Rules to live...and die...by
December 8, 2004
By Col. Dan Smith
"What difference does it make to the dead...whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty and democracy."
"Don't fire 'till you see the whites of their eyes."
Attributed to William Prescott, Battle of Bunker Hill, 1775
The stories broke within 24 hours of each other.
First came the video recorded by a journalist embedded with U.S. Marines of what appears to be the execution of an unarmed, wounded Iraqi in a mosque.
Next came a video aired by the Qatar-based Arabic television station, Al Jazeera, showing the execution of a western woman thought to be Margaret Hassan, the kidnapped director of CARE International in Iraq.
Then the U.S. military said it was investigating whether three more wounded insurgents were killed by other Marines just before the shooting that was filmed by the embedded cameraman.
Clearly, Margaret Hassan's murder was a calculated, unemotional ritualistic act of terror meant to intimidate those attempting to relieve the suffering of innocent Iraqis caught up in the violence. Those connected in any way with her abduction and killing have been condemned throughout the Islamic world for waging war against the innocent in violation of all strictures of Islam as well as of the international laws of war.
Unfortunately, the story that four wounded and unarmed men might have been purposely killed by Marines quickly displaced the accounts of Margaret Hassan's murder and stifled further condemnation and thoughtful commentary about that incident within the Islamic world. No matter how thorough the investigation into the circumstances of the shooting in the mosque and no matter what the findings of fact are relative to the law of land warfare or the rules of engagement in effect, the video of what appears to be a deliberate killing of a wounded man will be the dominant image of the Fallujah operation. And in that one incident, the U.S. lost another round in the struggle to influence perceptions both in Iraq and around the world
Of course, much more is at stake than who has scored the latest propaganda coup. Justice, the rule of law, accountability, and the contest for humanity's soul embodied in competing ethics of life and death, peace and war, have reclaimed their central position in the affairs of states and dialogue between individuals. A public that largely had ignored the post-1973 all-volunteer military (unless a relative or close friend had volunteered or to watch holiday or "victory" parades following quickly-won "wars,") suddenly became conversant with the concept and technicalities of international law--primarily the third and fourth Geneva Conventions of 1949--because of media coverage of detainee abuses in Abu Ghraib, in Afghanistan, and at Guantanamo Bay. (And the longer Afghanistan and Iraq go on, the more numerous the reports of prisoner abuse, including incidents, observed by FBI agents and employees of the Defense Intelligence Agency, involving members of the special Task Force 121 whose mission is finding "high value" individuals.)
The Geneva Conventions are again central in this Fallujah action, but this time the first convention on the "Amelioration of the Condition of the Wounded and Sick in Armies in the Field" is the primary document setting the minimal standards of behavior toward and care of the wounded. And because active combat could be expected at any time, Marines also had "rules of engagement" which they were to follow.
Starting with the First Geneva Convention, for example, Articles 14 and 15 read in part:
- the wounded and sick of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them (Article 14);
- at all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment (Article 15).
How might these directions translate to Fallujah on that November 13?
From information in the public domain, Marines who initially seized the building the day before the video was filmed killed ten insurgents and wounded five. The latter were treated and left for following units to collect and transfer to appropriate medical or prisoner encampments--all in accord with international law. But the system then broke down; the wounded were not removed from the general battle area. Information that insurgents were in the building and again posed a threat to U.S. forces triggered a second sweep during which the dead and wounded were re-discovered.
At this point, the mental state of individual Marines--their personal experiences of battle and loss, possible expectations that no insurgents would be alive because of the previous day's action, wariness about feigned death by still-armed insurgents and the possibility that any bodies might be booby-trapped--becomes a critical factor. Legitimate fear of imminent deadly assault created by the actions of even a wounded insurgent triggers the legal right of self-defense. But because soldiers are trained to act reflexively in active combat and then are psychologically "pumped" by leaders to see the enemy as evil, they are prone to err on the side of killing. A key question thus becomes to what extent did the Marines have time to evaluate what they saw of the wounded insurgents in the mosque.
Also newly familiar is the phrase "Rules of engagement" (ROE). This is the authority for the use of force--that is, the when, where, to what end, and against whom organized large-scale violence is employed. How does it differ from the Geneva Conventions?
The Pentagon's Dictionary of Military and Associated Terms, updated October 7, 2004, defines the phrase as "Directives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered."
Army training about ROE envisions two general circumstances for using weapons: self-defense and to achieve mission completion. Whether ROE are "permissive" (allowing more use of force) or "restrictive" (limited use of force) depends on the anticipated conditions extant in the mission--e.g., presence or absence of quantities of small arms and light weapons; existing, organized opposition groups, armed and unarmed; competency of local security forces, etc.
"Other forces encountered" is very broad. It encompasses guerrilla, police, para-military, military, and terrorists with or without national designations or insignia. Actions or indications of imminent intent to employ force to stop or impede U.S. forces are enough to consider any gathering as hostile. (Another avenue is for "competent authority" to declare a group as "hostile.")
Some ROE are included in unit "standing operational orders" (SOP) and form the basic structure from which adjustments are made to develop operational-specific ROE issued to forces just prior to the start of an operation. For example, the following replicates a pre-September 11, 2001 set of standing ROE for Joint Task Force 6, the multi-service command at Fort Bliss, Texas that is the Defense Department's interface with counter-drug U.S. law enforcement agencies.
Personnel WILL make every effort to avoid confrontation or armed conflict with civilians.
- Use only the amount of force necessary and proportional to the threat;
- Use deadly force in self-defense and in defending others from death or serious bodily injury;
- Detain any person posing an imminent threat of death or serious bodily harm, releasing them to civilian LEA [law enforcement agents] as soon as possible;
- Pursue armed persons only to defend or retrieve personnel;
- Pursue unarmed forces to retrieve military equipment.
Personnel MAY NOT:
- Use deadly force to protect property;
- Use deadly force if other measures would be reasonably effective;
- Enter Mexico or Canada;
- Participate in arrests, searches, seizures, or interrogations;
- Trespass on private property.
These ROE provide for the use of deadly force to counter deadly force as an absolute right. They do not sanction deadly force to accomplish a mission. The use of force for the latter purpose is conditional on the grounds of necessity (a hostile act is imminent or has occurred) and proportionality (reasonable in intensity, duration, and magnitude). For example, destroying the house and livelihood of relatives of insurgent suicide car bombers is neither necessary nor proportional; it is vindictive.
Moreover, while remaining flexible enough to respond to changes in the level of risk posed by operational conditions, ROE--as illustrated by the JTF-6 rules--should be drawn so as to discourage "mission creep" that significantly and abruptly alters the rules under which troops operate. In fact, ROE can serve as a brake on potential escalation in the level and extent of violence.
A recent example of mission creep occurred in March 2004 when U.S. Marines entered Haiti after President Jean-Bertrand Aristide left under U.S. pressure. Troops originally were sent to protect the U.S. embassy from rebel bands. U.S. commanders in Haiti said their mission was to "stabilize the country" sufficiently for Haitian police to return to their posts, not disarm militants, while the Pentagon said Marines would confiscate weapons. In specific encounters, trying to disarm civilians actually could create confrontations while in others, prudence might dictate disarming potential belligerents as the best way to avoid the future use of deadly force. Then the mission expanded again, moving more toward law enforcement and new ROE that permitted use of deadly force to protect Haitians from violence and--perhaps reflecting criticism from inaction by U.S. forces when Baghdad fell--to preclude rampant looting.
Another example of ROE, this one more permissive in that it permitted violations of the airspace of countries with which the U.S. was not at war, is found in a Defense Department cable of September 28, 1964, regarding U.S. air defenses over Laos early in the Vietnam War (as recounted in Daniel Ellsberg's Pentagon Papers):
U.S. air defense forces are authorized to engage and destroy hostile aircraft in Laos. Hot pursuit may be conducted as necessary and feasible over Thailand and South Vietnam.
No pursuit is authorized at this time over North Vietnam or Cambodia except when actually engaged in air combat. No pursuit is authorized into Communist China.
Unless specifically directed otherwise, U.S. air defense forces are not authorized to attack other hostile forces or installations unless attacked first, and then only to the extent necessary for self-defense.
As with all military considerations, ROE should be devised to contribute to furthering the political objectives underlying the employment of military power. These objectives may not always be obvious, as in the case of Japan's Self Defense Force. To avoid raising fears among its neighbors of resurgent militarism, the Japanese constitution prohibits dispatch of combat troops--a restrictive ROE in a nation's most fundamental document.
Conversely, the Bush "preventive war" doctrine could be considered a more permissive ROE national security policy statement than any in the past (e.g., no first use of nuclear weapons). It is also a policy that runs counter to the Charter of the United Nations, which the U.S. has signed, that recognizes only the right of "national self-defense" against an imminent threat of attack, not some possible threat that might or might not materialize in the indeterminate future. In some respects, the Bush doctrine has simply elevated to national policy the Vietnam War practice of declaring "free fire zones." Yes, there were restrictive ROE actually printed on cards handed to every soldier that directed:
- no bombing of villages without warning the inhabitants, even if the village was "known" to be communist;
- no attacking of villages without a warning even if U.S. troops had received fire from the village;
- evacuating all civilians before a village could be declared a free fire zone.
But in practice, over time the few restraints fell away; evacuations were incomplete; warnings delivered by leaflet missed their intended audience (or could not be read by the largely uneducated peasantry); ground fire by "Viet Cong" brought immediate and massive retaliation. And it was the perception that U.S. forces did not consider Vietnamese lives as of equal value to U.S. lives that lost Washington the battle for the hearts and minds of the Vietnamese and cost Vietnam another generation of its youth.
Lastly, in Iraq and Afghanistan today, there is a new wrinkle in ROE. While the military can enforce discipline for violations of ROE by service members, it is less clear who has authority to draw up and enforce ROE on private companies that provide physical security in war zones. By some estimates, in mid-2004 there were as many as 20,000 private security "guards" in Iraq alone, all operating under their own ROE which, if anything, were less restrictive than those for coalition troops.
The sole ROE for the murderers of Margaret Hassan seems to be to kill anyone--men, women, children, Muslim or non-Muslim, Sunni or Shi'ite--who opposes their self-appointed agenda. They probably will never be brought to justice. If committed "jihadists," they will probably choose death to surrender; if common criminals engaged in hostage-taking for profit, their true identities may not be widely known. It is the duty of a reconstituted Iraqi national police establishment, not foreign troops, to pursue all those who have been involved in any of the thirty cases in which foreigners have been kidnapped and killed in Iraq.
Meanwhile, the U.S. government in general needs to re-examine its diplomatic ROE with the rest of the world while the Pentagon in particular needs to look at its training regimen for ROE for military forces in combat. Among the first steps ought to be the frank admission that weapons of war, even those guided by laser or by the global positioning system, cannot be one hundred percent on target every time and avoid unintended casualties and destruction. This in turn should create a strong predisposition at the national level to avoid armed conflict altogether and not, as seems the case with respect to Iranian and North Korean policy today, only when military forces are overcommitted or the potential enemy might possess and be able to use unconventional weapons.
Just as there are ROE for situations fraught with death, there are ROE for life. Just as wartime ROE will not always be followed, so too will humans fail in applying the ROE of life. But if governments will resort to peace as the first option in international and national affairs, there will be fewer breaches of conflict-related ROE because there will be fewer armed conflicts.
The genius of the U.S. political revolution was to shift the locus of sovereignty and political legitimacy from the ruler to the people. This change set the conditions for the development of ROE for personal relationships--respect for the fundamental dignity of all; honoring the human rights of others; insisting on the equality of civil rights of every person. That this development remains incomplete should be taken as a challenge to broaden and more deeply engrain the practice of these ROE across U.S. society and around the globe.
Col. Daniel Smith, a West Point graduate and Vietnam veteran, is Senior Fellow on Military Affairs at the Friends Committee on National Legislation, a Quaker lobby in the public interest.