#12 The Binding Power of Rules of Engagement: Enforcement & Punishment

#12 The Binding Power of Rules of Engagement:

Enforcement & Punishment

– Dr Regeena Kingsley

Rules of Engagement (ROE) are precise instructions relating to the use of lethal force by military personnel when deployed on military operations. In blog “#10 Rules of Engagement & National Caveats: “Self-Defence” & “Mission Accomplishment” Instructions”, the two major categories of ROE instructions – self-defence and mission accomplishment instructions – were discussed in detail, with particular reference to the three types of authorisation, limitation and prohibition rules contained in the latter most influential category with regard to effective Multinational Operations (MNOs). Following this explanation, blog “#11 How are Rules of Engagement Formed for Military Operations?” explored the seven steps typically involved in the government process of formulating ROE for any given military operation, highlighting the three key influences on this process of: (1) political aims; (2) military requirements; and (3) legal obligations.

This blog will discuss the binding power of ROE. That is, how these politico-legal instructions are enforced on military personnel and how breaches are punished to further reinforce respect and strict adherence to national ROE (including restrictive national caveats) among military forces on operations.

Enforcement

Once ROE have been designed and disseminated to the national contingent deploying to participate in a MNO, these politico-legal operational instructions are held firmly in place and enforced from this time onwards by two constructs which demand strict adherence: firstly, political oversight from government; and secondly, domestic military law in addition to international laws with regard to the conduct of war, the latter commonly known as the Law of Armed Conflict (LOAC).

(1) Political Oversight

The first of these is political oversight. Only the political authority over military forces – that is, the national government – has the power to approve changes to existing ROE issued to National Commanders. As the Operational Law Companion of the New Zealand Defence Force (NZDF) states on the matter:

‘ROE are determined at the highest level, and changes to the ROE will invariably require the approval of that highest level’.[1]

This means that while commanders have a small amount of freedom to initiate even more restrictive ROE when deployed in the field, this innovation occurs only within the initial framework of government-issued ROE. Commanders as a rule do not have the authority to remove, diminish or loosen pre-existing government-approved ROE, except on extreme and rare occasions when authority is specifically granted to him or her to do so.[2]

This makes commanders both reliant on the government for direction, as to the constraints placed on their forces, and answerable to the government for all actions taken outside of the ROE framework, since any departure will inevitably subject that individual to disciplinary action and may even result in the termination of the commander’s career in the armed forces.

Thus commanders have a strong politico-legal and personal incentive to remain obedient and comply with the ROE formulated by their political masters for the duration of any conflict in which national armed forces take part.

(2) Military Law

The body of domestic and international law relating to the military and armed conflict acts as a second construct to secure adherence to ROE. There are two legal imperatives for obedience to ROE by military personnel on operations: the first involving domestic military law and the oath of allegiance to obey superior orders; and the second concerning international law by means of LOAC.

Domestic

With regard to the former, firstly, while ROE are considered more of an operational rather than a legal device, meaning that they are not legally binding per se in the way that national mandates are, they are nevertheless tantamount to military orders or commands which, through their oaths of allegiance, all members of the armed forces have a sworn duty to uphold under national military law. As the NZDF Operational Law Companion states:

‘ROE…are orders which reflect the law, as well as political requirements’ [original emphasis].[3]

It is therefore the duty of commanders to clearly and concisely communicate these orders to their subordinates, and the duty of those subordinates to obey the orders to the letter. [4]

International

The second legal imperative for adherence to ROE relates to the way in which ROE are drafted with very careful attention to ensure that they abide within the legal restraints of LOAC – the body of international law for the conduct of war that is also enshrined in domestic national legislation.

LOAC is one field, within the vast body of International Law (IL) governing all international relations, that is concerned with armed conflict. It comprises all international law that 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 ‘Customary International Law’ (CIL); (3) common principles of law generally recognized by civilized nations; (4) judicial decisions of international courts; and (5) the writings of legal experts.[5]

The purpose of LOAC is to:

(a) reduce as much as possible the suffering, loss and damage caused by armed conflict;
(b) safeguard the fundamental human rights of (1) persons who are in any form of detention as a result of armed conflict, particularly Prisoners of War (PW), retained personnel, and internees and detainees, (2) the wounded, sick and shipwrecked, and (3) civilians; and
(c) facilitate the restoration of peace.[6]

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.[7]

In this way LOAC often overlaps with the principles contained within International Human Rights Law (IHRL), which is another field of international law that relates to the protection of human beings by authorities of the State (and sometimes their protection against the actions of their own State authorities).[8]

LOAC holds universal jurisdiction and presides over military conduct in both war and peacetime, including all the various stages in-between.[9] States who have ratified treaty law relating to armed conflict are legally obligated to comply with it, in addition to accepted practices of CIL (see endnote), and must be careful to honour LOAC in all their military dealings.[10]

Indeed, as mentioned previously, ROE are formulated to honour all of the nation’s legal obligations to international conventions within the body of LOAC ratified by the nation in question. As the NZDF legal manual also reiterates:

‘ROE may permit military activity up to and including but not beyond what is permitted by the law of armed conflict (LOAC)’ [original emphasis].[11]

Consequently, in addition to a duty to obey superior orders, national defence personnel have a duty to comply with ROE out of deference to the nation’s obligations to LOAC. In fact, as the highest law governing armed conflict and the ultimate legal standard for the lawful conduct of war, the duty of military personnel to uphold LOAC actually takes pre-eminence over the duty to obey superior orders. All service men and women on operations have a personal duty and obligation to act lawfully during an armed conflict – even to the extent of disobeying superior orders that are perceived to be manifestly unlawful.

In short, all military personnel have a duty under LOAC not to obey any order that is manifestly unlawful. As the NZDF bluntly states in its ‘Code of Conduct’ card issued to all New Zealand military personnel who are training for or actively involved in armed conflict: ‘Disobedience of LOAC renders you liable to punishment as a war criminal’.[12] In addition, service men and women also have the additional responsibility to uphold LOAC by both preventing and reporting any and all violations of LOAC.

NZDF ‘Code of Conduct’ Card, 2008

Punishment

From this overview above, it can be seen that there are strong political and legal forces working on military personnel to promote and enforce complete individual compliance with national ROE during a conflict. Non-compliance to ROE is considered a very serious issue. Disobedience to ROE ‘orders’ will have grave consequences. Any member of the armed forces who disobeys ROE, and thereby breaches either of the domestic or international military laws contained within ROE, will be put on trial, prosecuted, and potentially imprisoned, with evident ramifications for the individual’s career in the armed forces.

Criminal Responsibility

All persons in the armed forces have individual criminal responsibility if they:

(a) plan, instigate, order, or commit a crime at international law; or
(b) aid and abet the planning, preparation or execution of a crime at international law.[13]

A National Commander has the additional command responsibility of being held accountable for any breaches of LOAC which he or she:

(a) commits personally;
(b) orders; or
(c) inadvertently allows to take place under his or her effective control where (1) the commander knew or ought to know that their forces were committing or about to commit a crime, or alternatively (2) where the commander failed to take all necessary and reasonable steps within his or her power to either suppress the breach or cause it to be investigated and prosecuted.[14]

It is also important to note here too that, as emphasised above, any person alleged to have committed a breach of LOAC is not relieved of personal criminal responsibility even where he or she committed the breach by obeying an explicit order of his or her superior officer or government. The only exception to this rule is in cases where:

the person was under a legal obligation to obey the order(s) in question;
the person did not know that the order was unlawful; or
the order was not manifestly unlawful.[15]

Civilian or Military Court?

The exact criminal charges and whether or not the prosecution will take place within a civilian or military court will depend on the gravity of the crime and the preference of the State. The severity of the repercussions for disobedience will also depend on the extent of the breach.

Minor Breaches of ROE

For instance, if a service member commits a minor breach of ROE, such as disobeying Orders for Opening Fire (OFOF) or orders with regard to ‘warning shots’, the individual will be charged with having disobeyed superior orders, thereby breaking his or her oath of allegiance (see endnote).[16] This is because, unless they are clearly unlawful, orders must be complied with in the armed forces. However, since the breach is a minor one, he or she will answer a domestic criminal charge only and be prosecuted within the ordinary criminal justice system of the State at a civil court.[17] If the individual is found guilty, the individual can be sent to serve time in a military prison, or in some cases, a normal State penitentiary.[18]

This circumstance is well portrayed in the 2015 Danish language film “Krigen” (or “A War” in English), where a Danish commander stands accused of calling in an air strike against an Enemy Taliban position without having first attained a Positive Identification (PID) during one of his tours of duty in Afghanistan. He is subsequently prosecuted within a civilian court under the charge of having disobeyed ROE. The film is highly recommended to anyone concerned with the problem of appropriate versus inappropriate ROE in the context of modern warfare, including counter-insurgency war such as that waged in Iraq and Afghanistan. A subtitled trailer for the Danish film can be seen below.

Major Breaches of ROE

In contrast, grave breaches of ROE resulting in the highest offences are prosecuted by the military and may include:

(1) genocide (the intent to destroy a part or whole of a national, ethnic, racial or religious group);
(2) crimes against humanity (widespread crimes against the civilian population, such as extermination, enslavement, deportation, torture, rape, sexual slavery, enforced disappearance);

and most applicable here with regard to ROE,

(3) war crimes (crimes against LOAC, with regard to the rules, means, methods, or protection of persons and objects, intended or likely to cause great damage or suffering).[19]

If a service member commits a grave breach against ROE, and LOAC is broken resulting in a war crime, then he or she will usually be prosecuted under domestic military law and appear before a military tribunal (or in other words undergo a ‘court martial’). The accused may be prosecuted not only under the disobedience sections of domestic military legislation, but also under LOAC, specifically the national legislation incorporating LOAC into domestic law (e.g. in New Zealand, the Armed Forces Discipline Act 1971 and the International Crimes and International Criminal Court Act 2000 respectively).[20]

Under New Zealand law, a person found guilty of committing a war crime must face the same penalty as for murder, namely a mandatory sentence of life imprisonment if the offence involves wilful killing, or imprisonment for life or of a lesser term in any other case (see endnote).[21] In other countries, however, punishment for breaches of LOAC could involve the death penalty.[22]

Usually the State will wish to prosecute and imprison a member of its own armed forces using its own institutions, without reference to international bodies.[23] However, if the State is unable or unwilling to prosecute the individual domestically, then the accused may instead be handed over to be tried at either:

(1) an ad hoc conflict-specific international criminal tribunal founded by the United Nations Security Council (UNSC) for the purpose (e.g. the International Criminal Tribunal for the Former Yugoslavia); or
(2) more commonly, the International Criminal Court (ICC) in the Hague provided that the State has legally ratified the 1998 Rome Statute of the International Criminal Court and thereafter implemented the statute into national legislation (in New Zealand, for instance, ‘The International Crimes and International Court Act 2000’).[24]

Within ad hoc tribunals, prosecution will proceed and punishments be meted out according to the specific statutes drawn up by the UNSC at the creation of the tribunal.[25] As for the International Criminal Court, handover of an accused to the ICC can only occur on the condition that: (1) the accused is not under the age of 18; and (2) the State has not chosen to ‘opt out’ from the provisions on war crimes within the Rome Statute, involving an opt-out period of seven years.[26]

Founded in 1998 by the United Nations (UN), and empowered by the Rome Statute, the ICC is a permanent war crimes tribunal that has international jurisdiction in respect of:

(1) the crime of genocide;
(2) crimes against humanity;
(3) crimes against the peace (that is, aggression, pending a precise international definition); and
(4) war crimes.[27]

It may exercise jurisdiction over the war crime once consent has been given by either the State of which the person accused is a national, or the State with sovereign control over the territory in which the crime occurred.[28]

Instead of charges relating to domestic military law, the accused will be tried under the full body of international law relating to LOAC. If found guilty of committing a war crime, the accused will be subject to the following punishments, depending on the severity of the crime:

(a) a monetary fine;
(b) forfeiture of property derived from the commission of the crime;
(c) imprisonment in the ICC prison for a maximum of 30 years; or
(d) imprisonment for life where the offence is of an extremely serious nature. [29]

From this overview, it can be seen that strong political and legal incentives exist to enforce adherence by national military personnel to ROE during deployments to MNOs, by National Commanders as much as by individual personnel serving under their command. Certainly both will bear criminal responsibility for breaches of LOAC.

In addition, knowledge or reports of the serious ramifications that inevitably follow any breach of ROE by individuals in the armed forces – whether taught in theory or experienced in reality by other service personnel (at home or abroad) in the form of court cases in civilian or military courts, the loss of career, and hefty punishments which may include time in prison – also acts as an additional force to warn off non-compliance and reinforce very strict obedience to ROE by military personnel deployed in the field.

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] New Zealand Defence Force (NZDF), Directorate of Legal Services, ‘11.0 Rules of Engagement’, in NZDF Operational Law Companion, May 1999, paragraph 11.14, p. 11-2.

*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.

[2] Ibid.

[3] Ibid., paragraph 11.17, p. 11-2.

[4] Ibid.

[5] 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, 9-15.

[6] Ibid., p. 5.

[7] Ibid., p. 6.

[8] Ibid., p. 7.

[9] Ibid.

[10] 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).

[11] NZDF, ‘11.0 Rules of Engagement’, op. cit., paragraph 11.13, p. 11-2.

[12] J. Derbyshire (MAJ), ‘149.335: NZDF Code of Conduct Card’, in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, Centre for Defence Studies, Massey University College of Humanities and Social Sciences, Palmerston North, New Zealand, 2008, p. 24.

The New Zealand ‘Code of Conduct’ card is intended to encapsulate LOAC and translate complicated international law into simple rules or principles that can be easily understood by all NZDF military personnel. It contains the following 12 basic rules: (1) Fight only opposing forces; (2) Attack only military objectives; (3) Destroy no more than the mission requires; (4) Respect medical and religious personnel, cultural objects and places of worship; (5) Respect the use of protective emblems, symbols and markings; (6) Collect and care for the wounded and sick, whether friend or foe; (7) Do not abuse, torture or kill PWs, detainees or civilians; (8) Treat all civilians humanely, respect their property and do not loot; (9) Do not use weapons that are prohibited; (10) Do not alter your weapons or ammunition to cause unnecessary suffering; (11) Do not fight treacherously; and (12) Uphold the Law of Armed Conflict by preventing and reporting violations (Derbyshire, ‘149.335: NZDF Code of Conduct Card’, ibid., p. 13.

[13] J. Derbyshire (MAJ), ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, Centre for Defence Studies, Massey University College of Humanities and Social Sciences, Palmerston North, New Zealand, 2008, p. 5.

[14] Ibid., pp. 5-6.

[15] Ibid., p. 6.

[16] MAJ Jane Derbyshire, Personal communication with Regeena Kingsley, 18 November 2009, Centre for Defence & Security Studies (CDSS), Massey University, Palmerston North, New Zealand.

It is possible not to breach ROE and still be prosecuted for a crime, if for instance, the amount of force used in self-defence was unjustifiable (ibid.)

[17] Ibid.

[18] Ibid.

[19] Ibid.; J. Derbyshire, ‘149.335: Prevention and punishment of breaches of LOAC’, in ‘Section Twelve: International Criminal Court and Enforcement’, 149.335 Law of Armed Conflict, Centre for Defence Studies, Massey University College of Humanities and Social Sciences, Palmerston North, New Zealand, 2008, p. 15.

[20] NZDF BRIG Roger Mortlock (Ret’d), Personal communication with Regeena Kingsley, 3 November 2009, Centre for Defence & Security Studies (CDSS), Massey University, Palmerston North, New Zealand; Derbyshire, 149.335 Prevention and punishment of breaches of LOAC, op. cit., pp. 8, 14.

[21] Derbyshire, ‘149.335 Prevention and punishment of breaches of LOAC’, op. cit., p. 15.

Though ‘imprisonment for life’ under NZ Law actually equates to a minimum period of only 10 years, or 17 years if the offence involved ‘a high level of brutality, cruelty, depravity, or callousness’ (Ibid).

[22] Ibid., p. 16.

[23] MAJ Jane Derbyshire, Personal communication with Regeena Kingsley, op. cit.

[24] NZDF BRIG Roger Mortlock (Ret’d), Personal communication with Regeena Kingsley, op. cit.; MAJ Jane Derbyshire, Personal communication with Regeena Kingsley, ibid.

[25] Derbyshire, ‘149.335 Prevention and punishment of breaches of LOAC’, op. cit., p. 17.

[26] Ibid., p. 7.

[27] Ibid.

[28] MAJ Jane Derbyshire, Personal communication with Regeena Kingsley, op. cit.; Derbyshire, 149.335 Prevention and punishment of breaches of LOAC, op. cit., p. 7.

[29] Derbyshire, ‘149.335 Prevention and punishment of breaches of LOAC’, op. cit., p. 17.