Published in The Washington Times November 27, 2006
  
The October 30 attack by Pakistani helicopter gunships on a religious school, killing 80 terrorists, and the opportunity denied for US forces to conduct a similar attack in Afghanistan earlier suggests an ambiguity exists in the laws of war (LOW) and a need to revise them to provide our forces with additional tools with which to maximize their fighting capabilities.

In July 2006, aerial reconnaissance in Afghanistan observed 190 Taliban fighters in the open.  Rarely have so many enemy fighters assembled so openly leaving themselves so vulnerable.  No civilians were present so an attack would have avoided collateral damage and the loss of innocent lives.  Yet the enemy combatants could not be targeted, rightly so under existing LOW or, more appropriately the Rules of Engagement (ROE), as they were assembled for a funeral.

Both situations involved enemy combatants in locations protected by such rules and thus not targetable, unless an exception, based on enemy activity, removes the protection.  In Pakistan, the terrorists were in a religious school; in Afghanistan, a cemetery.  In Pakistan, intelligence revealed the school was being used as a terrorist training camp, thus removing it from a protected status.  Clearly terrorists have learned to take advantage of protected sites in violation of the LOW and were most likely doing so in this instance.  But, what if the school was also being used, periodically, for its intended, and protected, purpose?  If such were the case, arguably protection would have vacillated with usage.  Similarly, the Taliban in the cemetery were protected while burying a fallen comrade; but what if they lingered afterwards to discuss combat operations as was most assuredly done? Would not that have similarly taken them out of a protected status?  If targetability turns on enemy intentions, that is a difficult qualifier for a distant observer to ascertain.

The LOW represents an embodiment of various moral, ethical and legal principles that have evolved over centuries of warfare.  In their simplest form, they reflect the Golden Rule of doing unto your enemy as you would have him do unto you.  These laws have evolved over time out of a sense of conviction and hope that enemies sharing diverse cultural mindsets can, nonetheless, adhere to a battlefield culture of mutual respect for various time-tested principles in the conduct of combat operations.

Battlefield conditions have been affected over the years by the introduction of new tactics or technologies, requiring revisions to the LOW.  For example, as the role of the aircraft evolved, a specific situation in which a combatant could find himself extremely vulnerable on the battlefield had to be addressed—i.e., could a combatant parachuting out of an aircraft be taken under fire during his descent?  The answer turned on the intentions of the parachutist.  If a pilot was ejecting from a disabled aircraft, his sole intention in descending is one of self-survival and, therefore, he cannot be targeted; if, however, he is a paratrooper, his intention is to fight upon reaching the ground and, therefore, he can be targeted.  Such a distinction seeks rationally to bring order to the chaos of battle.

Five years after 9/11, it should be clear to us in fighting the Global War on Terrorism (GWOT), we are encountering an enemy unlike any we have ever engaged.  The Islamofascist has no concept of the warrior culture of mutual respect for human life under certain battlefield conditions and is incapable, due to the cultural mindset in which he was bred, of ever understanding it.  In fact, his lack of respect for human life is wielded as a new tactic with which to instill fear in his enemy.  While evolution of the LOW/ROE recognizes cultural differences of opposing forces on the battlefield can result in occasional violations, it is doubtful it ever envisioned an enemy using such violations as an outright strategy in fighting a war. It is for this reason the initiative should be taken to review the LOW/ROE with an eye towards modifying, where applicable, laws to provide more liberal interpretations to enhance the capabilities of civilized forces in combating uncivilized ones.  Failing to do so only limits our warfighting capabilities while furthering those of an enemy who respects us even less for our exercise of self-restraint to preserve human life in combat.

There will be critics who suggest any expansion of enemy targetability effects a corresponding dilution of our higher, principled beliefs, making us no better than the barbarian we fight.  Such arguments are meaningless to families of victims killed by the 190 Taliban who have gone on to fight what has since been described as “the most intensive conduct of the war.”  Because we felt honor bound not to attack, these thugs lived to fight and kill another day.

A popular 1980s TV police show would begin each weekly episode with the sergeant briefing his officers.  Concluding his brief with an admonition about the bad guys, the sergeant would say, “Now let’s go out there and do it to them before they do it to us.”  This is exactly what we need to be doing for our troops—fully empowering them under the LOW to do so in our fight against an uncivilized enemy who honors no bounds.