By Mark Thompson
December 2, 2015

When it comes to battling ISIS, both the rules of war and the rules of engagement—who can be killed, and when—have been wounded in action.

Republican lawmakers expressed anger at a hearing Tuesday after Defense Secretary Ashton Carter explained why the U.S. military warned Syrian tanker-truck drivers, who smuggle the oil that helps fund ISIS, time to escape U.S.-led bombing. Their outrage came a week after Turkmen fighting to overthrow Syrian President Bashar Assad violated traditional rules of war by shooting and killing a Russian pilot after he parachuted from his doomed airplane. He perished after Turkey claimed he flew his Su-24 attack plane into Turkish airspace and blasted his plane from the sky. The Turkmen targeted the vulnerable pilot after Russian warplanes repeatedly bombed Turkmen villages along the Syrian-Turkish border.

It’s one of the oddities of the rules of war that while paratroopers landing behind enemy lines during conflict are fair game for their foes on the ground, pilots escaping their wrecked aircraft are not. “When an aircraft has been disabled, the occupants when endeavoring to escape by means of parachute must not be attacked in the course of their descent,” Article XX of the Hague’s 1923 rules of air warfare say. The notion was codified in the 1949 Geneva Conventions, which added that “airborne troops are not protected” by such rules. In other words, a pilot bombing enemy targets becomes protected from attack under international rules as soon as the enemy disables his plane and forces him to bail out.

The pilot’s family was initially relieved to see a pair of parachutes posted online shortly after the downing. But the Turkmen being bombed ignored the internationally accepted rules of war. “The pilot, Oleg Peshkov, was shot dead in the air by machine gunfire from a group of local rebels led by a Turkish national while parachuting to the ground,” Russian news outlet RT reported. Peshkov was buried Dec. 2 in southwest Russia. The other pilot eluded both bullets and capture and returned to Russia’s Syrian base.

The Turkmen’s decision to violate the rules of war contrasts with the U.S.-led alliance’s decision not to kill the truck drivers whose shipments are helping fueling the estimated $10 million in oil sales that the Islamic State of Iraq and Greater Syria pockets each week. In part, the U.S. decision was motivated by an effort to target only hard-core ISIS members, and not the civilians who merely enable them to remain in power. Attacking them, Pentagon officials say, runs the risk of radicalizing civilians and turning them into full-fledged ISIS fighters.

That’s why the U.S. dropped leaflets 45 minutes before the first series of strikes on Nov. 16 that destroyed 116 tanker trucks, and did so again before a second series of attacks Nov. 22 that wiped out 283 more. “Get out of your trucks now, and run away from them,” the leaflets declared. “Warning: airstrikes are coming. Oil trucks will be destroyed. Get away from your oil trucks immediately. Do not risk your life.”

The Pentagon said it wanted to give the drivers the benefit of the doubt. “This is our first strike against tanker trucks, and to minimize risks to civilians, we conducted a leaflet drop prior to the strike,” Army Colonel Steve Warren told reporters Nov. 18. “Granted, they’re oil smugglers, but they’re not really members of ISIL,” he added, using a military acronym for ISIS. The U.S. waited more than a year to begin attacking the fuel trucks, Pentagon officials say, because until recently they lacked the intelligence to know which ones were carrying ISIS oil.

The Pentagon’s leaflet-dropping mercy led to some tough questions when Carter and Marine General Joseph Dunford, chairman of the Joint Chiefs, appeared before the House Armed Services Committee on Tuesday. “I’ve been involved in the targeting process at all levels,” said Rep. Martha McSally, R-Ariz., who once patrolled a no-fly zone over Iraq in an A-10. “If you’re driving a truck for a terrorist organization that’s fueling them, you’re a combatant.”

Dunford pushed back. “We assessed that the majority of the truck drivers were, in fact, just people trying to make a living,” he said.

Defense Secretary Ashton Carter and Marine General Joseph Dunford, chairman of the Joint Chiefs, testify before the House Armed Services Committee on Tuesday.
DoD photo / Adrian Cadiz

Rep. Jim Bridestine, R-Okla., flew combat missions over Afghanistan and Iraq in an E-2C radar-warning plane. He wondered if the drivers were ignorant of who they were working for. “The idea is that you believe these people did not know that they were involved in funding ISIS—that’s what you’re telling us?” he asked.

Carter responded this time. “These are people who are making a buck,” he said, “and so we gave them every opportunity to survive the strike.”

Bridestine wasn’t satisfied. “It’s quite frankly, astonishing,” he said, “if we’re trying to win.”

Yesterday’s rules of war, negotiated among states, don’t fit today’s wars against terrorists, a former POW says. When Senator John McCain was shot down by North Vietnam in 1967, his value as a Hanoi bargaining chip helped keep him alive. “It wasn’t because the North Vietnamese were somehow philanthropic or humanitarian,” McCain said Wednesday. “Whether you agreed with the North Vietnamese or not, they had a government.” That’s not the case in Syria, where hundreds of rebel groups and several nations are fighting, often turning everyone involved into a target for one faction or another, regardless of international norms.

Or, perhaps not. Like his fellow Republicans, the Arizona Senator, who spent more than five years in a North Vietnamese prison, doesn’t understand the Pentagon’s leafleting. “Those trucks sell oil that they [use to] make millions of dollars in order to orchestrate attacks and kill innocent people,” he said. It’s time to revise the war-fighting rulebook. “There has to be, in my view, an administration-slash-congressional review of the rules of war,” McCain says.

Read Next: Who Are the Syrian Turkmen Rebels?

Contact us at editors@time.com.

SPONSORED FINANCIAL CONTENT

Read More From TIME

EDIT POST