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?

[Fuchs]

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 makes no sense.
The primary point of having criminal investigations is not to punish; it's to prevent later crimes. Prevention is possible against crimes.

[J Wolfsberger]

The primary point of having criminal investigations is not to punish; it's to prevent later crimes. Prevention is possible against crimes.

Only in the sense that incarceration of a convicted criminal means he's not on the street to commit more crimes. The unfortunate reality of law enforcement is that, at best, police presence can deter the commission of crimes in a particular area within a limited time frame. The far too common universal reality is that police usually arrive after the crime was committed and try to clean up the resulting mess.

One of the goals of any insurgency is delegitimizing the current authorities by demonstrating to the population at large that the government either can't or won't protect them. I suspect that in many societies, according a terrorist caught in the act with such civilized norms as presumption of innocence actually serves to help achieve their goal.

I'm not suggesting that we abandon the rule of law, or the norms for conduct in war evolved over hundreds of years. But we should not be punishing soldiers whose only "crime" was to shoot a terrorist after he'd hidden his weapon, or engaging in witch hunts by second guessing in the luxury of desk bound hindsight whether this or that operation was proper. Tukhachevskii raises a good point in asking "Do we need new rules of war?"

[Fuchs]

I think there are much, much higher priorities than that.
The Iraq/AFG wars have convinced one Western generation (of politicians again) that war is too messy, expensive and unlikely to yield the desired outcome.

I am a notorious great war guy; my primary concern is to protect the alliance against invasion. An army that can occupy and raze your country is a billion times more threatening than a bunch of criminal ideologues with explosives and guns.

The primary concern should not be the preparation for more wars like the present stupid ones; it should be to catch up with the developments since 1945. We didn't see a great war in two decades and are likely as poorly prepared for one as our ancestors in the 1900's.

THAT should be the primary concern. Maybe catching up yields the insight that radical changes lead to new rules of war.
So far, the cluster munitions ban looks to me a thousand times more relevant to real security problems than the treatment of guerrillero suspects.

The German artillery lost about half of its firepower overnight due to a move from ICM to HE and I haven't even seen an article discussing that we didn't change our artillery branch in response.
Well, I saw one text about that topic, but I was the author.

[jmm99]

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

[Firn]

....

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.

....

Regards

Mike

The argument is indeed interesting and well presented. Sorry that I just focus on the small excerpt but I find it a bit surprising to question the values of a military alliance on the basis of possibly even large squabbles concerning the legal status of enemy fighters encountered in conflicts which are not in the vital interests of their members.

Note that the political, legal and factual influences of long-term military (political) alliances, in this case NATO are considerable and clearly distinct from temporary ad-hoc cooperations.


Regards

Firn

[Tukhachevskii]

I think there are much, much higher priorities than that.
The Iraq/AFG wars have convinced one Western generation (of politicians again) that war is too messy, expensive and unlikely to yield the desired outcome.

But that's exactly the point! The Vietnam war was just as messy for, IMO, exactly the same reasons, i.e., not our warfighting capabilities but our inability to deploy that capability without hobbling it/tying it to RoE that patently prevent us from accomplishing our mission. The ICM ban is part an parcel of the issue (though Etzioni isn't directly concerned with it). This is not to say that we need to go in guns blazing and impose a "carthaginian" peace upon any and all that would seek to attack us it means realising that the laws of war only apply if the OTHER side adheres to them too. Otherwise we/you are just tying one of your own arms behind your back (like bringing a Knife to a gun fight).

As for your geopolitical concerns I share them (like you I too consider myself a "good European" a la Nietzsche) and would prefer to see a purely defensive role for NATO/WEU with situations like 11th Sept handled through long range firepower, putting a strangle hold on the global commons where necessary and supporting proxies in the region: we should have, IMO, let the Northern Alliance get on with it and supported them with fires and allow the region, if necessary (given the region's predisposition toward anarchy), to decend into chaos sucking in Jihadis from all over and tying down Pakistan (which would thereby learn its lesson) and Iran (which would thus become infinately more amenable on other fronts) for decades and deploy the odd SoF unit where and if (METT-T(C)) necessary...but that's my pet peeve

[M-A Lagrange]

My comment will surprise no one but I feel really unconfortable with the more and more popular idea that "we" do not have to apply GC or any kind of law if the other side doesn't.
Unfortunately, this has more influence that people think. Such approach are not limited to US/EU but find their worst transcription in reallity in the forgotten wars as DRC, Sudan, Colombia...

Obligating ourselves to play by the rules and develop complexe but adaptive solutions are the solution. Not changing the GC or the Law of War.

Never forget that people are watching you. If the best soldiers of the world can kill indiscriminately and their government do what ever they want and impose "dictatorial" laws, then why would or should dictators respect the law and the people?

[Wargames Mark]

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.

See Training America's Strategic Corporals for a good answer to this. Here is a relevant part:

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.

[...]

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.

However, it is important that societal standards of morality in war be applied to one's own troops. Otherwise, (especially in a media-saturated world), the public support for a given war effort will be sapped. This brings up the sources of ROE:

• Law
• Policy
• Operational Considerations

People, especially civilians, don't often recognize the operational considerations element in the basis for ROE. There are use of force situations one can come up with in which the force used is clearly legitimate under LOW, but unwise from a METT-TC standpoint. People voice lots of frustration over guidance that tells troops not to strike back at an enemy who is using a populated place as a shield. However, if you are conducting COIN, then I think that's the nature of the beast. My understanding (from a clean, safe living room here in the states) is that combat leaders must think in terms of the capabilities of their entire organization, and of the war, not just the battle. Nothing should stop troops from defending themselves, but beyond suppressing an immediate threat, do you really want to try and clear complex, urban terrain of populated town to try and destroy an enemy element when the enemy has chosen this time and this place for this fight? Is there a big-picture way to develop this situation that won't involve playing out the scene the way the enemy has scripted it?

At this point, you are outside of what's legal and into what makes sense (notice how those are two separate categories ).

Use warriors, not lawyers.