NATO RULES OF ENGAGEMENT AND USE OF FORCE Lt Col Brian Bengs, USAF Legal Advisor NATO School
Nations vs NATO What is the the source of NATO’ NATO’s s pow power/authori er/authority ty? ?
NATIONS
NATO
SOVEREIGNTY
NO SOVEREIGNTY
PARLIAMENT/CONGRESS
NO PARLIAMENT/CONGRESS
MILITARY FORCES
NO MILITARY FORCES
ENACT LAWS
NO AUTHORITY TO ENACT LAWS
ENFORCE ENFORCE LAWS LAWS
NO LAW ENFORCEMENT
PUNISH VIOLATIONS
NO PUNISHMENT ABILITY
Nations vs NATO What is the the source of NATO’ NATO’s s pow power/authori er/authority ty? ?
NATIONS
NATO
SOVEREIGNTY
NO SOVEREIGNTY
PARLIAMENT/CONGRESS
NO PARLIAMENT/CONGRESS
MILITARY FORCES
NO MILITARY FORCES
ENACT LAWS
NO AUTHORITY TO ENACT LAWS
ENFORCE ENFORCE LAWS LAWS
NO LAW ENFORCEMENT
PUNISH VIOLATIONS
NO PUNISHMENT ABILITY
Legal Responsibilities International military operations effectively impose legal obligations upon three different levels of a military organization State Responsibility – Responsibility – duty to implement, observe, and enforce LOAC & comply with international mandate (UN, NATO or both) Command Respons Command Responsibility ibility – – duty to maintain force discipline to preclude/stop LOAC violations and comply with wi th national mandate Individual Responsibility – Responsibility – duty to comply with LOAC and national mandate (ROEs)
State Responsibility Mandate/LOAC noncompliance has negative consequences - Lo Loss ss of leg legit itim imacy acy - Po Poli liti tical cal liab liabil ilit ity y - Di Dipl plom omat atic ic isolat isolatio ion n - Co Comp mpen ensat satio ion n claim claims s - Co Coerc erciv ive e sanct sanctio ions ns - Rep eprrisa salls - Art 1, Hague IV (1907) (1907) requires requires States States to instruct instruct their their forces to act in compliance with the Hague Regulations - Geneva Conventions (1949) (1949) require require States States to enact legislation to punish certain offenses and also search for alleged offenders to then prosecute or extradite for prosecution elsewhere
Command Responsibility Own or subordinates’ noncompliance with LOAC can result in personal prosecution for war crimes Commander is fundamentally responsible for military discipline which insures compliance with LOAC and national mandate Traditionally, command responsibility was only applicable to international armed conflict, but ICTY & ICTR applied concept to internal conflicts
Commanders meet obligation through ROE, statement of intent, concept of operations, special instructions
Individual Responsibility Noncompliance with LOAC can result in prosecution for war crimes Noncompliance with the national mandate (expressed in ROE) can result in prosecution for military offenses Individual actions can constitute a violation of State responsibility with significant negative consequences (strategic corporal)
What R ROE? The NATO Definition: “Directives issued by competent military authority which specify the circumstances and limitations under which forces will initiate and/or continue combat engagement with other forces encountered.” -- Allied Administrative Publication (AAP)-6, NATO Glossary of Terms and Definitions
Practical Definition ROEs are a State’s guidance to its military forces detailing when, where, how, and why the forces accomplish a mission & against whom force may be used In essence, ROE answer these questions: What action is permitted? When is action permitted? Where is action permitted? How must permitted action be accomplished? Against whom is permitted action authorized?
So There’s No Confusion . . .
ROE ≠ LOAC What is the source of LOAC? International law What is the source of ROE? National Command Authorities & subordinate Commanders How do the different sources impact you?
Law vs ROE Limits of Law
Law vs ROE Limits of Law
ROE
Law vs ROE Limits of Law
ROE
Law vs ROE Limits of Law
ROE
This overlap should never happen.
Where Do ROE Come From?
Politics and Policy Operational Concerns International Law Domestic Law
Sources of ROE
Operational Factors
ROE Policy
Law
ROE Development and Approval NATO ROE are developed under the North Atlantic Council’s de jure authority (de facto authority of SHAPE in cooperation with the JFC leading the operation) ROE and ROE requests are approved by the Military Committee as part of the Contingency Plan or by the NAC as part of the mission OPLAN What if a State doesn’t like some of the ROE? Troop contributing nations may declare caveats regarding the application/use of certain ROE for their forces
Your Domestic Law Armed forces of troop contributing nations participating in NATO/NATO-led operations must adhere to their own national laws Nations issue restrictions/caveats or amplifying instructions to ensure compliance with domestic law Commanders must be aware of & comply with national restrictions
NATO vs National Rules What are common topics of difference? Rules Regarding Detention Rules Regarding Use Of Force Counter-narcotics Ops Civilian Casualties Investigations Claims And Compensation
National Caveat Examples No Operations In/Outside XYZ No Operations Supporting OEF No Lethal Use Of Force For XYZ CAS Operations - Weapons Release Only if JTAC’s State Ratified Additional Protocol 1 Caveats – Good Or Bad?
Use of Force
Use of Force
ON (War)
OFF (Peace)
Use of Force
War: You are legally authorized to kill enemy soldiers
Peace: Generally speaking, you are not permitted to kill enemy soldiers Rules of Engagement authorize limited use of force
This is where NATO usually operates!
Always Use The Correct Tool For The Mission
Know the specific details of the job before you go to do it
NATO ROE Series Examples of MC 362/1 ROE categories: 18 – Detention or seizure 32 – Use of riot control agents 33 – Use of force in designated operations 35 – Prohibiting or restricting use of specific weapons 36 – Information operations 37 – Use of electronic countermeasures 38 – Use of Mines 42 – Attack
Why Do We Need More Rules?
ON (War) Peace Enforcement
Peace Keeping
(Peace)
Use of Force in Peace
Only two possibilities: Authorized by the rules of engagement
or In self-defense – including extended selfdefense You do not need ROE for self-defense!
Self-Defense in NATO What constitutes “self-defense” in NATO? MC 362/1: Self defense is the use of such necessary and proportional force, including deadly force, by NATO/NATO-led forces and personnel to defend themselves against attack or imminent attack
Self-Defense in NATO Some nations: very narrow (hostile act) Some nations: very broad (hostile intent)
Nota Bene :
You should know the self-defense rules for your nation . . . and every other nation you work with
Self-Defense in NATO Rule 421 – Hostile Intent Attack against DESIG person(s) or DESIG target(s) demonstrating hostile intent (not constituting an imminent attack) against NATO/NATO-led forces is authorized. Hostile Intent = likely and identifiable threat recognizable on the basis of: (1) the capability and preparedness of persons which pose a threat to inflict damage AND (2) evidence that indicates an intention of these persons to attack or otherwise inflict damage
Self-Defense in NATO Rule 422 – Hostile Act Attack against DESIG person(s) or DESIG target(s) which commits or directly contributes to a hostile act (not constituting an imminent attack) against NATO/NATO-led forces is authorized. Hostile Act = intentional act causing serious prejudice or posing a serious danger to NATO/NATO-led forces or DESIG forces/ personnel
Offensive Use of Force in NATO Rule 429 – Attack Attack on DESIG force(s) in DESIG circumstances is authorized. Hostile intent, hostile act, imminent attack, or actual attack is not required Hostility is presumed due to enemy affiliation Rule 429 authorizes the most unrestrained use of force in MC 362/1
Use of Force Continuum
DEFENSIVE
OFFENSIVE
ATTACK OR IMMINENT ATTACK
HOSTILE ACT
SELF DEFENSE
ROE 422
HOSTILE INTENT
ROE 421
NO HOSTILE ACT OR INTENT REQUIRED
ROE 429
Scenarios
A group of INS fire RPG and AK47 at your dismounted ISAF patrol and use radio controlled IEDs against ISAF vehicles.
How may you respond? This is an actual attack. Return fire on the basis of inherent self-defense.
Scenarios A group of INS hide behind a dirt wall waiting for ISAF forces to come into range. A trigger man waits for an ISAF vehicle to pass over a buried radio controlled IED. As soon as ISAF forces are close, INS direct their weapons and are just about to open fire.
How may you respond? This is a clear demonstration of hostile intent in conjunction with an imminent attack. Use of force is authorized under either Rule 421 or inherent self-defense.
Scenarios A group of INS place an IED on the side of a road frequently used by ISAF troops. The INS goal is to kill or injure ISAF soldiers in the next patrol and destroy an ISAF vehicle.
How may you respond? This act poses a serious danger to ISAF personnel & equipment so it is a hostile act. Use of force is authorized under Rule 422.
Scenarios An INS has built an IED and is transporting it on his donkey to a spot on the road frequently used by ISAF troops. His plan is to emplace the IED and kill or injure ISAF soldiers on the next patrol and destroy an ISAF vehicle.
How may you respond? The INS is demonstrating hostile intent. Use of force is authorized under Rule 421.
Scenarios Under the command of a senior INS leader a group of INS attacked an ISAF patrol with RPG and AK47. After the ambush, they retreat and escape on motorcycles.
How may you respond? Chase them down on the basis of ongoing self defense? What about Rule 425? Attack against DESIG force(s) or DESIG target(s), which have previously attacked, or directly contributed to an attack, is authorized.
LOAC/ROE Implementation Strategic level: Create conditions for LOAC & ROE to be respected and followed
Operational/Theatre level: Plan in accordance with LOAC & ROE and issue precise orders to ensure implementation
Tactical level: Issue orders and control subordinates to preclude LOAC & ROE violations and immediately stop any known violations
The Pocket Card What does a pocket card do? Translates ROE language into clear guidance for individual troops – ROE for Dummies Typical Contents: Rules of Behavior LOAC Right to Self-Defense Principles of Necessity & Proportionality Warnings (Calls/Warning Shots) Criteria for Use of Force
Example Escalation of Force (EOF)
Deadly force Shoot at foot Rubber Bullets Warning Shots Pepper Spray Agencies, e. g. tear gas
D R A Z A H
Shock grenade CRC & dogs - high level CRC - low level Obstacles Activation restricted area Warning Information
THREAT
