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Detailed paper on the principles of war applied to litigation.

Detailed paper on the principles of war applied to litigation.

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Law Is War - Detailed Paper Document Transcript

  • 1. TABLE OF CONTENTS WHY? .................................................................................................................................................... 1 Examples of the Courts seeing Litigation as a Battleground............................................................ 2 Comparable Goal - Decision ............................................................................................................ 2 5 Life – the Most Precious Thing ......................................................................................................... 3 Wars Subjected to Detailed Analysis ................................................................................................ 3 ABILITY TO ORGANISE .......................................................................................................................... 3 Guadalcanal (World War II 7 August 1942 Solomon Islands) ......................................................... 3 D-Day (World War II 6 June 1944 Normandy France).................................................................... 4 10 THE POWER OF ONE .............................................................................................................................. 6 Battle of Chancellorsville (American Civil War 2 May 1862 Virginia USA) ................................... 6 THE POWER OF ONE ENHANCED ........................................................................................................... 9 TECHNOLOGY ........................................................................................................................................ 9 Technology – Potentiality Not Realised.......................................................................................... 10 15 Technology – One Side Figures Out How to Use it – the Other Side Pays a Heavy Price............. 14 GOLDEN RULES FOR MILITARY SUCCESS (PRINCIPLES OF WAR) ........................................................ 18 1. Identification and Maintenance of Objective .............................................................................. 18 2. Offensive Action .......................................................................................................................... 20 3. Surprise....................................................................................................................................... 20 20 4. Security ....................................................................................................................................... 21 5. Manoeuvre .................................................................................................................................. 22 6. Economy of Force....................................................................................................................... 23 7. Mass............................................................................................................................................ 24 8. Unity of Command ...................................................................................................................... 25 25 10. Simplicity ............................................................................................................................ 26 WHY? Jesus Christ, in the New Testament of the Bible, used parables to teach his disciples and followers. The technique is ancient. Another word to describe a parable is an allegory. The Macquarie Dictionary 3rd 30 Edition defines allegory as meaning ‘figurative treatment of one subject under the guise of another’. This is what this session is about. You are an intelligent audience and will be quick to grasp the relevance of what is set out here to your work as insolvency practitioners or lawyers. A few comments on the legal perspective are included on some particular aspects to help you apply what is said here to the way you work. These comments on the law are not extensive. 1 10/04/10 Law is War © Paul M Fordyce
  • 2. EXAMPLES OF THE COURTS SEEING LITIGATION AS A BATTLEGROUND A few excerpts from some of the cases will give you the flavour of how the courts have seen this analogy: 5 ‘It is apparent that the parties will fight on every interlocutory beach and hill, and in every procedural field, while the prospect of the decisive battle of trial recedes into the future.’ : Petoneport Pty Ltd v Barnes per Chesterman J (BC9806077, 16 November 1998) at par 15. ‘In my opinion, on the particular facts of this case, in which the creditor's claim 10 was carefully and apparently competently fought out, and decided on the issues on which the parties chose to fight it, it would not be right for this court now to have a second hearing in respect of the same debt, going through the details concerning the delivery and alleged defects of these heaters many years after the event. The parties chose their battle field and fought their battle; in my opinion, they must 15 abide the result.’ : Leslie v Bowin Design Pty Ltd per Burchett J (BC9901212, 22 March 1999) at par 8. ‘The principles relating to anticipatory breach put both a shield and a sword in the hands of an innocent party who accepts the other party's repudiation. His shield is the ending of his executory 20 obligations; his sword is an immediate right to damages.’ : Progressive Mailing House Pty Ltd v Tabali Pty Ltd per Brennan J (1985) 157 CLR 17. ‘My findings in relation to the issue of knowledge means that although the respondents have won this battle, they may lose the war.’ : Comite Interprofessionnel Des Vins Des Cotes De Provence v Bryce per Heerey J (1996) 35 25 IPR 170 at 190. COMPARABLE GOAL - DECISION Law (more precisely litigation) is like war. It has, as its ultimate result (unless peace is declared beforehand), a final fight in a courtroom where one side wins and the other side loses. ‘Europeans, over the course of two thousand years and more, since the emergence 30 of the Greek city states, had evolved a style of conflict that achieved results by face-to face struggle on a defined battlefield and within a narrow time frame. The “battle of decision” had come for them to define the nature of war.’ : ‘The Penguin Book of War: Great Military Writings’, J Keegan, Penguin Books 2000 at xviii. 35 ‘The commander’s purpose …is to deliver victory by the quickest and cheapest means he can find, leaving it to the statesman to decide what “cheapness” means in that context and how victory is to be used once it has been won.’ : ‘The Mask of Command’, J Keegan, Viking, 1987 at 6. For the litigator the client is the statesman. 2 10/04/10 Law is War © Paul M Fordyce
  • 3. LIFE – THE MOST PRECIOUS THING Life is held by our society to be its most precious commodity. War involves the mass destruction of life. Although sometimes the lives of your own country’s soldiers have been taken promiscuously in war for 5 a variety of reasons, this outcome is seen as disastrous and something to be avoided. It entails the loss of human beings, their talents and the skills that they have and that they have been taught at vast expense to the state. ‘A commander, if faced by the choice between risking a single soldier’s life and destroying a work of art, even a religious symbol like Montecassino, can only 10 make one decision.’ : Field Marshall Earl Alexander on his decision to bomb the monastery of Montecassino in 1944. WARS SUBJECTED TO DETAILED ANALYSIS Wars attract detailed study and analysis as to what happened, how and why. 15 Wars entail the large-scale loss of human life and physical resources of all kinds. Because wars are conducted between states (or in the case of civil wars between the State and a dissident group sufficiently strong to threaten the existence of the state as it was before the state of civil war existed) information about what has happened is, or in the fullness of time, becomes available from a great variety of sources. Government records, including cabinet records, are, or become, available. 20 Participants from national leaders, generals, soldiers down to civilians publish their most intimate experiences and knowledge of a war. This exposes the whole process to detailed study of every aspect – unlike litigation, for example, which can never attract the same depth and variety of coverage. At best a small number of the participants in litigation may seek to tell, or co-operate in having, their story told. Many of the participants will never 25 tell their story. Indeed it is contrary to public expectations and professional standards, for some of the participants to do so – particularly the judges and the legal representatives for the litigants. ABILITY TO ORGANISE The military is able to perform almost unbelievable feats of organisation. The stakes of doing so properly are human lives being saved or lost – possibly on a vast scale. 30 GUADALCANAL (WORLD WAR II 7 AUGUST 1942 SOLOMON ISLANDS) D-Day has been the ultimate military amphibious operation – acknowledged to be the most difficult kind of operation. The learning curve to achieve what was accomplished on D-Day began with the 3 10/04/10 Law is War © Paul M Fordyce
  • 4. amphibious landing operations earlier in the War. The first major one was the landing by US forces on Guadalcanal to seize the islands from the Japanese. The poor execution of this landing showed how much improvement there had to be in systems and procedure if something on a far vaster scale was to be accomplished. 5 ‘.. by early afternoon, the disembarkation of men and supplies which had started so smoothly was little short of chaotic. … crated equipment, boxed supplies, and drums of fuel piled up alarmingly on Red Beach: untrained navy coxswains brought boats loaded with rations to beach points marked to receive fuel; medical supplies were unceremoniously dumped with ammunition; Marines, landed in late 10 waves, wandered around the beach waiting for someone to tell them what to do and scores of boats hovered in confusion off shore, their crews looking for a spot to dump their supplies.’ : ‘History of the Second World War - Guadalcanal: the Land Battles’ C Roetter, Purnell, at 1180. 15 D-DAY (WORLD WAR II 6 JUNE 1944 NORMANDY FRANCE) The most impressive displays of the military’s power to go from nothing to full scale warfare is illustrated by the invasion of Hitler’s Europe by the forces of England and North America in June 1944. GI’s Approaching Utah Beach on D-Day. 20 This involved bringing across the English Channel vast numbers of men, equipment and supplies, landing on an open beach, in generally bad weather, military ground forces of sufficient strength to gain a foothold on the European Continent, to stay there despite the efforts of the armed forces of Germany to throw them back into the sea, to then advance out of the landing area to re-conquer the 4 10/04/10 Law is War © Paul M Fordyce
  • 5. European countries that had been overrun by Germany in 1940, culminating in the invasion and defeat of Germany. THE FORCES INVOLVED: On D-Day itself (the first day only), the Allies utilised the following forces: 5 NAVAL: 6,483 vessels, including 7 battleships, 2 monitors, 23 cruisers and 104 destroyers. AIR: 12,000 aircraft including over 5,000 fighters. ARMY: 150,000 men plus vehicles and supplies of all kinds. Although with the benefit of hindsight we know that the landing was successful there was no absolute certainty at the time. Had the landing failed, and this was a real possibility, then Eisenhower would 10 most likely have been replaced by Marshall as the Supreme Allied Commander for a second attempted invasion – ‘Eisenhower at War’, D Eisenhower at 44. This would have taken at least another year to mount. Operation Overlord – Invasion Plan. Even if this invasion took place today with the aid of the incredible capacity of modern computers, you 15 would have to admire the prodigious feat that was accomplished. This was done without the aid of computers. For 4 months after they had landed at Normandy the Allied forces continued to receive the massive supplies they needed to continue to fight, to expand their bridgehead and then to break out of the 5 10/04/10 Law is War © Paul M Fordyce
  • 6. bridgehead across the beaches in Normandy until the port of Antwerp in Belgium was captured in September 1944. The capture of this port enabled supplies to be shipped and unloaded normally. ‘If anyone had told us two years ago that we could throw ashore a million men, two hundred thousand vehicles, and three-quarters of a million tons of stores, 5 across open beaches,in none too favourable weather, in thirty days, we would have dubbed him mad.’ : General Lord Ismay, letter to Admiral Earl Mountbatten after D-Day 1944. THE POWER OF ONE Large organisations are looked at as being monolithic,as having vast, limitless financial resources, 10 unlimited personnel and facilities. They appear beyond harm. This point of view fails to understand that all organisations are made up of individuals. It is the individuals, singly, that you are dealing with. They are the ones whose reputation, future promotions or even more fundamentally their survival in the organisation are at stake in their fight against you. At that level a large organization is vulnerable. Compromises may be recommended by someone in that 15 organization principally to save their own skin. In the military context the fact that a large organisation is made up of individuals becomes apparent when the entity is subjected to the appropriate pressures from the enemy in the heat of battle. BATTLE OF CHANCELLORSVILLE (AMERICAN CIVIL WAR 2 MAY 1862 VIRGINIA USA) 20 By May 1862 the Civil War was in its second year. Despite the overwhelming power of the Northern States, the Confederacy was no closer to defeat. To make matters worse, the Union Army (the Army of the Potomac) had suffered terrible military set-backs at the hands of the Confederate Army (the Army of Northern Virginia) – considerably smaller in size. The most recent and worst of these defeats had been suffered at the Battle of Fredericksburg on 13 25 December, 1862. Burnside, the Union commander in that battle, had been sacked and replaced by ‘Fighting’ Joe Hooker – a debonair figure of a man. Most of you know nothing of this battle, possibly of this war, but Hooker has made a lasting contribution to the English language. He had been stationed in California during the Gold Rush (before 30 the Civil War). He had a reputation for an overfondness of ladies of ‘easy virtue’. The Californians took to calling such ladies ‘hookers’. At the time of the Battle of Chancellorsville the Army of the Potomac had 115,000 men while Lee’s Army could only muster something fewer than 60,000. All things being equal Lee’s army should have been destroyed and the Civil War brought to a close. 6 10/04/10 Law is War © Paul M Fordyce
  • 7. Hooker’s army advanced toward the Southern capital Richmond, through the thickly wooded countryside of Northern Virginia, until they reached Chancellorsville (a town comprised of a single building). There Hooker had his army dig in with the intent that Lee would have to attack him to drive the Union Army back to protect the Confederate capital. 5 A reconnaissance of the Union positions was undertaken by the Confederate cavalry (under the command of Jeb Stuart). This revealed that the right flank of the Union Army was “in the air” (unprotected) on the Orange Turnpike (an American in this period for a well developed road). Jackson proposed to Lee that he move around the Union flank with his whole Corp (30,000 men) to hit the exposed Union flank. That would leave Lee with only 30,000 to stand in the path of Hooker if his 10 army decided to resume its advance. It was an enormous risk. Jackson’s troops might as well have been on the moon if Hooker advanced while they were making their flanking move. Lee agreed. The flanking movement began at 8:00 am. When Jackson reached the planned attack position he discovered that it was not in fact behind the Union flank. Another hour’s march was needed to achieve that result. Jackson decided that the extra march was essential to achieve the surprise essential to smash 15 the Union army. Stonewall Jackson’s Attack on the Union flank at Chancellorsville. 2 May 1862 Map from ‘The Civil War’ Jackson’s troops finally occupied their attack positions at 5:15 pm - from within 1000 yards of the Union flank - and immediately attacked. ‘…. Not long after 5 o’clock, with some regiments already eating supper and 20 others lounging about while waiting for it, their rifles neatly stacked, the troops at the far end of the line were alarmed then amused to see large numbers of deer breaking out of the thickets to the west and come bounding toward them, accompanied by droves of rabbits darting this way and that in the underbush, as if pursued by invisible beaters. The men cheered and hallooed, waving their caps at 25 the startled forest creatures, until presently something else they heard and saw froze the laughter in their throats. Long lines of men in gray and butternut … were running toward them through the “inpenetrable” thickets.’ 7 10/04/10 Law is War © Paul M Fordyce
  • 8. : ‘The Civil War – a Narrative. Fredericksburg to Meridian’, S Foote, Random House, 1963 at p292. ‘… Crashing through the half mile screen of brush and stunted trees, whose thorns and brittle low hanging limbs quickly stripped the trail blazing skirmishers near- 5 naked, the long lines of Confederates broke suddenly into the clear, where the sight of the enemy brought their rifles to their shoulders and the quavering din of the rebel yell from their throats “that hellish yell,” one bluecoat called it, though Jackson himself had once referred to the caterwaul as “the sweetest music I ever heard.” He was getting his fill of such music now. All across the nearly two-mile 10 width of his front, the woods and fields resounded with it as the screaming attackers bore down on the startled Federals, who had just risen to whoop at the frightened deer and driven rabbits. Now it was their turn to be frightened – and driven too. For the Union Regiments facing west gave way in a rush before the onslaught, and as they fled two guns they had abandoned were turned against 15 them, hastening their departure and increasing the confusion among the troops facing south behind the now useless breastworks they had constructed with such care. These last, looking over their shoulders and seeing the fugitives running close-packed on the turnpike immediately in their rear, took their cue from them and began to pull out, too, in rapid succession from right to left down the long line 20 of entrenchments, sending the throng rushing eastwood along the road. Within twenty minutes of the opening shots, Howard’s flank division had gone out of military existence, converted that quickly from organization to mob. The adjoining division was sudden to follow the example set. …’ : ‘The Civil War – a Narrative. Fredericksburg to Meridian’, S Foote, Random 25 House, 1963 at p296. Rout of Union Army at Chancellorsville. 2 May 1862 Illustration from ‘Battles and Leaders of the Civil War’ The Union Army fell back. The South had gained another reprieve. A vast and powerful organisation had been rapidly reduced to its individual parts. The body was no 30 stronger than the individual facing the greatest pressure. IN INSOLVENCY A good illustration of large organizations being defeated in the insolvency field are the legendary, and highly successful, actions undertaken by John Sheahan as the liquidator of the Duke Group. 8 10/04/10 Law is War © Paul M Fordyce
  • 9. THE POWER OF ONE ENHANCED It is useful to see what benefits can be achieved by the way an organization structures itself and the individuals within the organization. The German Army in World War II, particularly from 1942 onwards when the war began to be lost, gained enormous staying power from its ability to fight with 5 the most unlikely combinations of troops thrown together randomly. The German Army system operated to ensure that soldiers introduced to a new unit or grouping were made to feel part of that unit. As far as achieving missions was concerned, the units were told what the Army expected them to accomplish. This differed markedly from all of the enemies of Germany who basically operated on the system that soldiers were told what to do. The consequence of this was that 10 the German Army consistently accomplished far more than its enemies would have in the same situation. ‘…. as a consequence of the German doctrine of Auftragstaktik (mission-oriented tactics), which left considerable tactical control at the lowest possible levels, the Wehrmacht seemed to possess a bottomless reservoir of courageous, capable, and 15 quick-thinking soldiers willing to seize the initiative at any moment. … the Landser displayed a remarkable adaptability.Not only has it been calculated that German soldiers, man for man, :inflicted casualties at about a 50 per cent higher rate than they incurred from the opposing British and American troops, but the German army was saved time and again in the latter stages of the war by the ability of 20 commanders to take surviving Landsers from shattered units and throw them together into hastily improvised battle units that proved astonishingly cohesive and effective in action.’ : ‘Frontsoldaten – the German Soldier in World War II’, SG Fritz, The University Press of Kentucky, (1995) at 235. 25 IN INSOLVENCY Far more can be accomplished by somebody who knows what you are hoping to achieve than by some robot that does what he is told. The lessons of the German Army on organization and mission accomplishment are worth studying. TECHNOLOGY 30 Technology makes advances, the potential of which may not be realised for many years. When fibre optics were first available their principal use was to provide scale lighting for railway model lay-outs. Today fibre optic cables power the electronic communications revolution. Today, particularly in the fields of computers and telecommunications, vast new potentialities are being made created. What opportunities these will open up will take time to realise. You should be now 35 trying to determine what these potentialities are and how to exploit them. 9 10/04/10 Law is War © Paul M Fordyce
  • 10. TECHNOLOGY – POTENTIALITY NOT REALISED The First World War proved a terrible environment where an array of new weapons of war with fearsome power became available. How to use these weapons to exploit their full potential was not fully realised. The potential and how to use them was not implemented on a general scale before the 5 war ended. It took the Germans in World War II to exploit the potentiality of these weapons to the full. When they did they achieved a string of staggering victories that, but for a few equally staggering lapses of judgement – Dunkirk, invading Greece in 1941, stalling the advance on Moscow in 1941 - would have won the war for them before the Allied powers could complete the long process of incorporating these tactical changes into their own way of making war. 10 I would suggest, by analogy, that the present status of computer and telecommunications revolutions are at the World War I stage of development. It has immense power, immense potential, but it is not realising that power or potential because the software and operating systems that power the computers are at such a primitive stage of development – compared to what their ultimate potential will be - that there are frequent conflicts resulting in 15 crashes, freezes and the many other problems that are experienced in trying to make a computer system, set up to meet the needs of a modern business, work and work consistently without problems. Additionally the professionals (liquidators and lawyers) who could imagine possibe applications for the modern technology, even if they had to be helped by the people with more technical expertise, generally know as little as they possibly can about the technology – and in many cases take great pride 20 in their ignorance. If they took the time to learn more about the programmes that they use they would be able to get a lot more out of them. It will probably be with the next generation of professionals that the full potential from this technology will be realised. Those practitioners who are able to exploit those potentials now should be capable of achieving a 25 disproportionate number of successes (like Germany’s panzer divisions in World War II) before the rest of the profession catches them up. BATTLE OF THE SOMME (WORLD WAR I, 1 JULY 1916, FRANCE) The Battle of the Somme illustrates what happens when new technologies are developed but: 30 (a) the technology itself is not fully perfected to work in the way that will exploit its full potential; and (b) its potential is not realised. MACHINE-GUN 10 10/04/10 Law is War © Paul M Fordyce
  • 11. This weapon had been in use for some time - and its use had been very largely perfected. This created the imbalance between attack and defence. While the machine gun could not be neutralised the defence was infinitely superior to the attack. The attackers had to pay a heavy price – often for no results or results that did not justify the massive expenditure of human life. 5 ‘… the most important thing about a machine gun is that it is a machine, and one of quite an advanced type … it would when actuated by a simple trigger, begin and continue to perform its functions with the minimum of human attention … throughout a working shift. A succession of ‘two inch taps’, first on one side of the breech until the stop was reached, then on the other, would keep in the air a 10 stream of bullets so dense that no one could walk upright across the front of the machine-gunners position without being hit … The appearance of the machine- gun, therefore, had not so much disciplined the act of killing – which was what seventeenth century drill had done – as mechanized or industrialized it.’ : ‘The Face of Battle – a Study of Agincourt, Waterloo and the Somme’, J Keegan, Barrie & 15 Jenkins, 1988 at 208. German Maxim Machine Gun Crew THE ARTILLERY By the time of the First World War (1914 – 1918), great progress had been made in many weapons of war. In the previous century artillery had been mostly comprised of 6 to 12lb guns. These had been the 20 mainstay of the Napoleonic Wars (1796-1815). They required the gunners to be able to see their targets. Those guns had now been replaced by guns of far larger calibre and destructive effect where the gunners never saw their target. For example the artillery used by the British in the Battle of the Somme predominantly ranged from 4.5” field howitzers (firing shells of 35lb) to the 15” howitzer (firing shells of 25 1,400lb). 11 10/04/10 Law is War © Paul M Fordyce
  • 12. : ‘The Face of Battle – a Study of Agincourt, Waterloo and the Somme’, J Keegan, Barrie & Jenkins, 1988 at 211 Unfortunately, particularly in the Battle of the Somme, the way of using and controlling the artillery, and the characteristics of the artillery shells that were then thought to be appropriate, failed to have any 5 material effect on inflicting material casualties on the German defenders – as the troops were told they would. The soldiers were led to believe that after the artillery barrage had finished its work they would be able to walk into the German lines. The statistics of the bombardment would certainly have encouraged that optimism. 1,500,000 shells were fired over 7 days before the battle began. 1 million of these were shrapnel (very light weight 10 shells scattering small pieces of metal intended to kill or injure men) – they had no effect at all on the German dug-outs – 10 metres or more below ground, encased in concrete. The 4.5” shells were the most numerous fired using high explosive. The shells fired by these guns, 35lb, had to have a very strong casing to withstand the shock of being fired. As a consequence the explosive content of the shell was only 4lb 10oz. The 15” guns fired shell of 1,4000lb which contained 200lbs of explosive – but 15 there were only six of these guns on the battlefield so their contribution was minimal in the context of the battle. The main purpose of the high explosive shells was to produce a large number of splinters travelling at man-killing speed. Their purpose was not that different to the smaller shrapnel shells. Most fuses were designed to be activated on hitting the ground. This produced fountains of earth and smoke that created 20 the lunar landscape so familiar on the battlefields of the Western front in World War I – but did nothing to damage the Germans in their well protected dug-outs. Added to this was the fact that at this stage of the war the quality of the shells being mass produced was very poor – making them even more useless than the above comments indicate to be the case in a perfect world. Perhaps equally important was the fact that the artillery could not be controlled with any flexibility – 25 without modern portable, reliable radio communications – which did not come into existence until World War 2. The artillery could not receive reports on whether it was or was not hitting its targets. Its firing programme could not easily be changed. The design of the guns and the unreliability of the British artillery shells at this time also meant that its accuracy left a lot to be desired. The command and communication structure compounded the problems of being able to use the artillery to master the 30 machine guns. ‘… the decisive act was to be the ‘race for the parapet’ – a race which for the British ran from their own front trench to the other side of no-man’s-land, for the Germans from the bottom to the top of their dug-out steps. Whoever first arrived at the German parapet would live. The side which lost the race would die, either 35 bombed in the recesses of the earth or shot on the surface in front of the trench.’ : ‘The Face of Battle – a Study of Agincourt, Waterloo and the Somme’, J Keegan, Barrie & Jenkins, 1988 at 211. The intention was that an artillery barrage would precede the infantry advance in what is called a ‘creeping barrage’. Its purpose was to keep the Germans’ ‘heads down’ so the soldiers could reach 12 10/04/10 Law is War © Paul M Fordyce
  • 13. their trench positions while the Germans were still in cover, not manning their parapets. In practice this was not what happened. ‘Finally, the confidence shown in the artillery to lay a creeping barrage was misplaced. The movement of a line of exploding shells just in front of a line of 5 advancing intantry, ideally fifty yards in front or less, was a new technique and demanded high gunnery skills.Without communication between infantry battalions and artillery batteries – and there could be none without tactical radio, a development of the future – the artillery had to fire by timetable, calculated by the speed at which the infantry was expected to advance, roughly fifty yards a minute. 10 The guns would lay a barrage on an identified trench line, then “lift” to the next at a moment when the infantry was deemed to have arrived. In practice, because the artillery feared killing its own infantry, the intervals in distance between lifts” was made too long, in time too short, with the result that the experience of attacking waves would be, too often, to see the barrage creeping away in front of them, 15 beyond trenches still strongly held by the enemy, without any means of recalling it.’ : ‘The First World War’, J Keegan, Hutchinson (London), 1998 at 314 OVERVIEW The problems with the artillery were compounded by the High Command’s concern about the lack of 20 intestinal fortitude (‘guts’) of the British soldiers to advance as required. ‘… So certain were Haig and most of his subordinates of the crushing effect the artillery would produce, that they had decided not to allow the inexperienced infantry to advance by the tried and tested means of “fire and movement”, when some lay down to cover with rifle volleys the advance of the rest, but to keep them 25 moving forward upright and in straight lines. ….The preoccupation before the Somme was with the danger of the troops taking cover and not restarting the advance once they had lain down.’ : ‘The First World War’, J Keegan, Hutchinson (London), 1998 at 313. The British consequently lost the race for the German parapet - suffering 60,000 casualties on the first 30 day as a consequence. The total casualties of the Battle of the Somme rose to a staggering 420,000 (for the British) over the next 4½ months. ‘Not only was the high command confronted by a novel environment; it was also imprisoned in a system that made it well nigh impossible to meet the challenges of the trench warfare….. That system was itself a product of a different age and a 35 different army, and was no longer appropriate to the circumstances. But rather than change it, Haig and his fellow commanders preferred to rely on the traditional tools of the general – men and guns – in ever-larger quantities. In Tim Travers’s words: “The British army’s reaction to the emergence of modern warfare was 40 therefore a conservative reflex, perhaps because full accommodation to machine warfare would have required social and hierarchical changes with unforeseen consequences.”’ : ‘Military Misfortunes – The Anatomy of Failure in War’, E Cohen and J Gooch, Free Press, New York 1990 at 13. 13 10/04/10 Law is War © Paul M Fordyce
  • 14. TECHNOLOGY – ONE SIDE FIGURES OUT HOW TO USE IT – THE OTHER SIDE PAYS A HEAVY PRICE There are enormous dividends to be had from understanding the potentials of technology and actually exploiting it. 5 TECHNOLOGY - THE LESS WELL ENDOWED CLOSE THE GAP – THE WELL ENDOWED GO FURTHER AHEAD The benefits of IT, including the use of computers (particularly laptop computers) and the internet, are to enhance your skills. To a great degree they operate to level the differences between those well 10 endowed with intellectual powers and those not so well endowed. The gap may not be closed but it will be narrowed. ILLUSTRATION - WORLD WAR II FIGHTER GUNSIGHTS There are many examples of this phenomenon in military history. For instance in World War II the main gunsight used by fighters, at the beginning of the war, was the reflector sight. This sight did not 15 help a pilot solve the main problem of allowing for the correct deflection angle (the angle needed to place your gunfire onto the target, allowing for its path of travel and the time that it would take to reach that point). This was something that the fighter ‘aces’ were able to do instinctively. They had the mental agility to make the necessary very complex calculation and to hit their targets. Most pilots, particularly novice pilots, were unable to do this. By 1943 the British had developed a 20 gyroscopic gunsight which allowed a pilot to calculate the range and deflection angle for a target. It was something of an early computer. ‘Once the average fighter pilot had mastered the use of the gyro gunsight, however, the accuracy of his shooting greatly increased. In 1944 analysis of 130 combats by Mark IX Spitfires fitted with fixed-graticule sights revealed that there 25 had been 34 kills, or 26 per cent of the total. Over a similar period one squadron equipped with the same type of aircraft fitted with the gyro gunsight was involved in 38 combats in which there were 19 kills, or 50 per cent of the total; the new sight had nearly doubled the effectiveness of air-to-air gunnery …’ : ‘World War II Fighter Conflict’, A Price, Macdonald and Jane’s (London) 1975 at 92. 14 10/04/10 Law is War © Paul M Fordyce
  • 15. North American Mustang P51D LAPTOP (NOTEBOOK) PORTABILITY OF COMPUTERS – A MAJOR TECHNOLOGICAL ADVANTAGE A major, and not fully appreciated or utilised development of the computer is the portability that the 5 laptop (notebook) has conferred – which is little utilised in combat (I mean face to face encounters in the insolvency world – meetings, court etc). The laptop (notebook) enables the user to carry vast libraries of materials on CD-Roms and DVD’s. There is no reason why a professional cannot deal at a very advanced level with any issue that arises out of the office –whether at a meeting or in court. AN EXAMPLE OF TECHNOLOGY BEING RUTHLESSLY 10 EXPLOITED AGAINST THOSE LAGGING BEHIND BLITZKRIEG IN FRANCE IN MAY 1940 o BLITZKRIEG CONCEPT OF WAGING WAR By the end of the First World War all of the components needed to wage modern warfare had been developed but not brought together in a systematic way. The Germans were the first to demonstrate to 15 the world what could be achieved using the latest weapons of war, technology and the technique to exploit it. ‘The Polish campaign unveiled the new tactics for which Germany’s land and air forces were equipped and trained. Called “Blitzkrieg”, “lightening war” … it concentrated the tanks of the panzer divisions into an offensive phalanx, supported 20 by squadrons of dive-bombers as “flying artillery”, which, when driven against a defended line at a weak spot - any spot was, by definition, weak when struck by such a preponderance of force – cracked it and then swept on to spread confusion in its wake. … “Blitzkrieg” achieved results denied earlier commanders, whose ability to exploit success at the point of assault had been limited by the speed and 25 endurance of the horse …. The tank not only easily outstripped infantry, but could keep up a pace of advance of thirty, even fifty miles in twenty-four hours as long as supplied with fuel or spare parts, while its radio set enabled headquarters both to receive intelligence and transmit orders at the same speed as operations evolved, a development which came to be known during the war as “real time”.’ 30 : ‘A History of Warfare’, J Keegan, Alfred A Knopf (New York) 1994 at 369. 15 10/04/10 Law is War © Paul M Fordyce
  • 16. o BATTLE FOR FRANCE The battle, on a numerical basis, was one which the Allies should have won. The Germans were outnumbered in all departments except the number of aircraft. The German tanks were also qualitatively outclassed by key French and British tanks - markedly their superiors. 5 The First World War, between the same opponents, had lasted for over 4 years on the Western Front. It was not expected that a war between France and Germany in 1940 would be materially shorter in duration. The problem for the British and French was that they were still basically trained in the tactics of waging war that had been used in the First World War. The frequent legacy of the winner of one war is 10 to lose the next. The loser is usually more driven to find ways to avoid the outcome of the last war than the winner which rests on its laurels. The French and British tanks were allocated throughout their armies in small parcels. This meant that they did not have the absolute concentration of power that the Germans had achieved with their Panzer divisions – the few divisions that had all of the German tanks. The result was that any local Allied 15 tanks were overwhelmed by the German tanks when a panzer division was encountered. Balance of Power in May 1940 Nationality Men Tanks German 2,760,000 2,574 Allied 3,740,000 3,254 The Germans attacked France, Holland, Belgium and Luxembourg on 10 May 1940. By 24 May –14 days’ later – the German Army had reached the English Channel. This trapped the main French armies 20 and most of the British army against the Channel. Once those armies were destroyed the fall of France inevitably followed. This further mopping up to complete the fall of France took another 4 weeks – but the outcome of that phase of the battle was not in doubt. o ANALYSIS OF REASONS FOR THE FRENCH COLLAPSE The following factors were identified by EA Cohen and J Gooch in their book ‘Military Misfortunes. 25 The Anatomy of Failure in War’ as having contributed to the catastrophic collapse of France: (a) a failure to learn (the French had had a very good study undertaken of why Poland had collapsed under the Blitzkrieg in 1939. This very successfully came to grip with those reasons. The French high command failed to implement any steps necessary to give effect to those findings); 16 10/04/10 Law is War © Paul M Fordyce
  • 17. (b) a failure to anticipate (by not anticipating the same method of operations that the Germans had used in Poland and failing to implement steps to counter the Blitzkrieg); and (c) a failure to adapt (once the battle began the French suffered from chronic 5 lack of intelligence of German moves and an inability to obtain orders from their high command on how the German moves were to be responded to. It was not able to implement reactions that would have enabled them to deal with the German onslaught). 10 Besides these broad factors there was a further special factor that worked against the French. ‘…. There is … a special factor in this case – a particular problem of coping with the “Blitzkrieg” that could turn small failures into large ones. In this campaign due to the speed with which the Germans were able to follow up success, tactical mishaps very rapidly created the possibility for major strategic setbacks. …. The 15 French has a solution to the problem, but they were unable to put it into effect because in 1940 – unlike 1914 – the force of the German attack did not diminish as the days went by. Failure to learn and to anticipate put a heavy premium on the need to adapt rapidly to novel circumstances in order to cope with the German attack. To do this the French needed time – the very factor denied to them by the 20 operational virtuosity of the German Wehrmacht.’ : ‘Military Misfortunes. The Anatomy of Failure in War’, EA Cohen and J Gooch, Free Press (New York) 1990 at 230. IN INSOLVENCY Take time to learn about what developments, particularly in the computer world, can do for you. 25 Develop the best possible understanding you can of those programmes and really learn how to use them, think about how they can help you, then make them work for you. The above clearly shows what happens when you do not learn, anticipate, adapt. 17 10/04/10 Law is War © Paul M Fordyce
  • 18. GOLDEN RULES FOR MILITARY SUCCESS (PRINCIPLES OF WAR) There are 9 guiding principles for military success. 1. Objective - Identification and maintenance of; 5 2. Offensive action; 3. Surprise 4. Security 5. Manoeuvre 6. Economy of force 10 7. Mass 8. Unity of Command 9. Simplicity 1. IDENTIFICATION AND MAINTENANCE OF OBJECTIVE The main objective, that is the desired military outcome, must be identified and pursued with vigour. 15 There may be other secondary objectives that will assist the accomplishment of the main objective but they should not be allowed to materially weaken pursuit of the main objective, delay attainment its attainment or more importantly jeopardise attaining that outcome. ‘The purpose of military strategy is to achieve a decisive, obtainable result. This is the controlling Principle of War. Without a clearly comprehended objective there 20 is no sound basis for the application of the other principles.’ : ‘The Superstrategists’, Col JR Elting, Charles Scribners Sons (New York) 1985 at 323. ALLIEDBOMBER OFFENSIVE OVER GERMANY 1943- 45 FAILURE TO PURSUE OBJECTIVE 25 A prime illustration of the consequences of the failure to pursue the main objective was the misdirection of the Allied bomber offensive against Germany in World War II. At the meeting of the leasers of the USA, Great Britain and Russia at Casablanca, in January 1943, the goal of the American and British air forces was identified as attacking submarine construction yards, aircraft industry, transportation, oil plants and other targets in the German war industry. 30 The British wanted to continue area bombing of German cities – which they interpreted as being encompassed within the last, more general goal. The Americans wanted to bomb ‘bottlenecks’ in the 18 10/04/10 Law is War © Paul M Fordyce
  • 19. German economy. The American Economic Warfare Division had concluded, in a report of 9 December 1942, that it was ‘better to cause a high degree of destruction in a few really essential industries or services than to cause a small degree of destruction in many industries’: ‘Inside the Third Reich’, A Speer, Weidenfeld & Nicholson (New York) 1970 at 352. With hindsight this appears to have 5 been a correct conclusion – one might say it was bloody obvious. It was one that the Americans vigorously tried to put into effect. Initially, however, their pursuit of this goal was frustrated because of the high degree of vulnerability of their bombers to the German fighter defences. The American air raids were conducted during daylight hours – which improved the chances of hitting the precision targets that they were seeking to damage. 10 Attacking in daylight meant that unacceptably high losses were suffered by the bombers at the hands of the very effective German fighter defences. After the introduction of the Mustang long range fighter in early 1944 the bombers were afforded good protection against the German fighters. They were then able to more effectively attack German transportation and oil production - with dramatic results. One can only speculate what results a 15 combined attack on these targets by the American and British air forces would have achieved in shortening the war and avoiding the horrific civilian casualties that the British area bombing of civilian targets was causing. B-17 Bombers and Me-262 Jet Fighters 20 ‘…. Between March and September’ [1943] ‘oil production declined from 316,000 to 17,000 tons …. The Luftwaffe thereafter lived on its reserves, which by early 1945 were all but exhausted. Meanwhile the two bomber forces co-ordinated a round-the-clock campaign against German cities, with particular concentration on transport centres. By the end of October the number of rail wagons available 25 weekly had fallen from the normal total of 900,000 to 700,000, and by December the figure was 214,000.’ 19 10/04/10 Law is War © Paul M Fordyce
  • 20. : ‘The History of the Second World War’, J Keegan, Viking (New York) 1989 at 430. IN INSOLVENCY Put more simply – keep your eye on the ball. Do not become distracted by secondary and irrelevant goals that take more of your resources away from what you are trying to achieve then the end results 5 justify. 2. OFFENSIVE ACTION Offensive action is designed to ensure that your side keeps the initiative – that is you decide what you are going to do and the other side is forced to respond to it. If the other side is able to go onto the offensive then your ability to achieve the outcome that you are seeking is diminished. The offensive 10 action may be strategic or tactical. For example in the Battle of Chancellorsville, covered above, the Confederate Army was on the strategic defensive against the more powerful Union Army but took the tactical offensive forcing the Union Army to fall back – ceasing to threaten the Confederate capital with the possibility of defeating the Confderacy. 15 ‘Seize, keep and exploit the initiative. If the enemy strikes first, without warning, it may be necessary to stand on the defence long enough to block his thrust and build up your own forces, but such defensive operations can only prevent your defeat. Victory requires offensive action, carrying the war to the enemy and into his own territories. An army on the offensive has the initiative and therefore freedom of 20 action; it can strike where and when it chooses. If its operations are skilfully planned and sustained, the enemy will be too busy trying to stay alive to manage a counteroffensive. …Soldiers on the offensive commonly show higher morale and a more aggressive spirit than those on the defensive.’ : ‘The Superstrategists’, Col JR Elting, Charles Scribners Sons (New York) 1985 at 324. 25 IN INSOLVENCY A common offensive action in litigation is alleging misleading and deceptive conduct against the other side or some kind of estoppel or breach. 3. SURPRISE Surprise increases the chances of a successful outcome. Again the example of the Battle of 30 Chancellorsville illustrates the effect of surprise on the far stronger Union Army - taken unexpectedly in the flank by its numerically inferior opponent who undertook very bold and unexpected offensive action. ‘To get maximum results from “surprise”, it must be done with sufficient “mass” to exploit and snowball the resulting confusion. Otherwise, the enemy may rally in 35 time to swamp their attackers …’ ‘Surprise can be achieved by rapid manoeuver, secrecy and deception, security which denies information to the enemy, and the introduction of new weapons or tactics.’ 20 10/04/10 Law is War © Paul M Fordyce
  • 21. : ‘The Superstrategists’, Col JR Elting, Charles Scribners Sons (New York) 1985 at 328. In this context though it is noted that because of the lateness of the hour of launching the attack at Chancellorsville, and the weakness of the Confederate Army, there was not sufficient mass to destroy the Union Army entirely or even substantially. 5 Further examples of surprise include the use of the Trojan Horse by the Greeks to enter the city of Troy (which they had failed to take by a siege of 10 years), the Japanese attack on the US Pacific Fleet at Pearl Harbour on 7 December 1941 as Japan’s opening move in starting the war against America and the Tet Offensive by North Vietnam from 30 January 1968 which crushed the American political resolve to continue with the war in Vietnam (while almost destroying the North Vietnamese Army) and 10 ultimately led to the defeat of South Vietnam. Tet Offensive 1968 IN INSOLVENCY Although the sorts of ambushes that used to be able to practised are now very restricted in scope, 15 surprises still occur. Surprise can arise as a result of a client not mentioning something to you, you not detecting some apparently small thing in a document that has great significance (perhaps of itself or more likely when read in conjunction with other documents or in relation to other facts). The consequences of such a psychological set-back can be far greater than the surprise itself. 4. SECURITY 20 Security is essential to enable you to develop your actions without interference, particularly surprise interference, from the enemy. 21 10/04/10 Law is War © Paul M Fordyce
  • 22. ‘ Security is the complement of “surprise”, just as economy of force is that of “mass”. It is the total of the measures a commander takes to prevent the “surprise” of his own forces and to keep the enemy in ignorance of his own plans and actions. “Offensive” action normally increases “security”, since it keeps the 5 enemy on the defensive and so limits his freedom of action; other supporting factors are efficient intelligence and reconnaissance and general readiness for action.’ ‘The Superstrategists’, Col JR Elting, Charles Scribners Sons (New York) 1985 at 328. 10 BATTLE OF MEDENINE TUNISIA IN MARCH 1943 In March 1943 the German Army had completed its retreat across North Africa to Tunisia, the culmination of the defeat at El Alamein in October 1942. Rommel determined to attack the British who had reached a position at Medenine before they were ready to attack him. The attack was a disaster, coming to grief on the first day because the Allied code-breakers (Ultra) had 15 intercepted the details of the German plans and Field Marshal Montgomery had concentrated his defence to inflict a massive defeat on the German and Italian forces. This was a triumph for the security of the British forces. ‘Montgomery had in fact been given clear advance notice by the Ultra code- breakers of both the direction and the precise timing of the attack. …’ 20 Then the massacre began. Followed by infantry in trucks, the three Panzer divisions advanced across the broad, flat plain until they reached a ridge about eight miles from Medenine. Here they ran into the murderous fire of Montgomery’s thoughfully sited anti-tank gun screen.’ : ‘The Trail of the Fox – The Life of Field Marshal Erwin Rommel’, D Irving, Book Club 25 Associates (London) 1977 at 255. IN INSOLVENCY Security in law is achieved by knowledge of the relevant law and the facts of your case, particularly documentary evidence. It is particularly valuable if you can have independent verification of what your client asserts as being their version of the facts. 30 5. MANOEUVRE Manoeuvre is the deployment of your forces – either tactically or strategically. The skill or lack of skill with which this is undertaken, considering the whole military situation, can produce dramatic changes in the military situation. ‘Manoeuvre is the art of moving combat power by land, water, air and/or space. 35 By itself, it produces no decisive results, yet is is the means of attaining “mass”, the “offensive”, “surprise”, and “economy of force”. Normally, it should be rapid and conducted with the proper “security” so that the enemy is unaware of it. “Maneuver” also may be used to confuse the enemy, distracting him from our concentration of combat power elsewhere.’ 40 : ‘The Superstrategists’, Col JR Elting, Charles Scribners Sons (New York) 1985 at 327. 22 10/04/10 Law is War © Paul M Fordyce
  • 23. The Battle of Chancellorsville also illustrates this principle of war in operation. Jackson boldly moved half of the Confederate Army onto the flank of the Union Army – from which position it was able to achieve decisive results. In a head-on clash with the numerically superior Union Army, Jackson’s troops would have suffered far heavier casualties and possibly have suffered a defeat. 5 IN INSOLVENCY A simple illustration of mobility in insolvency/litigation is the ability to touch type - compared to being unable to type at all or utilising voice command systems. Touch typing allows you to take a laptop computer into the ‘field’ together with whatever data you have on it so that you can more flexibly deal with whatever situation may present itself outside your office. Without that you lack mobility. With it, 10 and an appropriate collection of CD’s, you should be the equal of almost any task. 6. ECONOMY OF FORCE Only so much force as is necessary to achieve the objective assigned to that force should be used. If too much force is allocated to a task and it is not needed then you have just wasted resources that could have been used elsewhere. 15 ‘This principle balances that of “mass”, because it is the method whereby we are able to concentrate the necessary combat power for decisive offensives. Areas of secondary importance should be assigned only the essential minimum force, which must do its best to hold, delay or confuse the enemy facing it while our main effort is made elsewhere.’ 20 : ‘The Superstrategists’, Col JR Elting, Charles Scribners Sons (New York) 1985 at 326. The Battle of Chancellorsville also illustrates this principle. Lee allowed Jackson to use half of his army to undertake the flank march against the Union right, leaving Lee with only 30,000 men against Hookers 115,000. Lee was a courageous general and an expert in the conduct of war. It was only because of his exceptional qualities that he was able to take the extraordinary chance that he did. As a 25 consequence the Confederacy was able to survive well beyond the time that it otherwise would have lasted. IN INSOLVENCY This principle equates with the resources brought to bear by the insolvency practitioner and his lawyers in dealing with a matter. The law has made it very clear that resources should not unnecessarily and 30 lavishly be expended on something that will not achieve a result comparable to the time, money and effort expended. See for example the reprimand by the Companies Liquidators and Auditors Board of a well known Sydney liquidator. The ASIC release of 22 November 1999, on this matter, noted that the liquidator ‘failed to adequately and properly supervise the liquidation of’ [the Company]. 35 [The liquidator] ‘used SFC liquidation funds to pursue a large portfolio of small debts, many of which were not recoverable.’ 23 10/04/10 Law is War © Paul M Fordyce
  • 24. ‘Ms Jennifer O’Donnell, ASIC’s NSW Director Regulation, said that creditors of failed companies are entitled to expect liquidators to exercise due care and diligence in the winding up of companies.’ 7. MASS 5 This principle requires having the necessary strength where it is needed to achieve a result. Preferably this is at the point where your enemy does not have his strength. ‘The fundamental law of military strategy is: Be stronger than your enemy at the decisive time and place. …. It does not refer to numbers alone but rather to the overall combat effectiveness of a force, including numbers, weapons, discipline, 10 training, morale, leadership, inherent fighting ability, and its backup of reinforcements and supplies. One trained, armed terrorist in a street or on a plane full of peaceful people can be sufficient mass for that occasion. ‘….History is full of examples whereby a smaller army, utilizing the principles of “maneuver” and “surprise”, has achieved sufficient mass at the critical point to 15 defeat a larger one.’ : ‘The Superstrategists’, Col JR Elting, Charles Scribners Sons (New York) 1985 at 326. French Char B tank (1940) The German plan for the Battle of France accomplished a decisive mass at the intended point where the German Army wanted to break through the French lines – principally through the Ardennes forest. The 20 French Army never recovered from the blow inflicted from this unexpected quarter against light opposition. IN INSOLVENCY This represents having all components of your case ready to go – the right counsel, the right solicitor, the evidence in the best form and content possible, witnesses available and prepared as to how the legal 25 process that involves them will work, subpoenaed records available. This principle worked in favour of the plaintiffs in the case of Domino Hire Pty Ltd v Pioneer Park (1999) 18 ACLC 13. 24 10/04/10 Law is War © Paul M Fordyce
  • 25. 8. UNITY OF COMMAND Military history has numerous examples of the dangers of a split command. The consequences are usually disunity or indecision so that the maximum effort was not put forward by that side. Napoleon expressed this in his maxim ‘Better 1 bad general than 2 good ones’. 5 At the Battle of Gettysburg in July 1863 the Confederate Army had invaded Pennsylvania. It had unexpectedly run into the Union Army. That encounter developed into a full scale battle. On the evening of 1 July Lee ordered General Longstreet to attack the Union left flank – particularly at the key position known as Little Round Top which overlooked much of the Union line. Occupying it would have exposed the Union Army to flanking artillery fire. This would have resulted in the defeat of the 10 Union Army and forced its withdrawal from Gettysburg - with an election approaching in the North to decide whether Lincoln would continue as president or a candidate who would seek to end the war. When Lee gave the order for the attack on the Union left flank Little Round Top was not occupied by the Union Army. General Longstreet believed that it would be better for the Confederate Army to manoeuvre around the 15 Union Army so as to put it between the Union Army and Washington. This, he hoped would compel the Union Army to be the attackers instead of the Confederate Army – as the battle of Gettysburg dictated. Already by this time the superiority of the defence, that became so much more marked in the First World War, was becoming apparent. It seems that Longstreet did not vigorously undertake the attack 20 that had been ordered because of his disagreement with Lee’s proposal to continue to fight at Gettysburg against Longstreet’s recommendation to the contrary. The effect was disunity of the command. Longstreet dallied with getting his attack under way. Historians have speculated that he was hoping Lee would come around to his way of thinking and call the attack of. Longstreet’s attack was not launched 25 until 4:00 pm on 2 July – over 20 hours after it had been ordered. By that time the Union Army had occupied Little Round Top and could not be forced off. ‘…. Longstreet studied the new enemy position with his field glasses for five or ten minutes before making his comments. Then turning to Lee, he said that he disliked the look of things, and he urged quite vehemently that the Confederates avoid any 30 attack on the Union position at Gettysburg. Instead he suggested that Lee make a sweeping movement southward along the Confederate right and then veer toward the east so as to get around the left of Meade’s army and between it and Washington. In this way he said, Lee could force Meade to attack him in a place of his own choosing. …. 35 ‘In response to Longstreet’s arguments in favour of a turning movement, Lee said emphatically. “If the enemy is there tomorrow, we must attack him.” When Longstreet saw that his protests had no effect, he decided to drop the discussions for the time being, although in his estimation there were no good reasons for Lee’s rejection of his plan. ….’ 25 10/04/10 Law is War © Paul M Fordyce
  • 26. : ‘The Gettysburg Campaign: A Study in Command’, EB Coddington, Charles Scribner’s Sons (New York) 1984 at 360. 10. SIMPLICITY ‘Simplicity is essential in plans and orders. Orders must be concise and clear; 5 plans must be perfectly comprehensible and direct. Carl von Clausewitz explained the reason: If one has never personally experienced war, one cannot understand … the difficulties … Action in war is like movement in a resistant element. Just as the 10 simplest and most natural of movements, walking, cannot easily be performed in water, so in war it is difficult for normal efforts to achieve even moderate results.’ : ‘The Superstrategists’, Col JR Elting, Charles Scribners Sons (New York) 1985 at 330. BATTLE OF MIDWAY, PACIFIC JUNE 1942 15 The outstanding example of failing to observe this principle is the disaster suffered by the Japanese at the Battle of Midway. ‘Yamamoto’s plan was as elaborate as his dispositions and required the closest co-ordination in time of his various fleet elements. It was to begin with a bombardment of Dutch Harbour in the Aleutians on 3 June, intended to deceive 20 the Americans as to his intentions. Next day the Carrier Striking Force was to bomb Midway and engage the American carriers if they arrived on the scene. Yamamoto’s covering force, standing nearby, would join in the battle as it developed. On 5 June the Midway Occupation Force would commence the landings. Meanwhile the Northern Area Force would station itself between 25 Midway and the Aleutians to intercept any American units detached from the Pacific Fleet to go to the American Aleutians garrison’s relief. ‘Amercian naval strategists, in the aftermath of Midway, were to puzzle without conclusion on the over-elaboration of Yamamoto’s plan. Since he enormously outnumbered the Pacific Fleet, while the Americans, given their lack of resources, 30 had no option but to remain concentrated, it seemed inexplicable that he did not concentrate also, thereby confronting his enemy with a mass of force that could not possibly be defeated. That was not only the simple solution of his strategic purpose – to knock out the Pacific Fleet for good and all; it was also, in orthodox strategic naval terms, the right solution.’ 35 : The Price of Admiralty – War at Sea from Man-of-War to Submarine’, J Keegan, Hutchinson (London) 1988 at 187. At 10:25 am the Japanese prepared to launch a strike from their carriers at the American carriers, whose location had just then become known. An American attack on the Japanese carriers by torpedo bombers had resulted in all of them being shot down for no damage to the Japanese. The Japanese 40 carriers began turning into the wind to launch their planes. The American dive bombers, by the sheerest of chance, at this moment arrived over the Japanese carriers. All of the Jaspanese defending fighters were down at sea level, having finished disposing of the torpedo bombers. On the decks of the Japanese carriers were fighters, bombers and torpedo bombers fully fuelled and armed. If they were hit they would rip the carriers apart. This is what happened. In the next 5 minutes 3 of Japan’s best aircraft 26 10/04/10 Law is War © Paul M Fordyce
  • 27. carriers were damaged, later sinking. The war in the Pacific irretrievably turned against Japan. A fourth Japanese carrier was sunk soon after. The Americans lost 1 carrier. Japan never regained the initiative. The war had irreversibly swung against it. (My thanks to David Spasevski a summer clerk with Morgan Lewis Alter for research done on cases on 5 war.) American TBD Torpedo Bombers attacking Japanese carriers at Midway, June 1942. 100% loss of these aircraft was suffered. 27 10/04/10 Law is War © Paul M Fordyce