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Rules of Engagement

By now I’m sure you’ve seen the absolutely horrific video leaked by WikiLeaks. If not, I’m posting it below. I think it’s your civic obligation to watch it.

What you should also see, however, is this fine article published in the New Yorker explaining the rules of engagement. I’ll also post some excerpts from that article beneath the video; including, ultimately, my own commentary.

The author of the article, Raffi Khatchadourian, addresses the legal dimension (and I strongly suggest you read his full commentary). If you’ll permit, I’ll try to flesh out the pre-legal or philosophical dimension of his points, offering a few short justifications for the laws. While you’re thinking about these issues, you may consider turning to this considerably more juicy entry on just war theory in the Standford Encyclopedia of Philosophy.

Bulleted points in green are Khatchadourian’s:

• Proportionality. A longstanding feature of the Law of Armed Conflict, which has been incorporated into the Army’s Rules of Engagement, is the concept of proportionality: all military action must be necessary and proportional to a given threat. This means that soldiers cannot legally shoot down a couple of young teenagers who are throwing stones at a tank. It also requires that soldiers judge, sometimes under difficult circumstances, the advantages of an operation against the potential collateral damage. (The advantages must outweigh the estimated loss of civilian life in order to proceed.)

The standard of proportionality is a legal rule stemming from the non-universalizability of disproportionate force. It is related to a problem in the punishment literature; namely, as John Rawls says (roughly), justifications for punishment are not justifications for forms of punishment, or something very close to that (Two Concepts of Rules, 1954).

Simply because someone may be doing something wrong is not reason enough to warrant disproportionate punishment or violence against the wrongdoer. If Joe steals a pack of gum, this does not authorize his hanging. If Mary cavorts with criminals, this does not authorize gunning her down. To imagine that it does is to introduce the prospect that any wrongdoing whatsoever, no matter how minor, authorizes execution. As we all know, wrongdoing comes in many forms and guises, from speeding violations to premeditated murder.

• Positive identification. All soldiers must “positively identify” a person whom they intend to kill as a legitimate combatant. According to the Rules of Engagement, this means that there must be a “reasonable certainty” that the person is displaying hostile intent, or is behaving in a hostile manner, before soldiers may attack.

The positive identification requirement stems from a concern over arbitrariness. Plainly, one ought not to engage a person on mere suspicion that he is a soldier. One must confirm such things. This has always been the case even in past wars, where battlefields were specified, but it is even more true now.

Back in the day, the rule was intended to ensure that soldiers didn’t kill their own through friendly fire. The rule should be simple enough: don’t shoot people who aren’t the enemy. Battlefields can be foggy, and it serves nobody’s purpose, certainly not your own, to shoot your own people. You lose your army faster that way. It’s bad for that reason.

But it’s also wrong for universalizability reasons, Hobbesian and (roughly) Kantian: from the Hobbesian vantage, you certainly don’t want to be a soldier who charges out on the battlefield only to be shot down by your own forces. That’s a bad, bad contract. From a Kantian vantage, to permit firing without positive identification effectively permits wanton and reckless firing against any and all living entities, including your own forces. It completely unravels the notion of good and bad guys.

In these days of urban warfare, the rule is all the more important. Civilians intermingle with soldiers, innocents intermingle with enemies, just as we see in the video. In this case, completely innocent photographers were on the ground, chatting with several others, seeking information that could potentially help the war effort. And in this case, it’s a bad fuckin’ scene.

• Command culture. The authority to use lethal force might rest with a person who is not at the scene of the battle, and so communication up and down the chain of command often plays a vital role in determining when soldiers can fire.

The requirement that one must have appropriate authority to mete out force is similarly concerned with arbitariness and vigilantism. The thought, I take it, is related to an important rule of ethics, impartiality. When someone is on the scene of a non-battle — remember, this is prior to the engagement of a battle — it will not suffice to place the decision to engage in the hands of those who have the most to gain from engaging.

For starters, there are perverse incentives associated with engagement. If I have a very big gun, and I get spooked for no good reason, it makes sense that I may make a rash decision to liquidate whatever I perceive that threat to be. Having an outside party give the command releases me from the wrongdoing of making rash decisions.

Also, however, engagement is not a simple matter of one battle and done. A battle is a punctuated event in a war. The war itself is carried out according to strategies, which are, in principle, employed in order to pursue more generalized approaches to winning.  To permit the war to be fought through its battles may invariably undermine the overall war effort.

We can see this relatively clearly with the release of this video. Soldiers with relatively constrained authority took it upon themselves to fire upon innocent civilians, and in doing so will have potentially dealt a crippling blow to the American forces.

• The wounded.  The Rules of Engagement and the Law of Armed Combat do not permit combatants to shoot at people who are surrendering or who no longer pose a threat because of their injuries.

Finally, we don’t shoot the wounded when they’re down. This ties back into the disporportionate use of force, but also to other considerations related to utility and universalizability.

From a utility standpoint, it doesn’t make sense. It is often said that the captured soldier is worth more to an army alive than dead, and that’s probably true here too. There is utility in potential information that could be gleaned by a post-engagement interrogation. Moreover, there’s probably considerable utility in showing compassion to the enemy, as it may result in future compassion toward our own soldiers when they are wounded.

But also, the objective of engaging an enemy — and let’s presume now that the people on the ground were enemies, even though it is clear from the video that they were not enemies — I say again then that the objective of engaging an enemy is to remove the threat (in order to win the war or simply in order to survive). If the threat no longer exists, as is the case when someone lay wounded on the ground, the only point in firing on that person a second time is to kill the person, not the enemy, as the “enemy” has already been shot out of him. Firing on a non-threatening wounded person is, straightforwardly, murder.

So, if you have any question as to why this video is so disturbing, hopefully my very short introduction to the principles and justifications of Just War Theory will help to alleviate those. Obviously, there is quite a bit more to say on this matter.

UPDATE: Here are some other interesting commentaries: Crooked Timber, Glenn Greenwald at Salon, again GG, Reddit, Andrew Sullivan, and more coming shortly. Right now, off to class.