Lawfare comes to the battlefield

Strategy Page:

One of the biggest gripes combat troops in Iraq and Afghanistan have is the Escalation of Force (EOF) and Rules of Engagement (ROE) procedures they must follow when faced with enemy action, or the threat of enemy action. These rules have gotten more complex year by year, although there have been some attempts to simplify the complications (if that makes any sense.) Put simply, the ROE/EOF stuff is there to limit civilian casualties, while fighting a foe that wants dead civilians (for their propaganda impact). Al Qaeda even has an official name for this; "involuntary martyrs." The U.S. buzzword is "collateral damage."

Naturally, there's a big difference between the ROE/EOF stuff that is regularly delivered to the troops (who are supposed to demonstrate that they have memorized them), and what actually happens in combat. For all the ROE/EOF exhortations directed at the troops, there is also an escape clause. That is, you are always allowed to use any force necessary to protect yourselves. This does not negate ROE/EOF, and if you kill a bunch of civilians, there will be an investigation. If you cannot make some kind of case that you fired in (what appeared to you at the time to be) self-defense, you will get punished. The troops know this, the brass know this. No one is sure if the lawyers, who are sometimes brought in to help out with the periodic ROE/EOF training sessions, know this. Lawyers are generally considered the enemy, since they tend to spend most of their time telling you what you cannot do in combat (whether you're fighting for your life or not.)

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One of the problems is that the whole conversation on this issue fails to focus on the enemy war crimes that make the rules necessary to begin with. The enemy's war crime of not wearing an identifying uniform and its use of civilian shields is directly responsible for the confusion on who the enemy is. What the rules should do is help the troops recognize ways to identify the enemy in those situations in a way that does not endanger himself. One of the reasons this has become less of a problem in Iraq is that civilians have also learned how not to act like the enemy.