The fourth panel at “Towards a New Law of War” was moderated by longtime Israeli journalist Yaakov Ahimeir.
In the past, military conflict had symmetry. Soldiers fight under rules of engagement that anticipate symmetry. Should a soldier out in the field expect to know who is a terrorist and who is a civilian? Is it possible to set rules that make sense for modern asymmetrical warfare?
U.S. Lt. Gen. David P. Fridovich spoke to the tensions that a commander faces. Time was that there was symmetry to the battlefield and he said commanders and soldiers spent a lot of time training about what an enemy was. More recently soldiers had to adapt to a dynamic process of understanding rules of engagement:
Fundamental rule: “Do nothing to limit the soldier’s inherent right of self-defense. Don’t add restrictions that will cause them jeopardy or harm.
Soldiers also must be trained and must understand what to do in a variety of situations. Another fundamental principle: Rules of engagement are “a point of departure,” and nothing more, The battlefield is “extremely dynamic.” There are supplemental rules of engagement; in the U.S.. these are “highly classified” because disclosing them would let the enemy know your limits and exploit it.
Commanders draw a balance of safeguarding the population and endangering their forces. This balance “causes nightmares” for commanders, “that you did not do enough.”
Professor Chris Jenks of Southern Methodist University said that the rules of engagement are a subset of the law of armed conflict. Most often ROE are going to be more restrictive than the law would allow.
The ROE sit at the intersection of the law, operations, diplomacy and politics. ROE are a subset of a variety of values, including operational, cultural, and political concerns.
So how far will commanders go? The RoE reflect the real tension Fridovich identified. From a U.S. Marines manual he noted what he called “the burden of command”: Leaders prepare soldiers to go into harm’s way while also protecting innocents.
He said that General McChrystal, NATO commander in Afghanistan, told his soldiers that they must respect the population to protect them from violence. Jenks said the general argued that soldiers must avoid the trap of winning tactical victories but having strategic defeats, losing popular support, which is decisive to the struggle. The Taliban can’t defeat us but we can defeat ourselves, the general argued. Excessive use of force resulting in an alienated population is a failure.
IDF Maj. Gen. Yom Tov Samia said he does not like the concept of “purity of arms.” “Weapons can’t be pure. Weapons kill people,” he said, saying he prefers the term “ethics of combat.” And he does not like the term “low-intensity conflict.” In Gaza and Lebanon, he said, the intensity for the troops is not so low. The term minimizes the strain under which soldiers work, he said.
He mentioned two sayings: “More than the people of Israel keep Shabbat, Shabbat keeps the people of Israel” and “More than the IDF will keep the ethic of combat, the ethic of combat will keep the IDF.”
The IDF is important to our society. The IDF, he said with apologies to Ben-Gurion, is a greenhouse, not a melting pot. He said the IDF must be sure to maintain ethics because its soldiers are the country’s next leaders.
In years past the challenge was leading people effectively into battle. Recently, the challenge of keeping ethics is challenging everyone – commanders and field officers.
Keeping ethics is a huge “challenge for young officers.” Samia said 95% of troops in the field units are high-school grads. That figure is 25% to 40% in other armies, he said. “We start with 95%,” which brings more qualified soldiers and commanders. This helps the field level maintain ethical conduct.
He said that “ethics of combat” has positives and negatives.
Positives: it “maintains the unity of troops”; “it safeguards the soul of the troops”; it helps prevent post-traumatic stress disorder (PTSD), and it keeps society at large healthier.
Negatives: EoC creates higher risk in the field and a higher risk factor for the troops. Soldiers, he said, can become confuse when an older woman or young child approaches and asks for water and could be wearing an explosive vest. Samia experienced this directly: a woman approached his IDF group and had two hand grenades, Nine soldiers were wounded.
And he said EoC increases attackers’ motivation to use civilians as shields because they know the IDF is maintaining the rules.
Ran Bar-Yoshafat, an IDF combat reservist, said that as a commander, he gets RoE for each mission, He has three goals, in priority: accomplish the mission, ensure all troops return home safely, and minimize collateral damage. He said the third goal can damage the first two.
He shared a story: During tje Second Lebanon War, his group was being fired at from a mosque. The rule was not to shoot at holy places unless you call and get approval and you could spot someone firing at you. In the course of the group requesting approval to return fire, an IDF soldier in a nearby brigade was killed. Today, he said, the rule is that if someone is firing at you, you are usually allowed to fire back.
Another incident: His group was shot at from a school. In general, he said, “you know that the vast majority of people in a school are children.” Usually IDF soldiers must take cover and not fire back. This incident occurred at night and the group responded.
While the basic judgment is that if someone shoots at a soldier, he can fire back, soldiers are not stupid, he said. “The problem is that you will always have more circumstances than rules.”
Soldiers wear heavy helmets and packs, making it harder to think, he said. They are tired, and they are being shot at. They follow the automatic procedures in which they were trained. These procedures need to be simple.
The reality is that warfare is much more complex than theoretical discussions. It’s scarier to think about talking to the mom of a soldier who died. Lots of complex situations arise.
He suggested a situation as an example: A door opens and you see a 10-year-old kid holding a gun. Do you shoot or do you not shoot? You have three options: Your soldiers get shot, you kill an innocent kid and you kill a non-innocent kid. You shoot and the kid is dead. You check the gun – and it is not loaded.
U.K. Col. Richard Kemp said that rules of engagement apply to battles on land, in the air, at sea and in cyberspace. In current conflicts, dealing with nonstate actors, air and sea RoE tend to be far less controversial than those for ground operations.
RoE put soldiers’ lives at risk, moreso on land than in the air and at sea. He cited a conflict: Air and ground separate have RoE, seeing the same thing from different perspective. For example, ground troops may feel they need air support. But from the air, the pilots may not be able to clearly see the targets and may consider civilian populations are too close by.
Soldiers need RoE when encountering human shields and terrorists in civilian clothes. This helps soldiers know the rules. ROE should distill government policy as applied to a particular conflict, and the military strategy.
In addition, RoE must take into account the laws of war. It’s a guide that reflects what politicians and generals want to happen and to keep w/in the bounds of the law of war.
RoE failures usually result from misunderstanding and misapplication of rules. This can be overcome by extensive training in RoE. Modern technology can provide this.
The Afghans, Kemp said, don’t have the same mentality as us. They respect strength and detest weakness. If they see U.S. forces withdrawing because of “courageous restraint,” they will see weakness. And then they prefer that the Taliban should be in power because that group’s fighters never show restraint. They see the Taliban asthe one that will take control.
Courageous restraint also caused a lot of morale problems among the US and UK soldiers in Afghanistan.
Kemp also questioned the extent to which we looked at other means if we want to be certain of killing terrorists and not civilians. Before 2009, you could shoot someone if you saw him on a bike talking on a radio; not so after 2009. Another identifiers could be someone digging and information from satellite intelligence. These identifiers could allow forces to attack before being shot at first.
Kemp said RoE raises the issue of whether the lives of civilians are more important than those of troops. Should avoiding killing of innocent civilians result in the deaths of soldiers? Which life has more value? Do civilians have a greater right to life? Kemp believes that soldiers should take some risk to protect lives of innocent civilians – but you can’t expect or require soldiers to do this. How long will a soldier follow you if you constantly put his life in danger? Not long. You can’t lose the confidence of your soldiers.
The colonel said that “rules are for the guidance of wise men and the obedience of fools.”
Kemp himself has disobeyed RoE because the circumstances changed, so long as he could have justified it afterwards if he felt the ROE were not appropriate to the situation.
RoE should be designed in such a way that they give the maximum freedom of action for the troops. Minimum rules are insufficient in dynamic changing battlefield situations.
In addition, he said, today soldiers are dealing with intense media and political attention.