Not 4GW/Swarming but RoE and Laws of War need adapting
Forget swarming, it’s our RoEs, and the laws of war that underpin them, that are the problem at least for Amitai Etzioni in an article written in Military Review, July-August 2009 entitled “Terrorists: Neither Soldiers nor Criminals”. In it Etzioni argues for a revamp of the laws of war as they pertain to a certain class of combatant (i.e., terrorists) and the manner in which they are “prosecuted”. I find many of the issues he raises of great import not only as regards to COIN but in general; such as ...
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The media reports with great regularity that American soldiers, bombers, or drones killed “X” number fighters and “Y” number civilians in Afghanistan, Pakistan, or in Iraq. When I read these reports, I wonder how the media can tell who is who.
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The reasons terrorists cannot be treated as crimi¬nals are equally strong. By far the most important of these, which alone should stop all suggestion of subjecting terrorists to the criminal justice system, is that security requires that the primary goal of dealing with terrorists be preventing attacks rather than prosecuting the perpetrators after the attack has occurred. This is particularly evident when we concern ourselves with terrorists who may acquire weapons of mass destruction. It also holds for many terrorists who are willing to commit suicide during their attack and hence clearly cannot be tried, and who are not going to pay mind to what might be done to them after their assault. Finally, even terror¬ists not bent on committing suicide attacks are often “true believers” who are willing to proceed despite whatever the legal system may throw at them.
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Under the new suggested rules, the United States and other nations working to prevent terrorist attacks in a contested area, say, the southern region of Afghanistan or an Iraqi city in which security has not been established, would declare the area an armed conflict zone. This would entail warning people that all those who approach troops or their facilities and who seem to pose a threat will be treated accord¬ingly. This could mean, for instance, that in societies like Iraq in which most males carry firearms, people would be advised to either stay out of armed conflict zones or leave their weapons behind.
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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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However, when an armed conflict is forced on a people by those who bomb our heartland, killing thousands of innocent civilians working at the their desks, an appropriate response requires dealing with the attackers as ter¬rorists, and not being hobbled by obsolete precepts and rules. The time has come to recognize that those who abuse their civilian status by pretending to be civilians but acting like terrorists forfeit many of the rights of true civilians without acquiring the privileges due to soldiers.
... but as a non-legal specialist I would like to hear the opinions of those better versed that I in matters legal and military. Are our forces hobbled by “4thGW”/”swarming” adversaries or our “outdated” legal concepts? Do we need new rules of war?
Will Etzioni's suggestions have traction in Europe ?
There is considerable distance between the US and the EU-countries re: the LOAC and ROEs applicable to irregular combatants and to "terrorists" (the dominant EU legal opinion, as I understand it from the Eminent Jurists Panel, regards "terrorists" as solely a law enforcement problem).
I don't see where Etzioni's suggestions will have much traction here; even the current administration seems committed to an LOAC approach to "terrorism" - e.g., Harold Koh's recent remarks and adding Awlawi to the hit list for direct actions.
So far as irregular combatants are concerned, the EU-countries are generally committed to Additional Protocols I & II - and I expect there is considerable support for the "direct participation" requirement advanced by the ICRC. The US attitude toward the "transitory guerrilla" has been negative (which is why AP I & II were not ratified).
One wonders whether, because of the gulf between these basic policies, the US and the EU-countries should refrain from military alliances (such as NATO); and simply co-operate on an ad hoc basis where the mutual benefits far outweigh the policy conflicts.
In any event, what say the Euros (and other non-USAians) re: Etzioni's suggestions being adopted by your own countries.
Regards
Mike
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As a Devil’s Advocate lets...
... take the case of Indiscriminate Violence as a Counterinsurgency Strategy. Would it not be ethically more desirable to use overwhelming force to establish order than a long drawn out conflict in which, quantitatively speaking, more people die? According the author of the article (pm me for a copy if you can’t access site) indiscriminate violence has its uses even though it may be against the laws of war and in very specific cases (let’s be clear I am not advocating genocide or massacre as a tool of war but merely initiating a rhetorical exercise to fuel the debate/think outside the box);
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There exist several conditions under which indiscriminate victimization of civilians fulfils this interdiction/denial function. First, indiscriminate violence is more effective the smaller the underlying civilian population. Why, for example, was the indiscriminate violence employed by the British Army in South Africa so effective at defeating the Boer insurgency, whereas German victimization of non-combatants in the Soviet Union backfired and increased the size and strength of the partisans? One answer is that indiscriminate violence is more effective when the civilian population that the insurgents draw their support from is small[...]The smaller the population, therefore, the more plausible it is to kill or completely isolate it, and thus the more effective large-scale civilian victimization can be.
Second, indiscriminate violence in guerrilla wars is likely to be more effective the smaller the size of the geographic area comprising the theatre of battle. The logic is simple: If people have nowhere to run, then it is easier to hunt them down and kill or intern them. [...] It also helped that the population in question only consisted of about 100,000 people. Similarly, in the Philippines (1899–1902), American troops relied on concentration camps to dry up the water in which the Filipino insurgents were swimming, a task aided in no small measure by the fact that the fighting occurred on small, isolated islands.
Third, indiscriminate violence is more likely to be effective – or less likely to backfire – when the insurgency is denied sanctuary and is cut off from external sources of supply. Population concentration and/or large-scale killing is best conceived of as a brutal method of ‘draining the sea,’ preventing the insurgents from obtaining need supplies from civilians. If the rebels have sanctuary across a border in another state, or an open supply line from a third party, draining the domestic sea can only partially sever the insurgents’ ability to obtain supplies and continue to fight. [...].
Finally, indiscriminate violence is likely to be more effective than selective violence when the population is solidly committed to the insurgents’ cause[my emphasis]. Kalyvas argues that all civilians – no matter what their prior ideological commitments, if any – give their support to the actor whose coercive threats are most credible [my emphasis], that is, the actor who controls the area militarily. Yet we know this to be untrue empirically, at least in some cases.[...] When a group of civilians is strongly committed by virtue of ethnicity or ideology to an insurgency, targeted violence may be insufficient to deter it from supporting the guerrillas. Indeed, selective violence may only infuriate group members and make them more determined to resist. In such situations, rare though they may be, massive applications of violence in support of a strategy of rendering the group incapable of supporting the insurgents might prove more effective.[my emphasis] Indiscriminate violence against civilians can be effective in defeating guerrilla insurgencies under certain – relatively restrictive – conditions[my emphasis]. When the population from which the guerrillas draw support is relatively small, the land area in which the insurgents operate is similarly constricted, and external sanctuary and supply is not available, governments have been able to strangle rebel movements with indiscriminate violence. [...] Killing (or imprisoning) the population is not the only way – and certainly not the most desirable way from a normative point of view – to defeat a guerrilla insurgency. Targeted violence, as noted above, is more efficacious in circumstances where the incumbent is not able to control the whole population physically. Less violent methods can also be successful when an insurgency is very weak. (culled from pp.438-440)
Conversely (again, pm me if you can’t access the site) , this “attrition strategy”...
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...risks driving members of the population towards the insurgency inadvertently, playing to
the population’s hearts and minds may avoid the negative externalities associated with targeting insurgents. [...] The model, however, also predicts that where counterinsurgents face highly committed members of the population, either strategy may be ineffectual.[my emphasis] (p.396).
Of course, hearts and minds campaigns assume we all value and desire the same things.
Imagine, following Etzioni’s suggestion above, that ...
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the United States and other nations working to prevent terrorist attacks in a contested area, say, the southern region of Afghanistan or an Iraqi city in which security has not been established, would declare the area an armed conflict zone. This would entail warning people that all those who approach troops or their facilities and who seem to pose a threat will be treated accord¬ingly. This could mean, for instance, that in societies like Iraq in which most males carry firearms, people would be advised to either stay out of armed conflict zones or leave their weapons behind.(p.115)
...set up free fire zones and curfews (for an extreme example) say in Helmand and realised public information that anyone caught even conversing with someone who looks remotely like a Talib is set to meet their maker but who informs the authorities on enemy positions will receive regular food, medicine and money (thus turning them into collaborators; a strong incentive to keep supplying HUMINT). How much of an impact would that make? Rather than using RoEs which state that when a fighter lays down his weapon he reverts to civilian status and can even go, cap in hand, to the aid station he was just assaulting and demand food and medical care wouldn’t it make more sense, for instance (and playing devil’s advocate again) to say that they do not revert to civilian status; wouldn’t that stop them picking up the rifle in the first place? (deterrence)
And yes, of course, I understand that waging war and politics according to the rule of law is what defines us a civilised beings and makes our cause just but although it plays well at home I don’t think that matters to the enemy. I am sure that the grieving parents of men and women killed in action find no comfort in the fact that their sons and daughters were killed unfairly in an unfair fight (and that’s precisely what the European humanist laws of war were supposed to ensure against). Ultimately, it’s what the enemy thinks that’s important in a war; if he thinks he can get around you at every turn he is more likely to want to. Fear is a powerful force and the more fearful the enemy gets the more likely he is of bowing out while still breathing. Like teenage ruffians guerrillas will keep “trying it on” safe in the knowledge that it is now unlawful to cane a kid and that they will simply slip through the social security/international humanitarian safety net and carry on doing whatever it is they are doing. Yes, caning will not deter everyone but what better method of identifying the hard core from their hangers-on. Essentially our message should be “we’ll start playing by the rules when you do; until then the gloves are off”. It sounds like a neo-colonial paternalistic argument but it’s the one I think most fits the peace-keeping/state-building/civilising mission our forces are currently on (Liberals may call it by different names but that’s essentially what it is). Preventing us from acting and thinking outside the (legal) box is what enables our opponents to box us in and use our laws of war against us.
Again, I’m being devil’s advocate here...
