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A Kinder Gentler, Machine Gun Hand or How I Gave Up My Right to Self Defense and Learned to Love COIN
“Are we shooting?” Sgt. Barlow in Three Kings
In the beginning of the movie, Three Kings, it is March 1991, the Persian Gulf War had just ended, and Sgt. Barlow does not know if he can legally engage an Iraqi soldier. After the Iraqi soldier points his weapon in Sgt. Barlow’s direction, Sgt. Barlow shoots the Iraqi soldier, but is later unsure if he did the right thing since he then notices the dying Iraqi soldier had a white rag in his hand. While Sgt. Barlow now has time to second guess his decision, at that moment, he felt as though his life, and the life of the men that he serves with, were being threatened, and he had to make a choice.
Since the attacks of 9-11, U.S. service members[ii] have had to make similar life and death decisions in a split second during the wars in Afghanistan and Iraq. In the aftermath of the initial invasion, U.S. forces, after having achieved their objectives of ousting hostile Taliban or Ba’athist regimes, were left with rebuilding a country with hostile forces still embedded within the local populace and hiding amongst civilians. At all times, U.S. service members have been required to conduct themselves and conform their actions in accordance with international law and the Law of War, or the law of armed conflict. [iii] To accomplish this, U.S. service members are issued rules of engagement (ROE), which are guidelines issued by the President, the Secretary of Defense, and subordinate commanders that dictate the use of force that can be used by the military.[iv] While these rules may give service members wide latitude in the permissive use of force in self-defense, these rules may be further constrained in order to satisfy the principles of counterinsurgency (COIN).[v] Counterinsurgency focuses on protection of the local civilian population over the use of force against potential enemy targets in order to not cause collateral damage against civilians who may be nearby, inadvertently creating more insurgents and creating a perpetual conflict.[vi]
Many in the media and former members of the military have criticized the rules of engagement as being too vague, not clearly defined, or too restrictive.[vii] Furthermore, many argue that the rules of engagement in use since 9-11 have prioritized the “winning of hearts and minds” and counterinsurgency over winning wars and protecting the lives of those who serve in the military, and that the threat of legal punishment deters a service member’s basic right to self-defense.[viii]
The following paper will introduce the basis for the rules of engagement and describe the background for the conflict between the right to self-defense and the protection of civilians found in international law and the Law of War. It will then go on to describe the actual development of the rules of engagement in a historical context, before defining the rules of engagement and describing the current problems. Finally, the paper will examine possible solutions in regards to alleviating some of the tension between the rules of engagement and the counterinsurgent fight.
The Right to Self-Defense and the Law of War
"Now, after they killed my husband, I hate them," she said. "I want to blow them all up."
-Iraqi widow whose husband was mistakenly killed by U.S. forces
Article 51 of the United Nations Charter states that “nothing in the present Charter shall impair the inherent right of an individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”[ix] The right to self-defense has been recognized as being part of a tradition of natural law since the right to defend oneself from harm seems to be an inherent, logical right.[x] Thomas Aquinas described natural law as flowing from natural inclinations and that when man made law acts in derogation of them, “then it is no longer a law, but a corruption of law.”[xi]
While most would agree that the right to defend oneself seems to be an inherent right, Aquinas failed to comment on how far out the natural right to self-defense extends to situations where you may just be in the process of being threatened. In 1837, after crossing over into American territory, British forces destroyed the steamboat, Caroline, since they believed it was supplying insurgents with weapons to attack the British.[xii] The U.S. deplored this attack and Secretary of State Daniel Webster wrote a letter to the British saying that they had no right to claim self-defense, unless they could “show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”[xiii] The British argued that the attack was justified. This concept of anticipatory self-defense became known as the “Caroline Principle” and was eventually accepted as part of customary international law.[xiv] Most nation states would now agree that it would be a violation of natural law and common sense if a country had to wait until they were actually attacked to defend themselves, if they knew with certainty that they were about to be attacked.[xv]
While there is an international recognition of a nation and an individual’s right to self-defense through armed conflict, these rights are controlled and limited by international treaties and customs of international law.[xvi] Although there had always been some kind of informal limits on the conduct of warring parties in regards to civilians on the battlefield, the 20th century produced formal treaties and agreements that sought to protect civilians that were not participants in the conflict.[xvii] The Hague Regulations of 1907 seemed to protect civilians caught in the cross fire only incidentally by limiting the use of poison and restricting bombardment of cities that were left undefended by military forces.[xviii] After the destruction wrought by World War II, the Geneva Conventions of 1949 sought to further regulate the conduct of war, but also gave more extensive rights and protections to civilians that included restrictions on their ability to be targeted if they were not participating in hostilities since the majority of those killed during World War II were civilians.[xix] Over time, through the Additional Protocols to the Geneva Conventions and other international treaties, the Law of Armed Conflict developed and required the use of force to be limited to targeting only military targets of necessity.[xx] This use of force is only authorized when military targets are distinct from civilians ones and would not create disproportionate damage to civilian lives or property or unnecessary suffering.[xxi]
Rules of Engagement Defined
“If a man by the terror of present death, be compelled to doe a fact against the Law, he is totally Excused; because no Law can oblige a man to abandon his own preservation.”
The rules of engagement are defined as “the directives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.”[xxii] These rules take into account legal, policy, and military considerations.[xxiii] The President and the Secretary of Defense determine U.S. policy goals when determining the rules of engagement and then issue them to subordinate commanders.[xxiv] In turn, these subordinate commanders are allowed to make adjustments to the rules of engagement to fit their particular areas of operation so long as they continue to abide by international law and do not act in derogation of the policy goals of the U.S.[xxv]
The Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01B Standing Rules of Engagement (SROE)/Standing Rules for the Use of Force for US Forces (SRUF) establishes the guidance for the use of force by the military occurring overseas or within U.S domestic territory.[xxvi] The standing rules of engagement apply to almost the full range of activities that the U.S. military engages in outside of the United States.[xxvii] The standing rules of engagement apply to U.S. service members stationed in Italy, providing disaster relief in Haiti, patrolling a neighborhood in Bosnia as part of a United Nations mission, or conducting full spectrum military operations against insurgents in Afghanistan.[xxviii]
The standing rules of engagement delineate the use of force between those situations involving either mission accomplishment or traditional self-defense.[xxix] The purpose of the standing rules of engagement is to provide baseline guidance on the use of force in situations where a lawful target is identified due to its status or conduct.[xxx] This guidance allows subordinate commanders to make their own rules of engagement based on either a target’s status or hostile act or intention. [xxxi] The standing rules of engagement define a declared hostile force as “any civilian, paramilitary, or military force, or terrorist that has been declared hostile by appropriate authorities.”[xxxii] If a force has been declared hostile, then individual members of that force can be engaged by a U.S. service member without regard to whether that individual member of a declared hostile force has displayed a hostile act or hostile intent.[xxxiii] For example, during the invasion of Iraq in 2003, a U.S. service member was legally entitled to kill any uniformed Iraqi soldier that they came across whether or not that Iraqi soldier was sleeping, eating, or firing a weapon.[xxxiv]
With the second type of target that is not a member of a declared hostile force, the standing rules of engagement also provides guidance for the use of force in situations based on self-defense if a U.S. service member feels threatened by a civilian, who wears no uniform, but may be taking part in military action.[xxxv] A service member who engages a civilian as a part of self-defense must have noticed a hostile act or hostile intention on the part of the civilian.[xxxvi] The standing rules of engagement define hostile act as “an attack or other use of force against the United States, or U.S. forces, including the recovery of U.S. personnel or U.S.Government property.”[xxxvii] For example, an Afghani farmer that shoots a rocket propelled grenade at a passing U.S. convoy has committed a hostile act against U.S. forces which would legally entitle them to respond with proportionate force, up to and including deadly force.[xxxviii] The standing rules of engagement define hostile intent as “the threat or imminent use of force against the U.S., U.S. forces or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. forces, including recovery of U.S. personnel or vital U.S. property.”[xxxix] Using an imminent threat analysis, a U.S. service member has to subjectively determine what “hostile intent” or “imminent threat” may or may not be. A more quantifiable and easily defined scenario would include those include those situations where an attacker may raise their rifle or take aim at U.S. forces, but has not yet fired a round.
The standing rules of engagement now apply to all branches of the military, whereas formerly each branch had their own version that they used for their own services.[xl] The standing rules of engagement should serve as a starting point for each subordinate unit to craft their own rules in regards to the requirements of their mission.[xli] Subsequent rules of engagements are developed by commanders along with their JAG (Judge Advocate General) lawyers after conducting a thorough evaluation of that unit’s intelligence, objectives, and mission.[xlii]
These subsequent rules of engagement can be more narrowly tailored to suite a unit’s area of operation, legal constraints, or objectives by lower level commanders and JAG officers.[xliii] However, some complain that despite the fact that the U.S. military has more lawyers than any other military in the world, many subsequent rules of engagement cards are cut and paste copies of old rules of engagement cards or are simply hand me downs from command to subordinate command without changes due to time constraints.[xliv] Additionally, JAG lawyers create briefs and training presentations concerning rules of engagement that may include acronyms in order to help service member’s remember what to do in order to accomplish the mission and satisfy the international law requirements of distinction, proportionally, and necessity.[xlv]
JAG officers also brief service members on current escalation of force (EOF) procedures that are to be followed in situations where a service member is unsure whether or not they are being threatened.[xlvi] Escalation of force procedures traditionally dealt with crowd control situations that occurred in peacekeeping operations where there was no declared enemy.[xlvii] In this situation, service members would use graduated levels of force to show their resolve to a potentially hostile crowd without using deadly force by using a system such as “Shout (to warn crowd), Show (weapon), Shove (crowd back), Shoot (warning shots), Shoot (to kill or wound).”[xlviii] U.S. service members showed their capability to successfully use such an escalation of force model during peacekeeping in Bosnia in 1997 when an angry crowd of Serbs showed up to take over a local police station. Over the course of a day, U.S. service members used a combination of butt strokes, warning shots, and verbal warnings to keep an angry crowd at bay without suffering any significant casualties and without having to resort to deadly force.[xlix] Since those service members did not use deadly force, they avoided a situation that may have stoked a small insurgency or a major local backlash. By following the escalation of force procedures and their rules of engagement, these U.S. service members successfully avoided the kind of backlash that British soldiers and their government suffered after overreacting to a situation on the streets in Boston in 1770.[l]
Recent escalation of force measures undertaken in missions in Iraq and Afghanistan are sometimes similar to the crowd control situation that faced U.S. service members in Bosnia. However, they are usually more applicable to situations where service members are not attempting to prevent an escalation of hostilities, but are attempting to distinguish a potential threat from an inattentive civilian that does not see a traffic control point and fails to slow down when approaching a convoy.[li] Typical escalation of force measures include firing warning shots or shooting off flares in order to gain the driver or potential threats attention.[lii]
Throughout this process, the commander and the JAG are receiving new input and intelligence and making adjustments to the rules of engagement and escalation of force measures based on feedback from the chain of command and individual service members.[liii] Each ROE or EOF guidance that a commander and their JAG lawyer puts out may take into account very specific details of what the current enemy tactics are and what level of force would be appropriate for their current area of operations.[liv] JAG officers will usually conduct interval training on changes to the rules of engagement to low ranking service members.[lv] This is critical since lower ranking and younger service members are usually the ones doing the patrolling.[lvi]
Evolution of the Rules of Engagement in American Conflicts
“It’s no longer the mission that’s critical; it’s the ROE. Now guys think the ROE is the mission.”
-1SG John Bernard (ret.), USMC
Something similar to the rules of engagement has existed throughout history. In American parlance, some of the first rules of engagement had to do with the tactical advantage of using force at a particular time when William Prescott ordered his men, “Don’t one of you fire until you see the whites of their eyes.”[lvii] In 1914, during the Mexican Revolution, U.S. Cavalry were instructed to not return fire against the different Mexican factions despite the fact that U.S. forces had continuously been fired upon.[lviii] The policy objective in that instance was to maintain U.S. neutrality in that conflict and, as a result, U.S. forces were issued guidelines that restricted their use of force.[lix]
The Air Force and Navy first used the term “rule of engagement” after World War II in regards to guidelines for pilots to use when they came into contact with Soviet aircraft or went into Chinese airspace.[lx] The Joint Chief of Staff first adopted the term in 1958 when the Pentagon thought that such rules were necessary in order to prevent an escalation of a minor conflict with another nuclear armed power.[lxi] With its adoption, military leaders sought to control the use of force in accordance with national strategic policy and prevent a local commander’s overreaction to a situation from escalating into World War III.[lxii]
For the fighting service member on the ground, official rules for restraining their use of force, similar to modern rules of engagement, did not begin until 1958 when U.S. forces were deployed to Lebanon and instructed “..not to return fire unless they had a clear target.” [lxiii] Unit leaders at this time were encouraged by the ability of their forces to use restraint and keep conflicts small.[lxiv] Finally, after a limited engagement in the Dominican Republic in 1965, American ground forces were officially introduced to the term rules of engagement after the enemy forces had been effectively blocked and the civilian leadership in D.C. wanted to increase the chances of a peace agreement. [lxv]
During the war in Vietnam, the term rules of engagement became widely known and used amongst most of the U.S. forces on land.[lxvi] “ROE cards” were issued out to commanders, officers, and enlisted service members as they arrived in theater with information concerning the treatment of prisoners of war, rules against targeting civilians, and the use of force. [lxvii] This move to use rules of engagement more widely was largely in response to the overwhelming and indiscriminate use of fire power throughout much of the early part of the conflict in Vietnam and the ability of the press to transmit reports of civilian casualties back home to the U.S. public via television.[lxviii]
As the rules of engagement became more and more prominent in the U.S. military, commanders and JAG officers struggled with ways to articulate and train those rules to lower ranking service members. One of the most egregious examples of confusing rules of engagement occurred in Lebanon in 1983 when terrorists destroyed a barracks killing 241 Marines.[lxix] Marine guards watched as a truck filled with explosives drove past several guard stations and detonate.[lxx] These guards had been issued contradictory guidelines that allowed them to “only fire if fired upon” despite being briefed about the possibility of engaging threats posed by individuals and vehicles.[lxxi]
Most recently, U.S. service members in Iraq were prevented from returning fire or pursuing mortar teams that were firing on U.S. bases as U.S. forces were in the final stages of withdrawing from the country.[lxxii] Similar to the showing of restraint by U.S. forces on other occasions, these service members were not allowed to return fire or send maneuver units out in an attempt to engage enemy forces.[lxxiii] While no official reason was given, it is likely that U.S. political leaders and top military officials wanted to avoid any escalation of hostilities in the closing months of the occupation.[lxxiv]
As seen in the previous examples, the rules of engagement have been used to achieve three types of policy goals where the U.S. military has been concerned. In the Revolutionary War, Prescott directed his forces to use restraint to achieve maximum destructive results against the enemy to achieve a military goal. In 1914, U.S. forces on the Mexican border were ordered to show restraint and not fire back at Mexican forces in order to achieve the political goal of neutrality. In an effort to follow international law during Vietnam, U.S. forces were instructed to use distinction in their use of force in order to prevent the targeting of civilians.
“The more successful the counterinsurgency is, the less force can be used and the more risk must be accepted.”
- FM 3-24, Counterinsurgency
To say that the success of a counterinsurgency (COIN) is a little dependent on the rules of engagement is an understatement. The Counterinsurgency Field Manual, 3-24, mentions the phrase “use of force” nine times, the acronym “ROE” thirty times, and the phrase “rules of engagement” twenty six times.[lxxv] Counterinsurgency operations are usually commenced during what is known as phase IV operations that occur in the period following the cessation of major hostilities.[lxxvi] Once a primary conventional force has been defeated, military leaders focus more closely on civilian considerations in their operational environment since the success of counterinsurgency operations is contingent on local support.[lxxvii]
Counterinsurgency may require, or suggest, alternatives to the use of force that may seem counterintuitive to service members on the ground. Sometimes insurgents or terrorists will carry out an attack against American service members with the intent of making that service member overreact.[lxxviii] One of the best examples that service members often face would be in situations where a U.S. patrol is attacked with an improvised explosive device (IED) in a crowded area with civilians. In anticipation of an ambush, the U.S. patrol opens fire with civilians nearby while the “trigger man” who detonated the IED remains safely hidden away from the explosion and the U.S. patrol’s countermeasures. In this instance, the best course of action may be for the U.S. patrol to do absolutely nothing, if the secondary and tertiary effects would produce more negative consequences.[lxxix] In this scenario, nearby civilians that may be wounded or killed by the U.S. patrol may become sympathetic to, or active members of, the local insurgent group. Counterinsurgency doctrine emphasizes using the minimum amount of force at all times and would preclude using a “sledgehammer” to protect the nut from the shell that covers it.[lxxx]
In keeping with the principle of using the minimum force necessary, another major distinction between counterinsurgency and conventional operations is that the protection of local civilians will take precedence over eradication of enemy forces.[lxxxi] Some leaders in the military understood as much when General Abrams, commander of the military forces in Vietnam dictated to his staff that, “The mission is not to seek out and destroy the enemy. The mission is to provide protection to the people of Vietnam.”[lxxxii]
Furthermore, successes in counterinsurgency operations will likely lead to tighter rules of engagement.[lxxxiii] As the amount of violence in an area drops off, U.S. forces are expected to assume more risk and use less force.[lxxxiv] Thereafter more reliance is placed on traditional investigative methods and service members may be required to show more restraint in their dealings with the local populace or in situations where they are unsure of whether or not they are being threatened.[lxxxv] Rules of engagement and escalation of force procedures can vary widely from place to place and day to day to reflect these changes in different areas of operation. For example, during the Iraq insurgency, U.S. forces operating around Baghdad were giving more latitude than those that were operating in the relatively safe areas of northern Iraq which had much more restrictive rules of engagement and escalation of force requirements.[lxxxvi] Similarly, after the comparative success of the “Surge” strategy in 2006, Iraqi civilian vehicles were allowed to pass U.S. convoys in many areas whereas before they either had to stop or keep a safe standoff distance.[lxxxvii]
Successful counterinsurgency understands the premise that most important decisions are not made by senior leaders.[lxxxviii] Counterinsurgency requires that junior level leaders and service members are trained to be flexible in whatever environment that they may find themselves in and act as “strategic corporals” who understand that their tactical decisions may have secondary and third order effects and implications that reach theater wide.[lxxxix] In counterinsurgency, it is imperative that these young service members have the judgment and competence to understand the ethical and legal consequences of their actions.[xc] These “strategic corporals” could be counted on to do the right thing and not wind up on CNN.[xci]
Current Problems with Rules of Engagement
"His rules of engagement put service members' lives in even greater danger," a soldier privately told Rolling Stone in the article that got McChrystal fired last month. "Every real soldier will tell you the same thing."
In response to increases in civilian casualties in Afghanistan in 2009, Gen. Stanley McChrystal issued a tactical directive that reaffirmed his commitment to the legal use of force by NATO’s International Security Force (ISAF).[xcii] In the tactical directive, Gen. McChrystal states, “We must avoid the trap of winning tactical victories- but suffering strategic defeats- by causing civilian casualties or excessive damage and thus alienating the people.”[xciii] Gen. McChrystal goes on to state that commanders should scrutinize the decision to use close air support (CAS) and indirect fire, such as mortars or artillery, and prescribes specific conditions and exceptions upon which such munitions can be used.[xciv] He finally goes on to state that service members still have the right to self-defense, however his command guidance is clear that he wants leaders to control the use of force by those under their command to conform with principles of counterinsurgency and the use of minimum force, and not necessarily what may be allowed by international law.[xcv]
While this is just one directive, issued by one General in one particular theater, it does an accurate job of portraying a leader’s conflicting interest in protecting the lives of his troops, and protecting the lives of innocent civilians and winning a counterinsurgency, even if it means restricting his own troop’s legal right to defend themselves. However, many have criticized these new guidelines as giving too much aid to the enemy by requiring U.S. service members to break contact with enemy forces if they are too close to civilians and for putting too severe limits on the use of airstrikes and indirect fire when requested by U.S. forces on the ground.[xcvi] After this directive was issued, it was reported that four Marines were killed in an ambush after a request for artillery support was turned down since civilians were in the area, despite the fact that these “civilians” were actually providing ammunition to the insurgents that were attacking the Marines.[xcvii] In another incident, two Army officers were severely reprimanded in 2009 after denying indirect fire and air support to a Marine company that was pinned down by 100 insurgents.[xcviii]
Some have stated that this tactical directive issued by Gen. McChrsytal was only aspirational and did not dictate too many significant changes in the rules of engagement that were being used in Afghanistan.[xcix] Other studies have shown a positive correlation between the lower number of civilian casualties and fewer attacks on U.S. forces in Afghanistan since Gen. McChrystal’s directive was issued and that U.S. forces are actually statistically safer.[c] However, it is agreed that these rules severely restrict the use of force that can be used against homes in residential areas unless U.S. forces are in “immediate danger.”[ci]
This type of restrictive guidance can be gamed by insurgents since the analysis of whether or not to use force becomes too focused on threat posed to potential civilians in the area and not to the tactical advantage that insurgents may seek to gain by ambushing U.S. forces from these residential areas.[cii] Furthermore, insurgent leaders can hide in homes near residential areas and count on reluctance by U.S. forces to use deadly force against them.[ciii] U.S. military leadership conceded as much prior to the implementation of these orders when U.S. military spokesman, Rear Adm. Greg Smith, said, "But if there is a compound they're (U.S. forces) taking fire from and they can remove themselves from the area safely, without any undue danger to the forces, then that's the option they should take," Smith said. "Because in these compounds we know there are often civilians kept captive by the Taliban."[civ]
More restrictive guidance issued in the directive required U.S. forces to account for the “cultural sensitivities” when engaging local women.[cv] In a similar fashion, insurgents dressed like women and eluded capture by U.S. forces when they were cornered in a residential area.[cvi] After being chosen to replace Gen. McChrystal, Gen. Petraeus seemed to be aware of these misgivings about the rules of engagement in Afghanistan when he testified before Congress that he is "keenly aware of concerns by some of our troopers on the ground about the application of our rules of engagement" and that he plans to "look very hard at this issue.”[cvii] Shortly after taking over command in Afghanistan, Gen. Petraeus quietly rolled back many of the restrictive guidance issued in McChrystal’s 2009 directive.[cviii] However, some have argued that many of the policies that 2009 directive have already influenced military culture and cannot simply be undone.[cix]
Confusion as to what the rules of engagement permit or requires has also been a complaint amongst many serving in the U.S. military. The hearing officer in charge of the proceedings against those accused of committing rules of engagement violations in Haditha admitted that he was confused as to what the rules of engagement permitted Marines to do.[cx] At that hearing, evidence was introduced that showed that Marines operating in Iraq were being required to show (their weapons), shout (at potential threat), shove (a potential threat), and then shoot.[cxi] But prior to engaging a target and shooting, Marines were also required to have positive identification of a target, after that target had showed hostile intent and hostile actions.[cxii] Another JAG officer for the Marines testified at the same hearing that it was permissible to shoot fleeing civilians after a roadside bomb attack without any indication that they were involved in the attack and that it was immaterial whether or not they had any weapons on them.[cxiii] However, in the same testimony, that JAG officer testified that it would not be legal for a Marine to engage an Iraqi if that Iraqi just pointed a gun at them.[cxiv]
Similarly, in Sadr City in the Baghdad area of Iraq, U.S. service members were being briefed to follow seven step escalation of force (EOF) measures before they were able to engage targets using lethal force.[cxv] In a response to the article, Gen. Caldwell affirmed that all U.S. service members retained the right of self-defense, but equivocated that it was possible that a lower level leader could have issued more restrictive guidance.[cxvi] Therefore, the local commander in Baghdad may have wanted to make the rules of engagement more restrictive, or the escalation of force measures were being confused with the rules of engagement by service members on the ground.
Most of the violations of the rules of engagement are punished administratively[cxvii], since most of the time they have to do with situations involving something less than the use of deadly force.[cxviii] For example, a service member may be punished nonjudicially, via an article 15, or administratively by a bad evaluation report, for firing a warning shot when it was not needed or for pointing his weapon at a local civilian when it was not warranted by the circumstances.[cxix] However, some service members have stated that they would rather face a court martial than receive a bad evaluation, since a court martial allows the accused service member a chance to prove their innocence.[cxx] While the need for such corrective measures is needed to maintain good order and discipline and to keep small rules of engagement violations small, they are likely being applied disproportionately to lower ranking service members who may not have been acting out of line with what the rules of engagement permits.[cxxi]
In Afghanistan, a Marine Lieutenant, Josh Waddell, was relieved of command after he ordered a sniper to shoot out the tires of a tractor that may have been hauling away a wounded Taliban insurgent. The Marines had just suffered casualties from an improvised explosive device and the Taliban member had been wounded in the melee. However, since there were young teen men in the area, Lt. Waddell was reprimanded for ordering the sniper to shoot out the tires of the tractor since it may have harmed civilians who were either nearby or operating the tractor.[cxxii] Lt. Waddell who volunteered to join the Marines and go to Afghanistan after finishing college, will likely lose his career due to this letter of reprimand and relief of command because he ordered his sniper to shoot at some tires. While the primary effect of this incident will be end of a Marine’s career, it will also have a chilling effect on other service member’s decision to use force. One attorney that specializes in ROE defenses commented that cases like Lt. Waddell’s are likely regular occurrences, but that they do not receive as much publicity since they usually involve lower enlisted service members who act as the “fall guys.”[cxxiii]
What Would Not Work
“You can declare Zarqawi hostile and drop a bomb on the house and kill him and everybody in the house.”
-Lt. Col. Brian Cosgrove, Sgt. Hutchins Defense Attorney
The “Pendleton Eight” were seven Marines and one sailor who were accused of kidnapping and killing a suspected insurgent in Hamdania, Iraq. In the documentary, Article 32, the Marines testified that the man that they killed was part of an insurgent cell and that, after killing the man, insurgent attacks in their area which was located in the volatile Anbar Province went down precipitously. According to the Marines who were charged, all of the intelligence reports that they had received indicated that this man and his brothers were organizing insurgent attacks against Marines in the area that they patrolled and that killing of this man, while illegal, was immoral and “saved lives.”[cxxiv]
While this may likely be true, it cannot be advocated as a workable solution to the rules of engagement problems faced by U.S. service members overseas. In this situation, these Marines took matters into their own hands when they killed the man without any official approval from their chain of command.[cxxv] Official authorizations of similar actions by conventional forces would not work either. Imagine if theater command or lower level commands had the authority to issue a status based rules of engagement to authorize the use of deadly force against lower level insurgents based on intelligence reports indicating their specific and individual participation in insurgent or terrorist actions against U.S. or friendly forces. If conventional units were given this authorization, then the focus of a great deal of future command decisions would be in furtherance of obtaining such clearances for use of deadly force against insurgents. The incentive to having a short cut would be too much of a temptation for most units and mistakes would likely be made if it were permitted on a wide scale in regards to conventional forces.
Many critiques that the current rules of engagement are too restrictive on U.S. forces seem to subtly or openly advocate some type of system where U.S. service members would be authorized the use of deadly force in situations akin to the one involving the “Pendleton Eight.” If conventional U.S. forces were given the right to explicitly, or implicitly, engage lower to mid-level insurgents, this right would metastasize and become the impetus for most actions taken against insurgents. Similar to the losing formula in Vietnam, the conventional metric for victory and success would become enemy body counts.
Make sure the ROE do not create perverse incentives and encourage bad behavior. Although couched in legalese, the 2005 changes to the standing rules of engagement gave the service member overseas greater protection when it comes to their right to self-defense.[cxxvi] The 2005 changes stated that “imminent does not necessarily mean immediate or instantaneous” whereas before self-defense had only been authorized in response to an “imminent threat.”[cxxvii] These 2005 changes to the standing rules of engagement give U.S. service members similar flexibility to respond to threats that nation states have under the “Caroline Principle.” In keeping with the President’s guidance on the use of force, which has yet to be rescinded, commanders in theater should not stand in the way of service members’ right to defend themselves, or call in air support or indirect fire if needed.
Additionally, the rules of engagement should not carve out obvious, although well intended, exceptions in regards to targeting certain locations. For example, if insurgents know that U.S. forces are even more reluctant, or prohibited, from targeting homes in residential areas, then you can count on insurgents ambushing U.S. service members from homes in residential areas much more frequently. While the principles of counterinsurgency are noble and should be followed, U.S. service members cannot ever completely immunize themselves from having to engage the enemy near innocent civilians.
Restructuring the force, but not really. In an era of tightening federal budgets and ballooning debt, maintaining separate armies of invasion and occupation is not financially or likely logistically, feasible.[cxxviii] Leaders and service members in the Armed Forces must maintain both the core competencies of being a warrior, when the situation permits, and acting as an adept counterinsurgent in other circumstances where the service member must act as a pseudo law enforcement official.
The Pentagon could institute a more flexible incentive program to entice local, state, and federal law enforcement officials to serve in the Armed Forces. Personnel with a requisite two years of full time, professional experience in law enforcement could be specifically targeted with bonus or signing incentives, as the private sector does, to join maneuver units that execute counterinsurgency policy on the ground. These personnel would already be accustomed to carrying weapons at all times during their civilian careers and using force as a last resort. Furthermore, the different life and problem solving experiences in negotiation and dispute resolution that they could bring to the table could be a force multiplier in a maneuver unit. [cxxix]
A similar cost effective and minimally intrusive measure would be to specifically target individual service members, with requisite experience serving as military police, to change jobs and switch to a maneuver unit. These former military police officers would provide maneuver units with the same sort of skills, as mentioned above, without having to reach out into the civilian world. This program could also be extended to interested service members to switch over and serve in the military police for a period of two years before returning to their maneuver unit. In this scenario, service members who have good records and requisite aptitudes could be switched from military police units to infantry units, or vice versa. They could become cross trained, and cross train others, in the investigation methods that are crucial in counterinsurgency operations where the overwhelming use of force is generally not as important as the ability to put together evidence in a country where you are attempting to establish a rule of law, so you can eventually leave.
This restructuring of the force would be minimally intrusive and would be quite similar to programs already in place in the Armed Forces. The U.S. Army already implements a personnel program, called branch detailing, for newly commissioned officers to fill shortfalls in critical branches such as infantry, field artillery, and armor.[cxxx] These officers are borrowed from the military intelligence, military police, or engineer branches with the understanding that they are going to be on loan to a branch with a shortfall of Lieutenants for a period of 2 to 3 years with the understanding that they will end up back in their original branch.[cxxxi] The scope of this program could be expanded from just filling branch shortfalls, to equipping maneuver units with cross trained officers. A similar program could be instituted for interested career enlisted service members in the Non Commissioned Officer’s Corp.
“Detached reflection cannot be demanded in the presence of an uplifted knife”
Finally, since rules of engagement violations are generally punished administratively and not criminally, an administrative review board as proposed by Rep. Trent Franks would alleviate some of the fears that junior military service members may have.[cxxxii] A three member administrative review board made up of officers currently serving in theater, but outside of the affected service member’s chain of command would examine administrative punishments to ensure that they were not handed out haphazardly.[cxxxiii] "Once the board is established it will provide service members with the peace and knowledge that there is an impartial review outside their chain of command. It will provide a layer of oversight that currently does not exist for service members facing this type of administrative action."[cxxxiv] This board would provide the affected service member some due process protection against a commander such as Lt. Waddell’s that seemed to be punishing Lt. Waddell for a bad call that that commander had made just days before.[cxxxv]
“Counterinsurgency is not just a thinking man’s warfare-it is the graduate level of war.”
-Special Forces Officer in Iraq, 2005
Creating and training service members to act as warriors, police officers, city managers, and nurses is not as simple as passing a law, rewording some memos or rules of engagement, or increasing funding to the Department of Defense. Creating strategic Corporals, tactical JAG officers, and senior leadership who are proficient in counterinsurgency, who understand that the rules of engagement do not bar their right to legitimate self-defense, and who are not reticent about using lethal force when necessary, will continue to be a matter of training.
[i] This paper is being written for a Military Law Senior Seminar taught by Prof. C. Behan and influenced by an International Law class taught by Prof. C. Buys at the Southern Illinois University School of Law. The author is a practicing attorney and a veteran of Operation Iraqi Freedom.
[ii] The word “service members” or “force” will encompass the entire military to include Soldiers, Sailors, Airmen, and Marines.
[iii] Department of Defense Directive (DoDD) 2311.01E, May 9, 2006.
[iv] Operational Law Handbook, 71 and 72.
[v] FM 3-24, Counterinsurgency Field Manual
[vi] Id. at 5.
[vii] Andrew Tilgman, Shifting Guidelines Call for ROE Reform, Army Times, 23 Apr. 2012. Can be viewed at http://www.armytimes.com/news/2012/04/military-second-guessing-rules-of-engagement-sink-careers-042312w/
[ix] David Bolgiano, Defining the Right to Self-Defense: Working Towards the Use of a Deadly Force Appendix to the Standing Rules of Engagement for the Department of Defense, 31 U. Balt. L. Rev. 157, 159 (2002).
[x] Maj. John Merriam, Natural Law and Self-Defense, 206 Mil. L. Rev. 43, 45 (2010) (although advocating a return to the prior model of only authorizing force against immediate threats, and not in anticipation of immediate threats).
[xi] Id. at 51.
[xii] Id. at 59.
[xiii] Id. at 60.
[xv] Id. at 61 (Although, this author goes on to state that the changes to the SROE in 2005 and the Bush Doctrine of pre-emption stated in his National Security Strategy in 2002 is in total derogation of and out of bounds with natural law).
[xvi] Geoffrey Corn and Eric Talbot Jensen, Untying the Gordian Knot. A Proposal for Determining Applicability of the Law of War to the War on Terror, 81 Temp. L. Rev. 787, 790 (2008).
[xvii] Id. at 793.
[xix] Id. at 794.
[xx] OP Law Handbook, 149-151 (citing Geneva Conventions AP I, Hague Regulations, and the Lieber Code for establishing the precedent of the notions of necessity, distinction, proportionality, and unnecessary suffering).
[xxii] Joint Publication 1-02, 297.
[xxiii] Forged in Fire: Legal Lessons Learned during Military Operations 1994-2008, 143.
[xxv] Id. at 144.
[xxvi] Corn, supra note 16, at 807. (Citing CJCSI 31.21.02 and stating that Standing Rules for the Use of Force, or SRUF, applies to the use of force by the military in domestic operations and is therefore not applicable in this situation).
[xxvii] Id. at 809.
[xxviii] Id. at 809.
[xxix] Id. at 810.
[xxx] Id. at 811.
[xxxi] Id. at 811.
[xxxii] OP Law, supra note 20 at 75, reprinting unclassified portions of JOINT CHIEFS of Staff, INSTR. 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force of U.S. Forces (13 June 2005) hereinafter SROE.
[xxxiv] Corn, supra note 16, at 810 (citing Richard Grunawalt, The JCS Standing Rules of Engagement: A Judge Advocate’s Primer).
[xxxv] Id. at 813.
[xxxvii] Id. at 814.
[xxxviii] Id. at 815.
[xxxix] OP Law, supra note 20.
[xl] Karen Seifert, Interpreting the Law of War: Rewriting the Rules of Engagement to Police Iraq, 92 Minn. L. Rev. 836, 847 (2008) (citing Paul Jeter, What Do Special Instructions Bring to the Rules of Engagement? Chaos or Clarity?).
[xli] Id. at 848.
[xliii] Id. at 849.
[xliv] Id. (citing W. Hays Parks, Deadly Force is Authorized and his general discontent with the inadequacy of the ROE in general).
[xlvi] Forged, supra note 23.
[xlvii] Lieutenant Colonel Randall Bagwell, The Threat Assessment Process (TAP): The Evolution of Escalation of Force, 2008 Army Law. 5.
[xlviii] Id at 6.
[xlix] Lieutenant Colonel Mark S. Martins, Deadly Force is Authorized, but Also Trained, 2001-Oct Army Law. 1, 14 (2001).
[l] Can be viewed at http://www.bostonmassacre.net/
[li] Bagwell, supra note 47.
[liii] Interview with former JAG for 25th ID who had served in Iraq and Afghanistan.
[lvii] Major Mark S. Martins, Rules of Engagement for Land Forces: A Matter for Training, Not Lawyering, 143 Mil. L. Rev. 3, 34 (1994).
[lviii] Corn, supra note 16, at 794.
[lx] Martin, supra note 49.
[lxi] Corn, supra note 16, at 804 (citing Richard Grunawalt, The JCS Standing Rules of Engagement: A Judge Advocate’s Primer).
[lxii] Martin, supra note 49.
[lxiii] Martin, supra note 49 (citing Jack Schulimson, United States Marine Corps, Historical Reference Pamphlet, Marines in Lebanon (1966) commenting on success of restraint and fire discipline as key to success in “small wars.”
[lxv] Id. (citing Poer Pack: United States Intervention in the Dominican Republic, 1965-1966).
[lxvii] Id at 48.
[lxviii] John Nagl. Learning to Eat Soup With a Knife, 27.
[lxix] Corn, supra at note 16, at 814.
[lxxii] Discussion with service member who had served in final months of U.S. occupation of Iraq.
[lxxv] FM 3-24, supra note 5.
[lxxvi] Lieutenant Colonel Mark David Maxwell and Major Richard Meyer, The Principle of Distinction: Probing the Limits of Its Customariness, 1 (In Iraq, this would be considered operations that occurred after President Bush declared an end to major combat operations, while in Afghanistan, phase IV operations would have begun after the Taliban had been ousted from power. However, most would agree that this was just the end of conventional tactics as some of the heaviest fighting in both of these instances occurred after the cessation of major combat activities).
[lxxvii] FM 3-24, supra note 5, at 146, () (Civilian considerations are always part of the mission analysis under METT-TC (Mission, enemy, terrain, troops, time, and civilian considerations), but during counterinsurgency operations it could be argued that the analysis becomes C-METT-TC).
[lxxviii] FM 3-24, supra note 5.
[lxxix] Id. U.S. forces are trained that an IED attack may be the commencement of an ambush against their patrol. While this is true in some instances, the act of providing a defensive field of fire after an IED may wound innocent bystanders and create more insurgents, or at least, passive support for their cause.
[lxxx] Nagl, supra note 68, at 30, (Quoting a correspondence with retired BG Michael Addison)
[lxxxi] FM 3-24, supra note 5, at xix.
[lxxxii] Nagl, supra note 68, at 175. (Quoting General Abrams after taking over Military Assistance Command, Vietnam, in correcting a mission statement left by outgoing Gen. Westmoreland which was “seek out and destroy the enemy.”
[lxxxiii] FM. 3-24, supra note 5, at 48.
[lxxxv] Id at 40.
[lxxxvi] Interview, supra note 53.
[lxxxvii] Interview, supra 53
[lxxxviii] FM 3-24, supra note 5, at 49.
[xc] Id at 50.
[xci] Id. at 49, 50. (It is usually E-6’s and below that execute military and policy objectives overseas and it is often E-6 and below who are seen on the news when they act in such a way as to bring discredit upon themselves, like Abu Ghraib prison abuse, and the more recent example of Marines in Afghanistan posing with Nazi symbols or urinating on Taliban corpse).
[xcii] ISAF Tactical Directive, GEN. McChrystal, 6 July 2009, available at http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090706.pdf
[xciv] Id. Much of the unclassified portion that is available upon review is vague and seems like general guidance from a commander. However, there are at least two sections which have been deleted concerning what standards have to be met before indirect fire support or close air support would be authorized have been taking out with a section that states, “specific conditions deleted due to operational security.”
[xcvi] AP, Fallen Marine's father rips Gen. Stanley McChrystal's new rules of engagement in Afghanistan. 13 Oct. 2009 as seen at http://www.cleveland.com/world/index.ssf/2009/10/fallen_marines_father_rips_gen.html
[xcviii] Andrew Tilghman, Reforming the Rules of Engagement, Army Times, 23 Apr 2012, 14.
[xcix] Interview, supra note 53.
[c] Mark Thompson, McChrystal's Rules Helped Reduce Attacks, Study Says, Time Magazine, 22 Jul. 2010.
[ci] Id at 66.
[ciii] Interview with service member who claimed that decision to launch rocket attack against mid-level Taliban leader was denied due to fact that there was another home 1000 meters away despite the fact that rocket only had wound radius of 500 meters.
[civ] New Rule: No Fighting Near Afghan Homes, Military.com, 22 June 2009 available at http://www.military.com/news/article/June-2009/new-rule-no-fighting-near-afghan-homes.html?ESRC=army-a.nl
[cv] McChyrstal, supra note 92.
[cvi] AP, Taliban dress as women, sneak past Marines, Seattle Times, 8 July 2009, available at http://seattletimes.nwsource.com/html/nationworld/2009430464_afghanistan08.html
[cvii] Thompson, supra note 100.
[cix] Tilghman, supra note 98, at 15.
[cx] Tony Perry, Defining the Time to Kill; At Marines’ war-crime hearings, their rules of engagement are elusive, L.A. Times, 31 July 2007 (Marines in this case had been charged with violating the rules of engagement for the underlying offenses when nineteen Iraqis were killed after a Marine was killed by a roadside bomb in November 2005).
[cxiv] Id. (At this point in the proceeding, the hearing officer expressed incredulity that a right found in the common law of the United States would not be recognized in Iraq).
[cxv] James Lyons, Untie Military Hands, Washington Times, 26 July 2007. (Stating that the seven steps were: 1. You must feel a direct threat to you or your team, 2. You must clearly see the threat, 3. That threat must be identified, 4. The team leader must concur that there is an identified threat, 5. The team leader must feel that the situation is one of life or death, 6. There must be minimal or no collateral risk, 7. Only then can the team leader clear the engagement).
[cxvi] Gen. William B. Caldwell, Not at all vague; Rules of engagement strike balance, Washington Times. 9 Feb 2007.
[cxvii] For example where ROE violation involved death and Lieutenant that ordered unit to fire on nearby Afghan motorcyclists was convicted of murder see Michelle Tan. Hero or Murderer?. Army Times, 12 Jan. 2015. Can be viewed at http://www.armytimes.com/story/military/crime/2015/01/12/clint-lorance-afghanistan-murders-case-army/21470289/
[cxviii] Interview, supra note 53.
[cxx] Tilghman, supra note 98, at 15.
[cxxi] Sara Carter, Congress Explores Options for Soldiers burned by Rules of Engagement, Washington Examiner, 2 Apr. 2012. Can be viewed at http://washingtonexaminer.com/news/world/2012/04/congress-explores-options-soldiers-burned-rules-engagement/437611
[cxxiii] Tilghman, supra note 98, at 14.
[cxxiv] As seen in the documentary, Article 32.
[cxxv] Although the Marines in Article 32 raised the possibility that Marines theater wide in Iraq were being given implicit authority to act in such a manner.
[cxxvi] Merriam, supra note 10.
[cxxvii] Id. at 44.
[cxxviii] Andrew C. Pavord, Force Structure for Small Wars. (Arguing that a specially trained counterinsurgency force of roughly 3 to 6 active duty brigades and up to 12 brigades in the Army National Guard would be sufficient for counterinsurgency operations, despite the fact that the conventional parts of those wars lasted only a few weeks or months, this would have left the vast majority of active duty brigades idle for the past 10 years. However, a more feasible alternative may be to have the 18th Airborne Corp. focus on conventional warfare since the 18th is on constant standby, while having other divisions of the U.S. Army focus on counterinsurgency efforts, while maintaining conventional skills.) Available at http://smallwarsjournal.com/jrnl/art/force-structure-for-small-wars
[cxxix] This solution was inspired in part by my experience in Iraq where each platoon would have several NCO’s or Commissioned Officers who were police officers, corrections officers, or some other type of law enforcement. It seemed as though these skills were invaluable in a COIN environment. This belief was supported after reading Eating Soup with A Knife and reading throughout the book about the British’s reliance on their military being trained as police officers or constables. “I started my career in colonial policing in Palestine in 1938. So much of my generation and above have spent so much of their career doing colonial police that we’d better bloody well be good at it.” Nagl, supra at note 68, at 205.
[cxxx] Michael Sloane, The Army Branch Detail Program. Available at http://www.almc.army.mil/alog/issues/MayJun01/MS651.htm
[cxxxi] Army Regulation AR 614-100, Officer Assignment, Policies, Details, and Transfers, 10 Jan 2006. Available at www.apd.army.mil/pdffiles/r614_100.pdf
[cxxxii] Carter, supra note 121.
[cxxxiv] Carter, supra note 121.