One thing is clear in life: You know your enemy. At least, you think you are sure. But there are times when you are caught off guard and blind-sided. But that is usually the rare occasion. The next question is obvious: If you know your enemy, are you legally and morally entitled to eliminate that threat before you are attacked? Or rather, are you legally “or” morally entitled to move forward?
What is also interesting within this sensitive topic is the world’s reaction to preemptive strikes. And that generally follows the useless saying that one person’s freedom fighter is another’s terrorist. To place that issue permanently aside– it is clear who is a terrorist by the simplest of definition. The moment you attack a civilian target –a bus, a school, a shopping market, a café, a housing project you are, by definition, a terrorist. Period. But: What if civilians are within the proposed targeted area? The answer to this question was changed in part from the moment I started to write this Commentary to the time of its final edit.
When civilians are within a targeted area, the “rules of war” or “rules of engagement” fall into place. And here, it is easy to turn to the international promulgated rules and treaties. In 1859, a Swiss business man, for reasons unknown, visited wounded soldiers after the Battle of Solferino in the second war for Italian Independence. He was shocked by the physical and medical conditions of the soldiers and, in particular, the lack of medical help on the battle field. The battle itself was horrendous and resulted in thousands upon thousands killed and tens of thousands wounded in only a nine hour battle. In particular, there were scores of reports of dying and wounded soldiers shot or bayonetted while they lie injured on the battle field. He went home and wrote of his experience of the horrors of war. His book propelled the acceptance of international treaties to provide relief during war and won him the first Nobel Peace prize in 1901. During the past 70 years, the main victims of all forms of war have been civilians.
In today’s world of horrific air and drone strikes and bombings from miles high in the sky what of those who live in a battle zone and wish to merely survive the violence of war. They are not combatants; they are caught in the colloquial cross-fire of being in the wrong place at the wrong time. You’ve seen their pictures. And you get angry.
These people are “non-combatants,” and that word is considered a “legal term of art” “in the law of war”. A non-combatant is generally described as a civilian who is not taking a direct part in the hostilities, not aiding the combatants in any form and who is not willing being used as a shield for one of the combatants. These civilians have been recognized as protected since the inception of the First Geneva Convention of 1864. To illustrate the extent to which protection is afforded a “non”-combatant: A pilot or any military aircrew member (a combatant!) whose plane is shot and crippled, and thus forced to parachute to safety, is no longer a combatant and cannot be attacked (shot at) while parachuting to the ground notwithstanding whether the landing area is hostile or not.
The International Humanitarian Law looks to the protection not of combatants but of those civilians caught in the midst of conflict or who are living under the rule of the enemy’s forces. They must be protected against all forms of violence and this means not only by the enemy under which they live but by those attacking the enemy. All care must be in place to protect the innocent civilian within a war zone, who is not aiding the enemy in any form or fashion. Thus, when we or any other country attacks its enemy, one condition of the armed attack is protection of the civilian population not “engaged” with the enemy.
Hundreds of women and children were killed in west Mosul March 17th. The Americans bombed the area as part of their cooperation with the Iraqi army against the Islamic State. The tragedy did make the headlines. The question then becomes are we—the United States—war criminals? Not to be callus—“mere” civilian death during combat does not justify that charge. What were the circumstance of the planning and execution of that bombing raid? Was the bombing “a disproportional response” to what was transpiring on the ground? Did we know of the civilians in the area and how close they were to the targeted area?
The top US commander in Iraq said “there’s a fair chance” that a U.S. airstrike in west Mosul killed civilians on March 17. Evidence also reveals that there were multiple strikes in the area. As I began to write this commentary, an internal U.S. investigation is ongoing to determine why and how the deaths of civilians occurred. More of this in a moment to show the problem with air strikes, however pinpointed they may be with non-combatants in the vicinity. As with Mosul, the residences in the northern Syrian city of Raqqa live in a trapped ISIS environment. Raqqa is the ISIS de facto capital. ISIS has laid a belt of land mines circling the city. Inside the city all men have been directed to wear jihad clothing so as to make it almost impossible to determine who is and who is not an ISIS member. In effect, ISIS has created a massive human shield. How do you target your enemy?
What we do know at this moment –March 31st — there is an investigation into the March 17th air attack; and that air surveillance reveals that ISIS was smuggling civilians, sight unseen into buildings within the City, then bait the coalition forces to attack. In this instance, the civilians were not used as traditional shields—equally despicable. It has been admitted that civilian casualties are “fairly predictable” given the densely populated areas where the ISIS fighters have dug in. One thing has changed as of March 31st. Last week, it was announced that the American rules of engagement have not been loosening when it comes to accepting the concept of civilian fatalities. Lt. General Stephen Townsend publicized that the military has not decided to tolerate greater risk of civilian casualties in its airstrikes. That changed on March 31st at least in the shielding of civilians in Somalia. President Trump has sign-off the Army to “prosecute targets in a more rapid fashion.” There must be, the Trump directive describes, a permitted airstrikes if there is “a reasonable certainty” that no civilians will be hurt. This is less stringent than the “near certainty” standard issued by President Barack Obama in 2013 as a Presidential Policy Guidance that is still applied elsewhere. The Obama standard requires high-level, interagency vetting of proposed airstrikes and the target has to pose a direct threat to Americans. Under the Trump guidelines, as described in the press, Somalia would be considered a less-restrictive battlefield and the target chosen would be based upon the target’s “status” “without any reason” that this particular target would give rise to a direct threat to Americans and that some civilian bystander deaths would occur even if the attack was proportionate.
And then the conundrum in world politics kicks in. The United States conducts a strike and the world “discusses” the appropriateness of the strike and whether it comports with the accepted norms of warfare and engagement. When Israel targets a terrorist (not a freedom fighter!), the world discusses “war criminals”. The United States Joint Chief of Staff Martin Dempsey has sent his senior officers to Israel to study the methods to which that country has gone (quoting his words: “extraordinary lengths”) to limit civilian casualties, and yet his strong military approval did not lower the “the level of hostility toward Israel”. This anti-Israel hostility continues, notwithstanding the openly published Hamas guidelines ordering its members to “operate from within civilian populations…to increase the number of innocent casualties.” The reason is obvious. The political conclusions are obvious.
It is difficult to reconcile or accept the loss of civilian lives —those very innocent people that get caught in the center of a military conflict. It is easy to say: but that is the “cost of war”. As I mentioned earlier, in the last 70 years the loss of innocent lives in our wars and the wars between other nations has cost unacceptable large number of civilian, non-combatant lives. Shall we, along with the Israelis, continue the strikes against those who would harm us? The “preemptive strike.” The airstrike against an enemy. Do we send a drone to eliminate a terrorist or ISIS leader? Do we have a legal right to do so? The answer is clearly: Yes. Is there a moral obligation that prohibits us from engaging in an activity that puts civilians at risk? The answer here is not a simple yes or no. The answer is that as long as we have in place the mechanism that can identify the non- combatant in the strike, that the strike is not over-kill or disproportionate, that we take all reasonable precautions to protect the non-combatant– then we have both a legal and moral right to protect our citizens and those that depend upon us for their lives.