#34 Crucial Questions on Rules Of Engagement (ROE):

(Q1/3) Are ROE Legally-Binding “Military Orders” or Merely Guidelines?

 

– Dr Regeena Kingsley

 

The whole sphere with regard to the theory and practice of military Rules of Engagement (ROE), and within these the consent-limitations and outright bans that comprise ‘national caveat’ constraints, is a rather shadowy one.

[For more information on what ‘national caveats’ are and the problems they cause in Multinational Operations (MNOs), refer to blogs ‘#1 Introduction: The Problem of National Caveats within Multinational Operations’, ‘#2 What are “National Caveats”?’, ‘#3 National Caveats: Potential to Constrain the Full Spectrum of Military Personnel & Operations’, and ‘#10 Rules of Engagement & National Caveats: “Self-Defence” & “Mission Accomplishment” Instructions’.]

When in 2008 I began seven years of doctoral research on the impact of ‘national caveats’ on the operational effectiveness of the International Security Assistance Force (ISAF) in Afghanistan, I was astonished to find that there was very little military or political theory written on the subject of military mandates, ROE and national caveats at all in the public sphere, by either academics or practitioners. [See blog ‘#26 Time to Study National Caveats: The “Caveat Gap” in Academic Research’.]

It seemed that this state of affairs was due to the classification of the subject and the sensitivity – even oversensitivity – of many national governments on these issues with regard to their armed forces.  The secrecy surrounding military ROE was pervasive despite the fact that inappropriate ROE, especially caveat constraints, were to blame for multiple security crises spiralling out of control in multinational operations around the globe, under the command of various national contingents with overt and mandated security responsibilities and obligations in these conflict theatres, and in both UN and NATO missions. [Refer to blog ‘#15 Highly Classified: National Caveats & Government Secrecy (Official & Unofficial Caveats)’.] 

Due to the classification of all ROE issued to national military contingents deployed on operations at the behest and service of national governments, and the intense and abiding secrecy these governments  maintain over all sets of ROE instructions issued to their armed forces from operations in the distant past to the present time, it is difficult to ascertain exactly the normative ROE status or practices embraced by the majority of nations, nor what precise ROE formulation and enforcement processes are in place. 

On rare occasions, however, there are glimmers of truth that emerge publicly as a result of serious incidents that are: (a) reported on by civilian and military eye-witness observers and participants, or by the media; (b) featured in national parliamentary, defence department or other governmental reports or documentation; (c) commented on in intergovernmental UN or NATO panels, reports or workshops; or (d) spoken of in memoirs or accounts from, or interviews and communications with, government officials and military officers of various nationalities, ranks and experiences in diverse conflict theatres. 

From these sources and accounts, one attempts to piece together what one can of nations’ military practices, attitudes and behaviour as regards ROE.

After more than 13 years of research on ROE instructions issued by governments to national military contingents deployed to operate as part of multinational security endeavours around the world, and especially the continuing existence and consistently negative effects of national caveat limitations and bans within these ROE, I will now attempt in the following to shine more light on this hazy and poorly-understood subject.

In particular, I will try to assist general understanding on this vital issue in military operations by answering, to the best of my knowledge, three basic and crucial questions as to the normative status and practices of nations with regard to ROE.

This blog addresses the first question. 

 

Question One: Are ROE Legally-Binding “Military Orders” or Merely Guidelines?

Within the mandate, ROE are the central instructions from political masters in national governments to their armed forces acting on their behalf in an operational theatre, no-matter where that theatre is, at home within the nation’s own borders or abroad in a more distant global location. They are the ‘operational expression’ of the politico-military mandate, through which a national government has authorised military activity by national armed forces in pursuit of its political and/or security goals.

These politico-military operational instructions are not merely ‘general guidelines’ regarding the use of lethal force in military operations. If they were only general guidelines, then military forces could freely choose to regard or disregard ROE randomly and at whim, and could not be relied upon at all to obey these instructions from their government, nor obey in the manner that their government desires and expects consistent with relevant policies and national and international law. Furthermore, if ROE were merely loose guidelines, military forces could not be legally and criminally held to account for disobedience to these edicts from military command and transgressions of domestic and international law, especially disobedience that breaches the extremely serious ‘Laws of War’ known as the Law of Armed Conflict (LOAC), which includes the 1949 Geneva Conventions and their 1977 Additional Protocols.

Rather, ROE are very powerful and precise prescriptions from the highest power-holders and decision-makers in government as to: (1) when lethal force can be used (use/non-use of force); and (2) how lethal force may be employed against hostile and Enemy forces while performing tasks toward stated mission objectives (degree of force).  It is through these very precise ROE that political masters exercise political and operational control over security forces, and thereby guide and constrain the actions of the deployed military force, regardless of its size, strength or configuration.  ROE will also ultimately determine the true effectiveness of any force contingent, both in the accomplishment of its tasks and as a contributing unit within a national or multinational mission. 

The rules are usually considered and decided upon with great care by political, military, and legal government officials, to align completely with the national government’s overarching political and military goals in the operation in question (see blog ‘#11 How are Rules of Engagement Formed for Military Operations?’). 

Since in the formulation of ROE for military forces, ROE must comply with domestic law and all national obligations under international law (including LOAC), these politico-military instructions are also legal devices and tantamount or equivalent to military orders.  This legally-binding dimension of ROE as military orders is indicated by The Dictionary of Military Terms published in 2009 by the U.S. Department of Defense (DoD), in that the terms ‘Law of War’/’Law of Armed Conflict’ and ‘Rules of Engagement’ refer to each other and seem to be used interchangeably as equivalent terms.[1]  

The New Zealand Defence Force (NZDF) Operational Law Companion goes further by emphatically stating that:

‘ROE or OFOF are orders which reflect the law, as well as political requirements’ [original emphasis].[2] 

This statement demonstrates that in the New Zealand military, ROE are understood to be not only military orders of a political-legal nature, but also to concern or relate primarily to ‘Orders for Opening Fire (OFOF)’.

With regard to the legally-binding nature of ROE orders, moreover, the NZDF law manual explicitly warns NZDF Legal Officers (LOs), that in drafting ROE they are not to individually include additional ROE constraints without concise instructions from national high command as to the concept of operation, as any rule they add will be considered as a ‘legal constraint’ by commanders on the ground, who may ‘labour under the misapprehension to their own personal cost, and at the expense of the mission.’[3] In other words, ROE are legal, operational orders made to support the achievement of operational objectives.[4]

However, the NZDF law manual emphasises that while they are legal devices, ROE are primarily, first and foremost, an operational rather than a legal matter, formulated by high command for the goal of achieving mission objectives. Consequently, 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 NZDF Operational Law Companion points out, ‘their content should be resolved at the highest level of command’ to ensure they promote military effectiveness and unity of effort in each operation.[5] 

In sum, ROE reflect primarily political, then operational, and finally legal requirements (for more information refer to the section ‘Three Dominant Influences in ROE Formulation’ in blog #11).

Three Dominant Influences on the ROE Formulation Process.

As if to emphasise their critical importance to any military mission, the final set of ROE instructions for each military operation is normally approved and signed off by 3 tiers of the most powerful political figures in government: (1) the highest-ranking chief of national military forces (e.g. the Chief of the Defence Force); (2) several senior high-ranking government Ministers including the Minister/Secretary of Defence and Minister/Secretary of Foreign Affairs or State; and last of all (3) the highest-ranking and most powerful executive government individual who is also Head of Government – either the President or Prime Minister of the nation.

As the political-military-legal lynchpin or conduit between political masters in the political sphere and military personnel in the security sphere, ROE are important, powerful, legally-binding, military orders that can not be trifled with by anyone.

 

Global Application in Practice

The chief source for my understanding on this issue of legally-binding ROE is admittedly the classified NZDF Operational Law Companion manual issued to NZDF Legal Officers for use at home and on deployment abroad (during the course of my research I was fortunate enough to be granted permission to use certain sections of this critical law manual by Commodore (CDR) Chris Griggs, the Commander of the Royal New Zealand Navy (RNZN) and Deputy Director of Legal Services, Operations Law, at HQ NZDF).

This understanding was further informed and enhanced by interviews and communications I conducted with several active, veteran, and retired NZDF personnel with combined overseas experiences in NZDF deployments to multinational military operations in Vietnam, Angola, Bosnia, Bougainville, East Timor, Kosovo and Afghanistan between the years 1963-2009. 

However, the legally-binding and indictable status of ROE instructions as ‘military orders’ seems not only to be true for the NZDF, but also to hold true for many nations around the world, as several serious situations on record have indicated since the 1990s.

To better illustrate this point, four of these concrete examples of real-life military situations will be briefly outlined below, with regard to Belgian forces in Rwanda, Dutch forces in Bosnia, Germans forces in Kosovo, and American forces in Afghanistan.

Example 1: Belgian UNAMIR forces in Rwanda, 1994

During the genocidal slaughter of civilians in Rwanda in April 1994, a Belgian military unit of UNAMIR soldiers was stationed at the École Technique Officielle school compound (ETO or Dom Bosco School) in a suburb of the Rwandan capital city of Kigali.[6]  The Belgian forces considered themselves so bound by their ROE that, while they freely shot the dogs eating the bodies of the dead Tutsi civilians killed outside the compound, as permitted by their ROE (permission was given following the Belgian contingent’s request about the continued feeding activity of the wild dogs disturbing the humane sensibilities of their military personnel), they conversely would not use lethal force to shoot the murdering Hutu soldiers and militia fighters themselves, who were not only displaying clear ‘hostile intent’ against the living, Tutsi, civilian charges in the UN ‘Safe Zone’, but were also armed with knives, machetes and spiked clubs and waiting to gain entry outside the school gates of the UN-guarded compound.[7]   

The reason the Belgian UN combatants took no military action to fulfil their mandated mission of defending the school compound and the 2,000 people sheltering there under their protection, as representatives of both the UN and the collective will of the international community at large with regard to Rwanda, was because the government-imposed ROE of the Belgian UNAMIR contingent constrained them to use their weapons ‘to fire only when fired upon’.[8] This was a UN-recommended and Belgian-adopted ROE instruction, but it was totally unsuitable for the mission given the range and kinds of rudimentary weapons used in this particular theatre of conflict on the African continent, and specifically those being used at this time by the Hutu against the civilian Tutsi population that the Belgian military contingent was tasked with protecting from harm during the genocide. 

Breaching ROE was clearly not considered an option by Belgian UNAMIR personnel at the school compound, even given the extremity and great urgency of the brutally murderous situation evolving in Kigali as part of an orchestrated national campaign of genocide by the Hutu-dominated Rwandan government, and even though the gruesome murders were occurring before their very eyes outside the compound, and the murderers themselves were threatening to gain entry to their own assigned Area of Operations (AO) and Area of Responsibility (AOR). Only a direct order from a superior, Belgian, commanding officer vested by the government in Brussels with on-the-ground discretionary authority, which changed their ROE instructions to allow more robust military activity, would have enabled the Belgian UN forces to act to defend the 2,000 people seeking refuge under their protection at the compound. 

As is well known, faced with a rapidly-devolving emergency situation, and armed with weapons that – because of their severely restrictive ROE – they could not shoot to protect the civilians sheltering under their protection, the Belgian unit ultimately packed up and drove out of the compound, as ordered by the risk-averse and self-interested Belgian government, leaving the Tutsi war refugees totally defenceless against the bloodthirsty hate and knives of their Enemies. Following the departure of the Belgian UN combatants, the Hutu combatants immediately entered the school compound and committed the war crime of unlawfully murdering the 2,000 unarmed, Tutsi, civilian non-combatants sheltering there under the UN flag.[9]  

[For more information on this Belgian and UN failure in Rwanda, refer to blogs ‘#18 Caveats Endanger & Caveats Kill: National Caveats in UN Operations in Angola, Rwanda & Bosnia-Herzegovina’ and ‘#22 Recommended Viewing: The UN, National Caveats & Human Carnage in Rwanda’.]

Example 2: Dutch UNPROFOR Forces in Bosnia, 1995

Likewise in 1995 in the Srebrenica UN ‘Safe Zone’, during the Bosnian War of Independence, the  450 Dutch UNPROFOR forces guarding the locality obeyed their ROE to the letter, despite the fact that these ROE contradicted the very purpose of their mission – to keep the Srebrenica UN Protection Area (UNPA) ‘free from armed attack or any other hostile act’, including by military action to ‘deter attacks’.[10]  

Faced with the high stress and pressure of an advancing, openly-hostile, Enemy force of Bosnian-Serb militia, who were widely reputed and reported to be conducting campaigns of ethnic cleansing against Bosniak men, women and children throughout Bosnia, the Dutch soldiers adhered strictly to their ROE military orders to fire their weapons ‘only in self-defence’ (i.e. not for mission accomplishment in defence of the Safe Area or the civilian war refugees) as their government-imposed ROE had dictated from the start of the deployment. 

They also obeyed their National Commander’s even tighter ROE instruction (prohibition caveat) made on the ground in theatre at that time, based on the commander’s government-sanctioned authority to further restrict existing ROE, not to ‘shoot to kill’ Enemy forces in any military act of self-defence by firing directly at Enemy forces, but instead to fire ‘over the heads’ of the oncoming combatants (e.g. in any act of unit or individual self-defence only warning shots were allowed to be fired by Dutch forces instead of the usual and lawful lethal shots).[11]  

As inflexible, nonsensical, alarming and dangerous as these two Dutch ROE instructions were for fulfilling the UNPROFOR military mandate at that Srebrenica locality of (1) guarding the large Safe Zone from military attack, (2) militarily repelling hostile military assaults, and (3) protecting the 50,000 civilian Bosniak refugees sheltering there, the DutchBat III forces did not dare disobey their ROE orders, including the tighter caveat ban imposed by their National Commander.  They knew, as the Belgians before them knew, that any failure to comply with ROE instructions would be considered ‘disobedience of superior orders’ and would result in a disciplinary hearing, punishment, and potentially loss of reputation and career.

It is perhaps no surprise that the extremely poor and ill-considered ROE decisions made for the mission by the Dutch government in the Hague, rules to govern the actions of their armed combatants guarding the Srebrenica ‘Safe Area’ and its 50,000 civilians, worsened further by the even poorer caveat decision made with the narrow discretionary authority of the National Commander in the Srebrenica Safe Zone, created a situation that could only result in human catastrophe and total mission failure.

Indeed, as a direct result of the decisions made and caveats imposed by the Dutch government with regard to its UNPROFOR national contingent, and the even more severe caveat order made by the battalion’s National Commander, these Dutch UN forces were quickly and easily militarily overwhelmed.[12] 

Over a period of six days, on 6-11 July 1995, Republika Srpska soldiers under the command of its supreme military commander, Bosnian Serb General Ratko Mladic, acting on the orders of their appointed Bosnian Serb President Radovan Karadzic, launched a military attack on the UNPROFOR DutchBat III Observation Posts (OPs) and invaded the Srebrenica Protected Area.[13] Although the UN Protected Area in Srebrenica was clearly under Bosnian Serb military attack, including the direct targeting of UN compounds, OPs and personnel – certainly sufficient to trigger DutchBat’s legal right to use lethal force in unit and individual self-defence – and resulting in several civilian casualties within the safe zone, no serious military attempt to defend the ‘UN Protection Area’ or defend either UN forces or the civilian war refugees was ever conducted by the 450-strong Dutch combat battalion. 

To the contrary, when the Serbs took control of the observation posts around the Safe Zone perimeter during the attack, the severely restrained and overwhelmed Dutch UN forces not only opted not to use their one, potent (now impotent), legal authority to fire their weapons and use lethal force in unit and individual self-defence at all (‘warning shots only’ were clearly useless in protecting either themselves or others in the UN Protection Area), but also willingly abandoned their posts and retreated – with the approval of Dutch Command.[14]  In fact, in spite of the Chapter VII UN mandate, Dutch UN forces did not once return fire at Serb Republika Srpska forces during this attack or mount any military action to defend the civilians gathered in the UN safe area.[15]   Instead, the Dutch battalion gathered together and, ‘to avoid provocations’,  laid down before the jubilant and victorious invading forces all their weapons in a massive pile, handing over to hostile Bosnian Serb forces a total of 199 rifles, 25 submachine guns, 28 pistols and 29 machine guns.[16]

Severely restrictive and passive ROE had transformed the 450 soldiers of the DutchBat III combat battalion into nothing more than restrained, passive, non-combat-capable and fearful military combatant ‘spectators’ of the horrifying and brutal unfolding events.

Indeed, with Dutch military forces failing to mount any military opposition, as per their ROE instructions, the Serb forces overran the safe haven and were unimpeded in carrying out their ethnic cleansing campaign of ‘liquidation’ within the UN-protected ‘Safe Area’ – the final stage of the Serb Operation Krivaja, through which Bosnian Serb forces hoped to forcibly create an ‘ethnically pure’ Serbian state.[17]  The Serb Republic forces sent out orders for local police forces and Serb rebel fighters in neighbouring Croatia to join them, and together these Serb forces systematically carried out their genocidal slaughter within the Dutch-controlled UN ‘Unprotected’ Area.[18] Male adults, teenagers and children were first separated from their female counterparts, then the Bosniak males were either killed on site or loaded onto buses and summarily executed in obscure locations.[19] Meanwhile, the girls and young women were marched away to designated locations within the UN Protected Area to be gang raped by Serb forces.[20] 

Due to the extremely inadequate set of legally-binding, ROE constraints placed on the DutchBat III forces by their risk-averse government in The Hague, these 450 Dutch UNPROFOR soldiers were compelled to obediently but helplessly stand aside and watch inactively as silent witnesses to successive days of violence, violation and horror – or as one Dutch soldier later recounted, ‘torture, executions and slaughter’ – in the midst of the Srebrenica UN Protection Area.[21]  Over a period of nine days from July 10 to July 19, 1995, the hostile Bosnian and Croatian Serb forces methodically selected and killed thousands of Bosniak males of all ages – all of whom had sought UN protection there under Dutch command.  Approximately 8,000 men and boys were slaughtered there during the massacre.[22]

This was the second, ROE-generated, genocidal massacre to take place under the UN flag, occurring a year after the undeterred and unhalted genocide in the Rwandan UN School Compound in Kigali, and the second humanitarian disaster and slaughter to be unprevented, undeterred and unchecked by armed-but-caveated UN combatant forces.

[For more detailed information on this event, refer to blogs ‘#18 Caveats Endanger & Caveats Kill: National Caveats in UN Operations in Angola, Rwanda & Bosnia-Herzegovina’, ‘#20 Betrayal & Barbarism in Bosnia: The UNPROFOR Operation, National Caveats & Genocide in the Srebrenica UN “Protected Area”’, and ‘#21 Srebrenica Aftermath: Serb Guilt & Dutch Liability for the Genocide in the UNPROFOR ‘Safe Area’ in Bosnia’.]

Example 3: German KFOR Forces in Kosovo, 2004

In Kosovo, the primary mandated task of the NATO KFOR force was ‘to establish and maintain a secure environment in Kosovo’, explicitly by deterring renewed hostility and threats and proactively ensuring public safety and order.[23] Nevertheless, counter to the mandate, German KFOR forces were deployed to the city of Prizren with ROE limiting them to heavily guarding their own military compound, performing ‘low-risk tasks in low-risk areas’, and using force only in self-defence and the defence of civilian lives (not civilian property).[24] 

Furthermore, in spite of the fact that riot control capabilities were fundamentally necessary to the success of the KFOR mission in ‘maintaining public safety and order’, German ROE contained a prohibition caveat that forbade ‘any participation in riot-control’ – and to this end, the contingent had been given neither training in riot prevention, nor any anti-riot equipment.[25] 

Consequently, despite comprising one of the largest national contingents in the 18,500-strong KFOR force at that time, German KFOR forces were so bound by ROE fetters that they could practically only perform a ‘stand-aside’ role within the mission, even in the advent of any security threat or crisis.[26]  Indeed, the strict compliance of German soldiers to their inappropriate but legally-binding ROE led to one of the worst incidents to occur during the subsequent security emergency known as the ‘Kosovo Riots’.

During this outbreak of heavy rioting which occurred on 17-19 March 2004, violent segments of the pro-independence, majority, Muslim Albanian population (insurgents, veterans, criminals and opportunistic  youths) rose up to conduct ‘reverse-ethnic cleansing’ against the anti-independence, minority, Christian Serb population, together with a violent hate campaign against UN compounds and personnel. In spite of their extremely contradictory and counter-productive ROE for the KFOR mission mandate, including a caveat ban forbidding the German contingent entirely from using lethal force to protect civilian property, German forces had unwisely been tasked by the German NATO/KFOR Operational Commander, German Army Lieutenant General (LTGEN) Holger O.L. Kammerhoff, with protecting important and historic Serb religious sites in and around the city of Prizren.

On the second day of the riots, one section of 15 German soldiers had been deployed to guard a narrow bridge on the outskirts of Prizren, which was the single entrance point to a historic, 14^th century, medieval, Serbian Orthodox Monastery of the Holy Archangels.[27]  The monastery was one of the most historic and famous church complexes of the Middle Ages in all of Kosovo, also the site of the tomb of Byzantine Emperor Dušan, and was consequently on the UNESCO, World Monument Fund and World Heritage list.[28] When the Albanian rioters approached the German soldiers, some wading through the Bistrica River on both sides of the bridge, the German KFOR soldiers – bound by their ROE and caveat restraints  –  could not lawfully respond, so allowed them to walk past them and attack the monastery, over which fluttered the German flag.[29] 

Due to their military duty to obey their government-issued and mission-specific ROE, no matter how unsuitable they were for the KFOR mandate, as well as the evolving security situation in hand (especially considering the fact that it is forbidden and illegal under the Laws of War for fighting or occupying combatants within a conflict to attack or destroy historic civilian monuments, works of art, or places of worship, which constitute the cultural or spiritual heritage of humankind, and to which special protection has been given under the LOAC), the armed German soldiers allowed armed and hostile Albanian forces to cross the river unimpeded and set the Serb church on fire before their very eyes. Indeed, one monk survivor testified that: ‘The Germans didn’t use their truncheons or tear gas, and didn’t even fire in the air’.[30]  Or as one Serb website documenting the destruction declared on the incident: ‘German soldiers did not move a finger to protect this holy site’.[31]

When the attack was well underway, the Germans did obey their ROE regarding protecting civilian life,  however, by ordering the church monks into KFOR armoured vehicles and evacuating them, but left the monastery unprotected ‘to be burnt down by the ethnic Albanian crowd’, as their ROE had also dictated.[32] This Kosovar Serb monastery-church complex in Prizren was equivalent in historical, cultural and religious heritage and estimation as the UNESCO, French, medieval Notre Dame cathedral in Paris, or the iconic and historically significant, UNESCO, German, medieval Aachen Cathedral founded by the Emperor Charlemagne in the 8^th century, which is also the site of Charlemagne’s tomb.[33]

Legally-speaking, given that the German unit’s ROE instructions were equivalent to military orders, and absent any superior commanding officer empowered by government with the discretionary authority to alter or loosen their ROE in this security emergency, there was nothing else the German KFOR soldiers could do in this terrible situation.

Consequently the blame for this event rests not with the individual German soldiers armed with weapons they were not legally permitted to use in that situation, but with the German government in Berlin – particularly those risk-averse and narrow-minded political and military decision-makers in the ROE formulation process, who, unable or unwilling to see ‘the big strategic picture’ of the KFOR mission, made and approved rules that in practice expressly contradicted and opposed the intent and key objectives of NATO’s KFOR military mission in Kosovo. Indeed, according to a report on the Kosovo Riots by Human Rights Watch (HRW): ‘The response of the German KFOR in Prizren presents one of the most fundamental [NATO nation] security failures during the March 2004 riots’.[34]

With regard to the normative status of ROE, this security incident involving German military forces again illustrates the norm that, like the Belgians in Rwanda or the Dutch in Srebrenica, ROE instructions are considered to be legally-binding, military orders that must be obeyed in the militaries of NATO nations, both in theory and in practice, no-matter the circumstances.

[For more information on the performance of Germany and other national contingents based on their ROE during the Kosovo Riots, and KFOR’s overall failure to defend and protect civilians and civilian property over the 3-day period of public rioting and destruction, see ‘#23 Caveat Chaos in Kosovo: Divided Allies & Fettered Forces in NATO’s KFOR Operation during the 2004 “Kosovo Riots”’.]

Example 4: American ISAF Forces in Afghanistan, 2012

Another example again clearly demonstrates the power of ROE as legally-binding military orders, this time with regard to the armed forces of the United States.  This true incident took place in the NATO-led ISAF mission in Afghanistan, during the period following the Obama Administration’s imposition in 2010 of severely constrictive ROE caveats on American ISAF forces in the interest of Counter-Insurgency (COIN) doctrine, and concerns a platoon of 35 American soldiers, deep in Enemy territory, in the hazardous Taliban heartland of Helmand Province (RC-Southwest).  The platoon belonged to a company of American bomb disposal forces, who had been tasked with finding and destroying Enemy IEDs from Afghan highways and roads – the insurgents ‘number one’ killer of ISAF troops and Afghan civilians – in order to allow American, British and other ISAF allied convoys of force units to pass safely during transit or manoeuvres, as the latter conducted their assigned combat, security and stability operations.

On a certain day in 2012, this 3rd platoon of the 23^rd Saper Route Clearance Company, based at the isolated army outpost of FOB Sarkari Karez, was ordered to check and clear of IED bombs a 12-mile long, off-road route between the British base of Camp Bastion and its remote patrol base at FOB Piedmont, ahead of a following British ISAF convoy.  During the course of the mission, as the platoon attempted to do their job of ‘interrogating IED’ by searching for and destroying Enemy IEDs hidden beneath or beside the road along the rural route, in a convoy of 12 trucks (comprising 11 guntrucks and 1 Husky armed with ground-penetrating radar panels), the platoon was repeatedly harassed by jeering Enemy insurgents on foot, on motorcycles, and in a packed Toyota utility vehicle. The sporadic but continuous assault by hostile Enemy forces occurred in a manner which not only threatened the 35 soldiers (‘hostile intent’), but also prevented them from doing their dangerous but critical job of finding and destroying the buried Enemy bombs that were targeting the oncoming British convoy, and those of other ISAF and Afghan forces in Helmand Province.

During the attack, the insurgents on foot periodically hit or threw rocks at the sides and rear of the convoy trucks, while the insurgent-laden Toyota drove danger-close to the sides of the convoy vehicles.  Taliban ‘motorcycle gangs’ of insurgents, meanwhile, assaulted the convoy in sequential waves, travelling first behind and then beside the advance convoy of bomb-clearers, and weaving in and out between the individual guntrucks of the platoon. Ultimately – to the visible shock of 3^rd platoon – individual insurgents actually began physically jumping onto the protective metal cages attached to each side of the 12 guntruck vehicles, and then off again at will.  Lastly, as if these provoking acts weren’t enough in the dangerous and tension-filled Afghan warzone, and as the stunned American soldiers looked on, a Taliban insurgent from one of the waves of ‘biker gang assaults’ brazenly and fearlessly climbed onto the back of one of the American guntrucks in the convoy and stole a U.S. backpack full of supplies, afterwards escaping away unharmed on the back of one of the Taliban motorcycles along with the rest of the hostile and threatening ‘biker gang’.

Indeed, unbelievably – and quite scandalously – during the hours of the Enemy assault on the advance 3^rd platoon convoy in the ISAF vanguard, the insurgents were not once threatened or fired at in any way, shape or form by the aghast and highly-stressed platoon of American soldiers. They did not militarily act or react, moreover, even in spite of an earlier warning they had received that day, communicated from the British commander of the following British convoy, that Taliban insurgents were planning to target and attack their advance 3^rd platoon convoy and were imminently to come upon them (British intelligence personnel had been listening to the Enemy radio chatter of Taliban insurgents in the vicinity via their Icom Scanner).

The result was one of the most ridiculous, shocking and downright dangerous sights in a combat-filled war-zone ever caught on camera (see footage below, loaded with English closed captions/subtitles). As one of the soldiers rightly exclaimed at that time: ‘This is crazy!’ [44]

The unsettling sequence of events described above was all owing to the fact that, despite being armed to the teeth with individual U.S. Army-issue HK416 assault rifles as well as a .50 calibre machine gun or automatic grenade launcher in each of the 12 turrets of the guntrucks, the 35 American ISAF soldiers of the platoon were operating under extremely restricted and caveat-laden ROE. These caveat constraints militarily incapacitated them, and rendered them unable to respond or use lethal force against these harassing Enemy combatants in any way, in the awful situation they found themselves in. The legally-binding nature of their ROE military orders, moreover, meant that the 35 American Sapers could lawfully do nothing to militarily deter or respond to these overt provocations, without incurring the criminal penalties under American military law of disobeying military orders.

Namely, American ISAF forces were at this period of the Afghan mission constrained by a lethal force prohibition caveat, that instructed them ‘not to fire unless fired upon’ (rocks did not qualify) – the very same ignominious and highly dangerous caveat which had handicapped and defeated combat forces and led to massacres of unarmed civilians in Rwanda 1994 and Bosnia in 1995 (as described above), in addition to creating the conditions for security disasters, as in Kosovo in 2004, and in many other multinational missions over subsequent decades (see blogs #18, #19, #20, #21, #22, and #23).  Not far away in Marjah City of Helmand Province (formerly Regional Command-South, but later Regional Command-Southwest from June 2010), where 270 American men of Bravo company (1^st Marine Battalion, 6^th Marine Regiment) had in February 2010 been airdropped into a city boasting 1,000 of the best and most fanatical Taliban fighters in Afghanistan, the same ROE instruction had likewise made ‘sitting ducks’ of the soldiers lauded for being ‘masters of controlled chaos and violence’.[35]  The Marines could only watch passively as the Taliban took advantage of their passive ROE, to encircle the entire company, directly following their aerial landing.[36]

Furthermore, American ROE at this time authorized the use of lethal force only when an ‘undeniably hostile act’ was being committed, rather than the normal authorising criteria of Enemy forces showing ‘hostile intent’ or conducting a ‘hostile act’ (see endnote for a description of the usual ‘hostile intent’ and ‘hostile action’ criteria that lawfully authorises lethal military action by national armed forces in conflict theatres).[37] Consequently, the Taliban insurgents’ behaviour around, against and on the American bomb disposal convoy, though clearly displaying hostile intent, was not considered to meet the ‘hostile’ threshold set by the Obama-led government at that time for activating the use of lethal force against Enemy forces, either in an offensive, defensive or ‘show of force’ manner.  Nearby in the city of Marjah, likewise, this extremely narrow authorising criteria for using lethal force had two years earlier disenabled an entire platoon from Bravo Company, in their assigned quest of taking back the city from Enemy Taliban control during Operation Moshtarak (February-December 2010). With the Marines permitted by their ROE only to attack when an ‘undeniably hostile act’ was being committed, the soldiers of the platoon ‘must watch, as men they believe are Enemy fighters gather all around them’.[38]  As one of the soldiers then commented: ‘They definitely know we’re here now. They’re just walking around watching us like we’re the zoo. Trying to manoeuvre all around us. It’s an uncomfortable situation.’[39]

Finally, the American soldiers in the convoy could not lawfully respond to the Taliban’s hostile and harassing behaviour because, unlike in previous wars of the 20^th century, the accompanying Taliban were all unarmed  and American ROE authorised the use of lethal force only on armed Enemy fighters, not unarmed Enemy fighters (e.g. verifiably holding, carrying or using firearms or explosive devices) – even if the unarmed combatants were known and active Taliban or Al-Qaeda fighters, as these insurgents were based on the previous, British-intercepted, Taliban radio traffic as well as other key identifying criteria (see endnote for an explanation for the evolution of this unusual, uncomfortable and frankly absurd state of affairs in modern ROE formulation today).[40] 

In November 2013, the Washington Times reported on this extreme ROE instruction that was still in force (and endured until the early months of 2017 when it was removed by the newly-elected and incoming Trump Administration). Speaking of the ROE that were already in place, as well as the new rules that were about to be introduced in 2014 with regard to constricting further the entry of American soldiers into Afghan homes in pursuit of Enemy fighters, the newspaper stated:

‘The new U.S.-Afghanistan security agreement adds restrictions on already bureaucratic rules of engagement for American troops by making Afghan dwellings virtual safe havens for the enemy, combat veterans say.

 

The rules of engagement place the burden on U.S. air and ground troops to confirm with certainty that a Taliban fighter is armed before they can fire – even if they are 100 percent sure the target is the enemy.

 

In some cases, aerial gunships have been denied permission to fire even though they reported that targets on the move were armed…[see endnote].

 

Even before the security agreement’s rules of engagement were drafted, troops complained about meeting the requirements of an increasingly burdensome checklist before they can fire. The rules grew stricter in 2010 after a series of mistaken U.S. bombings killed civilians and special operations troops raided villages and homes at night. The rules of engagement today also place restrictions on dwelling assaults, but Mr Obama’s language of “extraordinary circumstances involving urgent risk of life and limb” sets the bar much higher. 

 

Said retired Army Col. Ken Allard, now a military analyst: “Call me crazy, but what on earth is the point of remaining there under these [rules of engagement], much less subjecting American soldiers to another set of restrictions that make sense only in proportion to your distance from the combat zone?” [emphasis added]’.[41]

Unfortunately for the effectiveness and safety of American forces in Afghanistan, in addition to the security and stability of the Afghan government and its native population, these extremely severe ROE restraints were realities that Enemy Taliban forces not only knew about, from their own observation of and operational experience with American forces at that period of time, but also repeatedly exploited to their own advantage in the Afghan theatre of war (see endnote).[42]

These three, severely restrictive ROE constraints had been imposed on American forces by the Obama Administration in order to enhance COIN by preventing excessive civilian casualties, but had no bearing at all on the convoy situation described above in which two, opposing, Enemy forces were in closest proximity to each other, cheek-by-jowl, in the midst of a battle-fraught warzone like Afghanistan – one armed but ROE-restrained, the other unarmed and unrestrained – and with no civilians in sight.

The armed American soldiers in the convoy were forced by their government-imposed ROE to tolerate many successive hours of incessant Taliban harassment without being able to act or retaliate against their Enemies in any way, either to deter their Enemies or to defend themselves. They did not react to the insurgents with any lethal force at all, but instead grimly endured the Enemy harassment – yelling not firing, swerving but not shooting, because they knew that to disobey ROE was to disobey orders, and would result in their own prosecution and punishment under American military law. 

These totally inappropriate ROE for the military situation at hand, reminiscent of the failed COIN war against State-backed forces of Communism in South Vietnam from 1955-1975, resulted in a rare opportunity being lost, in a situation in which multiple, terror-supporting, Taliban Enemy combatants were out in open ground in a rural environment – far away from the urban difficulties of combat in populated cities – and could therefore be easily targeted and eliminated.

The unnatural rules would also undoubtedly have had a detrimental impact on the morale and mental health of the armed, fighting-fit but caveat-constrained American warriors within the convoy, who had been rendered powerless targets for Enemy harassment during a substantial part of the journey by the edicts of their government in Washington D.C. 

According to an ex ‘Green Beret’ from U.S. Army Special Forces (SOFs) turned Member of Congress, Michael Waltz (Ret.), (R) Rep. Florida, ROE restrictions such as these showed not only just ‘how far reaching policy decisions made in DC can impact our soldiers and efforts on the ground’, but how under the Obama Administration and its ‘obsession with zero civilian casualties’, American soldiers were being ‘handcuffed by mindless bureaucratic processes’, and the Afghanistan COIN conflict counterproductively turned into ‘a war in which not killing civilians takes precedence over killing the bad guys’.[43]

True situations like this one occur when risk-averse and self-interested national governments “play at war” in multinational security operations, instead of “waging war” properly as it ought to be waged – and is in fact legally permitted to be waged – under the combatant-to-combatant laws of the Law of Armed Conflict (LOAC) [refer to the explanation and discussion provided in endnote #40]. Poor, ill-informed, nonsensical, contradictory, and even illogical decisions made by political civilian decision-makers in national governments with regard to these vital ROE for the use of lethal force within military missions, can directly result in serving national military personnel becoming powerless spectators and victims in absurd and dangerous military scenarios thousands of miles away, in the midst of active, hostile and highly-threatening war zones, like Afghanistan, in which Enemy forces laughingly exploit the poor instructions of Friendly forces, and use them to make sport of them – or what is far worse – to capture or kill them. 

As this woeful American example well demonstrates, combat-capable but caveat-constrained national forces deployed in conflict theatres, who are serving the governments’ foreign and security policy interests in foreign fields abroad, bear the brunt of poor ROE decisions made by governments in national Capitals. 

Indeed, eye-witness accounts of these kinds of ROE, such as the four real-life scenarios provided above as examples in Rwanda, Bosnia, Kosovo and Afghanistan, though apparently of some merit to political decision-makers and high-ranking members of military command, seem ludicrous to any rational, thinking, logical, military individual – and even overtly and obviously nonsensical and wrong to ordinary civilian observers.

 

ROE: Orders that Must Be Obeyed

From these concrete, military scenarios, however, it is plain that in each military case of constrictive ROE including national caveats, ROE are widely considered to be military orders, which, if lawful under the LOAC, must always be obeyed, no-matter the consequences. 

Even in the midst of the most grave human emergencies and the most provoking and testing Enemy threats and actions, such as those described above in Rwanda, Bosnia, Kosovo and Afghanistan over three decades since the early 1990s until 2012, military personnel simply do not dare to disobey their ROE for fear of criminal prosecution and punishment (refer to blog ‘#12 The Binding Power of Rules of Engagement: Enforcement & Punishment’).

If this obedience to ROE is maintained in various national military forces in the most dire emergency security crises and disasters, then ROE instructions must also undoubtedly be complied with and adhered to as a legally-binding obligation in less threatening or even peacetime circumstances, when the lives of military personnel or others under their protection are not at all directly threatened or endangered by these instructions.

From these tangible military examples and others I have come across in the course of my research, I have concluded that it is indeed a norm in international military affairs that ROE issued by governments to their military forces are considered and treated as legally-binding instructions, tantamount or equivalent to military orders from a superior officer, and that breaches generally always result in the prosecution and punishment of the offender.

If government-issued ROE contain contradictory or inappropriate instructions for the real situations faced by deployed national military personnel, in the range of mandated security missions being prosecuted around the world today, then clearly the blame for such ill-considered and poorly-chosen ROE falls on those who make and approve the LOAC-respecting and legally-binding, political-military orders, not on those who under military law must follow them – at all costs.

 

* For more analysis on the issue of “national caveats” and their impact on the effectiveness of multinational military operations conducted in the interest of establishing and maintaining international peace and security, see 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] Refer to ‘law of war’ on p. 309 and ‘rules of engagement’ on p. 477 of United States Department of Defense (U.S. DoD), The Dictionary of Military Terms, Joint Pub 1-02, New York, Skyhorse Publishing, 2009, pp. 1-597.

[2] New Zealand Defence Force (NZDF), Directorate of Legal Services, ‘11.0 Rules of Engagement’, in NZDF Operational Law Companion, May 1999, paragraph 11.17, 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.

[3] NZDF, ‘11.0 Rules of Engagement’, ibid., paragraph 11.23, p. 11-3.

[4] 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-9, http://www.dtic.mil/doctrine/new_pubs/jp1_04.pdf, (accessed 21 April 2015).

[5] NZDF, ‘11.0 Rules of Engagement’, op. cit., paragraphs 11.19-20, pp. 11-2, 11-3.

[6] United Nations Security Council (UNSC), S/1999/1257 Report of the Independent Inquiry into the actions of the United Nations during the 1994 Genocide in Rwanda, United Nations, 15 December 1999, pp. 18-19, http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/POC%20S19991257.pdf, (accessed 19 June 2008); R. Dallaire, Shaking Hands with the Devil: The Failure of Humanity in Rwanda, USA, Da Capo Press, 2004,  p. 289.

[7] UNSC, S/1999/1257 Report of the Independent Inquiry, ibid., p. 19.

[8] Ibid., p. 16.

[9] R. Dallaire, Shaking Hands with the Devil: The Failure of Humanity in Rwanda, op. cit., pp. 289-290.

[10] United Nations (UN), ‘Judgement: Prosecutor v. Radislav Krstic’, ‘II. Findings of Fact: A. The Take-Over of Srebrenica and its Aftermath’, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of  International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, p. 1,  para 1, http://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf, (accessed 26 April 2018); ‘United Nations Resolution 836 (1993), UN Security Council 3228^th Meeting Resolution S/RES/836 June 4, 1993’, Operation Joint Endeavour (IFOR), https://www.nato.int/ifor/un/u930604a.htm, (accessed 18 June 2018).

[11] ‘U.N., Dutch Complicity in Srebrenica Genocide’, Srebrenica Massacre, 5 June 2007, https://srebrenicamassacre1995.wordpress.com/tag/dutch-state/, (accessed 14 September 2017); A. Schröder, ‘Dealing with Genocide: A Dutch Peacekeeper Remembers’, Spiegel Online, 12 July 2005, http://www.spiegel.de/international/dealing-with-genocide-a-dutch-peacekeeper-remembers-srebrenica-a-364902.html, (accessed 26 April 2018).

[12] U. Ludwig & A. Mertin, ‘U.N. & Dutch Cowards on Trial (Analysis)’, Srebrenica Massacre, 6 June 2008, a republication of ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’ from Der Spiegel (5 June 2007) and translated from German by C. Sultan, https://srebrenicamassacre1995.wordpress.com/tag/dutch-state/, (14 September 2017).

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] N. Wood, ‘Bosnian Serbs Admit Responsibility for the Massacre of 7,000’, New York Times, 12 June 2004, http://www.nytimes.com/2004/06/12/world/bosnian-serbs-admit-responsibility-for-the-massacre-of-7000.html?mcubz=3, (accessed 13 March 2010).

[18] Ibid.

[19] Ibid.; ‘U.N., Dutch Complicity in Srebrenica Genocide’, 5 June 2007, Srebrenica Massacre, https://srebrenicamassacre1995.wordpress.com/tag/dutch-state/ (accessed 14 September 2017).

[20] Ludwig & Mertin, ‘U.N. & Dutch Cowards on Trial (Analysis)’, op. cit.

[21] Ibid.

[22] ‘Srebrenica Genocide Trial: Mladic & Karadzic Evade Justice – Genocide Trial Without Rako Mladic & Radovan Karadzic’, Srebrenica Genocide 1995 [blog], 22 August 2006, https://srebrenica-genocide.blogspot.com/2006/08/trial-mladic-karadzic-evade-justice.html, (accessed 10 December 2017);  D. Robinson, ‘Dutch still grapple with the shame of Srebrenica’, Financial Times , 11 July 2015, https://www.ft.com/content/93a5c67a-26d2-11e5-9c4e-a775d2b173ca, (accessed 26 September 2017; ‘U.N., Dutch Complicity in Srebrenica Genocide’, op. cit.

[23] ‘KFOR’, Information Delight Encyclopaedia, http://www.informationdelight.info/encyclopedia/entry/KFor, (accessed 8 March 2010); North Atlantic Treaty Organisation (NATO), ‘Operation Joint Guardian’, Allied Forces Southern Europe, Joint Forces Command (JFC) Brunssum, http://www.jfcnaples.nato.int/archives/operations/kfor/kfor2.htm, (accessed1 December 2010); ‘NATO’s role in Kosovo’, NATO Topic: Kosovo, http://www.nato.int/cps/en/natolive/topics_48818.htm, (accessed 1 December 2010).

[24] NZDF Major (MAJ) Steve Challies, Interviewed by Regeena Kingsley, 1 December 2009, Centre for Defence & Security Studies (CDSS), Massey University, Palmerston North, New Zealand.

[25] Ibid.

[26] ‘Failure to Protect: Anti-Minority Violence in Kosovo, March 2004’, Human Rights Watch (HRW), July 2004, Volume 16, no. 6 (D), p. 12; NZDF MAJ Steve Challies, Interviewed by Regeena Kingsley, ibid.

[27] NZDF MAJ Steve Challies, Interviewed by Regeena Kingsley, ibid.; Wood, N. & Binder, D., ‘Treasured Churches in a Cycle of Revenge’. The New York Times, 3 April 2004, http://www.nytimes.com/2004/04/03/arts/treasured-churches-in-a-cycle-of-revenge.htm, (accessed 13 March 2010).

[28] Wood & Binder,‘Treasured Churches in a Cycle of Revenge’, ibid.

[29] NZDF MAJ Steve Challies, Interviewed by Regeena Kingsley, op. cit.; ‘Destruction of the Serb returnee village Belo Polje nr. Pec, 17-18 March’, News from Kosovo: March Pogrom, Website of the Serbian Orthodox Diocese of Raska and Prizren, http://www.kosovo.net/news_pogrom.html, (accessed 13 March 2010).

[30] ‘Failure to Protect: Anti-Minority Violence in Kosovo’, Human Rights Watch, op. cit., p. 57.

[31] ‘Destruction of the Serb returnee village Belo Polje nr. Pec, 17-18 March’, News from Kosovo: March Pogrom, op. cit.

[32] ‘Failure to Protect: Anti-Minority Violence in Kosovo’, op. cit., p. 57.

[33] ‘Aachen Cathedral’, Everything Everywhere, 2021, https://everything-everywhere.com/aachen-cathedral/, (accessed 1 March 2021).

[34] ‘Failure to Protect: Anti-Minority Violence in Kosovo’, op. cit., p. 55.

[35] The Battle for Marjah [documentary], dir. Ben Anderson & Anthony Wonke, USA, HBO, 2012 [DVD].

[36] Ibid.

[37] 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. 3, http://pfpdev.ethz.ch/SCORMcontent/112363/scos/5/index.pdf,  (accessed 8 October 2009).

LOAC recognises and accepts the realities of war and does not require a State to allow itself to be destroyed, nor by extension a State’s armed forces to allow themselves to be destroyed during its operations in conflict theatres. This being so, a situation of military necessity authorising the proportional use of lethal force is said to exist when either a ‘hostile act’ occurs, or when a force or person exhibits ‘hostile intent’. This is a crucial concept embraced not only by all NATO nations, but most nation-states around the globe, and is a prevailing global norm.

Every State has its own definition of what exactly constitutes a ‘hostile act’ or ‘hostile intent’ in the context of operations, and they differ in length and scope.

Generally-speaking, however, a hostile act may be regarded as an attack, or other use of force, by any person or foreign force:

(a) directed against national armed forces, or those forces aligned with or under the protection of said national forces, including civilians; or

(b) used directly to prevent or impede the mission or duties of national forces, including against any property or equipment which if lost will significantly impede the safe conduct of operations. 

Hostile intent, by contrast, may be regarded as:

(a) the threat or imminent use of force against national forces;

(b) the threat of force to prevent or impede the mission or duties of national forces; or

(c) conduct on the part of any person or foreign force which causes a commander to conclude that a hostile act is imminent. In determining the latter, the commander must have ‘reasonable grounds’ to arrive at this conclusion, which usually involves consideration of the following factors: (1) the capabilities and physical actions of the person or unit presenting the threat; (2) available intelligence information; (3) the political situation at the time; and (4) specific guidance from higher authority.

(NATO PfP, ‘Rules of Engagement in Multinational Operations against Terrorism’, ibid., p. 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 more information on these two critical concepts that are universally used for authorising the lawful use of lethal force by deployed military forces, including vitally for mission accomplishment and self-defence, refer to blog ‘#10 Rules of Engagement & National Caveats: “Self-Defence” & “Mission Accomplishment” Instructions’.]

[38] The Battle for Marjah [documentary], op. cit.

[39] Ibid.

[40] Under the Laws of War known as the LOAC, lawful combatants taking an active, direct part in hostilities (i.e. military action) within an armed conflict are entitled to carry out attacks on opposing Enemy forces and may lawfully engage, attack and kill opposing Enemy combatants engaging in military action in an armed conflict, provided they do so according to the LOAC, until and unless Enemy combatants: (1) surrender; (2) become ‘hors de combat’ through sickness, injury, shipwreck or capture; or (3) are protected by a truce or ceasefire agreement. 

In other words, as Nicholson well summarises, lawful combatants have a license to attack, wound and kill Enemy combatants whether they are in or out of uniform, if they are or are not on active duty [holding or not holding weapons, fighting or resting, plotting or sleeping/eating, operating or running away], whether they are advancing or retreating, and whether they are in a group or alone – so long as they do so according to the Laws of War – until and unless they are captured through their own surrender or by becoming hors de combat. Quite simply, ‘Combatants are liable to be attacked at any time until they surrender or are otherwise hors de combat’ (Nicholson, ‘A summary of the current situation regarding combatant status in IHL’, Chapter 3 Draft, pp.5-6,  https://www.jus.uio.no/smr/om/aktuelt/arrangementer/2012/docs/nicholson-draft-c3.pdf, (accessed 11 April 2019)).

[For more detailed information on these points, refer to blog ‘#25 Laws of War Brief (Part 2): The Protections, Rights & Obligations of Civilian Non-Combatants & Military Combatants under the LOAC’.]

The difficulty in modern warfare is that many Enemy combatants engaging in military action in armed conflicts around the world today are illegitimate, unlawful and unprivileged combatants under the LOAC – that is, Al-Qaeda, ISIS or other affiliated terrorists (classed under law as both domestic criminals and international war criminals) or ununiformed and terror-using insurgents such as the Taliban, jihadist foreign fighters, and many other Pakistan-backed and Iranian-backed Islamist militia groups, all of whom do not obey and have no regard for the international Laws of War.

To the contrary, while national governments and their armed forces seek always to comply with the LOAC and established Customary International Law (CIL), since these laws and customs of war seek both (1) to ensure minimum protections are given to the victims of war during an armed conflict and (2) to reduce human suffering during conflict by safeguarding the fundamental principles of humanity in times of war, Islamist terrorists and terror-using insurgents like the Taliban:

(1) deliberately masquerade as civilian non-combatants;

(2) fail to distinguish themselves from the civilian population by conducting their operations out of uniform thereby exposing innocents to harm;

(3) deliberately target innocent civilians themselves in terrorist attacks;

(4) forcibly use civilians as human shields to protect themselves from the legitimate and lawful military responses provoked by their attacks; and

(5) generally show a marked disdain, contempt and even hatred for the principles, protections and spirit of the Laws of War.

In short, terrorists or terror-using insurgents in conflict theatres are unlawful perpetrators of war crimes and excessive human suffering rather than victims of war.

As such, these ‘unlawful combatants’ have few rights or protections under the LOAC, and may be lawfully targeted, attacked, wounded and killed in compliance with the Laws of War and in the same way as all other combatants, and if captured must be detained as Detainees (‘unlawful combatants’) rather than Prisoners of War (‘lawful combatants’). [See section ‘Evolving Customs of CIL in Modern Armed Conflict’ in blog ‘#24 Laws of War Brief (Part 1): What is the Law of Armed Conflict & Customary International Law?’]

In sum, through these unlawful terror tactics knowingly and deliberately employed by Islamist terrorists and insurgents today, a great deal of additional combatant vs. civilian confusion is created for LOAC-respecting and LOAC-abiding military forces on the modern battlefield today, in addition to the ordinary friction and fog of war. This additional and intentionally-generated confusion has impacted especially negatively on both the theory and practice of targeting on the modern battlefield.

In order to help military personnel in distinguishing between genuine civilian non-combatants and these ‘unlawful combatant’ terrorists and insurgents pretending to be civilians (for whom entirely different LOAC laws apply), and additionally to prevent as much as possible civilian casualties in wartime (which is especially important in COIN campaigns to ‘protect’ and ‘win’ the population), modern national governments have responded to this modern terror challenge by dramatically – and I would argue erroneously – altering the traditional Enemy-targeting ROE criteria that had been employed and relied upon for many decades in world history. Instead of Enemy personnel being a legitimate target whether in or out of uniform, armed or unarmed, active or inactive, fighting or resting, advancing or retreating, in company or alone, national governments today now often issue ROE that authorise their personnel to target and use lethal force against both suspected and actual Enemy terrorists and insurgents only if the individual is operating or carrying a weapon, and only for that period of time in which he or she is using the weapon or carrying the weapon on his or her person. 

In addition, the traditional and usual authorising criteria for the use of lethal force against Enemy combatants, if they demonstrate ‘hostile intent’ and/or ‘hostile action’, has become tightened and narrowed to such a restricted and unnatural degree that military forces are now often handicapped from using lethal force in the usual fashion against Enemy combatants in a warzone, and are only permitted to target and attack Enemy forces if an explicitly overt ‘undeniably hostile act’ is in the process of being committed. 

This is a rule that has turned highly trained and armed, warfighting, combat forces into severely-restrained, ‘sitting duck’ spectators of their Enemies – virtually ‘Prisoners of ROE’.  Military soldiers can often only watch through the crosshairs in their weapons as their terrorist and insurgent Enemies freely manoeuvre all around them, and openly organise and prepare future military assaults against them without the usual reciprocal threat or fear of the preventative or disruptive opposing military actions and attacks that would be normal, expected and commonplace with the usual ‘hostile intent’/’hostile act’ ROE authorising criteria in place.

The imposition of such severe, modern, ROE restrictions on combat forces conducting warfighting operations in warzones today raises the crucial and pressing question, what does the important and potently-loaded LOAC term for ‘combatants’ – those ‘taking a direct part in hostilities’ (where ‘hostilities’ equate to ‘military action’) – really mean in this context of modern warfare against terrorists and terror-using insurgents?

Are Islamist Enemy fighters really only combatants that can be lethally targeted, attacked and killed, because they are ‘taking a direct part in hostilities’, when they are literally holding or operating a weapon or explosive device? Or does ‘taking a direct part’ in military action in fact also include the traditional military activities of Enemy forces, that of: planning military assaults; preparing military assaults and weaponry (e.g. suicide-vests, IEDs and VBIEDS); positioning these said bombs and suicide-bombers into desired locations; and manoeuvring into position for military attack?

And further, does ‘taking a direct part’ in hostilities/military action in reality additionally include the military activity of transporting supplies, recruiting fighters, conducting scouting/reconnaissance operations, intelligence-gathering, buying or gathering weapons, and raising or collecting fighting funds from narcotics and other illicit sources, among other Enemy military activities in conflict theatres, as it was traditionally understood to mean in the wars of past centuries and decades?  

In brief, does the fact that terrorist and terror-using insurgent combatants deliberately disguise themselves as non-combatant civilians mean they can not ever be targeted, attacked and killed like traditional Enemy forces, as it is permitted under the LOAC to do to combatants during wartime, unless they are overtly holding, firing, planting or operating weapons?

And even in situations where it is known to military forces that certain individuals are in fact Enemy forces, as a result of earlier military interactions, encounters or engagements with the said individuals, or from hours/days/weeks of ‘Person of Interest’ observation via human or electronic surveillance (e.g. military forces on the ground with the naked eye, binoculars, or gun-scopes, or alternatively electronic methods of surveilling suspected individuals by means of ‘Eye-in-the-Sky’ reconnaissance and surveillance drones, high-quality pictures on a low-tech Persistent Ground Surveillance System (PGSS), or GPS satellites)?

These are all questions that must be asked and answered by government and military officials with logic and clarity to improve the freedom of action and effectiveness of modern forces conducting vital international security campaigns today and in the future.

In my opinion, there is room for a much wider, more sensible, and more historically consistent interpretation of the term ‘taking a direct part in hostilities’ with regard to ‘unlawful combatants’, e.g. Islamist terrorists, foreign fighters, and terror-using insurgents, than the narrow conception seemingly adopted and enforced on their armed forces by many national governments around the world today.

The fact of a suspected insurgent or terrorist individual concretely meeting 2 or 3 key criteria of who is an ‘Enemy’ or ‘hostile force’, as the terms have been defined and designated in the government-provided ROE list of key terms accompanying the ROE annex, ought to be sufficient verification to enable the use of lethal force against that individual – and certainly enough to authorise a lethal ground military attack or air strike on the combatant in question in an active conflict theatre or warzone.

[For a discussion on the weighty, sensitive but ultimately crucial Counter-Terrorism issue of whether or not to use ‘Enhanced Interrogation Techniques’ (EIT) on the most high-ranking captured terrorists or terror-using insurgents (e.g. senior leaders or key enablers of Al-Qaeda, ISIS or Islamist forces like the Taliban or Boko Haram), who – despite using all other interrogation methods – have proved stubbornly uncooperative and unwilling to share information about future terror attack plots being prepared by terror comrades against civilians of the State or other States, or other critical information to national Counter-Terrorism efforts in the interest of preserving the lives of national and allied citizens from harm or death, refer to section ‘The GWOT: International or Non-International?’ and specifically endnotes 30 and 33 of blog ‘#24 Laws of War Brief (Part 1): What is the Law of Armed Conflict & Customary International Law?’]

[41] R. Scarborough, ‘Rules of engagement limit the actions of U.S. troops and drones in Afghanistan – Say dwellings now virtual safe havens for terrorists’, Washington Times, 26 November 2013, URL (accessed 17 February 2016).

There are many accounts of the unintended but disastrous consequences of this latter, ultra-extreme ROE restraint of ‘not firing even on an armed Enemy’, not least the downing of a CH-47 Chinook helicopter in 2012 which killed 17 U.S. Navy SEALs (all members of SEAL Team 6). This terrible tragedy, and high loss of life among one of America’s most highly-trained, specialised and elite Special Forces units, was directly attributable to extremely bad ROE – especially that relating to OFOF. Namely, the fact that an AH-64 Apache gunship pilot – who could clearly see the spot in a building where armed Taliban operatives were preparing to fire a Rocket-Propelled Grenade (RPG) at the chinook – was repeatedly denied permission to fire at the building or even to provide containment fires ‘due to rules of engagement and tactical directives’ (Scarborough, ‘Rules of engagement limit the actions of U.S. troops and drones in Afghanistan’, op. cit.).

In terms of Obama’s new house search rules, New Zealand Army LTCOL Andrew Shaw witnessed first-hand the negative results of these kinds of tight ‘home search’ ROE. Eight years before Obama’s new ROE agreement, from July-December 2005, Shaw had been working with American OEF forces in Nangarhar Province of Eastern Afghanistan (RC-East). While working at the U.S. Lead Nation Command Headquarters (U.S. HQ) of RC-East as a Liaison Officer between U.S. HQ and the New Zealand PRT in Bamyan Province, American soldiers came under intense Afghan criticism and outrage for the way in which, by conducting ‘typical rough searches’, they had inadvertently ‘dishonoured’ Afghan men by ‘manhandling’ women and ‘dragging’ male heads of the household outside of the house for questioning in front of their wives and children (as described in blog ‘#28 BACKGROUND – Afghanistan: The Land, its Diverse Ethnic Peoples & the Pashtun Taliban’, the concept of ‘honour’ is at the heart of Afghan culture, especially among Pashtun Afghans for whom transgressions against male pride and honour – including through the treatment of their female family members – are considered to be ‘crimes’ against the ancient, powerful, and pre-eminent ‘tribal honour code’ of Pashtunwali).

Not wishing to ‘lose the people’ in the OEF’s COIN campaign of 2003-2005, being championed and implemented at that time by LTGEN David W. Barno of OEF’s Combined Forces Command-Afghanistan (CFC-A), American forces were in response restricted with new ROE that ordered house searches to be conducted only by culturally-aware Afghan National Army personnel, while the more culturally-insensitive American forces remained outside the houses, guarding the perimeter of these buildings as the searches were conducted. Further mistakes and mishaps, however, led to American ROE being tightened even further, but this time to the point of absurdity. Henceforth no house searches were ever to be conducted at all by American troops unless permission had been previously and explicitly sought and obtained from the Afghan leadership of the specific towns and villages in which the planned house searches for Enemy terrorists and insurgents were to take place (leading to the intended targets receiving advance warning ‘tip-offs’ by the elders, as a result of local blood, social or business connections, as well as tribal loyalties, and Al-Qaeda or Taliban-sympathies).‘This had a terrible impact on the security situation, as you can imagine!’ recalls Shaw. ‘They never found or caught anyone. But these are tangible examples of how operations on the ground and ROE interplay to reduce operational effectiveness really’ (NZDF Lieutenant-Colonel (LTCOL) Shaw, Interviewed by Regeena Kingsley, 23 November 2009, NZDF Command & Staff College, Trentham Military Camp, Wellington, New Zealand).

[42] Ryan Zinke, who commanded an assault team within SEAL Team 6, said of Obama’s new security deal: ‘The first people who are going to look at it and review it are the enemy we’re trying to fight. It’s going to be a document that can be used effectively against us. This is where we either fight or go home. What’s happening is we’re losing our ability to fight overseas’ (R. Scarborough, ‘Rules of engagement limit the actions of U.S. troops and drones in Afghanistan – Say dwellings now virtual safe havens for terrorists’, Washington Times, 26 November 2013, URL (accessed 17 February 2016).

To exemplify the point of Enemy Taliban forces learning from and using American ROE against U.S. forces in the conflict zone, in March 2014 in the notorious Tangi valley, two Taliban fighters – aware of both American ROE restraints and drone surveillance – purposely exchanged their RPG for rifles, hiding the RPG under the cover of trees, with the full knowledge that rifles did not meet the U.S. ‘hostile intent’ authorising criteria for lethal force (due to the fact that many male civilians in Afghanistan carry a rifle as a cultural symbol of warrior status and spirit). ‘The Taliban know our Rules of Engagement,’ said Captain (CAPT) Rick McCuan, an Intelligence Officer of Task Force White Devil (18^th Airborne Corps). ‘They know what they can do. They know what they can get away with’ (‘Episode 4 – The Tiger of the Tangi’, The Fighting Season [documentary], dir. Ricky Schroder, Ricky Schroder Productions/DirecTV, 2015 [Netflix Stream]).

Indeed, Zinke commented that he regularly talked to military comrades, returning to the United States from the theatre of war in Afghanistan, who were frustrated because the Rules of Engagement were “too restrictive”. ‘You’ve got to give our troops that are in harm’s way every tool and every advantage that is possible’ Zinke declared (cited in Scarborough, ‘Rules of engagement limit the actions of U.S. troops and drones in Afghanistan’, op. cit.).

[43] M. Waltz, Warrior Diplomat: A Green Beret’s Battles from Washington to Afghanistan, Potomac Books, USA, 15 November 2014, https://www.amazon.com/Warrior-Diplomat-Battles-Washington-Afghanistan/dp/1612346316, (accessed 1 March 2021); F. Knoll, ‘Rare inside look at war time decision making in White House and on the ground in Afghanistan’, Top Customer Reviews, 13 November 2014, https://www.amazon.com/Warrior-Diplomat-Battles-Washington-Afghanistan/dp/1612346316, (accessed 1 March 2021).

[44] ‘Episode – Bomb at the Front Door’, Heroes of Hell’s Highway [documentary], USA, Discovery Channel, 2013 [DVD].