Warfare and Lawfare: An Unstable Alchemy

BY Herschel Smith
6 years, 8 months ago

This last week saw a significant air strike on a large Taliban gathering in Afghanistan.

The Afghan defence ministry says an air strike on a large Taliban gathering has killed dozens of rebels, with at least 30 civilians wounded and unconfirmed reports of many more killed.

The US-led coalition forces say they had conducted a “precision air strike” against two notorious Taliban commanders meeting in the rebel-controlled and remote area of Baghran district, in the southern province of Helmand.

Afghan defence ministry spokesman General Mohammed Zahir Azimi says the gathering was to execute four people on charges of cooperating with the government, and had attracted several militant leaders including top Taliban military commander Mansour Dadullah.

Mansour was the brother of top Taliban military commander Mullah Dadullah, who was killed by U.S. forces in early May of 2007.  Mansour had apparently taken over for Mullah upon his death.  The Combined Joint Task Force press release contains some interesting words concerning the strike, obviously responding to the allegations that noncombatants were killed.

Coalition forces conducted a precision air strike against two notorious Taliban commanders conducting a leadership meeting in a remote area of the Baghran district, Helmand province today.

Coalition forces gained actionable intelligence on the location of two Helmand-area Taliban commanders and monitored their movements near the village of Qaleh Chah.  During a sizable meeting of senior Taliban commanders, Coalition forces employed precision guided munitions on their location after ensuring there were no innocent Afghans in the surrounding area.  

“This operation shows that there is no safe haven for the insurgents,? said Army Maj. Chris Belcher, a Combined Joint Task Force- 82 spokesperson.  “It will take some time to determine if both targets were killed.?

But what if there had been noncombatants in the surrounding area?  Would the air strike still have been conducted?  Would the presence of a single noncombatant have cancelled the mission?  Against the backdrop of questions such as these, Major General Charles J. Dunlap, Jr., weighs in on the potential dangers of lawfare amid warfare (his Washington Times Commentary is entirely reproduced below).

“Is warfare turning into lawfare?” When I posed that question in a 2001 essay for Harvard’s Carr Center, I was expressing concern about the increasing frequency with which international law was being used — and abused — by America’s opponents.

At the time, I was trying to focus on the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting American military power. Make it appear that the United States is fighting in an illegal or immoral way, and the damage inflicted upon the public support the forces of a democracy need to wage war is as real as any caused by a traditional defeat.

Six years later it is clear that lawfare has become a key aspect of modern war. The abuses at Abu Ghraib and elsewhere produced effects more damaging than any imposed by our enemies by force of arms. What makes it especially maddening is that these are self-inflicted wounds; wholly preventable incidents where adherence to the rule law would have avoided the disastrous consequences that still plague America’s war-fighting effort.

Today, another form of lawfare is appearing. It too is a self-inflicted wound, and it is likewise avoidable by merely adhering to the rule of law.

Consider how reports that NATO airstrikes are causing civilian casualties are being handled by the International Security Assistance Force (ISAF) in Afghanistan. In response to queries about a report of such deaths, a spokesman insisted recently that “NATO would not fire on positions if it knew there were civilians nearby.” No doubt this assertion reflects a well-meant effort to prevent the noncombatant losses that every honorable soldier always wants to avoid. It also seems aimed at assuaging populations — both in Afghanistan and in NATO countries — who are understandably concerned when civilians are killed. Each such death is a terrible tragedy.

But this statement does not reflect the law, and in fact could put even more of the truly innocent at risk. First the law. While international law forbids, of course, the direct targeting of civilians, it does recognize that they are incidentally put at risk during otherwise legitimate attacks on combatants.

What the law does require is that the risk to noncombatants not be excessive in relation to the concrete and direct military advantage anticipated. That “military advantage” includes killing terrorists and other enemy fighters who threaten both friendly forces and bonafide civilians.

Clearly, the law calls upon commanders to make very difficult judgments, but nevertheless understands that sometimes the legitimate pursuit of military objectives will foreseeably — and inevitably — cause the deaths of noncombatants. It is important that this tenet of international law be thoroughly understood.

Of course, it is not illegal to establish a policy of “zero tolerance” of civilian casualties even though the law does not require it. Doing so, however, creates unnecessary and often counterproductive results. Among other things, the unrealistic and unachievable expectations produced stimulate a sense of betrayal when such casualties occur, and — despite all efforts — they will always occur in war.

Moreover, foreclosing an attack simply because of civilians in the area may, ironically, condemn many more innocents to be victimized in a future rampage of gunfire, improvised explosive devices or suicide bombing by the terrorists that escape. Though excessive civilian losses must always be avoided, it may very well be more humane approach to kill bad guys when the opportunity presents itself even though some civilian losses may also occur.

Establishing a paradigm of “zero tolerance” for casualties may well come back to haunt us in yet another way. Specifically, it encourages the enemy to do exactly what we do not want them to do: surround themselves with innocent civilians so as to virtually immunize themselves from attack. It creates a sanctuary that the bad guys are not entitled to enjoy, and sends them exactly the wrong message.

International law is the friend of civilized societies and the military forces they field. However, 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 use it to wage lawfare against us.

In Recon by Fire, I replied to reporter Brian Palmer (who used the comments section of the article to defend his reporting – as was his right), with the following words:

… from a utilitarian perspective, I am not convinced that in the end softer ROE helps to WHAM. In fact, I would claim that the fact that the ROE have prevented the proper engagement of many insurgents in homes, making homes a safe location for them, has hurt our efforts. Had the U.S. not given quarter, the insurgents would not be making use of them today (see my piece on Air Power in Small Wars).  Also note the awful, horrible situation in Basra today (see Calamity in Basra and British Rules of Engagement). The Brits have summarily made fun of and ridiculed our ROE. Ironically, Anbar is becoming pacified, while Basra has gotten progressively worse and is in the biggest mess today that it has ever seen. Those soft ROE have not worked out so well for the Brits.

In a recent report from Baghdad, Michael Totten briefly opines on the issue of security and what it means to the population.  “Few Westerners think of personal security as a human right, but if you show up in Baghdad I’ll bet you will. Personal security may, in fact, be the most important human right. Without it the others mean little. People aren’t free if they have to hide in their homes from death squads and car bombs.”

The professional counterinsurgency community famously points out the unintended consequences of inadvertent noncombatant deaths resulting from U.S. kinetic operations, i.e., that they could negatively impact winning the hearts and minds of the population.  As we have discussed here before in our coverage of rules of engagement, Dunlap turns this on its head and forces us to ponder the fact that this notion can be carried too far and have the equivalent unintended effect of lack of security, thus losing the battle for the hearts of the people.

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This article is filed under the category(s) Lawfare,Rules of Engagement and was published August 6th, 2007 by Herschel Smith.

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