Complying with the Geneva Conventions doesn’t trouble today’s warfighters, but overly-restrictive rules of engagement are another matter

Earlier this week a journalist asked me about Donald Trump’s comment regarding the ongoing conflict with the Islamic State.  Trump said that the “problem is we have the Geneva Conventions, all sorts of rules and regulations, so the soldiers are afraid to fight.”  As a retired military officer, I don’t publicly oppose or support any candidate, but strictly as to the law, allow me to say that I don’t see much evidence these days that militaries from rule-of-law countries like the U.S. often have problems with complying with international humanitarian law, to include the Geneva Conventions.

What can, however, sometimes be problematic are policies that manifest themselves in rules of engagement (ROE).  Why?  ROE (which are legally binding on US military personnel) typically include policy restrictions which go beyond what international law requires; in fact, I never personally saw U.S. ROE (for air operations anyway) that weren’t more limiting in some way than what international law would permit.

So what’s the concern?  Judging from published reports, today’s policies – especially (albeit not exclusively) with respect to airstrikes – appear to be particularly constrictive.  As USA Today noted just this past Wednesday (Mar 30th) critics argue that the “administration’s desire to avoid civilian casualties has led to limits on what can be targeted, reducing the effectiveness of airstrikes.”

An example of a rule that binds US force more than what the law would require can be found in the President’s announced policy regarding certain counterterrorism operations.  It includes a requirement for a “near certainty” that no civilian casualties will occur in a strike.  Of course, international law does not demand that; rather, it requires a reasonable belief that any civilian casualties will not be “excessive” in relation to the concrete and direct military advantage anticipated.

Unfortunately, adversaries like ISIS take note of the President’s “near certainty” policy and twist it to make it harder for US forces to target them.  How?  They simply embed themselves among civilians, and employ human shields – to include children – as a kind of barbaric ‘air defense’ system in an effort to ward off strikes.

Among other things, ROE might also impose complicated target validation, coordination, and approval processes, and may demand an almost clairvoyant ability to predict with great precision the consequences of an attack.  These are difficult tasks which must be rapidly completed under the enormous stress, chaos, and confusion of combat.  This has led to reports of pilots being frustrated by “heavy handed” rules of engagement which create delays as targets are being vetted allowing ISIS fighters to escape attack.  Unsurprisingly, airstrikes against ISIS are but a fraction of the number conducted in other recent conflicts.

Violating targeting policies not required by international law aren’t classic “war crimes,” but they still could result in criminal charges under our domestic law such as the Uniform Code of Military Justice.  In actuality, only the most egregious and deliberate violations will ordinarily result in formal disciplinary actions, but troops can and do worry about making a good faith decision under extreme pressure that could prove, in hindsight, to have been a mistake – even though there is likely no criminal liability.

If not expertly crafted, ROE polices can carry with them a moral hazard of sorts when they operate to prevent a strike that is actually permissible under international humanitarian law.  Obviously, a proposed attack against ISIS fighters that doesn’t take place because of restrictive ROE would cause no direct civilian casualties – and, hence, no criticism of US forces or the Administration –  but those ISIS militants who might have been killed if the strike went forward can now live on to commit all kinds of cruelties on the most vulnerable including systematically turning helpless young girls into sex-slaves and crucifying children.

Put another way, restrictive ROE can operate to shift risk from militaries (who are then able to avoid being criticized for causing some civilian casualties if they were to strike), to what might be a much larger number of civilians trapped under ISIS’s thumb.  These defenseless civilians could then become victimized by the very militants who would have been killed if the attack only had to comply with international law instead of the additional policy-driven ROE requirements.  As retired Lt Gen Dave Deptula and others have argued, a more robust air campaign yet one fully compliant with the law can save civilian lives.

Consider as well the concerns expressed by Representative Martha McSally (R-AZ), a retired Air Force fighter pilot who not only fought in Afghanistan, she also commanded the squadron of fearsome A-10s (“one of the most lethal planes the U.S. has built”) that won the Air Force Association’s coveted David C. Schilling Award in 2006.  In early February of this year she charged that “restrictions on the U.S. air campaign is actually causing more civilians to die at the hands of ISIS.”  I know Congresswoman McSally from my time in the military and she is a straight-shooter’s straight-shooter.

Around the same time (1 Feb) the Wall Street Journal reported that an American adviser to the coalition in Afghanistan “described the rules [of engagement] as incomprehensible” and said that “[w]e have the capacity to annihilate the Taliban threat. But because of the rules of engagement under the new mission, our hands are tied.”   Significantly, complaints about the current ROE are not confined to air operations.  Last December Iraq war veteran David French wrote an illuminating piece entitled “How Our Overly Restrictive Rules of Engagement Keep Us from Winning Wars” which examines the difficulties ground forces encounter when faced with more-than-what-the-law-requires ROE.

And warfighters have, in fact, found themselves made scapegoats in cases involving ROE.  In an important new study just published by the National Defense University entitled “Violating Reality The Lavelle Affair, Nixon, and Parsing the Truth” scholar Mark Clodfelter sheds new light on the controversial episode involving Major General John. D. Lavelle, who commanded 7th Air Force in Vietnam in the early 1970s.  Lavelle was alleged to have violated extraordinarily restrictive ROE by allowing unauthorized airstrikes against North Vietnam, and ordering the falsification of reports in connection with the attacks.  As a result, he was excoriated by Congress and the press, relieved from command, demoted, and retired in shame.  Lavelle died in 1979.

Drawing on a trove of material released in recent years, Clodfelter demonstrates that Lavelle was falsely accused as his actions were – in reality – consistent with the interpretation of the ROE Nixon’s White House and others wanted.  Clodfelter concludes:

Combining Lavelle’s testimony and his oral history with testimonies of others, the documentary evidence now available, and, in particular, the findings in the Nixon tapes, reveal a picture very different from that seen by the House and Senate Armed Services Committees in 1972 and 1973 and by the members of the Senate Armed Services Committee in 2010. Lavelle did not violate the rules of engagement, nor did he order the falsification of records. Given the conditions that governed the air war over North Vietnam at the time, and the direction that he received from political as well as military leaders, he carried out his orders to the best of his ability while trying to minimize the danger to his aircrews.

Perhaps of most concern is Clodfelter’s assessment that “[t]oday’s commanders should expect to face the same type of dilemma, because many of the situations they are likely to confront will demand interpretation’ [as ROE] are unlikely to be black and white.”  He points out that:

[T]oday’s Air Force doctrine warns commanders to request clarification, guidance, or changes whenever orders may appear uncertain. Despite this evolution in direction, confusion can still occur, especially in situations involving self-defense.  In addition, asking for a written confirmation of a directive implies that it is at least questionable, if not illegal, which may not be the case.  Furthermore, if the guidance is appropriate, asking for it in writing destroys the trust that is fundamental to the sound functioning of the military establishment—and is also essential to the notion of its civilian control.  Such issues will not disappear.

The current era of 24/7 news cycles and social media will make dealing with these issues more difficult not only for a field commander, but also for any individual holding a high position.

Sobering thoughts indeed!

Finally, just to be clear, ROE are an indispensable and essential element of modern conflicts as political factors necessarily – and properly in my view – shape the use of force. The question is whether complicated restrictions beyond what the law requires operate counter-productively with respect to the end for which force was deemed necessary in the first place.

Just for the record, allow me to say again that I am a registered independent, and as a retired military officer I do not publicly endorse or oppose any candidate in the presidential race.

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