As often happens, a former student asked my view on the following story about British Special Forces (SAS) accused of illegal killings of civilians in Afghanistan in 2011. BBC Story Daily Mail story The original story appeared in the Daily Mail, and then was picked up in shorter (and less salacious versions) in the BBC and Guardian. Here is what is clear: British Special Forces are accused, and an investigation is on-going, of illegally killing non-combatants in Afghanistan. It seems that the particular incident in these stories may be a part of a larger trend or concern, as there have been some other investigations; it is also noted in the stories that many of the accusations/cases have been found without cause or evidence for prosecution.
These kinds of stories are not unusual. Nor are the claims by those investigating that they are being stonewalled in their investigations (note comments by Scott Green in multiple outlets attesting to this), that evidence was fabricated and that there are varying degrees of complicity and/or cover up. There are the usual pronouncements by political leaders attesting to the decency and virtue of their armed forces and that a thorough investigation would be pursued. At this stage, it is not clear what actually happened, what the evidence is and whether there will be prosecutions or further charges.
If the charges are born out, then there is also the usual legal route to deal with killings that would seem (without knowing the details, I am completely speculating) to violate IHL and possibly the rules of engagement (ROE). Aside from the legal issues, intentionally targeting of non-combatants is immoral and it is also counter-productive in counter-insurgency operations. So if the facts are born out as reported, things seem fairly clear; another unfortunate case study to add to the list of My Lai, Haditha….
But. And there is always a but! One comment that arose from the stories as presented in the press, was the idea that SAS might operate with their own and distinct rules of engagement, within which the actions alleged were permissible. In other words, what looks like a war crime with the ROE framework of the conventional (non-elite units) of the military, might not be if (and only if) Special Forces operate according to their own rules.
This is really interesting. There is, of course, the empirical question of whether there are distinct ROE for elite forces in this (or any case) or whether there is more flexibility and nuance in how those rules are interpreted. Does context and the kind of mission matter here? Is it possible that Special Forces has their own ROE? Or failing that, could they have their own JAG’s (legal officers, Judge Advocate General) or others who provide contextual interpretations of ROE given their missions? Floating this online to military members, and also looking at some discussion from the British side on this issue, raised more questions than it answered and revealed a wide variety of incompatible views!
So its an interesting empirical question, presumably with a correct answer. One option could be that formally there is one set of ROE, but that there are informal and formal interpretations and practices following from those interpretations that may differ and seem like different ROE. From my work on Vietnam, one could argue this was the case there. That official policy and guidance was one thing, but what actually happened and was tolerated in the field was a different matter. Laws and norms are not always the same. (See Bilton and Sim, Four Hours in My Lai for a good discussion of this relative to My Lai.)
As an ethicist, I also wonder about the philosophical question – aside from what current practice and policy actually is – what should be the case? Is there an argument to be made for the idea that Special Forces (or other elite units) ought to have special ROE? Surely the level of training, expertise and therefore of professional judgment and discretion possessed by individuals in these units and roles exceeds the conventional military grunt? Surely this would justify another ROE standard, or at the very least substantial leeway in terms of the interpretations and permissions that would be given in executing missions?
I can imagine a plausible line of argument here, rooted in expertise, training and the development of professional judgment and discretion. I can also imagine a whole host of problems that might arise from such a formal two (or multiple tiered) system, as well as from any kind of more informal system that instantiated different standards for treatment of POWs, targeting of non-combatants (discrimination) or acceptable levels force (proportionality).
On one hand, if there is one set of standards or ROE, it makes things simple. These are the rules and they must be followed. But if the ROE seem problematic or impractical given a particular mission, situation or context, what happens then? Will they be abandoned and ignored completely? Tweaked but still maintained in the spirit of the moral principles? And who will be deciding on the alterations or suspension? On what grounds? If there are multiple standards, do we not end up with the same problem?
Let the discussion begin….