had become “as important (and arguably more important) as battlefield success,” and that “adherence to LOAC in fact and perception” had become a “practical—even Machiavellian—necessity.”Footnote 67 Grenada was where that lesson was first learned.
During the stabilization phase of Urgent Fury (the period from October 28 until the withdrawal of all combat troops on December 15, 1983), a significant development occurred: JAGs were directly involved in the writing of the ROE for the first time.Footnote 68 Although combat operations had concluded, U.S. forces remained on the island as an occupying force with authority to use force in specific circumstances, including curfew enforcement, search operations, and responses to civil unrest. Without clear ROEs governing these activities, soldiers lacked a legal framework for how and when force could be lawfully applied, creating both operational risk and potential IHL violations. As a result, JAGs, along with their legal expertise, became instrumental to commanders during the process of drafting the ROE to ensure that they reflected IHL.Footnote 69 This departure from previous practice marked a significant milestone, demonstrating the increasing recognition by commanders of the value of legal expertise in shaping military operations.
Operation Urgent Fury was a difficult, messy invasion, presenting commanders with a range of unanticipated legal issues.Footnote 70 In navigating these complexities, from advising on the treatment of prisoners to drafting new ROE, JAGs demonstrated a capacity to contribute directly to mission success. One JAG later reflected, “You can only tell the C.O. that he can’t shoot the prisoners so many times.”Footnote 71 Legal influence, he suggested, depended not on prohibition alone, but on the capacity to provide practical guidance on the operational problems commanders faced, such as logistics shortages, equipment needs, and civilian compensation, all while keeping those solutions within legal bounds.
From this point forward, the paradox began to emerge more clearly: the more law was reframed in instrumental terms to secure commander buy-in, the greater the risk that its ethical content would be subordinated to operational expedience.
The Institutionalization of Operational Law
Following the invasion, JAGs were presented with a pivotal opportunity to consolidate their emerging operational relevance—meaning the capacity of legal advice to shape planning, targeting, and authorization decisions within command processes—and convert it into formal doctrinal authority. Although the 1979 DoD Directive had mandated legal oversight of operational planning, this requirement had largely been disregarded in practice.Footnote 72 The experience in Grenada revealed the costs of that omission and, more importantly, highlighted the tangible value of legal expertise during operational planning. In response, the 1979 Directive was revised in 1983 to expand the JAGs’ responsibilities, introducing two new requirements that significantly strengthened their role within the operational planning process.Footnote 73 The revised directive now carried institutional weight, as Grenada had given commanders a concrete understanding of what legal exclusion from planning had cost them.
First, JAGs were tasked with providing immediate advice to commanders regarding compliance with the laws of war during joint and combined operations. This entailed considering both international and domestic law and addressing the legal limitations and rights pertaining to the use of force. Second, military lawyers assumed the responsibility of reviewing joint documents, such as operational plans, ROE, policies, and directives, at each stage of preparation to ensure their alignment with the DoD Law of War Program, as well as with applicable domestic and international legal frameworks.Footnote 74 This DoD directive required that lawyers begin to communicate directly with commanders and their staff principals throughout the course of planning for an operation.Footnote 75
In practice, JAGs recognized that to be effective, they had to become fluent in the operational world. This meant learning the technical language of military operations: moving from “outsiders” espousing abstract legal principles to “insiders” who understood the commanders’ needs and could convey the law’s usefulness in operational terms, rather than abstract legal terms.Footnote 76 As one British JAG put it, “In the high stakes environment of combat operations, a JAG must have credibility with the operator, which comes more easily if the lawyer is a fellow military member and if he or she has a working fluency in the language of the operator’s system.”Footnote 77
This imperative, that the JAG must be a “complete military officer” as well as a lawyer, was articulated with force by senior commanders. General Hal Hornburg, Commander of Air Education and Training Command, stated directly that JAGs “need to understand the big picture… that person needs to know the law and the rules of engagement, but he or she also needs to understand things bigger than just the law. They’ve got to understand combat.”Footnote 78 The expectation was not merely professional competence but operational fluency: legal authority that could not be expressed in the language of command would not be heard.
This effort unfolded amid persistent resistance. Many commanders harbored “lingering animosity,”Footnote 79 believing that lawyers and the laws of war had imposed unwarranted operational constraints during Vietnam and contributed to the United States’ defeat.Footnote 80 JAGs responded by demonstrating that many perceived “legal” restrictions were in fact policy-based directives issued by political leadership or the result of misinterpretation. W. Hays Parks, a JAG who served in Vietnam and was instrumental in the creation of Operational Law, noted that he gave “hundreds of lectures,”Footnote 81 emphasizing that “policy, not law, restricted us.”Footnote 82
Commanders’ skepticism extended beyond lawyers to the laws of war themselves. As Hays Parks recalls, “Any time I’d tell a group I wanted to talk about the laws of war I’d get a big groan.”Footnote 83 Therefore, JAGs sought to translate the laws of war into terms commanders would accept. Hays Parks goes on to say that he began changing the description of the laws of war: “I’d say, we’re going to talk about the law affecting military operations. From there, we shortened it to operational law.”Footnote 84
Operational Law (OPLAW) emerged as an integrated military legal discipline comprising domestic, foreign, and international law, and addresses legal issues associated with the planning and deployment of U.S. forces abroad, both in peacetime and in combat operations.Footnote 85 Importantly, the creation of OPLAW led to a “cross-culturalization between the lawyer and the commander.”Footnote 86 As lawyers learned to explain the law in instrumental terms and demonstrate its value in achieving military objectives, commanders came to recognize the relevance of law, and lawyers. Through these efforts, commanding officers’ skepticism regarding the value of legal advice during wartime diminished significantly, resulting in a transformation of the lawyer-commander relationship and the bridging of the institutional divide. The degree to which this doctrinal and professional consolidation translated into sustained legal influence during large-scale combat operations, however, would only become clear in the Gulf War. What the post-Grenada period demonstrated, from an institutionalist perspective, was that structural constraints on legal influence could be re-worked from within through repeated acts of translation and persuasion that gradually altered role expectations and expanded legal jurisdiction within command.
The 1991 Gulf War
By the time of the 1991 Gulf War, the professional and institutional transformation of the JAG Corps was largely complete.Footnote 87 Military lawyers were no longer peripheral legal specialists but embedded members of commanders’ staffs, integrated into planning and execution across all levels of command. Commanders at all levels now saw their judge advocates as important “force multipliers.”Footnote 88 With more than 350 judge advocates deployed to the theatre of operations, Operations Desert Shield and Desert Storm represented the highest concentration of legal advisors per capita in the history of warfare.Footnote 89 OPLAW had become an established institutional practice, and legal advice was now routine within military decision-making.
What mattered, however, was not simply the presence of law or lawyers, but the form of legal influence that had been institutionalized. Legal authority acquired operational traction because it had been translated into terms commanders found intelligible and useful. This dynamic was particularly visible in the development of the ROE. The 1983 DoD Directive formally limited judge advocates to reviewing ROE drafted by commanders, but in practice, JAGs at CENTCOM went further, taking the lead in drafting the rules and coordinating their content with operational leadership. This practice demonstrates the emerging operational norm: JAGs were now expected to draft ROE, advise on their application “in a range of realistic combat situations,”Footnote 90 and where collateral damage incidents arose, to “marshal the evidence, analyze it, and ‘make the case’ to the public if necessary.”Footnote 91 ROE became not only a central mechanism through which legal norms were operationalized but also operationalized in terms shaped by command priorities, such as force protection, coalition cohesion, escalation control, and political risk management. Legal compliance and strategic calculation were integrated. That integration is the translation mechanism in practice.
A similar process unfolded in targeting. Judge advocates were involved throughout the targeting cycle, from intelligence assessment and operational planning to legal review and authorization.Footnote 92 The conflict presented acute legal and political sensitivities: Iraqi forces deliberately co-mingled military assets with civilian populations and positioned military equipment near culturally and historically significant sites, including the ancient Temple of Ur.Footnote 93 In this context, legal advice could not be reduced to binary determinations of legality. JAGs chose to employ considerable restraint with their target selection,Footnote 94 and increasingly framed their counsel in terms of legitimacy as well as law, advising commanders that actions which might satisfy legal thresholds could nevertheless undermine coalition support, provoke international backlash, or damage the credibility of the campaign. Through sustained interaction with commanders, legal norms were translated into operational judgments shaped by strategic and political considerations.
The significance of this advisory function—the gap between legal authorization and political sustainability—was underscored by several high-profile incidents during the air campaign. The bombing of the Amiriyah air-raid shelter, which resulted in the deaths of hundreds of Iraqi civilians, generated immediate political pressure and prompted a temporary reassessment of targeting practices. Although JAGs defended the airstrike as lawful—arguing in their final report to Congress that the bunker had been converted into a command-and-control center, and invoking the fog of war doctrine to address the information available at the time of the strike—legality alone did not resolve the operational consequence.Footnote 95 General Schwarzkopf acknowledged directly that the public outcry caused the military to conclude it had exhausted its strategic bombing campaign, effectively curtailing the air war phase. JAGs provided the legal framework; the political work was done by the narrative of lawful conduct that framework enabled.
Similarly, the attack on retreating Iraqi forces along what became known as the “Highway of Death”Footnote 96—in which coalition aircraft struck a convoy of thousands of vehicles and personnel withdrawing from Kuwait City, producing scenes of mass destruction that were rapidly broadcast internationally—attracted intense criticism and contributed to broader anxieties about the legitimacy of continued operations, reinforcing political pressure to limit the scope and duration of the campaign.Footnote 97 JAGs had established the legal position clearly: retreating forces remain legitimate military targets unless they have surrendered.Footnote 98 Yet legality provided no insulation from the reputational consequences. As Colin Powell relayed to Schwarzkopf, it was the media coverage—photographers across the highway, Washington’s concern about the reporting—that drove the decision to end the ground war when they did.Footnote 99 The legal position was clear; the political position was not.
These episodes illuminate the paradox at the center of the Gulf War’s legal legacy. The conflict is often remembered as a “clean” or technologically precise war, and law was central to that representation.Footnote 100 Precision-guided munitions were emphasized in public accounts of the campaign, despite constituting only a small proportion of overall ordnance, and official narratives foregrounded discrimination and proportionality. At the same time, the United States made a deliberate decision not to count civilian casualties or Iraqi military deaths, rejecting the Vietnam-era “body count” logic that had undermined legitimacy in earlier conflicts.Footnote 101 While collateral damage estimates were considered ex ante during targeting, civilian harm was not systematically tracked or publicly acknowledged. Legal review thus operated alongside, and at times reinforced, a broader strategy of narrative management. This coupling of legal review with narrative control exemplifies the translation mechanism traced in this article: legal norms were rendered operationally influential not only within targeting processes, but within the strategic framing through which violence was publicly justified and politically sustained.
The ethical ambiguity of this arrangement becomes more pronounced when considering legally permissible attacks on dual-use infrastructure. Targets such as electrical grids and water treatment facilities were framed as contributing to Iraq’s military capacity and therefore fell within the permissive boundaries of international humanitarian law.Footnote 102 Yet attacks on such infrastructure had foreseeable downstream effects on civilian life, contributing to long-term humanitarian consequences beyond the immediate conduct of hostilities.Footnote 103 Here, legal advice did not restrain violence; it structured the conditions under which harm could be authorized, administered, and justified within the language of military necessity.
The Gulf War thus marked a decisive moment in the institutionalization of international humanitarian law within the U.S. military. JAGs were embedded at every level of command, shaping ROE, advising on targeting, and contributing to the legal narratives underpinning claims to legitimacy. By translating legal norms into operational tools and demonstrating their real-time utility, military lawyers helped ensure that legal considerations were systematically incorporated into the conduct of operations. Yet this success depended on an instrumental logic. Law gained influence not primarily as an external moral constraint, but as a strategic resource through which commanders could manage risk, preserve legitimacy, and maintain political support. The result was the transformation of how humanitarian law functioned: law mattered most when it could be made useful to war. Whether this mode of legal influence could endure beyond a short, centrally managed conventional campaign—and how it would function in more prolonged, decentralized conflicts—becomes clearer in the post-1991 afterlives of OPLAW.
Operational Law after 1991
The institutionalization of operational law after 1991 did not mean that law governed every act of violence or prevented misconduct at the level of individual soldiers. Its significance lay elsewhere. Embedding legal advisers within command structures reshaped the institutional baseline against which force was authorized, planned, and justified. The Gulf War represented, in many respects, a favorable environment for this institutional settlement: a short, centrally managed, high-visibility conventional conflict in which legitimacy concerns were acute and legal review could operate within relatively coherent command structures. The durability of the translation mechanism traced in this article, however, can only be assessed under less accommodating conditions. The question for the years and decades after 1991 is not whether legal embedding persisted—it did—but how it functioned when strategic priorities shifted, and the instrumental value of legal constraint became more contested.
The detention debates of the early U.S. “War on Terror”—centered on the legal status of detainees captured in Afghanistan and Iraq and the interrogation techniques to which they could lawfully be subjected—are a revealing illustration. By this period, military lawyers were firmly embedded within operational planning, including detention policy processes. The institutional settlement that had taken decades to construct was in place: JAGs had access to command, authority within planning cycles, and professional standing as legal advisers on the conduct of hostilities. Yet the executive branch’s response to counterterrorism operations introduced a profound challenge to that arrangement. Memoranda issued by the Department of Justice’s Office of Legal Counsel—the so-called “Torture Memos”—advanced a narrow definition of torture and asserted expansive executive authority over detainee treatment.Footnote 104 These opinions did not emerge from the military legal chain of command; they were generated outside it.
The reaction within the uniformed military legal community was not passive acceptance. Senior JAG officers raised objections to the redefinition of torture and to the proposed inapplicability of Geneva protections.Footnote 105 Internal memoranda warned of reciprocity risks—the danger that abandoning Geneva standards for enemy detainees would expose captured U.S. personnel to equivalent treatment—damage to institutional integrity, and erosion of long-standing legal baselines.Footnote 106 The friction that critics of operational law sometimes claim is absent was, in fact, visible. Legal advisers attempted to defend inherited interpretations of humanitarian restraint within the institutional channels available to them.
What followed is analytically significant. Rather than displacing the JAG Corps altogether, executive actors circumvented or overrode military legal advice when it proved inconvenient. The institutional embedding of legal expertise made JAGs consequential enough to resist, but not sovereign enough to control the outcome. The result was not the seamless instrumentalization of law from within, but the strategic redirection of legal authority from above.Footnote 107 The same institutional architecture that had made law influential during the Gulf War exposed it, under different political conditions, to being bypassed and reinterpreted. This episode does not contradict the argument developed in this article. It confirms it from a different angle: the translation mechanism had made JAGs institutionally consequential, and that same consequentiality made them a target for circumvention when their advice was inconvenient to command objectives.
The ethical costs of this dynamic became visible in the subsequent detention scandals, most prominently at Abu Ghraib.Footnote 108 These abuses cannot be reduced to the absence of operational law; nor can they be understood as its straightforward product. Rather, they reveal the limits of embedding when executive reinterpretation, ambiguous policy signals, and shifting strategic imperatives disrupt the stabilizing function of legal advice. Where the Gulf War illustrated operational law under conditions of legitimacy sensitivity and centralized control, the detention episode illustrates translation under strain—when the instrumental value of restraint is eclipsed by perceived security imperatives.
This development clarifies both the reach and the fragility of institutionalized legality. Embedding legal advisers within command structures does not guarantee that humanitarian baselines will be preserved when strategic incentives shift. It does, however, shape the terrain on which such shifts occur. By 2002–2003, legal reinterpretation required formal memoranda, explicit doctrinal moves, and the marginalization of established military legal actors. Law had become institutionally consequential enough that altering it required visible institutional effort.Footnote 109
The post-1991 period thus does not mark the end of the translation mechanism but rather its exposure to more volatile conditions. In counterinsurgency campaigns and counterterrorism operations, compliance with the law of armed conflict remained intertwined with legitimacy management, population-centric strategy, and political sustainability.Footnote 110 The same mechanism of translation persisted—legal advice rendered operationally intelligible and strategically relevant—but its ethical consequences became more contested. The embedding of law made it influential; it also made it vulnerable to strategic redirection when executive priorities demanded expanded latitude.
Taken together, these developments deepen rather than resolve this article’s central paradox. Institutionalization does not fix law’s moral trajectory. It makes legal norms consequential within military power. Whether that consequence preserves humanitarian substance or narrows it depends not only on access and fluency, but on the institutional safeguards that protect legal independence, sustain friction within decision cycles, and resist the reduction of humanitarian limits to instruments of policy preference. The history after 1991 suggests that embedding is neither self-executing nor self-protecting. It is a structural achievement whose ethical character remains contingent on the incentives and constraints that govern those who translate law into practice. Usefulness remained the condition of legal influence, and usefulness remained its limit.
Conclusion
The institutionalization of IHL within United States military operations unfolded through a specific pathway: military lawyers secured influence by translating legal restraint into operationally legible terms. Across the cases examined, from the structural separation established in 1948, through the ethical exposure without influence during Vietnam, to the professional proving ground of Grenada and the doctrinal consolidation during the Gulf War, the same mechanism operated. Legal norms became consequential when legal expertise was embedded within command structures and when that expertise could demonstrate operational utility. JAGs gained access by framing legal compliance as a means of managing risk, sustaining legitimacy, and enabling mission success, rather than by asserting law as an external constraint imposed from outside the institution.
This pathway of influence carried ethical consequences that extend beyond the U.S. case. When professional authority depends on demonstrating strategic value, the meaning of restraint itself undergoes transformation. The institutional conditions that make law matter—embedding legal advisors in planning cycles, speaking the vocabulary of commanders, aligning compliance with operational objectives—simultaneously reshape what legal restraint accomplishes. Law constrains violence, but it does so by becoming legible within the strategic logic that organizes violence. The humanitarian content of IHL does not travel intact into practice; it is mediated, interpreted, and reframed through the institutional contexts in which legal judgment operates.
Three broader implications follow. The first concerns professional expertise as institutional mechanism: military lawyers are not neutral translators but active agents who negotiate access, cultivate credibility, and shape the interpretive frames through which law is applied, and whose professional success depends on demonstrating that law serves command interests, even as they understand themselves to be upholding humanitarian values. The second concerns norm diffusion: legal norms become operationally consequential through institutional arrangements that position legal expertise within decision-making routines and enable that expertise to articulate norms in decision-relevant terms. This helps to explain why identical formal commitments produce different compliance outcomes across different militaries.
The third concerns scope: The institutional settlement traced here proved most consequential in high-visibility, centrally managed operations such as the Gulf War, where legitimacy concerns were acute and legal review became deeply embedded in planning and targeting processes. In subsequent operations, including counterinsurgency and counterterrorism campaigns, legal embeddedness expanded in scope, with JAGs involved across the planning and execution domains of detention, intelligence, targeting, and ROE in complex and legally ambiguous environments.Footnote 111 The same mechanisms of translation, sustained access, and professional negotiation persisted, though often under greater strain. In these contexts, formal embedding was a necessary but insufficient condition for legal influence—credibility, access, and the capacity to render law operationally intelligible amid shifting strategic conditions all remained in play. Legal advisors who succeed in making law operationally consequential necessarily participate in shaping how restraint is defined, calibrated, and implemented within military structures. This reflects a structural feature of institutionalized legality rather than a failure of individual lawyers.
For the laws of war themselves, the analysis suggests enduring tension. IHL was designed, in Pictet’s formulation, to translate humanitarian concern into rules capable of guiding conduct under conditions of armed conflict. That pragmatic orientation was necessary to make law usable, but it also made law vulnerable to instrumentalization. The institutional dynamics traced here reveal this vulnerability in operation: law acquires traction by being made operationally useful, yet that usefulness operationalizes restraint within the institutional processes that evaluate and authorize force, rather than leaving it as an abstract principle detached from decision-making. Whether this represents law’s failure or its adaptation depends on what we believe law should accomplish in war. If the purpose is to reduce suffering wherever possible, institutional embedding represents partial success. If the purpose is to preserve a moral horizon beyond strategic calculation, the same process may represent ethical erosion.
The paradox traced throughout this article is structural rather than contingent: IHL became influential in U.S. military operations by becoming operationally useful, and that usefulness was secured through institutional arrangements and professional practices that translated legal norms into strategic terms. The analysis suggests that the ethical consequences of such translation are not predetermined. Whether institutional embedding preserves humanitarian substance or gradually narrows it depends on how the embedded legal role is structured and sustained: whether legal advisers retain sufficient independence from command pressure, whether they possess the authority to introduce friction into decision cycles rather than merely streamline them, and whether professional incentives reward principled constraint alongside operational effectiveness. Institutionalization makes law consequential, but it does not determine the direction that consequence will take.
Open access
