JINSA Advisor Addresses Jerusalem Conference

I would like to take this opportunity to offer one American’s perspective on the current Rules of War, Rules of Engagement and some thoughts on “Victory.”

Following the attack on 11 September 2001, President Bush declared a new war, the “War on Terror.” To some of us it was unclear at the time what sort of war this would be. Was this a rhetorical device to rally support? Was he asking for a moral equivalent of war, such as the war on poverty, the war on crime, the war on drugs? Terror is a tactic, how do you identify the enemy? We can only defeat an enemy we can name, describe and understand. As time went on, the war morphed from a conventional war to wars described as civil, ethnic, religious, unconventional, irregular and insurgency. Now it appears it is shaping into a war on crime. Military units are incorporating law enforcement procedures into their combat operations. They are collecting biometric data and incriminating evidence, and are preserving combat objectives as a crime scene. Troops trained to kick down doors and use lethal weapons now spend time bagging and tagging evidence, photographing raid scenes and grilling suspects.

Enemy personnel are no longer POWs; they are criminals potentially awaiting trial. Defense lawyers are assigned, making interrogations almost impossible unless there is a plea agreement. Failure to collect viable evidence can result in the release of enemy personnel, sometimes referred to “catch and release” program. Military lawyers are now assigned down to the lowest level of command to give advice in the planning, targeting and execution of military operations.

Wait, there is more.

We also have an ill-defined legal concept called “universal jurisdiction.” This is a principle in international law claiming criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The risk is high that this will be used in politically motivated manner and could set a dangerous legal precedent. The NGOs (non-governmental organizations) leading these efforts, such as Amnesty International and Human Rights Watch, consider themselves protectors of human rights. But they employ a double standard. Their court filings consistently ignore or downplay acts of terrorism directed against Israel. Their record is not so much pro-human rights as it is anti-Israel.

There is strong evidence that these practitioners may be dupes as well as inconsistent. A Hamas official boasted to The Times of London that his organization was behind the arrest warrants. All this is posing a challenge for leaders and commanders. Now with this as a backdrop, we come to the law of war.

People throughout the world care about fundamental rules governing the conduct of war even if they differ on the need to resort to violence in the first place. Nonetheless, there is profound disagreement over who has the authority to declare, interpret and enforce those rules; as well as who and what developments in the so called “art of war” will shape them now and into the future. I say “into the future” because the laws have historically been developed looking back at past experiences and failing to anticipate technological development and changes in warfare.

In short, I am asking “Who owns the law of war?”

For the past 20 years, the center of gravity in establishing, interpreting and shaping the law of war has gradually shifted away from the military establishments of leading states and toward more activist and publicly aggressive NGOs. (Amnesty International, Human Rights Watch, Red Cross etc.) More broadly in recent years, NGOs have been promoting an ever more utopian law of war, in keeping with absolutist human rights ideology. In practice this utopianism is aimed only at one side in conflicts–the side that in fact tries to obey the law. At the same time the NGOs are indispensable in advancing the cause of humanitarianism in war. But the pendulum shift toward them has gone further than is useful. The ownership of the laws of war needs to give much greater weight to the state practices of leading countries. Democratic sovereigns that actually fight wars should be ascendant in shaping the law.

The laws of war all tend to mitigate the cruelties and misery produced by the scourge of war. Religious legal theorists first defined the notion of justice in war, and custom and international treaties continue to uphold that notion today. Three important principles govern armed conflict. The law allows “proportional” and humane force to be used only when it is “militarily necessary” and it “distinguishes” between combatants and noncombatants to mitigate unnecessary harm. The law also guarantees the right to self-defense.

The problem with proportionality is three-fold. The theory is a) ambiguous b) lacks useful precedents and c) as a practical matter is nearly impossible to interpret and enforce.

Some apparently think that a proportional response means the math must add up. If “they” only killed two or three that’s all you are allowed to kill in response and, of course, no civilians. Naturally the fact that the original two or three “they” killed were civilians generally escapes notice. Or the math may limit the number of weapons used against the enemy. That most likely won’t be used because I’m sure Israel’s response is well behind the thousands of mortars and rockets that have rained down on them.1

The U.S. military should discard proportionality. U.S. doctrine already proscribes use of force that is indiscriminate, wasteful, excessive or not necessary to achieving military objectives.

Taking that position would not be a violation of existing law, as neither The Hague Convention nor the 1949 Geneva Conventions specifically refer to “proportionality.” Neither the United States nor Israel is a contracting party or signatory to the 1977 Geneva Protocols–which do use the term. Why did we not sign? Our problems with the Protocols generally fall into three main categories:

1. They grant combatants rights, including treatment as POWs, on the basis of certain motives for fighting, referring specifically to those who fight against a “racist regime” or “alien occupation.”

2. Certain provisions appear to restrict methods and means of warfare that are legitimate. For example, there are no exceptions for nuclear weapons, while at the same time it categorically prohibits reprisals against civilians, including use of nuclear weapons in reprisal for a nuclear attack–which is the basis for nuclear deterrence.

3. The last concern is about rules that are aimed at accommodating guerrillas, non-state actors and irregular fighters. The protocols grant legal combatant status to these fighters who conceal themselves and their weapons among civilians, as long as they reveal themselves to the adversary “preceding the launching of an attack”–which is to say, often shortly before attacking from among the civilians who will, inevitably, be caught in the crossfire.

It is not my purpose to dissect the rules of war, but to claim that it is high time to reexamine them and to make them relevant to new realities. Harvard law professor Alan Dershowitz proposed some changes to the rules, with which I fully agree and which I paraphrase here:

1. Legally empower forces to attack terrorists who conceal themselves among civilians. Civilians who are killed while being used as human shields by terrorist must be deemed the victims and responsibility of the terrorist who have chosen to hide among them and put them at risk.

2. A new category of prisoners should be recognized for captured terrorists and those who support them. They are neither POWs nor are they ordinary criminals. These are individuals who operate outside the law of war. There is a need to designate a new status, that affords them certain rights but not treat them like either POWs or criminals.

3. The law must come to realize that the traditional distinction between combatants and noncombatants has been blurred. There is now a continuum, on one end are the innocent who do not support terrorists; in the middle are those who applaud and encourage terrorists but do not actively facilitate them; at the guilty end are those who help finance them, who make martyrs of suicide bombers, who help terrorists hide among them and who fail to report imminent attacks that they are aware of. The law should recognize this spectrum and hold those accountable for complicity.

4. The treaties against all forms of torture must recognize differences in degrees and reexamine the definition that defines torture as any act that inflicts severe pain or suffering, physical or mental. There needs to be recognition that in extreme circumstances and with legal supervision countries will resort to some forms of interrogation that is currently prohibited.

Returning to the Rules of Engagement (ROE), international law requires states to disseminate the law of war to their combatants, which is achieved in the United States through the issuance of ROE. The Joint Chiefs of Staff created uniform Standing ROE (SROE) that apply to all U.S. forces, but lower-level commanders may narrow and tailor the SROE to the individual circumstances of each military operation and mission. The ROE issued to the soldier, however, must comply both with the SROE and the United States’ obligations under the law of war.

ROE answer the soldier’s timeless question, “When can I pull the trigger?” The ROE link the law of war to the battlefield. ROE may restrict or permit the use of force “to the full extent allowable under international law.” In some military engagements, ROE are more restrictive than the law requires in order to prevent the escalation of hostilities or serve some other strategic or political purpose. Such ROE are crafted to ensure that the military adheres to Executive Branch’s policy for the war.

Some would argue that although the law of war appropriately limits the use of force, the current ROE are an unfaithful legal interpretation because they unnecessarily restrict troops in a manner not required by law. In order to help explain ROE to the troops, commanders or lawyers frequently issue ROE cards that use acronyms or mnemonic. For example some soldiers are instructed to use force only after satisfying a seven-step process:

1. You must feel a direct threat to you or your team.

2. You must clearly see a threat.

3. That threat must be identified.

4. The team leader must concur that there is an identified threat.

5. The team leader must feel that the situation is one of life or death.

6. There must be minimal or no collateral risk.

7. Only then can the team leader clear the engagement.

This ROE model ingrains orderly checklists in the soldier’s mind in the hope that he will go through each step when presented with a potential threat. This approach is not effective in close-quarters combat because the delay caused by the model is both impractical and dangerous in insurgent warfare, where mere seconds make the difference between life and death. If our soldiers or Marines see someone about to level an AK-47 in their direction or start to receive hostile fire from a rooftop or mosque, there is no time to go through a seven-point checklist before reacting. The soldier must react correctly, immediately.

Following a checklist increases a soldier’s response time, consequently endangering his life. The use of mnemonic devices or acronyms, while purporting to make it easy to remember result in guaranteed hesitation in the face of a threat. Furthermore, by delaying a soldier’s reactions, ROE checklists inhibit a soldier’s ability to defend himself. Requiring following a checklist, there is a good probability we are diminishing the right to self-defense.

The ROE cards tell soldiers to shoot to wound, even though soldiers are not trained to do so, and only to “disable or destroy” as a last resort. These cards are often reused without being changed to address the concerns of a specific area or mission in which the soldiers are conducting operations.

Ultimately, what has occurred is a problem of legal interpretation. The ROE create a perverse incentive for an insurgent not to follow the law of war, because in violating the law he is more successful at defeating his enemies who are hampered by that same law. And yet these individuals have no regard for human life. Their victims are looked upon as expendable. Such unfairness only frustrates those soldiers who follow the law and is inconsistent with the law’s intent.

The current ROE have a place in modern day warfare. They can be used when nation states engage in combat operations where troops prepare to take or defend an objective that is protected by another uniformed armed force. In those situations, the problem of distinguishing civilians from combatants and insurgents is eliminated, or at least lessened. The ROE, however, should differ when soldiers are engaged in police-type operations. These situations are intrinsically different from combat where the enemy’s identity is obvious.

The law of war never intended for war to be harmless; it only strives to mitigate unnecessary cruelty. The law has never diminished the right to self-defense. The current ROE, in interpreting the principles of the law of war, overemphasize proportionality while largely ignoring and thereby inhibiting the soldier’s right to self-defense.

I was asked to say something about “victory.” Victory in war may or may not have anything to do with objective criteria such as casualties or territory taken or lost. What matters most is the ultimate perception of the situation, not the facts. Different people, depending on their perspective, can legitimately differ in their assessment. The assessment aspect complicates the issue since it introduces uncontrolled variables. One may legitimately ask whose assessment or opinion takes precedence. For Americans, in the final analysis, the opinion that matters the most is that of the American people

The truth is that “victory” is an assessment not a proven conclusion; the results are independent for each side and may differ. That is, the fact that one side won does not necessarily mean its opponent lost.

“Victory” in the final analysis is a political condition. Victory at the highest levels is correspondingly defined in political terms. The implication is that tactical or operational victory without favorable political outcomes is sterile.

Let me put it a different way. Victory is heavily dependent on perspective. In a military sense, this translates into being sensitive to the level of war. It is possible to have a smashing tactical victory that does not produce operational or strategic results. What counts in the end is the strategic outcome.

The American experience in the 1968 Tet Offensive in Vietnam is a case in point. During Tet, more than 85,000 North Vietnamese attacked; 45,250 were killed and we did not lose any territory. But who achieved “victory”?

Finally, victory and defeat are polar opposites. There are points along this spectrum that delineate degrees of success or failure.

There must be continued debate and discussion on the topic of victory. Failure to understand the issues will only end the Twenty-first Century bemoaning the inability to turn spectacular tactical victories into decisive strategic results.

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1. In fact, the doctrine of “proportionality” requires that collateral damage, including civilian casualties, be proportionate to the military value of the target under attack. Professor Michael Newton of Vanderbilt University wrote, “So long as the attempt is to minimize civilian damage, then even a strike that causes large amounts of damage – but is directed at a target with very large military value – would be lawful.”