Thoughts on two of the MOD’s contentious rules of engagement in Afghanistan

Fighting a war against an adequately mobile and frequently invisible insurgent force must be immensely frustrating for any regular soldier. You are constantly being harassed when at your most vulnerable, perhaps when only a couple of you are on sentry duty. You may find yourself exposed to sniper fire or a roadside bomb on a routine supply drop, or you might even tell yourself that the bearded goat herder-cum-insurgent who attacked your company last week has now shaved it off and is posing as a trader in the local bazaar. The enemy is clever and knows that they cannot possibly win a pitched battle, but hope that their attritional strategy of wearing you down by picking off your soldiers in grisly ambushes and crude bombings will weaken your morale and, eventually, your resolve to fight.

Furthermore, the neighbouring sovereign territory of your ally is being used as a porous border for thousands of enemy combatants to come and go as they please, where they can find sanctuary and an operational base to plan future attacks. You thank your lucky stars that your military has the monopoly of the skies and superior intelligence gathering and, if needed, missiles to strike at discrete enemy troop formations behind enemy lines. And then there is the civilian population to try and win over. They are war weary, unused to anything but internecine strife and bitter civil war, and their hostility towards foreigners has been exacerbated by two external military occupations in the last thirty years. Sometimes unable to subsist from day to day, and constantly in danger of having their property destroyed, a family member killed, or their children forcibly conscripted into the resistance, these people will willingly back the side that can guarantee a modicum of security and bring back even a semblance of law and order. Noble aims to provide these people with electricity generators, steel bridges, shiny new schools and hospitals now look like a distant utopia, and public support back home is on the wane. Will the enemy have to be included in a negotiated political settlement, or can the recently created state institutions hold together and contain the insurgency?

These types of considerations must be at the back of every soldiers’ mind as they contemplate the future in Afghanistan; but a couple of recent revelations about the rules of engagement in this theatre will only add to their concerns, for the MOD seem to have tied one hand behinds their backs just as the summer fighting season gets underway.

First we learn in The Sunday Times on 19 June that a British Special Forces soldier is due to be hauled before a Military Tribunal for punching a Taliban combatant in the face, after the latter had just ambushed his company and was trying to flee in a customary hit and run assault. The soldier has resigned in disgust at the prospect of getting a court martial for engaging in hand-to-hand combat – something he is surely expected to do now and then when he comes face-to-face with the enemy. Secondly, it has now also come to light in the recent inquest into the death of Sgt Peter Raynor that it is MOD policy not to shoot insurgents planting roadside bombs because (a) they are not considered an immediate threat and (b) it could endanger civilian lives. Instead soldiers are instructed to observe the position of the bomb and can only fire if the insurgent refuses to surrender (see The Daily Telegraph, 8 July 2011). Gone is the element of surprise that is crucial in combat and gone, so it seems, is a vital opportunity to reduce the number of British casualties in Afghanistan.

But without knowing the full facts of the first case one can still guess why a British serviceman has been ignominiously placed in such an absurd position and why, in the second case, soldiers are being ordered by their superiors to refrain from firing on enemy combatants planting IEDs. The question is where do we draw the line between common sense and dispassionately enforcing legally binding rules of engagement.

The attempts to regulate the rules of war on land and sea have been a noble aim of European nations since the nineteenth century, starting with the 1864 Geneva Convention, where the International Committee of the Red Cross, appalled at the carnage of the Franco-Austrian War of 1859, successfully lobbied fourteen European nations (Britain not being one of the signatories) to convene a conference to agree upon an international agreement for the rules of war concerning ‘the amelioration of the condition of the wounded on the field of battle.’ However, no attempt was made to regulate the conduct of soldiers on the battlefield until the First Hague Convention of 1899. By this time the Franco-Prussian War of 1870-71 had raised some awkward questions about who should be considered a combatant and who should be dealt with outside this definition, not least because of the partially successful resistance of the Francs-tireurs. This irregular, plain-clothed militia continued to fight on against the occupying German army throughout 1871 even though Napoleon III had abdicated and the French regular army had been put out of action at Sedan a year before. Their harassment strategy of blowing up bridges, derailing trains and ambushing the occupying garrisons perplexed the victorious Prussian army, and the Francs-tireurs were subsequently treated as highwaymen, saboteurs and spies, rather than as regular soldiers. Consequently, village mayors and other prominent people were taken as hostages on military trains to prevent attacks on supply lines; whole villages were ‘pacified’ with collective punishment in response to attacks on German soldiers; and many suspected irregulars were executed without trial.

Article 50, Section 11 of the 1899 Hague Convention tried to address the dilemmas generated by the novel Francs-tireurs resistance and clearly anticipated that guerrilla war would need to be brought within the orbit of international law. No longer could collective punishment be used as a reprisal for the acts of individual saboteurs and Article 2, Chapter 1 granted legitimacy to those who took up arms spontaneously against an invading force so long as they respected the laws and customs of war. However, the bitter experiences of the British Empire armies in the Boer War of 1899-1902 showed that irregulars could wreak havoc on an occupying army through various subterfuges of civilian disguise, espionage and abusing the white flag of surrender. The Second Hague Convention of 1907 subsequently altered Article 2 so that irregular belligerents not only had to follow the laws and customs of war, but also had to carry arms openly. Many an officer breathed a sigh of relief after this, knowing that it could place tens of thousands of enemy fighters outside of military law in the event of war.

The horrors of World War One in which more than 8.2 million mobilised soldiers lost their lives between 1914 and 1918 understandably led to more moves to regulate war, indeed the 1928 Kellog-Briand Pact even sought to outlaw war as a means of settling disputes between nations states. But the Great War had also left a legacy of poison gas, tanks, flame-throwers, fighter planes and racial hatred. The rise of Nazism and Hitler’s widespread belief that nations were like belligerent animals locked in a fight to the death for the privilege of existence lent a novel exterminatory impulse to warfare that had not been seen in Europe since the Roman Emperor Trajan destroyed Dacia (modern Romania) in 106AD.

Carl von Clausewitz, the much-revered nineteenth-century Prussian war theorist who believed war to be a continuation of politics by other means, continued to cast a shadow over the interwar years, and his assertion on page 6 of On War that ‘to introduce into the philosophy of war itself a principle of moderation would be an absurdity’ was certainly born out in Hitler’s instructions to Albert Forster and Arthur Greiser to Germanise Poland by whatever means necessary, with no questions asked. This was the type of warfare that could be described as a race to the bottom in which the more morally scrupulous adversary would eventually be defeated. The consequences were horrendous and rightly shook the entire western world into placing human rights at the cornerstone of their civilisations.

Clausewitz famously warned that ‘in such dangerous things as war, the errors which proceed from a spirit of benevolence are the worst (p.6).’ But the post-WW2 age has seen an unprecedented attempt by the world’s liberal democracies to place benevolence, magnanimity and moderation above all other considerations in the conduct of modern war. The United Nations and the Fourth Geneva Convention of 1949 have gone to great lengths to legally protect civilian persons in time of war, but this grandiose achievement has masked the real anxieties beneath the rhetoric – the pace of scientific innovation has far outstripped our notions of morality, to the extent that the latter can hardly keep up with the changing dynamics of war.

Britain’s most famous war theorist Basil Liddell-Hart was partially right to proclaim that the invention of the atomic bomb changed the nature of war irrevocably. In his view, scientists would ultimately win future wars between powerful states, thus rendering war as a means of measuring racial strength redundant as a concept. Battles would no longer be dependent on the number of bayonets in the field, but by the best concentration of intellectual minds available. The Stuxnet virus used to infect Iran’s uranium enrichment plants last year, presumably coded by either the Pentagon or Mossad, is only the most recent example of how fixed notions of morality are constantly being upended by unforeseen developments. Are the ingenious minds behind the execution of Stuxnet to be classed as combatants responsible for causing mass damage to a nation’s infrastructure without an official declaration of war? Or are the Generals issuing the orders to be liable? The response from Iran suggests that it is tacitly acceptable as a means of prosecuting war, for there have been few threats to retaliate or to report the suspected agency behind it for destruction of property.

All of this is even more prescient with regards to Afghanistan and the war against the Taliban, for this savage organisation is about as far removed from the post-war scientific era of war envisaged by Liddell-Hart as one can imagine. Their brief rule between 1996 and 2001 was arguably the most extreme attempt at ruling an internationally recognised sovereign nation-state (albeit a multi-ethnic, fractured one despoiled by continuous war from 1979 to 1994) in the last three hundred years. Women were reduced to the status of chattel, without any political rights, denied any form of education, barred from the workplace, and forbidden from leaving the house unless accompanied by a male relative. The consequences of this bizarre fixation with micromanaging the daily lives of the entire female population were lethal. Women could only see a male doctor if fully clothed (useless for a lot of diagnosis) and the employment restrictions meant that only an infinitesimal number of female doctors and surgeons were allowed to operate all-women clinics. If this was not bad enough, any woman brave enough to travel alone without a male relative could expect to be severely reprimanded, possibly shot, even if she found herself nursing a feverish child desperately in need of immediate medical attention down the road. Those women who had survived their male relatives during twenty years of conflict in which tens of thousands of men died were practically non-people; they had no means of leaving the house unless they married into another family and aligned themselves to the males of their new kin.

Freedom of assembly, freedom of employment, freedom of religion – all these were ruthlessly suppressed under Mullah Omar and his underlings, as the Shiite Hazara population in the north of the country found out when conquered by the expansionist Pushtun Taliban in August 1998. Avenging a military defeat to the Hazaras in May 1997 in which 600 Taliban soldiers were killed and over 1,000 taken prisoner, the Taliban’s response a year later was predictably furious and remorselessly savage. Anywhere between 2,000 and 5,000 men, women and children are estimated to have died in a two-day orgy of genocidal ferocity in which the dead were left to rot in the streets for six days. Naturally, the Shiite heretics were not entitled to a burial under Islamic custom because they were no better than infidels to the Deobandi-Islamist Taliban. Neutral charities like the Red Cross, concerned solely with providing succour to the victims of Taliban brutality, were also regularly attacked in what is only one of many grave violations of the internationally recognised customs of war to which the Pushtun Jihadists have never given any continence.

Three years later in March 2001 the magnificent Buddhas of Bamiyan statues ingeniously carved into the valley cliffs of Hazarajat in the sixth century were dynamited on the orders of Mullah Omar. A more flagrant act of cultural terrorism has probably not been seen since the Christian Roman General Stilicho destroyed the Sibylline Books of ancient Rome in 405AD. Yet the Taliban curiously attempted something that was at odds with their anti-modern weltanschauung – they tried to create a more centralised state by eliminating the power of village elders and subjugating the various warlords who had run their own feudal provinces since the exit of the Soviet Union in 1989. Intellectual opinion is still divided as to whether the Taliban was at this time an ethnic nationalist movement, but in theory Islam permits no such factionalism, for the (alleged) Prophet Mohammed ordered that the whole world be brought under the Dar al Islam, with no exceptions made for race, tribe or kin.

Clearly, the Taliban regime of the 1990s would have been identified as spectacularly barbaric in the age of Charlemagne, never mind at the beginning of the twentieth century when the Heads of State of the various Christian superpowers signed up to the Hague Convention. The international rules of engagement for fighting an irregular militia or guerrilla army are still ambivalent, but the protection of civilians remains paramount. Presumably there are two reasons why the two cases mentioned at the beginning of this blog have come about.

1. Because the ambivalence of international law on fighting irregular insurgents has created the need for the British Army, like all national military institutions, to create its own rules of engagement in addition to the regulations laid down in Geneva and Hague.
2. The MOD’s counter-insurgency strategy to win the hearts and minds of the civilian population takes, as its priority, the protection of civilians rather than the killing of enemy combatants.

Article 23, Section 11 of the 1899 Hague Convention states that ‘It is especially prohibited… to kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion.’ However, as Dave Grossman pointed out in his excellent study On Killing: The Psychological Cost of Learning to Kill in War and Society (1995) this regulation is open to a wide margin of interpretation. A lone sniper devoid of any support, his comrades having been killed off, has plenty of opportunities to surrender and lay down arms to an advancing platoon of soldiers. But he cannot abuse his right to surrender unharmed if he only pleads for mercy after completely exhausting the last of his ammunition supply. By this time he and his dead comrades might have killed 20 people in the opposing platoon, despite being surrounded, and having numerous assurances that they would be guaranteed safe conduct by laying down their arms. It would be dishonourable and indeed insulting if he, the last lone survivor, offered to surrender only at the last moment before the bayonets were on to him. This is a case of ‘Sorry, mate, but you had your chance to wave the white flag long ago and you can’t have your cake and eat it.’

Likewise, any soldier caught during both world wars with a flame-thrower could expect no quarter to be given because of the gruesome method of killing he had used on his opponents. Presumably no body has ever been prosecuted for killing a surrendering feurwerfer because a defence under international law can easily be produced in Article 22, Section 11 of the 1899 Hague Convention where it stipulates that ‘The right of belligerents to adopt means of injuring the enemy is not unlimited.’ This says to me that the unfortunate Special Forces soldier subjected to a court martial is not the victim of international law; even worse, the grounds for his prosecution lay in the rules of engagement of his own army. The notion of military honour between soldiers, that unspoken code of conduct that can be found in most theatres of war between adversaries, has not been taken into account by an MOD overzealous in its caution. I strongly doubt that the Taliban fighter instigated a complaint against his opponent and I am reasonably confident in predicting that he probably accepted the punch as a legitimate action in response to him attacking the British soldier.

Instead, a witness to the fracas has probably brought a complaint against a British officer because he was either present or heard about the incident later. The ultimate tragedy in this is that the British rulebook probably does not anticipate such a complaint, but cannot remain obviously impervious to one when it is brought before a Military Tribunal for consideration. The pedantic idiocy of a British soldier concerned with the rules of war, momentarily ignorant to military honour and the time-honoured unspoken rules of combat between adversaries, is probably the real villain in this case and not the clumsy attempts of the MOD to further define the rules of close combat. Either way, a member of the Special Forces feel rightly victimised for something so trivial, and the temptation is to see the ‘grass’ as an alarming symptom of our politically-correct, morally-relativist, multi-cultural society which no body seems to like but which continues to splutter along in the name of higher morality and progress.

With regard to the MOD’s instructions to soldiers to refrain from shooting at Taliban fighters caught planting IEDS, there is nothing in international law that would make it illegal. Any insurgent observed burying various components of a home-made fertiliser bomb is presumably identifiable as a belligerent under Article 2 of the 1907 Hague Convention for carrying arms openly. If anything, he could be treated as outside of the law because he fights for an organisation that has never at any point observed the laws and customs of war. Let us not forget that the Taliban post-2002 have brought warfare to a new moral low point not seen since the Nazi occupation of Eastern Europe. Trying to govern a shadow administration in the south they have retained their customary enthusiasm for terrorising villages, even going as far as beheading Abdul Habib, of the Sheikh Mathi Baba School in Zabul province in January 2006. His crime was continuing to teach girls despite being warned of his immoral conduct on a number of occasions. (See NY Times, 4 January 2006.)

The IEDs that now litter the barren lands of Afghanistan may be occasionally successful in killing NATO soldiers; but they are far more effective in killing Afghan civilians, for the Taliban killed a total of 1,859 civilians in 2010, up 132% on 2009. (See www.usatoday.com for a full rundown of independently verified statistics.) Revelations from June 10 2010 in a Daily Mail report that Taliban bomb operatives sometimes bury contaminated needles beneath their bombs to infect British disposal experts with HIV are almost as inhumane as the recent images of Uyghur Children as young as five being trained for suicide attacks on NATO soldiers from a base in North Waziristan (see The Daily Mirror, 10 July 2011). Yet despite this, the rules of engagement do not need to be abandoned for the anything-goes strategy of eliminating the enemy, and it would be barbaric and counter-productive if they did.

Mao Ze Dong may be remembered in the west for reunifying China, imposing communism on the country and leaving more than 10 million of his fellow comrades dead through starvation and forced collectivisation of agriculture, but he also wrote a masterful account of how to prosecute guerrilla war efficaciously. One of his key strategies was never to torture captured soldiers, for it would be less likely to induce the enemy to surrender or defect. This is quite a remarkable sentiment considering that the Japanese inflicted unspeakable atrocities on Chinese soldiers and civilians during the Second World War. It would be disastrous for British counter-insurgency policy if British soldiers were allowed to let their emotions and moral repugnance at the treacherous behaviour of their opponents dictate their conduct in battle, yet allowing the soldiers to do their job properly by killing enemy bomb operatives is hardly likely to lose the goodwill of innocent civilians.

I doubt whether this would even be an issue if the Taliban had not cleverly resorted to paying farmers to dig holes for their explosive devices. It is also customary for some Pushtuns to dig holes at the side of riverbanks to store meat because of a lack of refrigeration. The death of a helpless peasant is a propaganda victory for the Taliban and the British rules of engagement are right to insist that, if unsure, soldiers should approach the suspect to establish that he is only digging a hole and not planting a bomb. However, the confusion lies in what to do when an enemy fighter is observed 100 yards away burying an IED. Quite why this confusion exists is ridiculous. It is legal under international law and it is common sense to eliminate an armed adversary if no civilians are endangered.

My guess is that in the majority of cases the British soldier will fire once he has definitely established that the combatant in the line of fire is laying down an IED and is not a helpless peasant coerced into digging a hole. This is not immoral, nor should he expect to be punished for killing a man without prior warning who seeks to attack his fellow soldiers. Furthermore, there is a higher chance that the IED will kill civilians rather than combatants, as the statistics for 2010, quoted earlier in this blog, make perfectly clear. And what is the coerced farmer to make of things if he is allowed to dig holes for Taliban bombs, simply because he was forced into doing it? He is highly unlikely to think about resisting the Taliban in the future if he knows that his actions will go unpunished. He may even find it more convenient to offer his allegiance to the Taliban knowing that they are more likely to provide him with the security he craves, but which the secular state builders occupying his country cannot guarantee.

Including the Neanderthal Taliban in a political settlement is going to be near impossible, but it is important that we do not make our soldiers expendable now that the politics have taken over and an exit strategy appears on the horizon. There is nothing to suggest that prosecuting British soldiers for fighting hand-to-hand with enemy fighters will become more frequent in the future, and the case examined here seems to be the result of a misguided compliant, perhaps even brought by a soldier with a personal axe to grind against a rival. We can only hope that the spirit of military honour and common sense persists in situations where those caught red-handed planting bombs are to be confronted, even if that includes ignoring a contentious rule of engagement and shooting the adversary without warning. Perhaps the officers will not see it as mendacity, but as a correction to an absurd regulation. If so, it raises the classic moral dilemma: is it ever acceptable to cover up the truth?