Forget swarming, it’s our RoEs, and the laws of war that underpin them, that are the

[Tukhachevskii]

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 ...

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.

&

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.

&

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.

&

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.

&

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?