Academic journal article Prism : a Journal of the Center for Complex Operations

Rules of Engagement and Abusive Citizens

Academic journal article Prism : a Journal of the Center for Complex Operations

Rules of Engagement and Abusive Citizens

Article excerpt

The time has come to draw lessons from the war in Afghanistan. One major concern is how the U.S. military ought to deal with civilians who are sporadic combatants, and civilians who act, part of the time, as support forces for combatants (by serving as intelligence agents, manufacturing ammunition and bombs, supplying provisions and transportation, and so on). Discussion of this topic has often focused on ways to deal with those civilians after they have been caught fighting us and whether they should be treated as soldiers or as criminals, a matter that has not been resolved. (My own position is that they should be treated as a third category: as terrorists, subject to distinct rules and authority.)2 This article focuses on an earlier phase: when these civilians are still acting as combatants or supporting them.

This article makes the case for a major change in the basic normative precept involved and for a new Geneva Convention, both needed in order to shift the main onus of civilian casualties where it belongs: to those who engage in combat (or help those who do) without adhering to the rules of war, which require that they separate themselves from peaceful civilians. While the U.S. and its allies should do their best to minimize collateral damage, instead of accepting the basic precept that we are the main cause of civilian casualties-highlighting our mistakes, repeatedly apologizing, and seeking to make amends-we should stress that insurgents who violate the rules of war are the main source of these regrettable casualties.

We entered the war in Afghanistan with-and still labor under-an obsolete concept. This is hardly a rare phenomenon; the development of normative and legal dictates often lags behind changes in the facts on the ground. This time, the normative precept we labor under is that all civilians are innocent, peaceful people, women and children, farmers working their fields, people doing their thing at their desks and in their homes, who should be spared when armies collide. Normatively, respecting civilian life is associated with the concept of human rights, first among which is the right to life. This normative precept reflects the horror and guilt that followed WWII, in which the Nazis deliberately targeted civilian populations, especially during the London Blitz, and the U.S. and its allies deliberately fire-bombed Dresden, killing at least 25,000 civilians, started a firestorm in Tokyo that killed more than 80,000 civilians, and dropped atomic bombs on Hiroshima and Nagasaki.

The 1977 Protocols I and II to the Geneva Conventions, which reaffirmed several protections for civilians in armed conflicts, reflect this precept, as did the 1899 and 1907 Hague Conventions as well as modern-day customary international law. However, these agreements and legal instruments largely assume that war takes place among nations, using troops that distinguish themselves from the civilian population through, for example, "the generally accepted practice of... the wearing of the uniform" (Protocol I, Article 44.7). The requirement that military personnel be identifiable as should be military encampments and vehicles, may sound like a minor, merely technical, matter. However, it is essential if civilians are to be spared. The fact that some civilians deliberately conceal their role as fighters was faced long before the war in Afghanistan, in numerous insurgencies and most notably in Vietnam. However, these facts have not resulted in a normative and legal reconceptualization. We therefore find ourselves engaged in Afghanistan in an asymmetric war between largely conventional troops and irregulars, trying to heed concepts meant for conventional warfare and often unwittingly reinforcing them rather than seeking to modify them. Indeed, obsolete precepts concerning civilian casualties led to a change in the rules of engagement in Afghanistan that sought to treat the problem by imposing new restrictions on our troops, thus further reinforcing the idea that we are the main source of the casualties and ignoring the fact that if the Taliban fighters separated themselves from the population, collateral damage from our actions would be minimized overnight. …

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