American Sniper: the Rules of Engagement, and the Principle of Distinction

Just two weeks into his deployment in Iraq, Chris Kyle found himself providing guard to Marines traveling into Baghdad. While on sniper patrol, from a rooftop Kyle observed an Iraqi woman in the street pull something from beneath her clothes and tug at it. He described the scene to his platoon chief, who quickly realized that the woman was setting a grenade for the approaching Marines. The chief told him to shoot and, hesitantly, Kyle obeyed. It was the first and only time he shot anyone other than a male insurgent in Iraq.

“American Sniper,” based on Chris Kyle’s autobiography, is hitting movie theaters on Friday to widespread acclaim. Directed by Clint Eastwood, the film chronicles his life as one of the most lethal US military snipers in history. As a Navy SEAL sniper, Kyle served four tours in Iraq and made one hundred and sixty confirmed kills – more than any other American service member in history. His story highlights the difficult choices combatants must make in targeting enemy fighters.

From an international humanitarian law (IHL) perspective, Kyle’s story is a case study on how the fundamental principles of IHL (proportionality, distinction, humanity, and military necessity) are applied in modern warfare and the steps the US military takes to ensure these principles are followed even in the most dangerous scenarios.

Throughout Kyle’s autobiography he discusses rules of engagement (ROEs), which provide troops on the ground with general instructions on how they may engage with the enemy. Generally, ROEs define the circumstances and conditions in which the use of force may be authorized, the admissible degree of force that may be applied, and the manner in which such force may be applied. Military advisors draft these rules based on the applicable law, political and policy considerations, and the operational requirements of the military forces. Often, US soldiers are provided a card summarizing the ROEs to carry with them in combat.

Applying the principle of distinction may have been the most challenging legal issue faced by the US forces in the Iraq War. The armed forces faced an insurgency from parties who were not members of any armed forces and therefore did not have combatant status. The principle of distinction requires that parties distinguish between civilians and combatants during military operations. Civilians are protected against attack in armed conflict; but may lose their protections if and for such time as “they take a direct part in hostilities.”

The woman with the grenade is a prime example of a combatant having to determine whether a civilian is directly participating in hostilities and is now a lawful military target. The ROEs provided to soldiers and Marines in the Iraq War state that “positive identification is required prior to engagement;” which meant that the soldier or Marine must reasonably believe that the proposed target is a legitimate military objective, otherwise he or she had to contact his superior for a decision. Gary Solis, a law professor at Georgetown Law School and retired Marine, explains positive identification (PID) this way: “Before you can fire on an individual, you must positively identify that individual as representing a threat to you or your fellow Marines or soldiers. And if you cannot do that, then you are not supposed to fire on him or her.”

Because fighting men must make decisions quickly and effectively in combat, the US military tries to simplify the situational analysis as much as possible in its ROEs. In the international sphere, however, the definition of what constitutes direct participation of hostilities (DPH) can be the subject of heated debate.

The ICRC has issued an interpretive guidance promoting a three part test for DPH, which assesses the specific acts of the individual to determine whether they constitute direct participation in hostilities. The specific act must meet all the three of the following criteria: the act must be likely to cause significant harm to the military of a party to the conflict or to protected persons or objects, such as civilians, civilian objects, or infrastructure (threshold of harm); the act must directly cause the harm expected from the act (direct causation); and the individual must intend for his act to benefit one party to the conflict by causing harm to another party (belligerent nexus).

The US does not apply the ICRC test. Instead, it relies on a case-by-case approach based on an individual’s hostile act and hostile intent under the standing ROEs, and the criticality of their contribution to enemy war efforts. Also, based on intelligence and other facts on the ground, senior authorities may have already designated groups or individuals as hostile, and therefore targetable. For Kyle the ROEs boiled down to this: “If you see anyone from about sixteen to sixty-five and they’re male, shoot ‘em. Kill every male you see.”

When he saw the woman, Kyle was surveying the scene for military objectives and threats to the Marines. The potential presence of insurgents – technically civilians – required him to consider the behavior of all persons in the area and assess whether they were a threat to himself or other US forces nearby. Based on the ROEs as Kyle understood them, it was only when he described what looked like a grenade that his commander could authorize him to treat the Iraqi woman as a hostile and shoot her.

She was the only woman he ever sniped. “I never once fought for the Iraqis,” Kyle says in his memoir. “I could give a flying [expletive] about them.” War invites hatred, that’s why ROEs matter. During his fourth deployment, Kyle was again confronted with a similar situation after shooting a man aiming a rocket propelled grenade (RPG) at US forces. While waiting to see who would arrive to claim the valuable weapon. he saw a child come down the street and pick it up. Although he had a clear view in his scope, Kyle decided he was not going to kill a child regardless of whether his actions had made him a legitimate military target.

If you see the film, consider how IHL applies in the targeting decisions. Did you think that Kyle and the other snipers distinguished between combatants and civilians? Were the ROEs effective in instructing the soldiers and Marines? Let us know what you think in the comments.

4 responses to “American Sniper: the Rules of Engagement, and the Principle of Distinction

  1. Pingback: Weekly IHL Update | Humanity in the Midst of War·

  2. THe Question bout ROE is interesting. I can see why the Child would be considered a threat to the lives of the Marines. My question is this. Could the woman /Mother all be considered a threat to lives as she was carrying the grenade originally and then handed it to the Child. Is she also a threat?

    How can the US interpreted the ROE differently form the ICRC if they the USA has signed the Geneva Conventions?

    Would like to hear some others perspective.

    • The mother may or may not be considered a lawful target depending on what legal test is applied. I don’t think it’s at all certain and you can make reasonable arguments both ways.

      First, it’s important to keep in mind the difference between ROE and IHL as outlined in the post. ROE are instruments drafted by militaries to meet a range of legal and policy objectives. They often reflect obligations under IHL but may be more restrictive. That is to say acts which may be lawful under IHL may not be permitted under the ROE. This may be to achieve some other policy objective or because of domestic legal restraints.

      As to the second (broader) question, the US can interpret IHL in this instance differently from the ICRC because the meaning of the phrase “take direct part in hostilities” is unsettled.

      In terms of the applicable law, while the US has ratified the Geneva Conventions, it hasn’t ratified the First Additional Protocol to the Geneva Conventions, provisions of which are relevant to combatant status and direct participation in hostilities. However, the US has acknowledged that the rule set out in art 51(3) of the First Additional Protocol represents customary international law and therefore is binding on the US.

      Art 51(3) which says “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities”.

      So the question becomes apparent – what does it mean to “take direct part in hostilities”?

      There is no binding (international) legal determination on what this phrase means and both the US and the ICRC have proposed different ‘tests’ to determine direct participation.

      The ICRC’s test – found in the interpretive guidance – does not represent binding law, simply the opinion of the organisation. While this opinion carries a certain (read – large) amount of weight, it is not determinative.

      Similarly, both the US military in drafting ROEs and US civilian courts have had to deal with this question and have adopted the case-by case approach mentioned above. The legal test is binding on US courts but may or may not represent the position in international law.

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