#11 How are Rules of Engagement Formed for Military Operations?
– Dr Regeena Kingsley
Given the importance of the content of Rules of Engagement (ROE) for any military forces deployed on security or peace support operations (see blog “#10 Rules of Engagement & National Caveats: “Self-Defence” & “Mission Accomplishment” Instructions”), two questions immediately arise. How exactly are these ROE formulated? And who within the national government apparatus is responsible for drafting ROE for any Multinational Operation (MNO) during the pre-deployment phase?
ROE Formulation: Seven Steps
There are seven steps that are typically involved in the ROE formulation process from the initial request for military aid or intervention in a specific locality, to the actual deployment of national armed forces to that theatre of conflict. A chart depicting all seven of these steps is shown below in Figure 2.3.
Figure 2.3 – The ROE Formulation Process: A chart depicting the seven steps involved in designing ROE for national contingents deployed to multinational operations.
Step 1
The catalyst for ROE formulation comes in the form of a formal request to a national government to provide military assistance to a MNO in a particular theatre of conflict. This request is made by either the government of a nation participating within a coalition of the willing (usually the Lead Nation), or alternately the highest body of an international organisation, such as the UN Secretariat or NATO’s North Atlantic Council (NAC).[1] The request will be considered by both the political and military branches of the invited national government in order to assess the type of operation entailed, its objectives, tasks, means and authorities, and consequently, the type of military force required from the State in both manpower and machinery (i.e. small arms, tanks, artillery, aircraft, ships, or even riot-control assets).[2]
Step 2
Once these considerations have been made, involving research and consultations between the political and military branches of government, the highest political body within the government – the executive branch – will make a strategic commitment. If the resulting decision constitutes a commitment to contribute military assistance to the MNO, the legal branch of the military will immediately begin to formulate ROE for the armed forces to be committed. There are three different ways in which this ROE formulation process can begin:
- (1) ROE may initially be adopted from another State, or coalition of States, with whom national armed forces will be serving;
- (2) ‘standard’ or ‘universal’ ROE from an international or regional Peace Support Operation (PSO) organisation may be used as a starting template;
- (3) ROE may be drafted wholly by the national defence force using national ‘standard ROE’, without reference to outside aids.[3]
While the U.S. military tends to take the third option and use its own standardised ROE policies and procedures for all military operations carried out by American forces outside U.S. territory and territorial waters, it is more common for nations within the international community to employ one of the first two ROE options.[4]
Whether adopted from another State or coalition of States, or taken from the PSO organisation or a national list of standardised ROE, the ROE template is next examined in reference to the national armed forces ROE ‘supplemental measures’ list, and any necessary modifications made.[5] In particular, the template ROE are examined to determine whether:
- (a) the standing rules of engagement and rules for the use of force are sufficient to accomplish the mission; and
- (b) if not, which national supplemental measures are needed, why they are needed, and under what circumstances they may be requested or authorised.[6]
As a result of this analysis, certain individual template rules may be vetted and replaced with a national rule, and additional national supplemental ROE may also be added to the template.[7] Modifications might also be made due to the specific features of the MNO, or in consideration of recommendations made by the inviting party.[8]
Lastly, consideration will be given to national obligations under the body of international law concerned with war known as the Law of Armed Conflict (LOAC), in addition to contemporary Customary International Law (CIL), and obligatory changes made to the list of national operational ROE (see endnote for more information on LOAC and CIL).[9]
This detailed ROE design is usually the task of Legal Officers within each national defence force, who play a key role in developing legally sufficient plans and orders that support the achievement of operational objectives.[10] Their primary responsibility is to identify important national legal considerations, such as legal authorities, constraints and obligations, and provide legal advice and recommendations that will shape the initial planning guidance of the operation.[11] Namely, they are charged with advising higher command of purely legal constraints and providing a risk assessment of the legal consequences of a diverse range of particular courses of action.[12]
Their legal examination and assessment will result in a first draft of ROE, which while not a legal document in itself, will reflect all relevant national legal obligations.[13]
Step 3
ROE are above all an operational rather than a legal matter however. For this reason, while Legal Officers are involved in the drafting process, the substance of ROE is in fact the domain of national high command and, as the Operational Law Companion of the New Zealand Defence Force (NZDF) points out, ‘their content should be resolved at the highest level of command’.[14] Indeed, the NZDF legal manual explicitly warns Legal Officers (LOs) involved in the process on this point, stating:
‘The LO should, therefore, never draft ROE in isolation. It is essential to obtain concise instruction [from national high command] as to the concept of operation. If you include a constraint (for political requirement’s sake) in ROE it will, in all probability, be considered as a legal constraint. The commander and all under him may labour under that misapprehension to their own personal cost, and at the expense of the mission [original emphasis]’.[15]
Consequently, the first ROE draft is typically submitted to the main headquarters of each national defence force (often a joint headquarters), in particular the department responsible for the planning of the operation (e.g. in New Zealand, the Strategic Commitments & Intelligence Branch of HQ NZDF).[16] As the interconnect between the political and military spheres, it is the task of the planning department to assess the strategic commitment in light of the available means and budget, and then translate this information into high-level policy intent, as seen in their drafts of the operational mandate and ROE (potentially including caveats on security forces).[17]
For this reason, the planning department may consider several different courses of action – which may or may not include wargame analysis in order to identify the strengths and weaknesses of each course of action – and will subsequently select the optimal operational plan for national forces.[18] Following this evaluation and selection process, the planning department will read through the first ROE draft and adjust the ROE where changes are considered essential to achieving specific objectives within the operation, with the ultimate goal of promoting effectiveness and unity of effort. [19]
The planning staff will then complete an overview of this second draft of ROE and ensure that, in their totality, they conform with the overall strategic and operational direction for the deployment provided by high command.[20]
Step 4
The second draft will subsequently be submitted back to the legal branch of the national defence force, to ensure the operational modifications comply with domestic law and national obligations under international law.
In most cases, the compatibility of the second draft of national ROE to the ROE template formerly adopted from the MNO Lead Nation or the PSO organisation will then be assessed. [21] It is to be noted here that in instances where national ROE modifications and additions clash with ROE issued by the Lead Nation or the PSO organisation involved, national considerations always prevail – regardless of the complications which may arise between disparate sets of ROE for allied forces operating on the ground.[22]
The NZDF law manual offers an explanation for this prioritisation of national interests over broader MNO concerns, stating:
In the event that NZDF contributes to a combined force it is usually the ROE of the major contributor which are proposed for use…In every case, however, it is the lawfulness, political acceptability and military acceptability of the use of force to New Zealand which is the deciding factor in the authorisation of ROE. ROE proposed for adoption from other sources are subject to the same clearance processes as those drafted by NZDF and may be altered, accepted or rejected accordingly [original emphasis].[23]
If any changes are made to national ROE at this stage, in order to promote better interoperability between the national contingent and other allied forces contributing to the MNO, the document will then constitute the third draft.
Step 5
International legal approval will next be sought for the third draft of proposed ROE. This is an important step, since the ROE will be crucial in determining the actions taken – or indeed not taken – by the national contingent while posted to the peace support campaign, and therefore the impact of the nation’s contribution to the outcome of the MNO. In particular, approval will be sought from the inviting party, whether this is the leading nation within the coalition or the international organisation involved.[24]
According to LTCOL Alexey Strekalov, close cooperation at this stage of ROE formulation, between national civilian and military lawyers with those of other donor nations to a PSO, is ‘vitally important for better cooperation in multinational operations’ in terms of achieving greater unity among differing sets of national ROE within the MNO.[25] Ideally, this step should also involve national and international consultation with professional officers with real experience of command within MNOs, potentially via national representatives in forums such as the UN or NATO Headquarters.[26]
It is possible that advice given internationally at this stage of the formulation process may result in further adjustments, leading to a fourth draft of operational ROE.
Step 6
Once this fourth draft has been read and approved by the highest-ranking chief of national military forces (e.g. in New Zealand, the Chief of the Defence Force), he or she will submit the ROE for government approval by the relevant government Ministers within the administration.
These government Ministers usually include the Minister/Secretary of Defence, but possibly also the Minister/Secretary of Foreign Affairs and potentially even the highest-ranking executive official of government, the Prime Minister or President. In the latter case, the Prime Minister or President may be given additional security policy advice from a government committee (e.g. in the case of New Zealand, ‘The Officials Committee for Domestic and External Security Coordination Committee’).
Government sanction of the ROE can take two forms, depending on the importance of the operation to the survival of the government:
- (1) either broad approval will be granted in accordance with the general principles behind the ROE; or
- (2) specific approval will be given following close ministerial perusal of the complete draft.[27]
Ministers, in keeping with their political posts, usually provide feedback on the draft during this stage, which may involve remarks, corrections, disagreements, and proposals for additional changes – often for strictly political reasons.[28]
In these cases the new modifications, once approved by legal branch, will comprise a fifth draft of national ROE.[29]
Step 7
In the final step in the ROE formulation process, these government Ministers will be asked to give final political approval and the document will be signed off conclusively at the political level.
At this point the government-approved ROE will be issued or disseminated downwards along the military chain of command, especially to the appointed senior national Commanding Officer (CO) in command of the national deployment to the PSO (also known as the ‘National Commander’). This process is generally known as “tasking”.
Tasking: The Dissemination of ROE Down the Military Chain of Command
The Operation Directive (OD)
At the upper echelons, the planning department will send the approved ROE to the main headquarters of the national defence force, which serves as the pivotal interconnect between high-level security policy and low-level tactical operations, translating the one into the other.[30] Here the approved ROE will be incorporated into an official deployment document, the Operation Directive (OD), prepared specifically for the forthcoming operation.
The Operations Order (OPORD)
In addition, main headquarters will extract the most operationally relevant points from the mandate and other official documentation, and reformulate this information into an Operations Order (OPORD) to be given to the appointed National Commander.[31] It is customary for a full copy of the approved ROE to be included in the OPORD, often attached as an annex or appendix and appearing alongside other appendices containing instructions relating to logistics, intelligence, the treatment of prisoners of war and detainees, and force protection.[32] It may be that the official CO will be shown the original documentation to read through once in preparation for the operation. However, it is more usual for the National Commander to work from his or her own specific OPORD.[33]
From this point onwards, it is the CO’s duty to exploit every advantage that he or she can in planning, training, and employment in order to ensure that his or her forces are fully prepared for the upcoming mission within the framework of the ROE contained in the OPORD.[34]
Pre-Deployment Training
At the lower echelons, meanwhile, the relevant operational points of the mandate, including ROE and any caveats, will be incorporated into the training routine of military units preparing to deploy to the MNO.[35] This is so that, having been drilled in the correct operating procedure, national forces will be better equipped physically and psychologically to perform their duties correctly, in accordance with their own national guidelines and constraints.
This is a matter of great consequence, both politically and legally, as any aberrations could lead to a dire situation with grave operational and international ramifications for the nation concerned. For this reason, it is crucial in the pre-deployment stage that soldiers are drilled to perform within the constraints of ROE well in advance of embarkation. As the NZDF legal manual states specifically on this matter: ‘Commanders are to ensure that the use of force restrictions are trained and drilled by those service members required to comply with them to the greatest extent that the operational environment will allow’.[36] Operational mistakes in theatre could lead to a legal firestorm, from which both the national government and its defence force will not escape unscathed.[37]
Safeguarding of Important Documentation
All the original, signed, authorising documentation is usually stored at the main national defence headquarters for the duration of the operation, including all future revisions of the mandate documents that, due to their limited duration, must be renewed and re-approved by government periodically. It is very important that this original documentation is kept safe for the duration of national participation in the MNO since, as Shaw explains, it is these documents alone, signed off at the highest political levels, that give the national defence force the authority to put the lives of its military personnel in danger. [38]
Lessons Learned: Post-Deployment Assessment of ROE
Finally, once the deployment has actually taken place and the operation has been brought completely to an end, it is common during the post-deployment stage for the operational ROE of the mission to be analysed and assessed with the benefit of hindsight and with an eye to the tasking of future PSO engagements. At the national level, feedback will be gathered from the contingent involved, their experiences analysed, and recommendations taken for improvements in ROE generally, as well as for the specific PSO, or type of PSO. [39]
This feedback will be translated into proposals for future changes in ROE, which will be analysed and, ideally, integrated into military thinking at national defence headquarters for the benefit of future contingents sent to future PSOs. In order to take full advantage of ROE suggestions, this post-operational ROE development will often be carried out jointly among the services.[40]
The process may also benefit from interaction between the national defence headquarters and those of other allied nations involved in the PSO, since exchanges in information and experience will help to build the largest picture possible of the real effectiveness and ramifications of the imposed ROE on tactical operations on the ground. [41]
Three Dominant Influences in ROE Formulation
As can be seen from this seven-step process, there are three main influences on the formulation of ROE for security operations:
- (1) the political agenda and objectives of national governments at the political level;
- (2) strategic and operational/tactical considerations at the military level; and lastly
- (3) government-wide domestic and international legal obligations.[42]
These three influences on the ROE formulation process are depicted below in Figure 2.4.
Figure 2.4 – Three Dominant Influences on the ROE Formulation Process.
Political Aims
At the political level, firstly, ROE are shaped by the political aims sought by the national government through the operation. The depth and extent of these political objectives, and perhaps also the political will in government for the effectiveness of national forces within the MNO, may be seen from the broad National Policy Indicator (NATPOL) given to the operation, as contained within the ROE. There are commonly three NATPOLs:
- (1) ‘Take the Initiative’ whereby Commanders are authorised to take the initiative within the ROE to resolve the military situation in favour of national interests;
- (2) ‘Maintain the Military Balance’ by the controlled application of force on the basis of reciprocity to keep military activity at status quo levels; and
- (3) ‘Reduce Tension’ by avoiding the use of force and any provocative activity.[43]
For operations that can not be categorised in this way, a specific-to-operation NATPOL may be designed for the operation to encapsulate political will at the national level and guide military action on the ground.[44]
These NATPOLs serve as an important reminder that, as the NZDF law manual states, ‘at all times military objectives remain subordinate to political objectives’ and that ‘it remains the sole prerogative of the Government to escalate, de-escalate, maintain or cease military action’.[45]
Military Requirements
At the military level, secondly, ROE are influenced by high command, who use them to constrain military activity in order that all tactical operations, in which national armed forces take part, conform to the overall military strategy and are carried out only to secure the designated objectives.[46]
Legal Obligations
Thirdly, at the legal level, ROE formation is influenced by national obligations under domestic and international law, including LOAC and bilateral Status of Forces Agreements (SOFAs) between national forces and the government of the host State, as well as to world opinion embodied by CIL.[47] ROE may never authorise a use of force which is unlawful, and therefore will always be subject to intense legal scrutiny.[48]
In sum, ROE are binding instructions or “orders” issued to national armed forces deploying to a PSO, the substance of which have been determined by operational command in accordance with the direction and constraints outlined by political powers. They reflect primarily political, then operational and legal requirements. It is the responsibility of military commanders to communicate these politico-legal constraints to all service personnel under their command, as well as to enforce strict obedience to the rules that have been sanctioned by the military’s political masters (via the invocation of military legal processes including military trials where necessary).[49]
In the following blog, the binding power of ROE on military forces will be addressed in greater detail with reference to the national mechanisms put in place to, firstly, enforce compliance of military personnel to ROE during security campaigns, and secondly, punish personnel for any breach of ROE committed in the course of their operations.
*This blog is an excerpt taken from Dr Regeena Kingsley’s original doctoral research in Defence & Strategic Studies (2014) entitled: “Fighting against Allies: An Examination of “National Caveats” within the NATO-led International Security Assistance Force (ISAF) Campaign in Afghanistan & their Impact on ISAF Operational Effectiveness, 2002-2012”.
Dr Kingsley’s full Thesis and its accompanying volume of Appendices can be viewed and downloaded from Massey University’s official website here: http://mro.massey.ac.nz/xmlui/handle/10179/6984
Endnotes
[1] Strekalov, Alexey (LTCOL), ‘Drafting ROE for Multinational Operations: EAPC/PfP Workshop: Towards Legal Interoperability Between Multinational Forces’, (Lucerne, Switzerland, 23-25 September 2002), NATO Partnership for Peace Forum, http: pforum.isn.ethz.ch/docs/Strekalov.doc, (accessed 8 October 2009)
[2] Ibid.
[3] New Zealand Defence Force (NZDF), Directorate of Legal Services, ‘Annex A to Rules of Engagement, Draft-Rules of Engagement Manual for the New Zealand Defence Force’, ‘11.0 Rules of Engagement’, in NZDF Operational Law Companion, May 1999.
*For written NZDF authorisation permitting the use of these sections within the NZDF Operational Law Companion, refer to p. xxiii-xxxiv of Volume I: Thesis in my doctoral research, accessible here: http://mro.massey.ac.nz/handle/10179/6984.
[4] NATO Partnership for Peace (PfP), ‘Rules of Engagement in Multinational Operations against Terrorism’, Generated from a PfPLMS 0.2 learning object, NATO Partnership for Peace Forum (PfP ADL-WG, 2006), p. 1, http://pfpdev.ethz.ch/SCORMcontent/112363/scos/5/index.pdf, (accessed 8 October 2009); NZDF, ‘Annex A to Rules of Engagement’, ibid.
[5] NZDF, ‘Annex A to Rules of Engagement’, ibid.
[6] United States Department of Defense (U.S. DoD), Joint Chiefs of Staff Publication, Joint Publication 1-04: Legal Support to Military Operations, 17 August 2011, p. II-12, http://www.dtic.mil/doctrine/new_pubs/jp1_04.pdf, (accessed 21 April 2015).
[7] Ibid.
[8] Ibid.
[9] Ibid.
LOAC is one field, within the vast body of International Law (IL) governing all international relations, that is concerned with armed conflict. It governs the existence and conduct of all armed conflict and military occupation, whether or not war has been formally recognised. LOAC is comprised of: (1) international treaties, agreements, pacts, conventions and protocols; (2) international custom (or CIL); (3) common principles of law generally recognized by civilized nations; (4) judicial decisions of international courts; and (5) the writings of legal experts. While LOAC is concerned with both jus ad bellum, law relating to the right of States to use force under international law, it chiefly consists of jus in bello, law which governs the conduct of States and individuals while engaged in an armed conflict. For instance, much of LOAC concerns: the means and methods of warfare; the protection of the victims of armed conflict; the punishment of those responsible for crimes against international law during a conflict; the protection of the environment from the widespread and long-term effects of war; child soldiers; and the prevention, suppression and punishment of the crime of torture, genocide, and crimes against humanity. In this way it often overlaps with the principles contained within International Human Rights Law (IHRL) relating to the protection of human beings by the authorities of the State. LOAC holds universal jurisdiction and presides over military conduct in both war and peacetime, including all the various stages in-between. States who have ratified treaty law relating to armed conflict are legally obligated to comply with it, in addition to accepted practices of CIL, and must be careful to honour LOAC in all their military dealings (J. Derbyshire (MAJ), ‘149.335: Introduction to LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, Centre for Defence Studies, Massey University College of Humanities and Social Sciences, Palmerston North, New Zealand, 2008, pp. 5-7, 14-15).
CIL refers to practices in warfare that are so consistently upheld and adhered to by a majority of States on the world stage that they have become generally regarded as law. Instead of solely national interest, States comply with the practice out of a sense of legal obligation. CIL is considered binding on all states regardless of whether or not the practices have been enshrined in international treaties or, if the practice is already within international legislation, whether all or a majority of States have signed on to them. However, CIL is founded on general, rather than unanimous, agreement. This means that in rare instances where a State has consistently objected to a particular practice, that principle of customary law is not considered binding for that particular state. Nearly all of the major principles of LOAC as well as associated treaty law are now considered CIL, notably the prohibition against genocide and the 1949 Geneva Conventions and the Hague Convention IV (Hague Convention relative to the Laws and Customs of War on Land of 18 October 1907). Because CIL is based on historical experience and general consensus, it is continually changing as conflict evolves, meaning that ‘the legal obligations of States may change without any formal notification’ at all (Derbyshire, ‘149.335: Introduction to LOAC’, ibid., pp. 13-14, 16).
[10] U.S. DoD, Joint Publication 1-04: Legal Support to Military Operations, op. cit., p. II-9.
[11] Ibid., p. II-9, II-11.
[12] NZDF, ‘11.0 Rules of Engagement’, op. cit., paragraph 11.20, p. 11-2; U.S. DoD, Joint Publication 1-04: Legal Support to Military Operations, ibid., p. II-12.
[13] NZDF, ‘Annex A to Rules of Engagement’, op. cit.
[14] NZDF, ‘11.0 Rules of Engagement’, op. cit., paragraphs 11.19-20, pp. 11-2, 11-3.
[15] Ibid., paragraph 11.23, pp. 11-3.
[16] NZDF, ‘Annex A to Rules of Engagement’, op. cit.; NZDF LTCOL Andrew Shaw, Interviewed by Regeena Kingsley, op. cit.
[17] NZDF LTCOL Andrew Shaw, Interviewed by Regeena Kingsley, ibid.
[18] U.S. DoD, Joint Publication 1-04: Legal Support to Military Operations, op. cit., p. II-12, II-13.
[19] NZDF LTCOL Andrew Shaw, Interviewed by Regeena Kingsley, ibid; U.S. DoD, Joint Publication 1-04: Legal Support to Military Operations, ibid., p. II-9, II-12.
[20] NZDF, ‘Annex A to Rules of Engagement’, op. cit.
[21] Strekalov, op. cit.
[22] NZDF, ‘Annex A to Rules of Engagement’, op. cit.
[23] Ibid.
[24] Ibid.
[25] Strekalov, op. cit.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] NZDF LTCOL Andrew Shaw, Interviewed by Regeena Kingsley, op. cit.
[30] Ibid.
[31] Ibid.
[32] Ibid; U.S. DoD, Joint Publication 1-04: Legal Support to Military Operations, op. cit., p. II-14.
[33] NZDF LTCOL Andrew Shaw, Interviewed by Regeena Kingsley, ibid.
[34] S. M. Womack (LTCOL.), ‘Rules of Engagement in Multinational Operations’, Marine Corps Gazette, Vol. 80, no. 2, February 1996, p. 22.
[35] Strekalov, op. cit.
[36] NZDF, ‘Annex A to Rules of Engagement’, op. cit.
[37] Strekalov, op. cit.
[38] NZDF LTCOL Andrew Shaw, Interviewed by Regeena Kingsley, op. cit.
[39] Strekalov, op. cit.
[40] Ibid.
[41] Ibid.
[42] NATO PfP, ‘Rules of Engagement in Multinational Operations against Terrorism’, op. cit., p. 2; NZDF, ‘Annex A to Rules of Engagement’, op. cit.
[43] NZDF, ‘Annex A to Rules of Engagement’, op. cit.
[44] Ibid.
[45] Ibid.
[46] Ibid.
[47] NATO PfP, ‘Rules of Engagement in Multinational Operations against Terrorism’, op. cit., p. 2.
[48] NZDF, ‘Annex A to Rules of Engagement’, op. cit.
[49] Ibid.; NZDF, ‘11.0 Rules of Engagement’, op. cit., paragraph 11.17, p. 11-2.