An unspecified (and unclear) debate about the Rules of Engagement in Syria

In a lead story today, the Washington Post reports that France, the U.K., and Iraqi commanders are all “chaf[ing] at” or “complain[ing] about” the United States Rules of Engagement (ROEs) for the air campaign against ISIL in Syria, and that the State Department is “push[ing] for increased flexibility.” But the story doesn’t tell us just what those ROEs are, or what the alleged debate is all about.

ROEs often impose limits on the use of force — both substantive and procedural — above and beyond what the laws of war require. They are, for that reason, among the most important sources of law governing the conduct of war — and yet they are also almost always classified and very closely held, at least outside the Department of Defense. Not surprisingly, then, the Post story does not offer many details about the Syria ROEs.

The Post article does, however, report one rule: According to the story, whereas most targeting decisions “are made by the general on duty at the Joint Operations Center in Baghdad,” if the anticipated collateral civilian casualties would be above a certain level, the decision “can” be “bucked up to a more senior officer or to the Tampa-based Central Command, where teams including officials responsible for legal, operational or engineering issues can weigh in, or even to Washington in extreme cases.” This appears to be a procedural rule of higher-level approval (and “proportionality” assessment) in cases where there could be significant civilian casualties. That’s not especially unusual — not for this President, anyway — and it’s almost certainly a laudable guideline or mandate. (The story isn’t clear on whether “bucking up” the decision to higher command is required or optional.) This could be what the French, British and Iraqis are complaining about — but the story does not say.

Alternatively, the debate might be about any substantive limits the ROEs impose, above and beyond the law-of-war requirement of “proportionality.” If so, however, the Post story doesn’t make that clear — indeed, it doesn’t even say whether the ROEs impose any substantive rules beyond what the laws of war require; and several of the passages and quotations in the story make it sound as if what’s occurring is simply a discussion about standard-issue proportionality assessments, and/or about requirements to use “mitigation measures” to strike at a target in a manner that would reduce the risk of civilian casualties–such as that “an urban target might be struck at night, rather than in the daytime when more civilians are present; the calculation would be the reverse in a residential area.”  (Such choices might even be required by the law-of-war principle of necessity in some cases:  Where there is little or no difference between two options in terms of military advantage, it might be impermissible to choose the option that risks greater harm to civilians.)

All of which is to say that there’s no real way to assess the merits of either “side” of what the Post calls the “internal debate” without much more information about the precise nature of the disagreement.

Finally, as Kevin Heller correctly notes, the Post story leaves an unfortunate misimpression about what the laws of war allow. The story states that “[i]nternational law allows for civilian casualties, even intentional ones, providing an action is within the bounds of distinction and proportionality, a somewhat subjective judgment that the military importance of the target is worth it.”

The final clause is a pithy shorthand for the rule of proportionality. That rule prohibits an attack if it may be expected to cause incidental [i.e., unintended] loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, that would be excessive in relation to the direct and concrete military advantage that is anticipated to be gained from the attack. Most of the Post story appears to be discussing how U.S. commanders make such “proportionality” assessments.

The story is dangerously misleading, however, in suggesting that “[i]nternational law allows for . . . intentional” civilian casualties.  Deliberately targeting civilians, or civilian objects, isn’t merely subject to the rule of distinction — it violates that rule, and thus is never permissible, except in rare cases where the civilians are then engaged in direct participation in hostilities (which I presume does not describe the situations at issue in Syria).  Presumably, the authors meant to say instead that “[i]nternational law allows for foreseeable but unintended civilian casualties, provided that such expected civilian casualties are not excessive in relation to the direct and concrete military advantage that is anticipated to be gained from the attack—a somewhat subjective judgment that the military importance of the target is worth it.” 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).