Lt. Colonel James Zumwalt, USMC (ret)
During World War II, an intriguing issue arose under the laws of land warfare. Did the rules of engagement (ROEs)—the guidelines issued by which nations ensured, in combat, their soldiers complied with international law—permit targeting of an enemy combatant parachuting from an airplane as he helplessly floated to earth? The answer is: It depends. Before explaining why, we need to examine an ROE issue involving British troops now serving in Afghanistan. When a British patrol in Afghanistan comes across the Taliban planting an improvised explosive device (IED), can the Taliban be targeted? The answer to this question, again, is: It depends. But the supporting rationale for both answers diverges at this point—when it really should not.
As to the British patrol in Afghanistan attacking the Taliban, the British Ministry of Defense says it depends on the immediacy of the threat. If militants do not pose an immediate threat to the Brits, they cannot be targeted. Under such circumstances, patrol commanders have been ordered only to observe the Taliban and record the IED’s location. Purportedly, this policy seeks to avoid risking the lives of innocent civilians in the vicinity.
Supporters of the policy point out, oftentimes innocent farmers will dig holes in the ground—at night since it is cooler—to store meat. Also, the Taliban have been known to hire civilians to dig holes for them. Thus, the policy seeks to protect the innocent.
The policy came to light during an inquest into the death of a British soldier killed by an IED in 2010 as he led a patrol in Helmand Province. The person questioning the rationale of this policy was not one of the inquest’s military participants, but the young widow of the dead soldier. “If they can see people leaving these IEDs,” she logically queried, “why can’t they take them out?”
International law, under the Geneva Conventions, sets the legal standard for conducting war on the battlefield. How nations interpret this standard leads them to generate the ROEs with which their soldiers are then bound to abide.
Britain has opted to base this ROE on the immediacy of threat to life, justifying it on the basis it is more important to win over local civilians by not killing innocent people than to eliminate every potential insurgent. A Ministry of Defense spokesman defended the policy, saying: “Troops in Afghanistan are required to exercise restraint when dealing with this threat as the use of deadly force is not always appropriate when there is a risk of collateral damage.” But the silent impact of the policy is it puts British soldiers at greater risk.
British critics point out, while the Brits have decided IEDs do not qualify as an immediate threat to life, “The Americans are different—their Rules of Engagement are pretty liberal. If they even suspect someone of laying a bomb, they can shoot them.” What supporters of the British ROE claim exhibits “courageous restraint,” critics say forces warriors to fight “with one hand behind their backs.”
But even US ROEs are sometimes lacking. In Afghanistan, in July 2006, a rare sighting was made: 190 Taliban fighters were spotted in the open. But US ROEs prohibited them from being targeted as they were in a protected location—i.e., in a cemetery attending a funeral for a fallen comrade. We were bound by our ROEs not to target such militants, even though they unhesitatingly use suicide bombers to target civilians attending funerals. Never known will be the number of deaths of NATO soldiers and Afghan citizens these 190 militants subsequently caused by virtue of our failure to have targeted them that July day.
Militants play civilized nations for fools by forcing them to exercise measures of extreme compliance with international law while they themselves refuse to abide by the Queensbury rules of warfare. And, as the Brits issue restrictive ROEs, even African Union Mission forces in Somalia (AMISOM) conduct pre-emptive strikes against Islamists planting IEDs there.
The World War II ROE answer on the legality of engaging a combatant parachuting from an aircraft depended on his mission upon landing. Aircraft crewmembers parachuting to survive a damaged aircraft were not targetable but soldiers parachuting to conduct combat operations once on the ground (e.g., commandos) were fair game while still airborne.
The World War II ROE recognized the defensive, legal right under international law to target airborne enemy soldiers based on their intent to kill defenders upon landing. It enabled such an enemy to be engaged at his weakest point. So engaging these targets ran the risk that any bullets falling to the ground could wound or kill innocent civilians in the area. It was a calculated risk in wartime. The same logic should apply to insurgents planting IEDs intending to kill unknown victims both combatant and noncombatant.
A popular 1980s television police show began each weekly episode with the desk sergeant briefing his officers. He ended with an admonition about the bad guys, “Now let’s go out there and do it to them before they do it to us.” With NATO forces losing more warriors to IEDs than any other cause, this admonition needs to be applied in writing ROEs—particularly when dealing with an uncivilized enemy who daily violates the law of land warfare.
Family Security Matters Contributing Editor Lt. Colonel James G. Zumwalt, USMC (ret) is a retired Marine infantry officer who served in the Vietnam War, the U.S. invasion of Panama and the first Gulf war. He is the author of "Bare Feet, Iron Will--Stories from the Other Side of Vietnam's Battlefields" and frequently writes on foreign policy and defense issues.
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