Exclusive: Hays Parks on Human Shields and Restrictive Rules of Engagement

A key lesson learned from Vietnam and subsequent conflicts, including present military operations against the Islamic State, is: “If you wish to assume responsibility for each civilian casualty incidental to a lawful attack, your enemy and others will let you”.

— Hays Parks

With reports today that Islamic State forces are expected to use human shields in the battle for Mosul, the controversy as to the appropriate legal approach to the ghastly tactic reemerges.  However, if anyone can set the law of war community straight on human shields (and restrictive rules of engagement), it’s Hays Parks, and he has graciously agreed to share some thoughts exclusively for Lawfire.

For more than four decades Hays has been America’s most formidable advocate of the U.S. view of the law of war.  What has made him such an intimidating nemesis of so many nongovernmental organizations – and even of governments who wanted to impose their views of the law of war on the U.S. – is not simply his extraordinarily powerful intellect and gifts of both written and oral expression, but his keen understanding of actual warfighters.

How did he get his insight into warfighters?  Hays served as a Marine infantry officer in Vietnam and eventually retired as a colonel in the Marine Corps Reserve.  Interestingly, he earned Navy-Marine Corps, Canadian and British Parachutist wings, U.S. Army Master Parachutist wings, and 82nd Airborne Centurion wings during his military career.

In 2001 he became just the sixth person in the history of the United States Special Operations Command (USSOCOM) to receive that command’s top civilian award, the U.S. Special Operations Command Outstanding Civilian Service Medal.  In 2006 he was awarded the USSOCOM Major General William F. Garrison Award for a career of service to SOF lawyers.  Plainly, he understands the unique “business” of the military client in ways very, very few other law of war specialists do.

The U.S. government put his skills to work.  As one bio records, “he was a legal adviser for the 1986 airstrike against terrorist-related targets in Libya, and had primary responsibility for the investigation of Iraqi war crimes during its 1990-1991 occupation of Kuwait.  He was a United States representative for law of war negotiations in New York, Geneva, The Hague and Vienna.”

Moreover, in 1989 he prepared the U.S. Government’s legal opinion defining assassination which remains the seminal work on the subject.  After serving for several decades as Special Assistant to The Judge Advocate General of the Army for Law of War Matters, he joined the International Affairs Division of the Department of Defense’s Office of General Counsel in August 2003.

Hays retired in 2010 amid disputes about what has now become the DoD Law of War Manual.  Having worked on the treatise for more than fifteen years, it was ready for final approval before he left government.  Unfortunately, it became embroiled in Obama administration interagency wrangling that delayed its publication until 2015 (and it was updated in May 2016).  It is impossible to know how much, if any, of Hay’s work is in the final version as he has steadfastly refused to comment on it (and reportedly has not even read it).

Still, he is not quite a “lion in winter,” as he is currently hard at work on a book about a military weapons topic.  In addition, he is occasionally found prowling the savannas of the law of war.

For example, just last year he testified as an expert LoW witness in the case of United States v. Irek Ilgiz Hamidullin, 114 F.Supp.3d 365 (2015), where the court praised his expertise (he also testifies as an expert witness in cases against terrorists in Canada and the United Kingdom).  In 2015, he clarified the meaning of perfidy in the law of war against academic misinterpretations of the concept as applied to an Israeli operation.

Hays’ most recent foray is to react to an article by Washington Times reporter Rowan Scarborough entitled “Air Command hamstrung by White House mandates” (in the print edition), which appeared on September 14th.  That article points out that although the anti-ISIS coalition has launched 2,350 aerial combat missions, only about half have actually dropped one or more weapons.  The Times further reports that:

Critics say these numbers mean the Islamic State has been allowed to operate for too long.  A much more intense campaign could have killed more fighters and saved more innocent lives from Islamic State’s butchery, they say.

The Times goes on to quote retired Air Force Lt. Gen. David A. Deptula, “an ex-fighter pilot and war planner — and one of the air campaign’s fiercest critics” as saying:

“We have it within our capacity to demolish the Islamic State, leading to the elimination of their sanctuary to export terror to the United States,” Mr. Deptula told The Washington Times. “However, to do so will require moving beyond the current gradualist, sequential, Iraq-first approach to dealing with them.  The anemic application of airstrikes must be replaced with a more robust, comprehensive, rapid and simultaneous use of air power — not simply in support of indigenous allied ground forces, but as the key force in decomposing the Islamic State.”

A big part of the problem is that the current rules of engagement suggest what Deptula calls “immaculate warfare,” where there are virtually no civilian casualties from an air attack – even though the law of war only prohibits otherwise lawful attacks from causing casualties that are “excessive in relation to the concrete and direct military advantage anticipated.”

As has been noted elsewhere, the current policies actually incentivize the use of human shields by the Islamic State in order to ward off airstrikes – a tactic that has proven successful for them.

Parks on human shields and restrictive rules of engagement…

Hays says the Scarborough article “was spot on” and clarifies where the legal responsibility for human shield deaths lies by explaining:

            In 1977, as a senior attorney in the Pentagon, I engaged in a detailed review of flaws in the course of U.S. air operations against North Viet Nam. It quickly became apparent that the missteps that occurred lay at the feet of President Lyndon Johnson and Secretary of Defense Robert S. McNamara in their disregard of rights and responsibilities under the law of war.

          A goal of the law of war is to reduce risk from combat operations to innocent civilians.  It is the responsibility of attacker and defender, the former through targeting of military objectives and selection of reasonable means and methods of attack, the latter through separation of the civilian population and individual civilians from military objectives, including through use of air raid precautions.

         North Viet Nam utilized its civilian population and U.S. prisoners of war it held as human shields, one reason for Secretary McNamara’s overly restrictive rules of engagement.  Following the Viet Nam War, Iraq’s Saddam Hussein sent a delegation to Hanoi to study the North Vietnamese experience. Despite the Iraqi regime’s efforts to impede Coalition airstrikes through use of its cultural property and human shields, the high increase in U.S. and Coalition airstrike accuracy enabled successful airstrikes while reducing risk to civilians and civilian property, in particular cultural property.

       The Islamic Nation employs involuntary human shields, otherwise known as hostages.  Other civilians supporting the Islamic Nation have served as voluntary human shields.

       In 1980, I began offering a presentation on the U.S. air campaigns against North Viet Nam at the U.S. Army, Air Force, and Naval War Colleges, and other military and civilian institutions, to explain the mutual law of war obligation of belligerents in protection of civilians, and the distinction between law of war obligations and the more restrictive policy restrictions imposed by Secretary McNamara and President Johnson.  I have presented it continuously to various audiences since 1980.

      A key lesson learned from Vietnam and subsequent conflicts, including present military operations against the Islamic State, is: “If you wish to assume responsibility for each civilian casualty incidental to a lawful attack, your enemy and others will let you”.

     This lesson has been ignored or disregarded by President Obama.  The United States has spent millions of dollars to develop the most accurate means for engaging enemy targets, in large measure to protect innocent civilians.  Aware of President Obama’s public announcements of his restrictions on use of airpower, and as explained in Mr. Scarborough’s article, U.S. and allied airstrikes are being thwarted through the Islamic State’s illegal use of human shields.  In the meantime, the Islamic State continues to systematically murder innocents.

      President Obama’s restrictions on military use of force have not saved civilian lives.  They have increased the suffering of civilians.

With the last comment, Hays is pointing out that the more-than-what-the-law-requires rules of engagement currently in place for operations against the Islamic State do not save lives when they permit Islamic State fighters to live on to commit atrocities against many more civilians than might have been lost had they been lawfully attacked when the opportunity presented itself.  This issue is one that has been discussed under the aegis of the “moral hazard of inaction in war” (see here and here).

It is ironic that both Hillary Clinton and Donald Trump say they would wield the air weapon much more aggressively than the Obama administration has chosen to do.  That said, civilian leaders need to get advice from military leaders who fully grasp the potential of air attack.

Unfortunately, the leadership of the fight against the Islamic State has been dominated by ground-centric leaders who – for all their talent – simply seem to lack the understanding and vision for the kind of aggressive yet lawful operations we need to defeat this enemy – and save as many civilians as we can in the process.


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