Imagine if the United States had fought World War II with a mandate to avoid any attack when civilians were likely to be present. Imagine Patton’s charge through Western Europe constrained by granting the SS safe haven whenever it sheltered among civilians. If you can imagine this reality, then you can also imagine a world without a D-Day, a world where America’s greatest generals are war criminals, and where the mighty machinery of Hitler’s industrial base produces planes, tanks, and guns unmolested.
In other words, you can imagine a world where our Army is a glorified police force and our commanders face prosecution for fighting a real war.
That describes our wars in Iraq and Afghanistan.
Rules of engagement are separate from — but related to — the actual law of armed conflict. The law of armed conflict (LOAC) is a comprehensive, complex body of law developed largely by the Western powers in an effort to render war more humane. Its principles are relatively simple — designed to limit the use of force to military targets and to treat captives with proper care and respect — but have become almost mind-numbingly complex in application. The Department of Defense’s new Law of War Manual stretches to a staggering 1,176 pages and purports not just to define general principles but also to govern specific applications in a granular level of detail. But no soldier, no commander, and indeed few military lawyers can master these rules in all their complexity. And so they learn generalities.
In his introductory letter to the Law of War Manual, Department of Defense general counsel Stephen Preston declares the law of war to be “part of our military heritage” and says that “obeying it is the right thing to do.” He further argues that the doctrines are no impediment to “fighting well and prevailing.” In other words, these legal doctrines are said to allow American soldiers to fight under the highest of moral standards and still win wars.These are noble principles, but unfortunately their applicability peaked more than a century ago, when warring states in Europe — exhausted by the Wars of Religion — fought battles on open fields between militaries wearing the most distinctive of uniforms. Think of the battle of Waterloo in what is now Belgium or, here in the United States, the battles of Gettysburg and Chancellorsville. The United States hasn’t fought a conflict governed by the law of war in almost a century. Indeed, just as the law of war is part of America’s military heritage, so is the modern concept of “total war” — a nation mobilizes its full resources to destroy not just the military of an opposing country but also its very capacity to wage war. America’s enemies, moreover, have consistently and flagrantly disregarded the laws of war.Arguably, the United States has not fought a nation that substantially complied with the LOAC since it squared off against the Germans in the trenches of Western Europe in World War I. Instead, both the regular armies (Nazis, Japanese, North Koreans, Chinese, and North Vietnamese) and the insurgencies (Viet Cong, Taliban, and al-Qaeda) have brazenly violated the law at every turn.The modern result is a military farce. American forces play by the rules while our enemies exploit those same rules to limit our freedom of action, create sanctuaries where they can rest and rearm, and then launch international propaganda campaigns when our painstaking targeting proves to be the least bit imprecise.Yet — and here’s the crucial point — through their rules of engagement, American soldiers don’t just comply with the law of war. They go beyond the requirements of the LOAC to impose additional and legally unnecessary restrictions on the use of military force. Rules of engagement represent true war-by-wonk, in which a deadly brew of lawyers, politicians, soldiers, and social scientists endeavors to fine-tune the use of military force to somehow kill the enemy while “winning over” the local population even as the local population is in the direct line of fire.Here’s the final irony of our concern for the laws of war and civilian casualties: Our rules of engagement not only create an additional incentive for enemy law-breaking, they ultimately lead to mass-scale civilian casualties at the hands of unconstrained jihadists.
Fully aware of American restrictions, enemy fighters not only refuse to wear uniforms, they often do their best to blend in with the civilian population, eschewing distinctive dress, armbands, or any other insignia that brands them as members of a terrorist militia. Rather than congregate in isolated outposts, they cluster in mosques, around hospitals, and even in private homes. While such tactics are frequent in guerrilla warfare, they are neither legal nor moral, and our jihadist opponents have reached appalling lows even by the rough and brutal standards of insurgencies.To be sure, reforming the rules of engagement will not by itself lead to American victory in the War on Terror, particularly because it confronts an amorphous group of violent religious ideologues rather than a fixed set of powers. But reforming the rules of engagement will make the American military more effective wherever and however that happens.