Friendly Fire During the War on Terror: the Law, Procedure, and Likelihood of Recovery Based on the Tarnak Farms Incident
| Citation | Vol. 11 No. 1 |
| Publication year | 2007 |
Within days of the September 11, 2001 attacks in the United States, President George Bush began assembling the Coalition of the Willing.[1] The coalition was made up of countries from all over the globe and ran the gamut from very tiny, obscure nations to clear world powers with obvious common interests in fighting global terrorism.[2] This broad coalition, under the direction the United States, implemented Operation Enduring Freedom designed to wipe out al-Qaeda in Afghanistan as well as the Taliban regime sheltering al-Qaeda fighters.[3] As noted, less than a week after the terrorist attacks, American policy focused on clarifying for all nations that "either you are with us, or you are with the terrorists."[4]
As America identified its enemies and assembled its friends, it set in motion events that brought countries together as never before. In so doing, allies fought side by side against a common enemy. On occasion, however, military service personnel from one coalition nation mistakenly engaged the military forces of another coalition nation. This article sets out to chronicle such incidents of "friendly fire" during the global War on Terror. Further, by focusing on one specific friendly fire incident, the April 2002 bombing of Canadian troops in Afghanistan,[5] the article addresses the legal plans and procedures for determining legal responsibility as well as how individuals injured or killed may recover damages. In light of the growing realization that the war on terror may take decades to fight and require a broad coalition of countries,[6] friendly fire incidents involving coalition partners are inevitable. The law, procedures, and recovery, however, are not always clear.
Part I of this article defines friendly fire and addresses its application throughout the article. Moreover, Part I also identifies the Coalition of the Willing and enumerates the motives for joining as well as a nation's level of participation. Part II addresses the causes and consequences of friendly fire incidents while intermixing notable historical examples. Part III identifies the laws and procedures in place dictating the delicate nature of how friendly, allied nations determine liability when troops of one nation injure or kill troops of another. This section focuses primarily on the Federal Tort Claims Act and the
Two key terms used throughout this article are often misperceived by the public and scholars alike. Friendly fire, especially, has a variety of connotations and is used to describe a myriad of unrelated concepts. Likewise, the Coalition of the Willing, assembled in the weeks and months after September 11, 2001, has undergone many changes since first assembled.[7] As such, both terms must be examined individually prior to exploring the broader arguments put forth in this article.
Lieutenant Colonel Charles R. Shrader[8] uses the term "amicicide" to define friendly fire. Taking the Latin noun "amicus," meaning friend and the Latinate suffix for killing, "cide," he developed a linguistically precise definition.[9] Shrader's definition describes "without distracting connotation the incidence of human casualties incurred by military forces in active combat operations as a result of being fired upon unintentionally by the weapons of their own or allied forces."[10] Moreover, the United States' Department of State defined friendly fire as "a circumstance in which members of the U.S. or friendly forces are mistakenly or accidentally killed or injured in action by U.S. or friendly forces actively engaged with an enemy or who are directing fire at a hostile force or what is thought to be a hostile force."[11] Other terms to describe friendly fire include fratricide,[12] fragging,[13] or blue on blue.[14] All have the same general meaning, however: fire that is not from enemy forces.
Accordingly, for the purpose of this article, the definition of friendly fire focuses narrowly on military actions of servicemen of one nation against the servicemen of a second nation allied with the first. Thus, mechanical malfunctions are not considered.[15] Additionally, incidents such as the downing of the Iranian airliner by the U.S.S.
The allied nations supporting the United States in its global war on terror comprise the Coalition of the Willing.[19] To date, the United Kingdom has been America's premier ally, supplying more intelligence, financial, and military support than any other coalition partner.[20] Forces from the United Kingdom are active in both Iraq and Afghanistan. Nations such as Australia,[21] Spain, Canada, the Netherlands, Poland,[22] Romania, and Georgia, among others, have contributed military forces to Afghanistan, Iraq, or both.[23] Arab or Muslim nations contributed aircraft landing rights or air transit rights and were counted among the Coalition.[24] Some countries, such as Spain and the Netherlands, later withdrew their troops from Iraq.[25] Finally, some nations, like Palau and Iceland, both of which have no military forces, are counted among the Coalition nations.[26] As such, the Coalition of nations is broad, fluid and susceptible to domestic pressures.[27]
Accordingly, for the purpose of this article, Coalition of the Willing is defined as the allied nations fighting alongside the United States militarily. These forces must be actively engaging the enemy, including Taliban fighters, al-Qaeda loyalists, or foreign insurgents in either Afghanistan or Iraq and doing so jointly with American military personnel.[28]
There is a long history of friendly fire incidents. Each war has its infamous examples. For instance, the accidental killing of Confederate General Thomas "Stonewall" Jackson by his own troops in 1863 at the battle of Chancellorville[29] or the 1991 attack on British Armored Personnel Carriers by American A-10 Thunderbolts in the First Gulf War.[30] The A-10 attacked killed nine British troops.[31] From the 1967 accidental Israeli attack on the U.S.S.
Many military historians and scholars use the phrase "Fog of War" to describe the chaos and confusion of battle leading to friendly fire incidents. [34] Accepting the "Fog of War" rationale, however, is difficult in light of the technological strides made to prevent such friendly fire incidents. For instance, in modern warfare, troops have uniforms to distinguish friend from foe,[35] radio communication to direct fire or confirm locations of friendly troops,[36] and vision enhancing equipment.[37]
Others argue, however, that technology and the nature of post Cold War military conflicts do more to cause friendly fire incidents than in the past.[38] Technology, for instance, now increases the "engagement range" of fighter aircraft so combatants no longer need to be in visual range of a target. Instead, pilots merely need to confirm a target's existence on radar.[39] Additionally, due to the smaller, more localized nature of post Cold War conflicts that bring together a broad array of nations with various levels of military experience and equipment, confusion may result for a number of reasons. [40] During the First Gulf War, for example, there was real concern about U.S. aircraft shooting down coalition fighters "of a type also used by Iraq."[41] Later in Operation Provide Comfort,[42] two F-15 fighter aircraft misidentified two Blackhawk helicopters as Iraq Hind helicopters and destroyed them.[43] Other common causes of friendly fire include the fact that weapons systems have become more accurate and lethal,[44] an increase in battle tempo,[45] navigation failures,[46] communication breakdowns,[47] and misidentification of targets. The primary element in all...
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