Curing the COIN Hangover
As we are adapting to the new reality of preparing for large scale combat operations (LSCO) rather than just the next counter insurgency (COIN) or counter terrorism (CT) operation, educators and trainers are raising the same concern: our forces are struggling to recover from the COIN/CT mindset. Former TJAG, LTG Charles Pede and COL Peter Hayden have referred to it as a “hangover” we quickly need to recover from. This post aims to map some of the areas we need to work on.
After about two decades of dealing with COIN operations, both military and civil society seem to be left with the impression that policies like zero civilian casualties reflect the law, and that such policies set a new norm for military operations. Even in the 2011 Libya campaign, the expectation was that the bombing should not cause any civilian casualties.
Another issue concerns the degree of doubt accepted in relation to target identification. There seems to be a perception that attacking forces should have eyes on the target in order to reduce the risk of misidentifying a protected civilian as a lawful target. The concept of positive identification has been applied as a requirement to be certain not only of the identity of individual targets but also their exact location, to prevent civilian harm.
The Law
However, the legal requirements set out in Additional Protocol I (AP I) Article 57, which are generally perceived to reflect customary international law, are to do everything feasible during the planning and execution phase to minimize civilian harm, and to choose means and methods that are expected to cause the least civilian harm. Attacks may only be carried out if the anticipated civilian harm is not excessive in relation to the military advantage expected to be achieved from the attack, otherwise they are disproportionate.
For identification of targets, AP I Article 50 states that “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” State practice has been to require good faith and reasonable decisions based on the information available at the time. The duty on those who plan and order attacks is once again to do everything feasible to ensure that the target is lawful.
Finally, when it comes to those who carry out the attack, their duty is to cancel or suspend the attack if it becomes apparent that it will violate the principles of distinction or proportionality.
To sum up: the legal requirement is to do everything feasible to identify targets as lawful and to avoid civilian casualties. By including the term feasible, the law recognizes that it will not always be possible to conduct military operations in a manner that avoids all civilian harm.
The Hangover
For reasons other than law, particularly political and policy reasons, in some operations, additional restraints have been imposed through orders and directives. These have taken many forms; so many that military legal advisors have reported that they struggled to get a complete overview of when and what type of force could be used at a given time. Some direction was found in rules of engagement, others in procedures and directives, and others again in tactical orders. Soldiers were also given additional encouragement to limit the risk to civilians, even at the expense of their own safety, through concepts like “courageous restraint.”
I’m not saying these are negative policies—in these operations they were considered necessary as COIN operations cannot succeed if the civilian population is alienated—but they are not always possible to adhere to, and they will not always be appropriate. The challenge is that commanders and their troops seem to think we did all of this because it was legally required, and when faced with potential LSCO against peer or near-peer adversaries, they need to be re-trained. The last year and a half has taught us that a peer-on-peer conflicts will look very different from Afghanistan, Iraq, or Libya.
In an excellent post on Articles of War, U.S. Army Major Jason Young, who’s been working at the Joint Multinational Readiness Center (JMRC), a combat training center based in Germany, sets out some of the practical side effects of the COIN hangover.
In his post, Major Young explains that their greatest challenge “is countering commanders’ and staffs’ (strongly held) beliefs, based on twenty years of COIN operations, as to what the law requires during combat operations.” They are so caught up in being certain about the identity and location of their opponents and carrying out operations in ways that do not cause civilian harm, that they fail to drive the adversary out of their area. Not only that, they leave themselves vulnerable to lawfare tactics because the opponent realizes that they will go to extreme lengths to protect civilians.
So, training suggests that the COIN hangover causes us to lose battles and it makes us vulnerable. It causes operational indecision and ineffectiveness because the expectations of certainty and lack of civilian harm are not possible to meet when the opponent is a peer rather than an insurgent group.
But how can we recover from this hangover?
The Cure
A starting point will of course be to emphasize the difference between law and policy and that the requirements of the law are context dependent. An important opportunity to do this is during military education and training. This requires the scenarios and vignettes to be updated: interpreting UN Security Council mandates and discussing when and how to target armed groups has become secondary to understanding the limits and opportunities within State self-defense, NATO Article 5 and the targeting rules in the law of international armed conflicts. However, the COIN approaches are so engrained in military thinking that retraining on the law is not enough. The restrictive approaches, which were feasible to carry out in operations where we have superiority on the ground and in the air, have influenced our doctrines and our policies. As LTG Pede and COL Hayden explained, “Doctrine changed, force structure changed, hardware changed, tactics changed—and so did the rules of engagement (ROE) to win the COIN and CT fights.”
The targeting procedures are one example. When applied in training and exercises, a targeting cycle involving several meetings and a lot of intelligence for each target is still common. Commanders will ask about the pattern of life in the area, ask detailed questions about the use of nearby buildings, or expect to have eyes on every target before attack. The processes are both time consuming and resource intensive, shaped by operations where time was not a problem.
Similarly, the detailed regulation of collateral damage estimation, with predefined authorization levels, has replaced the proportionality analysis for so long that many commanders lack the training to make this complicated assessment of how important a military target is and what amount of civilian harm is acceptable and what would be excessive.
Furthermore, because we are used to restrictive procedures and rules of engagement, the exception to these rules—self-defense—has been given too great a place in military operations. This concern was also raised by LTG Pede and COL Hayden, who emphasized that “Generations of soldiers, including even our most senior leaders, have consumed a persistent diet of highly restrained policy premised on self-defense in the use of lethal force.” This is problematic for many reasons, but perhaps the most relevant here is that it misrepresents the legal maneuver space for the use of force during armed conflict. The appropriate legal regime for war fighting is the law of armed conflict (LOAC), and the type of force used in so-called self-defense in COIN operations, causing collateral damage far beyond any peacetime self-defense concept would justify, was mostly permissible because in reality it complied with LOAC.
The self-defense focus also strengthens the perception that the use of force against persons is based on their current actions, especially if they pose a threat. But in LSCO the opposing forces will be lawful targets at any time, regardless of whether they pose a threat, because they are combatants.
There have been several articles and books written on the topic over the years, emphasizing that conduct-based targeting is regulated by LOAC, not self-defense (see for instance here, here, and here; it was also at the center of my own PhD). However, it is still difficult to get NATO and States to update procedures and training to reflect this. And even when the doctrines are updated, they are still interpreted in light of COIN experiences.
Rules of engagement are another such example. If they become too restrictive and detailed, it is near impossible to carry out a mission. Perhaps that is acceptable in wars of choice, but it is not in wars of survival. The way NATO ROE have been used is also heavily influenced by COIN operations and requires recalibrating. This is particularly important now that the current NATO doctrine (MC 362/2 of 2019) stipulates that all use of force or provocative actions in NATO operations must be based on the operational plan and the ROE, unless it is self-defense. That applies to Article 5 situations as well; the desire for political control over the use of force is not expected to be reduced if an operation takes place on the territory of a NATO State.
Anyone who was even vaguely involved with the COIN operations in Afghanistan will recall that the hostile act and hostile intent ROE caused a lot of headaches. The NATO concepts are a challenge in themselves because of the use of U.S. ROE terminology with a different meaning—they are not self-defense ROE in the NATO system. But what is easily forgotten is that the biggest problem was not the ROE themselves, but the fact that they were used to regulate attacks on persons taking a direct part in hostilities. The concept of direct participation in hostilities is probably the most complicated LOAC rule. The result is that the understanding of these ROE is incredibly context dependent.
The Challenge
The main challenge in carrying out a COIN hangover detox or whatever we should call it, is therefore that it is all very interlinked. By way of example, I usually refer to the military abbreviation PIDROF. In NATO’s operations in Afghanistan, there was a requirement to make sure that any persons expected to be harmed by an attack on a lawful target, in other words potential civilian casualties, were PIDROFed. This meant that they had to be positively identified as opposing forces, as defined in the ROE. The “ROE defined opposing forces” were people who took a direct part in hostilities on a continuous basis and were therefore lawful targets for a longer period of time. Alternatively, they could be lawful targets on the basis of their conduct at the time of the attack. If people could be PIDROFed, they would not be considered protected civilians, and would therefore not constitute civilian casualties (CIVCAS). As a result, the attack could be carried out without violating the zero CIVCAS policy.
If we are going to cure the COIN hangover, we need to start disentangling these experiences and the corresponding perception of the law, so that people understand:
1. They do not necessarily need to identity every person in the vicinity of a target, depending on which precautions in attack are feasible and also the military advantage expected to be achieved from the attack.
2. The level of certainty for ascertaining that someone near a target can be PIDROFed, is not necessarily the same as for determining whether someone is a lawful target themselves. LOAC permits civilian casualties provided they are not excessive, so the PIDROFed person could in any case be lawful collateral damage. The PIDROFing was merely a self-imposed limitation intended to further reduce the risk of civilian harm beyond what AP I Article 57.
As mentioned, COIN operations are characterized by a massive number of additional limitations on the conduct of military operations, in addition to the requirements set out in LOAC. Some of these limitations that were found in military directives and procedures, are now slowly making their way into soft law mechanisms like handbooks, manuals and declarations. Examples of such efforts are the proposal that any reverberating effects of attacks must be taken into account in the proportionality analysis, and the attempt to ban the use of explosive weapons in populated areas.
Concluding Thoughts
Although I have a lot of sympathy with the intention behind such movements, I also have concerns. The type of countries that will adhere to such policies are those who already do their best to comply with LOAC. In fact, as the COIN hangover illustrates, we already go beyond what the law requires, when the circumstances permit. But when the circumstances do not permit, as in the case of Major Young’s experience with training forces at the JMRC in Germany, these policies are not and cannot be a requirement. For instance, banning the use of explosive weapons in populated areas will not only make it harder to defend those areas. It will also encourage an opponent with less respect for LOAC to seek out populated areas because doing so will offer a significant tactical advantage.
Policy developers need to understand that introducing more and more restrictions on the use of military force may end up causing even more civilian harm or cause our forces to lose the battle. And as policy makers are responding to the expectations of civil society, civil society too needs to understand that wars will not always be fought using high precision weapons and methods designed to cause zero civilian harm. The Russian operations in Ukraine are a painful reminder of the true character of inter-State, large scale wars.
Does that mean that we should abandon all these policies and say they are only suitable for COIN operations? Probably not: protection of civilians must remain important and our experiences and enhanced ability to carry out operations in ways that cause limited civilian harm will still be useful. Depending on the context, such steps may even be legally required because they are feasible. But in other situations, it is likely that it will not be possible to abide by such standards. In an LSCO against a peer or near-peer opponent, we need the full legal maneuver space, as well as robust and clear operational procedures and ROE. That will give commanders and their staffs the best starting point to make the right operational decisions. In order to achieve this, military forces and commanders need enough training and education on LOAC to understand the difference between law and policy. In the very clear words of LTG Pede and COL Hayden:
In a LSCO fight, a commander may have to confront and defeat a large enemy armoured column accompanied by infantry supported by warplanes overhead, long-range fires into our rear areas, together with confusion induced by cyber and electronic warfare attacks. Commanders will need to intuitively know and confidently apply the actual rules of war, unhindered by the lingering hangover of constrained COIN ROE. Mastery of the law of war may very well mean the difference between victory and defeat.
Finally, a less discussed aspect of the COIN hangover is the fact that COIN operations all took place far from home. The large or full-scale combat operations we train for now are NATO Article 5 operations. These would occur closer to home, or even at home. This means that we need to train commanders and their staff to make the right decisions, even when the right decisions are difficult. When the potential civilian casualties or harm to civilian infrastructure impact your own population, impossible decisions must be made. But they must be made on the correct basis—on an understanding of the law as it is, not as it was applied in COIN operations. Knowing that the use of force is lawful also makes it feel more legitimate, which means that knowledge of the law makes our troops more robust.
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Dr. Camilla G. Cooper is an Associate Professor of operational law at the Norwegian Defence University College.
Photo credit: Sgt. Alex Skripnichuk