Morale: When Lawyers Rules The Battlefield


July 5, 2016: One of the little publicized (at least in American media) complaints by U.S. allies in Afghanistan, Syria and Iraq is the growing use of lawyers and media consultants to determine who American warplanes can attack. Local civilians noticed, especially in Afghanistan where civilians complained about this first in 2009 when they were told that the reason American bombers and armed helicopters were allowing more of the Taliban to escape was because of the need to consult lawyers first to ensure that the attack was “legal” (not likely to be interpreted as a “war crime” if any civilians got hurt.) Most of the complaints, which appeared in Afghan media but rarely anywhere else, were made by rural civilians being terrorized by constant Taliban violence. Worse, the Taliban soon became aware of the new rules and quickly developed tactics to exploit the rules to obtain maximum immunity from air attack. This information spread quickly (via the Internet) to other Islamic terror groups. The civilian victims of these terror groups eventually figured it out as well but no one paid much attention to that.

Even many American NATO allies were aware of how inhibiting this policy was and had become. For example after the November 2015 ISIL (Islamic State in Iraq and the Levant) attacks in Paris France decided to greatly increase its aerial bombing in Syria. Since France had worked with the United States before in fighting ISIL and both were NATO members, the Americans were asked to help with finding targets to hit. The French quickly discovered that the Americans had discovered many valuable ISIL targets that they had not hit because there was some risk (according to the American lawyers) of hurting civilians.

French intelligence officers in charge of identifying targets were surprised as it was understood that there was always some risk of hitting civilians. But the French took into account that the risk had been vastly reduced with the widespread introduction of precision bombs and missiles. The French soon discovered the Americans had a different attitude and since 2008 American aerial bombing efforts had been ordered to reduce civilian casualties more and more. The French were appalled to find that in Syria about 75 percent of American warplanes sent out to attack ISIL targets returned without attacking anything because there had been some risk of civilian casualties. American staff officers told their French counterparts, off-the-record, that there were plenty of critical (to ISIL) targets the U.S. could hit but have not been able to because ISIL keeps civilians in the vicinity. The Russians, who do not coordinate attacks on ISIL with the Americans, had found many of the same key targets the Americans knew about and bombed them. This caused more damage to ISIL in a few weeks than the Americans had in over a year. The French were free to hit those targets and the French proceeded to do just that. The U.S. government has not interfered with this, at least not yet.

One unpublicized achievement of the American led air campaign against Islamic terrorists in Iraq and Syria has been the remarkably small number of civilian casualties. This bombing campaign began in August 2014 and despite over 8,200 targets hit (with smart bombs or missiles) since then there were only a few incidents of civilians being killed. Pilots and troops on the ground have complained how this was accomplished by putting priority on not hurting civilians rather than on doing the greatest damage to ISIL. While the Islamic terrorists were hoping for civilian casualties, to use for mobilizing international media criticism of the air attacks in general, they could only muster about 60 seemingly real accusations of civilians being killed. Only ten percent of those survived close examination and the number of civilians killed was miniscule compared to the number of Islamic terrorist deaths and historically extremely low. But the Islamic terrorists were quietly pleased that they had been able to protect their most valuable targets by using civilians as human shields.

All this was an unexpected side effect of a 2009 change in the U.S. ROE (Rules of Engagement) in Afghanistan. This was in response to popular (or at least media) anger at civilians killed by American smart bombs. As a result of the new ROE, it became much more difficult to get permission to drop a smart bomb when there might be civilians nearby. After 2009 American commanders had to decide who they should respond to, Afghan civilians asking for relief from Taliban oppression or Taliban influenced media condemning the U.S. for any Afghan civilians killed, or thought to be killed, by American firepower. What to do?

Under the 2009 ROE you had to, in effect, do a casualty analysis and consult a lawyer before a deliberate missile or smart bomb attack is made on the Taliban. To their credit, the U.S. Air Force targeting specialists (who do most of this) could carry out the analysis quickly (often within minutes). Even the lawyers became quick at the decision making game. The bad news was that attacks were often called off just because there was some small risk of harming civilians or because the delay enabled the enemy to get away.

The Taliban were aware of the ROE and took advantage of it. Thus the Taliban and ISIL try to live among civilians as much as possible. But the Taliban and ISIL do have to move around, and the ability of NATO and U.S. ground forces, aircraft, and UAVs to keep eyes on a Islamic terrorist leader for weeks at a time has led to the deaths of many smug guys who thought they had beat the system.

What is strange about all is that since the 1990s the U.S. Air Force managed to reduce civilian casualties from deliberate air attack to near zero. Most of the Afghan civilian casualties occur when airpower is called in to help NATO and U.S. troops under attack. In these conditions the ROE was much more flexible but even in these situations Taliban use of civilians as human shields could sometimes be allowed to get friendly troops killed. The tactics used by foreign troops changed to adapt to this and there were some tense situations where Afghan troops were getting hammered, calling for a smart bomb, and told that they can't have it because of the risk of civilian casualties. Another risk was Taliban or ISIL dragging some women and kids along with them when they move, simply to exploit the ROE and avoid getting hit with a smart bomb.

The post-2009 restrictions on the use of air power, and the greater Islamic terrorist use of civilians as human shields enabled the Taliban and ISIL to avoid a lot of situations where they would otherwise get killed. When they are out in the open, the Taliban still got toasted regularly by foreign troops (with or without the use of smart bombs). In Syria and Iraq the ROE is very unpopular with the civilians living under ISIL control. ISIL is much hated and at times the American ROE is hated even more because it allows ISIL to move about and commit more atrocities against civilians.




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