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In an ideal world, the American military would only use deadly force with restraint. Bombers would drop precise munitions and hit only military targets. Ground troops would never attack civilians. But three weeks into war with Iraq, a determined enemy employing suicide bombings, feigned surrenders, and human shields has complicated the mission for U.S. forces. Iraqi tactics raise difficult issues for American military lawyers advising commanders on how to comply with the law of armed conflict while engaging an enemy that appears to violate the most basic rules of war. Army Lt. Col. Thomas Ayres, legal adviser to the commander of the 82nd Airborne Division, put it this way in an April 2 e-mail: “The legal team has been busy giving advice on how to deal with the numerous violations of the Laws of Armed Conflict perpetrated by the enemy we face. . . . [P]aratroopers have had to deal with the use of human shields, the misuse of white flags, ambulances, hospitals, mosques, and schools, fighting in civilian clothing, with civilian vehicles and attempting suicide bombings.” Such conduct is considered heinous because it blurs the line between hostile forces and the population, making it difficult to protect civilian lives. The March 29 killing of 10 Iraqi women and children at a security checkpoint illustrates the tragic consequences when U.S. troops cannot readily discern between combatants and civilians. U.S. forces have rounded up hundreds of Iraqi men in civilian clothing on suspicion that they are actually Iraqi paramilitary fighters. “It is an incredibly difficult position to fight an enemy that violates the law of war in so calculated a way,” says Patton Boggs partner Michael Nardotti Jr., who was Army judge advocate general from 1993 to 1997. Iraqi tactics have forced U.S. commanders to rethink targeting decisions and the detention of prisoners of war. In addition to advising commanders on the new strategies, judge advocates must be alert to a risk few people like to talk about — reprisals by American troops. “Reprisals are rarely justified,” says John Bergen, a JAG major in the Army Reserves. “It can be a hard pill to swallow for a 19-year-old kid — that he has to risk his life and obey the law even if other folks don’t.” Instead, U.S. troops must adjust while continuing to comply with the laws of war set out in international conventions and treaties. “Just because the other side might violate the law does not mean we can choose not to obey the law,” says Scott Silliman, a former Air Force lawyer who heads the Center on Law, Ethics, and National Security at Duke University School of Law. “What it means as a practical matter is that troops have to be ultracautious as they approach every situation.” According to Defense Department officials, U.S. rules of engagement for the use of force have not changed in response to alleged Iraqi war crimes, including two suicide bombings at security checkpoints that have killed seven U.S. soldiers. Instead, U.S. commanders have instructed troops to view civilians as potential threats and use force if necessary. The right of self-defense is built into all military rules of engagement, and troops may kill civilians when necessary to protect themselves or others. “We are asking 18-, 19-, 20-year-old, good-hearted soldiers to make split-second decisions as a car is coming down the road toward them,” says Army Judge Advocate Lt. Col. Stuart Risch, deputy director of the Army Center for Law and Military Operations. “It’s up to lawyers and commanders to draft rules that are easily applicable and simple enough for a young soldier to understand and implement at a moment’s notice.” Rules of engagement — ROE, for short — emanate from the highest levels of the military and incorporate the tactical, political, and legal considerations involved in a particular operation. For instance, when the U.S. military engages in peace-keeping missions, the use of force is likely to be tightly controlled, and troops may be advised to abide by local customs. In more traditional combat situations, U.S. forces will be instructed on who and what to attack. Fighting in and around Iraqi villages and potentially in the city of Baghdad is bound to raise questions about rules of engagement, says retired Col. John Smith III, a former judge advocate with experience in combat and special operations. “Once you get into urban warfare, discerning appropriate targets becomes much more complicated,” Smith says. “It would be as if you were playing a football game, and you have the rules of the game, and your team has its game plan, and suddenly all the fans in the stadium storm the field. You can’t simply shoot all the fans.” Iraqi tactics have made things tough for coalition troops, but they come as small surprise to U.S. forces that train using scenarios quite similar to those confronted. At Fort Irwin, an Army combat training center in California’s Mohave Desert, soldiers man a mock security checkpoint with an eye for potential threats. In another exercise, troops engage with guerrilla forces in an urban setting where local civilians support the opposition. Law of war questions related to the treatment of civilians and prisoners of war are integrated into tactical training so that troops learn to respond appropriately. “The best thing you can do is train folks on applying rules of engagement before they need it,” says Army Capt. Charles Kovats, a judge advocate who scripts training scenarios. Kovats says training at Fort Irwin is not a rehearsal for a specific mission like Iraq, but it is designed to raise the issues troops encounter in the real world. “We used to train with conventional Soviet-style troops. Now our bad guys just do whatever they want to do,” Kovats adds. “We don’t train for tank fights. No one would really try to engage us that way.” The guerrilla tactics of Iraqi fighters, particularly attempts to blend in with the civilian population, also raise serious legal issues related to the taking and treatment of prisoners of war. Under the Geneva Convention, enemy combatants taken prisoner must be treated humanely, protected from physical harm, and provided with food, clothing, shelter, and medical treatment. It often falls on the shoulders of judge advocates in the field to ensure that POWs are treated in accordance with international law and to respond to human rights groups such as the International Committee of the Red Cross. Last week, in an attempt to capture paramilitary troops disguised as civilians, military lawyers drafted guidelines for the detention of civilians who “interfere with mission accomplishment.” According to James Ross, senior legal adviser to Human Rights Watch, international law permits the detention of civilians who threaten military success. Yet Ross says he is concerned by guidelines permitting Iraqi civilians to be held if they “possess information important to mission accomplishment.” “It is not OK to detain people because you believe they can help you,” Ross says. Silliman, the military expert at Duke, also warns that “a mass roundup of civilians would be dangerously close to a violation.” Since the status of those captured is not clear-cut, U.S. troops will likely hold fact-finding hearings under Article 5 of the Geneva Convention to ascertain whether an individual in custody is a prisoner of war, an unlawful combatant, or an innocent civilian. Until these Article 5 tribunals can be held, military lawyers instruct troops to give all captives the protections afforded to POWs. Iraqi fighters suspected of war crimes may later be charged for their conduct in courts martial or tribunals. Approximately 1,200 Article 5 tribunals were conducted during Operation Desert Storm. In Afghanistan, however, human rights groups and international law experts criticized the Defense Department for not conducting Article 5 hearings before transferring detainees to Guantánamo Bay as unlawful combatants. In addition to the legal questions, a host of practical concerns related to POWs have been raised by Iraqi fighters raising white flags before launching attacks on U.S. troops. Judge advocates help commanders develop procedures to deal with legitimate Iraqi surrenders while protecting American forces. Risch recalls a POW incident in Operation Desert Storm that left five American soldiers dead and forced military leaders to shift tactics. A group of Iraqi fighters had come out with white flags, Risch says. And when American troops went to pick them up, the Americans were ambushed by Iraqi forces lying in wait. “Commanders responded by determining we would no longer go forward to pick up those POWs,” Risch says. “Instead Iraqis would have to indicate to us that they were peaceful.” To many, the guerrilla nature of the current conflict harkens back not to the first Gulf War, but to Vietnam. According to Nardotti, the former judge advocate general of the Army, U.S. forces today are better prepared to engage the enemy while abiding by the law of armed conflict. “The military does a far better job today of making training in the law of war meaningful,” Nardotti says. “When I was a young infantry officer, we received a lecture on the Geneva Convention once a year. That type of training is of little practical use on the battlefield.”

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