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Above all, to demand that civilians who raise their arms against us be treated like non-combatants until they choose to reveal their colours, and to allow them to slip back into this status whenever it helps advance their goals, imposes several costs. The most obvious ones are casualties on our side. Such an approach also generates perverse incentives for nations with conventional armies to circumvent the rules, to find some sub rosa way to deal with combatant civilians. Redefining the rules of armed conflicts is not just a much more effective way, but also a much more legitimate way, of dealing with violent non-state actors.
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There are also recurring misunderstandings by many service members and judge advocates concerning the level and degree of authority needed to engage lawful targets. This misunderstanding and confusion leads to the mistaken belief that the actual status of an individual shot in self-defense must first be ascertained. Too often, warriors are briefed that they must have “PID” (positive identification) before engaging. Such ill-founded beliefs are perpetuated by the repeated use of criminally-focused investigations into what are, in essence, line-of-duty shooting decisions.
There are two – sometimes distinct – manners by which a military member can lawfully employ deadly force: (1) subject to a target being declared hostile by competent authority or (2) in response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces). Against a declared hostile, once PID is established, then there is no legal obligation to detain, capture or otherwise take less intrusive means. By way of example, a Soldier could walk into a barracks room filled with sleeping enemy combatants who have been declared hostile and shoot them. There is no legal obligation to wake them, capture them or make it a “fair” fight. By direct analogy, if a tactical operations center can lawfully drop a 2,000 lb laser-guided bomb on that barracks room (subject to collateral damage and proportionality analysis), then it is axiomatic that a lone Soldier could kill them with his M-4. For some reason, however, when some judge advocates and commanders review these close-in killing situations, they mistakenly analyze them under a self-defense methodology as set forth below. In matters of individual or unit self-defense, as spelled out in the unclassified portions of the Standing Rules of Engagement (SROE) and Standing Rules for the Use of Force (SRUF) for U.S. Forces30, service members possess an inherent right of selfdefense predicated solely on a reasonable response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces). In self-defense situations, PID is irrelevant and proportionality is rarely an issue. Soldiers need to understand that they can use reasonable force to quell such a threat until that threat is over.
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Some commanders have been reluctant to authorize the shooting of insurgents clearly emplacing IEDs in roadways late at night. They have prevented the targeting of insurgents conducting probes of friendly positions; and, have also failed to authorize the kinetic engagement of clearly identified hostile vehicles speeding away from a mortar “point of origin” as they “were not a threat at the time of acquisition.” This last point is important to clarify; some less tactically aware judge advocates and commanders have opined that “fleeing hostile actors can’t be engaged.” To so state ignores both the tactical concept of pursuit as well as the hard reality that such a fleeing subject continues to be a threat. To put it even more bluntly: nothing in the law allows a hostile actor to fire a weapon at coalition forces, then drop the weapon and flee without fear of being targeted and killed. Even in civilian law enforcement settings, such fleeing hostile actors are well-recognized as a continuing threat that may be engaged.
All in all, my thinking is that the entire idea of a law of war as an international legal tool is ridiculous to begin with. Only the victors can really apply law of war. I think that it makes sense on a national level, to require one's own personnel to act in accordance with their nationally-accepted standards for conduct in war. But it can't really go beyond that. War is enforcing will by organized violence. In the end, a nation or group does what they think they need to do to win. National survival trumps everything.
