How Rules of Engagement Impact Civilian Casualties

| Robert Eatinger
Robert J. Eatinger, Jr.
Former Senior Deputy General Counsel, CIA

On March 17, an airstrike allegedly carried out by coalition troops in Mosul, Iraq, killed a large number of civilians, with some reports putting the number of civilian deaths around 200. Officials at U.S. Central Command acknowledged it had opened a formal Civilian Casualty Credibility Assessment into the matter.

The airstrike occurred during a period when coalition airstrikes appeared to be resulting in increased civilian casualties, causing some to question whether the coalition’s rules of engagement had been changed to relax provisions aimed at preventing civilian deaths during airstrikes. 

At a March 27 press conference, Lt. Gen. Stephen J. Townsend, the Commander of the Combined Joint Task Force – Operation Inherent Resolve, acknowledged that there had been “some relatively minor adjustments” to the rules of engagement, but he described them as “fairly low level,” and “not really related” to the reports of increased collateral damage. Lt. Gen. Townsend said that the changes decentralized to a degree the approval process for fire missions as part of the campaign’s transition from defense to offense leaning. Lt. Gen. Townsend assured that adjustments did not, however, diminish “our care, our caution, our applications of the rules of force, how and when we apply our combat power, [or] our tolerance for human – civilian casualties.”

Lt. Gen. Townsend attributed the increased civilian casualties to the intensified difficulty of fighting ISIS in Mosul’s west side with its denser urban construction, neighborhoods that may remain sympathetic to al Qaeda, two and a half years of defensive preparations, and tenacity of the remaining ISIS fighters. He further noted that many civilians remain in the area, leaving many “stuck in the crossfire.”

On March 30, Col. Joseph Scrocca, the public affairs director for Lt. Gen. Townsend, explained that in December of 2016, a change to the rules of engagement was made to allow Lt. Gen. Townsend “the ability to delegate the approval of certain strikes to lower levels of command consistent with our doctrine and the situation on the ground.” Col. Scrocca said the intention was “to provide more agile and responsive support to the Iraqi Security Forces when and where they’re needed on the battlefield.”

“All strikes are still subject to the same standard and due diligence, and must be approved by both coalition and an Iraqi officer,” and the “procedural changes in no way reflect a lower tolerance for civilian casualties,” nor did they “remove any protections for civilians or allow the targeting of civilian buildings,” emphasized Col. Scrocca.

The situation begs the questions: what are rules of engagement, and if amendments to them result in an increase in civilian deaths, are those changes unlawful? 

The Department of Defense (DoD) Law of War Manual defines the U.S. military’s rules of engagement as “directives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.” Rules of engagement may limit otherwise lawful uses for force, but they may not permit unlawful uses of force. The U.S. considers rules of engagement to be lawful commands. This means the disobedience of such lawful commands may constitute violations deserving legal ramifications.

The DoD manual explains that rules of engagement “tailor the rules for the use of force to the circumstances of a particular operation” to “reflect legal, policy, and operational considerations” and “are consistent with the international law obligations of the United States, including the Law of War.” This means that the U.S. “may restrict actions that would be lawful under the Law of War, but may not permit actions prohibited by the Law of War.”

For example, in March 2010, Gen. Stanley McChrystal, then Commander of the International Security Assistance Force in Afghanistan, promulgated a rule of engagement that prohibited Coalition forces troops from conducting night raids in Afghanistan unless Afghan security forces were present. He explained that while night raids were effective and of operational value, they “come at a steep cost in terms of the perceptions of the Afghan people.” 

Since the U.S. military’s rules of engagement may not allow what the Law of War, the governing body of international law, does not, we need to understand the basic requirements for military operations resulting in civilian injuries and death. The Law of War contains several broad, overarching principles, which include: military necessity (the target must be lawful), humanity (avoiding causing unnecessary suffering), proportionality (the use of force is not unreasonable or excessive), and distinction (combatants must take feasible measures to distinguish between lawful targets, such an enemy combatants, and protected persons and objects, such as civilians not directly participating in hostilities and hospitals). On top of these, the DoD manual also includes “honor” as a principle.

To clarify, the principle of proportionality does not mean a commander must limit his use of force to the minimum level required to accomplish the mission. That is, proportionality does not prevent a commander from using a larger bomb than he accesses to be necessary to destroy the target so long as that larger bomb will not also increase the death and destruction to protected people and property. Thus, Gen. John Nicholson’s recent decision to use a MOAB to destroy an ISIS camp in eastern Afghanistan would not be considered a disproportionate use of force, even if several smaller bombs could have equally destroyed the camp, because there were no civilians or protected structures within the destructive blast radius of the MOAB.

The Law of War requires a commander planning and conducting attacks where there may be civilians present to seek to avoid, and if not feasible, minimize the incidental harm to civilians and protected property, essentially meaning the commander is to “minimize collateral damage,” a duty reflective of the principles of military necessity, humanity, proportionality, and distinction.  

The DoD manual says:

“Military authorities have developed procedures to assess before an attack the expected collateral damage or effects of an attack. For example, lists of sensitive objects for which responsible commanders have imposed requirements for additional review or higher-level approval before the objects may be attacked (sometimes referred to as “no-strike lists”) have been developed, as have procedures for presenting to more senior commanders for decision potential attacks on targets that involve higher risks of incidental harm.”

The provision of the rules of engagement changed to delegate authority for the use of force prior to the incident in Mosul is alluded to in the DoD manual.

The DoD manual says senior commanders “allow for a better evaluation of the expected military advantage from the attack (as it is likely that more senior commanders have a more comprehensive understanding of the strategic and operational context), and allow more senior commanders to implement additional precautions with the greater resources under their control.”

Until December 2016, the rules of engagement required certain strikes to be approved by Lt. Gen. Townsend, the coalitions most senior commander. While those certain strikes were not publicly defined, a reasonable deduction is they were strikes involving a high risk of collateral damage. In December, U.S. Central Command amended the rules of engagement to permit Lt. Gen. Townsend to delegate his authority to approve those certain strikes to his subordinate commanders, which he did.  

But could these changes have had the practical impact of increasing the line at which the anticipated civilian casualties would be found excessive? If so, does that change in rules of engagement – or Lt. Gen. Townsend’s delegation pursuant to that change – violate the Law of War? The answers: no and no.

First, the rules of engagement change did not express an intent or willingness to accept strikes resulting in increased civilian casualties, and it certainly could not change the Law of War requirement that the death of civilians not be excessive in relation to the concrete and direct military advantage anticipated to be gained. Rather, the rules of engagement change was limited to allowing commanders less senior than Lt. Gen. Townsend approve these certain strikes. 

As noted in the DoD manual example, the seniority of the approval authority can be an important factor on how that authority assesses the risk of civilian deaths against the potential military advantage gained. Therefore, using the DoD manual’s own language, “it is likely that more [junior] commanders have a [less] comprehensive understanding of the strategic and operational context” than the coalition commander. The change in the rules of engagement in Iraq therefore appears to reflect a rebalancing of the respective importance of the coalition’s operational need for increased agility against its need for a better informed evaluation of the expected military advantage to be assessed against the risk of civilian casualties. That is a rational military decision.

Second, the potential that the junior commander approving an airstrike may have a less comprehensive understanding of the strategic and operational context of the conflict than senior commander, does not equate to approval for strikes that will result in an increased number of civilian casualties. That junior commander is still bound by the Law of War, by any conditions or limitations the senior commander placed on his delegation, and by all the other limitations promulgated in the U.S. military’s rules of engagement. The junior commander is still expected to exercise good judgment, and the senior commander can revoke his delegated authority if he does not agree with how a specific junior commander is balancing anticipated military advantage gained and potential civilian casualties.

Third, as a factual matter regarding the large number of civilian casualties, it is possible that the junior commander was simply unaware a large number of civilians were present during the March strike in west Mosul. The reasonableness of the approving commander’s decision to authorize the strike must be reviewed based on his assessment of the information available to him at the time.

While we will have to await the results of the post-strike investigation, some news reports have indicated the approving commander may not have known a large number of civilians were present at the target area. Furthermore, during a March 30 press briefing, Col. Scrocca said that ISIS had been caught on video the day before “smuggling civilians into buildings so we won’t see them and trying to bait the coalition to attack to take advantage of the public outcries and deter action in the future.”

If ISIS were secretly smuggling civilians into areas ISIS anticipated would be attacked by coalition forces, the approving junior commander could not be charged with having knowledge of their presence.

Had the approving junior commander known prior to the strike that ISIS had forced civilians onto the target area, he would have faced a dilemma. Unlike a situation in which the enemy uses “human shields” to dissuade the coalition from striking a target in order not to kill the civilians forcibly held there, ISIS instead wants the coalition to strike the target and kill the civilians. In the former circumstance, a commander may consider disincentivizing the enemy from continuing such behavior, by demonstrating the unlawful tactic does not deter the coalition from striking, thereby potentially reducing civilian casualties in the future. That is not the case when the enemy hopes the commander strikes the target and unknowingly kills innocent civilians. In this latter case, striking the target is to some extent an enemy victory and incentivizes him to continue the behavior, thereby potentially increasing civilian casualties in the future. 

The commander may still find the military advantage to be gained by destroying a target to be sufficient enough that the civilian casualties are not considered excessive. Should he do so, the commander may order the strike in accordance with international law.

Finally, the commander may also withhold approval to strike for reasons unrelated to compliance with the proportionality principle of the Law of War. Those reasons might be policy or military based, such as to avoid alienating the local population and coalition partners whose cooperation will be needed to win the campaign and to avoid an anti-coalition insurgency thereafter, as well as to maintain international and domestic support to continue the campaign. The commander may simply have his own moral difficulty with killing civilians forcibly held on the target.

It is an unfortunate truth that combat operations in urban environments where a civilian population remains will result in civilian casualties. The obligation under the Law of War is to conduct combat operations designed to avoid, and when not possible, to minimize civilian injury and death. In no event, should a combat operation be conducted when assessed to potentially result in civilian deaths excessive to the expected military advantage gained. The Law of War does not require each commander’s assessment to be identical. Rather, it requires each commander to exercise his individual judgment in good faith and his determination to be reasonable in light of the information available to him at the time he made that determination.

While some provisions within rules of engagement may be intended to ensure combat commanders comply with the Law of War, added limitations are often intended to further policy or operational objectives, easing those provisions may be necessary as the battlefield changes. As Gen. Townsend explained, the change in the anti-ISIS campaign from defensive to offensive, along with the difference in the urban combat environment between east and west Mosul, warranted changing the rules of engagement to allow a more decentralized authority to approve certain strikes.

In the end, Lt. Gen. Townsend remains responsible to ensure the subordinate commanders exercising delegated approval authority act within the Law of War, and to withdraw the delegated authority and/or adjust the rules of engagement if they do not. Failure to remain above these baseline requirements could potentially open the subordinate commanders up to criminal charges, as well as Lt. Gen Townsend were he not to take necessary and feasible actions to ensure his subordinate commanders operated within the Law of War.

The Author is Robert J. Eatinger, Jr.

Bob is the founding Principal of SpyLaw Consulting for Business, LLC. Previously, Bob was the Senior Deputy General Counsel of the Central Intelligence Agency. He served as CIA’s Acting General Counsel from October 2013 to March 2014.  Before being named the Senior Deputy General Counsel, he served as CIA’s Deputy General Counsel for Operations from September 2009 to June 2013.  Bob also served on active duty in the United States Navy, Judge Advocate General’s Corps, and retired in... Read More

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