Problem

From Military.com (h/t Andy McCarthy at National Review’s Corner).

A top Taliban commander linked to the deaths of British soldiers has escaped German special forces because they were not allowed to kill him under their rules of engagement.

It highlights growing fears that NATO forces in Afghanistan are not fighting to the same set of rules as each other.

The commander who escaped is known as the Baghlan Bomber after masterminding a 2007 attack on a factory in Baghlan province which killed 79 people.

German special forces recently had him in their sights in Afghanistan.

But he escaped capture by the elite KSK troops and the German government will only let their soldiers fire in self-defence.

The bomber has also organised ambushes against British military convoys.

Assessment

Any review of the standing rules of engagement CJCSI 3121.01A (along with supporting or source documentation, LOAC, LAW, white papers, opinions, etc.) or rules for the use of force CJCSI 3121.02 or the theater-specific rules of engagement for Iraq (Wikileak) brings immediate attention to the position - whether right or wrong, implemented correctly or not - that the combatant may defend himself.

What isn’t apparent is that he can take any offensive action.  This is why General Kearney gave two U.S. snipers such undeserved grief about eight months ago for positively identifying and targeting a Taliban commander (threatening charges of murder against them).  The Taliban commander had not picked up a weapon and targeted the snipers.  After this, we had predicted that the billet of sniper would disappear from the scene in the Army (and maybe Marines).

Lawyers and theoreticians (and some very disconnected Army Generals) wish to connect snipers and distributed operations to the notion of assassinations.  The Congressional Research Service has weighed in on this very thing.

In time of war, assassination appears to be distinguished in some discussions from cases of lawful killing, because the former is carried out in a “treacherous” manner.  “Treacherous” is not defined in the Hague Convention IV, but does not appear to be interpreted to foreclose operations in time of war involving the element of surprise.  However, putting a price on the head of an enemy appears to be regarded by some as an act which would render a resulting killing an assassination, as distinguished from a lawful attack on legitimate military targets, including the enemy chain of command.  A review of historical discussions of assassination suggests that this may be, in part, because by putting a price on the head of an enemy, one could be encouraging treachery by those close to the target.

So putting a price on someone’s head may be interpreted as encouraging “treachery,” but the rules do not appear to foreclose operations in time of war involving the element of surprise.  But this is an interpretation, and without clear direction from command, military leadership reflexively returns to the rules of engagement which do not include any concept of offensive operations.  Self defense is the hub upon which the rules turn.  Snipers and countersnipers are always on offensive maneuvers, having nothing to do with immediate self defense (unless something has gone wrong).

Most NATO forces have approximately the same rules of engagment.  Polish snipers have previously worked under different rules when operating in Fallujah.

Eighteen elite Special Operations snipers hid inside the city, picking targets and reporting back on enemy movements. Polish snipers working alongside U.S. forces had been given less restrictive rules of engagement by their government, said a senior U.S. intelligence official with direct access to information about them. “The Poles could kill people we couldn’t,” he said. For example, he said, American snipers couldn’t shoot unless they saw a weapon in the target’s hands, while the Poles were allowed to fire at anyone on the streets of Fallujah holding a cell phone after 8:00 p.m. “They had an eighty percent kill rate at six hundred yards,” the intelligence official said. “That’s incredible range.”

The work of snipers is roughly the same as was the case here which is why the comparison is being made.  The offending practice is offensive operations.  Thus, no matter who is escaping and how certain one is of the identity of the enemy, if no weapon is being brandished, no shot can be taken.

The Taliban commander lives to kill U.S. or NATO warriors yet another day, and lawcraft wins again over against the proper conduct of war.

Prior: Rules of Engagement