Don’t let overly-restrictive strike policies hamper the fight against the Islamic State and Al Qaeda

In its over-the-horizon fight against terrorists in Afghanistan, should the U.S. impose policy restrictions beyond what the law requires as some essayists recently argued?  Or should it not hamper commanders in determining how best to battle those who threaten the U.S. so long as the law of armed conflict is strictly followed?  Allow me to lay out the law and the facts so you can decide for yourself.

Should over-the-the-horizon operations be made more difficult than they already are?

Welcome toOverwatch,a new Lawfire® occasional series which will primarily consist of short commentaries on recent articles and news items.  Today’s focus is on Army majors Brian Hausle’s and Matt Montazzoli’s interesting new essay,Finding the Appropriate Balance of Risk in Over-the-Horizon Strikes”  which raises the questions laid out above.

As discussed on Lawfire® recently (The dawn of America’s latest (“forever”?) conflict: the Over-the-Horizon War of 2021 ), the operations with which these young officers are grappling are not easy, so I cheer them – loudly – for participating in a discussion of such importance.  We need to hear their voices.

Furthermore, there is much to commend about their essay.  Among other things, I fully subscribe to their view that we need to continue counterterrorism drone strikes notwithstanding the tragic killing of ten civilians by a drone strike in Kabul during the last days of the evacuation from Afghanistan last August (discussed on Lawfire® here).

Where I part company with them is with their recommendation to “raise the standard for strikes to ‘near certainty’” meaning, as they put it, that “a commander must be near certain a target is a lawful military objective and also near certain that an attack will not harm any civilians or civilian objects.”

Such ‘more-than-what-the-law-requires’ policy restrictions repeat mistakes from the past and could jeopardize America’s ability to defend itself from terrorist threats that may be coming from Afghanistan sooner rather than later.

The urgency

The ‘near certainty’ threshold the authors advocate is far beyond what the law of armed conflict (LOAC) requires.  Given the terrorist threat that seems to be regenerating in Afghanistan (and elsewhere), I hardly think it is the right time to allow policy machinations to cause us to pass up any opportunities to conduct fully lawful operations against terrorists bent on attacking the United States.

Why?  The situation is urgent: Undersecretary of Defense for Policy Colin Kahl told Congress in October that the Islamic State in Afghanistan “could have the capability to attack the United States in as little as six months, and has the intention to do so.”  In addition, he said al Qaeda could have the capability to carry out attacks against the U.S. in just “a year or two.”

I believe it is best to insist upon strict compliance with the law of armed conflict, but leave it to the commander in the field to decide on-a-case-by-case basis whether or not policy restrictions beyond what LOAC requires will aid in mission accomplishment.  I also believe that policy-restricted rules of engagement (ROE) can cause real harm to friendly forces and civilians alike.

The law

What does LOAC require in terms of the standard of certainty needed?  The Department of Defense Law of Armed Conflict Manual enunciates the legal standard this way in para 5.3:

Commanders and other decision-makers must make decisions in good faith and based on the information available to them. Even when information is imperfect or lacking (as will frequently be the case during armed conflict), commanders and other decision-makers may direct and conduct military operations, so long as they make a good faith assessment of the information that is available to them at that time. (Emphasis added)

Para 5.4.3 says in part:

For example, a commander must, on the basis of available information, determine in good faith that a target is a military objective before authorizing an attack against that target.  Similarly, the expected incidental damage to civilians or civilian objects must be assessed in good faith, given the information available to the commander at the time.

As Mike Adams and Ryan Goodman pointed out in their 2018 essay, Reasonable Certainty” vs “Near Certainty” in Military Targeting–What the Law Requires,” the “governing standard for all targeting decisions is one of reasonableness.”  They argue, and I would agree, that what is “reasonable” in particular circumstance “may very well approach certainty.” 

I don’t think, however, that such results from fact-specific circumstances ought to be transformed into policy mandates applicable under any and all circumstances.

Furthermore, LOAC has never required “near certainty” that “an attack will not harm any civilians or civilian objects.”  Rather, the law requires feasible precautions be taken to avoid civilian harm, and that a ‘proportionality analysis’ be undertaken to avoid not all casualties, but only those that are “excessive.”  The International Committee of the Red Cross says describes the prohibition this way:

“Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”

Put another way, it can be perfectly lawful to conduct a strike knowing incidental civilian deaths will likely occur.  As I’ve explained elsewhere:

Why is the law this way? If it wasn’t legal to conduct an attack even when you are certain that civilians will be killed, belligerents would be incentivized to surround themselves with civilians in order to create a legal sanctuary from attack. It really is that simple.

We ought not impose policy strictures that create de facto sanctuaries for the Islamic State or Al Qaeda in Afghanistan or anywhere else.

What would making it harder to strike terrorists accomplish? 

The most puzzling aspect of the Majors Hausle’s and Montazzoli’s essay is the lack of almost any rationale behind making it harder to attack terrorists than what the law requires.

In the first place, the authors admit that “[s]hifting from reasonable to near certainty will do little to satisfy critics of U.S. counterterrorism campaigns.”  I agree with them as I have never thought that policy restrictions beyond what the law requires gains much in the way of political support either at home or abroad. 

Secondly, they seem to think that ROE more restrictive that what the law requires would avoid strikes going awry as was the case in Kabul last August.  However, as of yet, there is no evidence that ROE was the cause of that tragedy. 

In truth, no set of rules–however restrictive–should lead anyone to think that force can be used, particularly in over-the-horizon operations, without danger to civilians.  As I explained with respect to the campaign in Iraq “Sadly, We Have to Expect More Civilian Casualties if ISIS is to be Defeated and I believe that will be true as to Afghanistan (and elsewhere).  But the facts do show that the use of force against terrorists can diminish the threat to civilians even as some become unwanted casualties

Furthermore, as already noted above, the enemy will easily manipulate ROE that requires a ‘near certainty’ of no civilian casualties before striking to his benefit.  In a 2019 speech former Department of Defense General Counsel Paul Ney gave examples from field reports of some of the savage things the Islamic State will do to save themselves from attack:

  • ISIS commanders forcing small flocks of children to usher the commanders from one location to another; and
  • Even a report about an ISIS fighter shooting at Coalition forces with an assault rifle in one hand while holding a baby in the other.

There is no reason to think the Islamic State won’t continue to use civilians in such ways to protect themselves, especially with policy restrictions that in essence tell them they will be insulated from attack so long as they continue these barbarisms.  In a real way, restrictive polices could actually increase the risk to civilians as terrorists will be incentivized to use them as human shields.

Are restrictive policies really working in Somalia? 

Thirdly, the authors seem to think the restrictive policies they advocate for Afghanistan are working for U.S. operations against al-Shabaab in Somalia.  Specifically, here’s what they claim:

With fewer and smaller scale incidents of harm to civilians, the long-running operation against al-Shabaab has garnered comparatively little international scrutiny or domestic political pushback.  Despite the persistent threat, over-the-horizon operations with a high threshold of certainty have mostly disrupted threats to U.S. interests and prevented the type of high-profile attacks that spurred large troop commitments in Afghanistan and Iraq.”

I wish I could be as optimistic as they are.  Here’s what the Africa Center for Strategic Studies reports:

“The Somali theater is on track for a 16-percent rise in militant Islamist events and fatalities in 2021. Al Shabaab remains the most active group in Africa and is on pace for over 2,000 violent events in 2021. This violent activity has picked up around the Somali parliamentary and presidential elections, which al Shabaab has vowed to disrupt. The increase in al Shabaab violence is also associated with a rise in battles with security forces, which is currently on pace to increase by 28 percent in 2021.”

Their chart illustrates a disturbing trend:

Additionally, Colin Clarke warned earlier this year that “Western countries have grown complacent with the threat posed by jihadist groups in Africa because, for the most part, these groups have been consumed by local rivalries and are content to focus on parochial issues.”  

In other words, it may not have been the drone strikes, per se, that have disrupted threat to the U.S. as the authors suggest.  Clarke adds:

“Attacks have not been launched beyond the immediate regions where they operate. However, as the July 2019 arrest of an al-Shabaab member in the Philippines charged with plotting a 9/11-style attack in the United States demonstrates, the calculus of some of these groups could change.  If other African jihadist groups also seek to shift focus to external operations, then the United States and its allies will regret their growing indifference to the enduring nature of the threat posed by JNIM, al-Shabaab, and the range of ISIS affiliates active in the region.” (Emphasis added.)

In any event, I think we need to be cautious about assuming a policy that might seem to work in one part of the world is readily transferrable to another.  Don’t’ America’s post-9/11 wars demonstrate that axiom?

Concluding observations 

No one should assume that more restrictive policies necessarily save civilian lives.  As I have explained before, restrictive policies that prevent a strike that complies with international law can permit a terrorist who would have been eliminated to live on to commit all kinds of harm to civilians, including Americans.  I’ve called this the “Moral Hazard of Inaction in War and have discussed it this way:

“Many individuals and groups are quick to criticize the U.S.-led coalition when airstrikes aimed at defeating the Islamic State sometimes cause civilian deaths.  What they never seem to take into consideration is what I’ve begun to call the moral hazard that arises when force is not used.”

“In a nutshell, shouldn’t there be as much consideration of the civilian suffering sure to occur if a strike is forgone and the terrorists who would have been killed live on to commit all manner of atrocities on the helpless?  The hard truth is that it isn’t necessarily true that when an airstrike doesn’t take place, civilian casualties are avoided.”

As I’ve said previously, while “international law is the friend of civilized societies and the military forces they field…if we impose restraints as a matter of policy in a misguided attempt to ‘improve’ upon it, we play into the hands of those” who would manipulate it against us.”

We have to remember now that the U.S. will be using force in Afghanistan as a counter-terrorism tool, not as part of a counter-insurgency effort.  We are simply trying to eliminate the threat to the U.S. and its interests through the lawful use of force.  We are not trying to win ‘hearts and minds’ as was once thought to justify additional restraints on airstrikes.

Restraining airpower beyond what the law demanded really didn’t win ‘hearts and minds.’  In fact, we now know that trying to win “hearts and minds” is simply not a successful counter-insurgency strategy.  Additionally, we also know that studies show that the purported ‘blowback’ from drone strikes, that is, the theory that civilian deaths creates more terrorists, is mostly a myth

As Clausewitz might say, we have to understand the conflict, and the current effort is different from the counterinsurgency campaigns that preoccupied the U.S. in recent years.  We can’t afford to repeat mistakes.

Indeed, one has to wonder how much damage restrictive ROE polices have done to the U.S. efforts in Afghanistan and elsewhere.  Would the outcome have been different had the enemy suffered the full weight of an entirely lawful air campaign unencumbered by additional policy restrictions?  We’ll never really know, but what is certain is that imposing policy restrictions that exceeded what the law required was not a winning strategy.

To be sure, we need to do our best to use force in strict compliance with the law of armed conflict, but adding policy restraints that the law does not require can hamper the fight against deadly threats.  We cannot allow wishful-thinking policies to cloud the hard truth that we must strike ISIS and Al Qaeda threats in Afghanistan whenever the opportunity arises to lawfully do so.  

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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