On Thursday, 22 June 2017, Erica Gaston published a story on the Lawfare blog entitled Soldier Self-Defense and the Strikes in Syria.
In the article, she describes the “lower barriers on use of force and can also potentially undermine domestic restrictions on engaging in armed conflict.”
I am not a lawyer, nor do I pretend to be one, I don’t even play one on TV. But I spent a lifetime, 26 years, as a soldier. When I received hostile fire, I knew I could return fire because of my right to self-defense.
Such is the case in Syria. Coalition forces were struck by a bomb dropped from an aircraft. This was clearly a hostile act against friendly forces. The plane that dropped the bomb was shot down.
Later, a US plane shot down a drone approaching coalition forces with a track leading right to them, clearly showing hostile intent.
In an example of a guard at a roadblock where VBIEDs are commonly used, engaging a possible VBIED before it kills you is not only your right, it is prudent. There is an outer perimeter, then an inner perimeter, then there is mthe guard about to blown up and killed. In the gentlemanly game deemed prudent by the lawyers, a warning is issued. “Stop”. A warning shot is fired. If the possible VBIED does not stop, the car is engaged. We do not wait until a soldier is killed, we prevent friendly casualties.
Now a soldier’s right to self-defense is being questioned.
At a minimum, greater attention to this emerging practice might help to clarify some of the elements and fault lines, from states’ interpretations of the origin of this right to how standards imported from other bodies of law (like sovereign self-defense or criminal law) apply in a soldier self-defense situation.
The reliance on soldier self-defense is not going to go away any time soon. Full consideration of its significance and limitations might prevent confusion and the blurring of boundaries in situations like the recent Syria strikes.
Right after the drone and plane were shot down the Russians and Syrians responded with “provocation!” – an attack on the right to defend friendly forces. I say this article is the same, an initial attack on a soldier’s right to self-defense.
If not, every platoon in combat will need a lawyer by their side. Amidst bullets flying around, the leader will turn to the attorney and ask “Do I have the right of self-defense to protect my soldiers? May I return fire?” Of course, no attorney would ever put themselves into a combat situation with bullets flying around. Therefore, I predict a soldiers’ right to self-defense will win, unabated.