[jmm99]

I ran into this Der Spiegel article, Changing the Rules in Afghanistan: German Troops Beef Up Fight against Taliban, from July 2009, reflecting changes in their ROEs (making them more permissive).

07/09/2009

Changing the Rules in Afghanistan
German Troops Beef Up Fight against Taliban
By SPIEGEL Staff

Behind closed doors, the German government is slowly but surely changing the rules for combat on Afghanistan, allowing its forces to take a more offensive approach. At the same time, German popular support for the "war" that no one wants to call a war continues to decline.
....
On April 8, nobody even noticed when a few words -- important words --were deleted from a NATO document. One of the deleted phrases was: "The use of lethal force is prohibited unless an attack is taking place or is imminent."

On March 3, 2006, the Germans had this sentence added to the NATO operations plan for Afghanistan as a "national clarification" or caveat. Bundeswehr soldiers were only to shoot in self defense. And there were further explanations in bylaws 421 to 424 as well as in rule 429 A and B. For instance, Germans were not to refer to their actions using the word "attack." Instead they would talk about the "use of appropriate force."
....
This policy is now outlined on the pocket-sized reference card of combat guidelines that German soldiers carry with them. The Bundeswehr calls it "a structural adjustment;" the Defense Ministry's legal department is considering swapping Chapters II and III on the pocket card around. This means that the chapter, "Use of Military Force to Complete a Mission" would be placed ahead of the chapter, "Use of Military Force in Self-Defense" -- which, one assumes, would mean that the former becomes more important. Additionally, to avoid future misunderstandings, examples will be included to illustrate to soldiers when they are permitted to use lethal force.

Another issue being discussed is whether the guideline in Section II, No. 4 should be amended. The current wording states that defensive measures can be taken if an attack is "imminent." The words could be changed to read that defensive measures can be taken "if there is evidence of an approaching attack."

When the Bundeswehr got into a gun battle in Chahar Dara two weeks ago, some soldiers thought that they had to wait until they were shot at before they could fight back. Essentially they turned themselves into targets -- and this is exactly the kind of confusion the German military wants to eliminate.

The tankers were bombed in Sep 2009 - the theories for engagement appeared to be "hot pursuit" or prevention of the tankers' use in future attacks. See posts #105, Another Incident, and #106, Cross-reference & comments, for links to the tanker bombing incident (and Wiki, Kunduz airstrike).

The Jul 2009 Der Spiegel article has a quote by Oberst Klein, who was responsible for the decision to bomb the tankers.

Winfried Nachtwei, the German Green Party's parliamentary expert on defense, said it was reasonable to amend the pocket card if it meant that German soldiers can better defend themselves. "But," he argued, "we must be careful not to be drawn into a whirlpool of escalation. It would be counterproductive to end up looking like we are hunting the Taliban, nor would that be compatible with our mandate. Anyone who thinks you can simply clean up out there is out of touch with reality. You can actually get further over three cups of tea in Afghanistan."

Part 2: 'We Will Strike Back with all Necessary Force'

However soldiers in Kunduz told a different tale. "We will strike back with all necessary force," said Colonel Georg Klein, 48, commander of the field camp.

Combat has become routine for German soldiers stationed in Kunduz. After returning to the camp, the men mentioned their "TICs," or "troops in contact" (military jargon for enemy contact) almost casually. For them, requesting American "Reaper" drones to fire at booby traps is just common practice now.

Anyway, clearly not all the soldiers are unnerved by the finer legal details of combat. On May 7, in view of a German convoy, a number of Afghan fighters jumped off their motorcycles and went into combat position. But before they could fire their rockets and assault rifles, the Bundeswehr troops opened fire on them, killing at least two.

"What happened afterwards gave the troops a sense of security," said Klein. Instead of launching an investigation, as would have been the case in the past, the public prosecutor's office in Potsdam, near Berlin, concluded that the soldiers had acted in self-defense. Klein and his men see this as setting a precedent. "Soldiers need courage in the field, what they certainly don't need is fear of a public prosecutor," noted one officer.

A further change in Germany's Astan position occured in Feb 2010, from The Intelligence Daily, German army given green light to kill civilians in Afghanistan:

February 17, 2010

in Analysis, Defense

By Peter Schwarz

(WSWS) — The German government has now reclassified its military mission in Afghanistan as intervening in a civil war or, as they say in legal jargon, a “non-international armed conflict.” This was announced by Foreign Minister Guido Westerwelle (Free Democratic Party—FDP) on Wednesday in a government statement to the Bundestag (parliament). Previously, the government had described the Afghan intervention as a stabilization operation to assist with peacekeeping.

The recasting of the mission has far-reaching legal consequences. In a civil war, international criminal law applies and not, as hitherto, the German criminal code and police law. Before the reclassifying of the conflict, German soldiers could, in theory, only make use of firearms in exceptional circumstances, such as in self-defence. International criminal law is much more lenient, and even tolerates the killing of uninvolved civilians if this is proportionate to the expected “military advantage.”

Now, German soldiers who shoot Afghan civilians must no longer reckon with an automatic investigation by the state prosecutor. The latter only needs to be involved if the killing is “disproportionate,” although this term is defined very vaguely. Although this reclassification does not give the Bundeswehr carte blanche to kill civilians indiscriminately, the threshold has been significantly lowered. The risk that a soldier could be held criminally responsible for killing an innocent bystander is now much lower. (much more in article).

As to this source (WSWS), I note that it is the voice of the "International Committee of the Fourth International (ICFI)"; but the basic facts are confirmed in the Frankfurter Rundschau, Germany Finally Acknowledges Civil War in Afghanistan (trans). The point of this paragraph is that the same facts and events give rise to very different headlines and narratives, dependent on political view.

So, both Germany and the US have had some problems in deciding on the rules that should apply to irregular warfare.

Regards

Mike

PS - mendel: you're making too much of a sentence which explicitly spoke of a possible ROE policy, which is posited to be quite restrictive and require higher-level approval for certain uses of force. But, if you want that hypothetical to be "polemic phrasing", who am I to dissuade you.

I'd consider the WSWS headline, "German army given green light to kill civilians in Afghanistan", to be a polemic.