Stressing Self-defense in the Force: Five Methods to Empower Commanders

By: Capt. David Hammond, U.S. Army

Inherent in the United States' counterinsurgency strategy in Afghanistan is a tension between the individual warfighter's natural desire to wage conventional war and the strategic leader's attempt to overcome this "institutional inclination."1 Over the years of fighting this nebulous conflict, that tension has led to a conceptual disconnect between strategic-level policy makers and tactical-level decision makers, which has tended to exacerbate the ground force operator's perception of disenfranchisement. This perceived disenfranchisement is most evident in the arena of battlefield regulation—the rules of engagement (ROE), tactical directives, standard operating procedures, and general orders issued by strategic leaders. Tactical oversight has increased as the years have passed, resulting in progressively cumbersome mission-approval processes. The actions of individual troops in combat are occasionally second-guessed, resulting in formal reprimands and, in rare cases, courts-martial.2 Although this regulation and increased oversight is always implemented with a particular policy aim in mind, American troops engaged in direct combat are understandably rarely concerned with the policy origins of a particular rule. 

An internet search for "restrictive ROE" will render thousands of scathing news articles, blogs, and other internet criticisms against the perceived handcuffing of ground forces in Afghanistan. Commentators blame the ROE for a variety of ills, most disturbingly an increase in American casualties. Indeed, several commentators directly attribute American deaths to the restrictiveness of the rules under which U.S. forces operate.3

If a ground force operator perceives battlefield regulation to be reducing operational effectiveness, or endangering the lives of his comrades, or restricting the "right to self-defense," strategic arguments in support of the regulation will hold little sway in the mind of that operator. Thus, as relevant as the subject might be, the purpose of this article is not to enter the long-standing argument over counterinsurgency strategy and the ROE required to effectively implement it. That debate will continue as long as we pursue ill-defined goals in conflicts against vague enemies. Instead, the aim of this article is to provide practical guidance to commanders, leaders, and operators currently attempting to execute the ROE, regardless of any view on the strategy or policy behind the rules.

The frustration over perceived hyper-regulation of the battlefield discussed in this article does not seem to be a uniquely American problem. Tactical-level operators from the armed forces of other nations deployed in Afghanistan have apparently also struggled with the effects of the national and strategic implementation of rules designed to minimize civilian casualties in combat.4 This highlights the problem as one that is potentially universal for modern militaries engaged in counterinsurgency. Although this article addresses the issue through the prism of a U.S. lawyer's experience in Afghanistan, our coalition partners in this and future conflicts may also benefit from the methods outlined here. The concept of unit self-defense, embodied in the ROE of nations and multinational organizations, is after all grounded in international law. The unique problems that arise in applying the concept to an asymmetric conflict are therefore international in nature. 

Self-defense in the ROE 

Strategic leaders create ROE for three purposes: (1) to achieve their military objectives, (2) to remain consistent with national policy, and (3) to meet their legal obligations.5 Every battlefield "rule" can be traced to one of these purposes, and often a single rule can serve more than one of these purposes.6 A rule prohibiting the destruction of compounds except as a last resort might serve a military counter-propaganda goal, while also serving a U.S. policy goal to minimize civilian casualties and avoid the compromise of sensitive political negotiations. Perhaps no issue is more delicate in the drafting and implementation of ROE than the right to unit self-defense and perceptions that strategic leaders have infringed on it, thereby disenfranchising the ground force operator. As demonstrated by the volume of internet punditry on the topic, these perceptions certainly exist in some sectors of the media, and as a result, among casual American readers. More dangerously, these perceptions exist within the force, and in Afghanistan, self-defense is everything for the individual servicemember. The platoon leader on patrol in a counterinsurgency theater has little use for offensive ROE when the enemy is not easily distinguished from the civilian population. Gone are the days of declaring an entire force hostile and engaging the hostile force based on the type of uniform he wears or the type of vehicle he is in. There are no Soviet-era T-72 tanks roaming the battlefield. Instead, by necessity, the ROE must be conduct-based: they must be reactionary. Ground forces must constantly evaluate enemy behavior and make split-second decisions about whether to employ lethal force based on this behavior. 

This is not an easy exercise. There are four inherent difficulties in the application of conduct-based ROE: (1) determining what conduct to attack, (2) determining when to attack it, (3) the subjective nature of these determinations, and (4) the enemy's ability to adapt to the ROE through modified behavior. These difficulties are confronted on a daily basis in Afghanistan, and if not appropriately considered and addressed, they contribute to a sense of disenfranchisement in the force. When the perception that the wrong answer could end a career grows pervasive in a unit, frustration quickly follows and morale suffers.7 Leaders must make dedicated efforts to avoid this unraveling, not just because it affects morale, but more importantly, because it breeds hesitation. The methods I describe in the following sections will assist commanders and leaders in the effort to empower subordinate decision making, lessen the conceptual disconnect between strategic policies and tactical decisions, and remove the perception of disenfranchisement from the force.

1. Understand Self-defense Doctrine and Make It a Pervasive Organizational Theme 

All deploying soldiers, sailors, airmen, and marines are told that they have the right, and obligation, to defend themselves and their units against hostile acts and hostile intent. But too often, this is all they are told. Moreover, when they are told, it is during a single legal brief provided by a judge advocate, with no command or leadership emphasis on the concept. Unless leaders incorporate self-defense as a pervasive theme, the concept risks transformation into a vague legal formula written on an ROE card, ill-suited for battlefield application.8 Principles guide the combat decision making of an effective force, not "adherence to hard and fast rules."9 The failure of leaders and servicemembers to fully grasp the principle of self-defense is a key factor in the perceived disenfranchisement of tactical decision makers

As an illustration, consider the September 2009 events in Ganjgal, Kunar Province, Afghanistan. During the course of the now well-known six-hour battle, several requests for fire and air support were denied or simply not fulfilled. Five American servicemembers lost their lives. Members of the ground force involved in the firefight, including Captain William Swenson, who received the Medal of Honor for his actions that day, publicly blamed politically-driven ROE and tactical directives seeking to minimize civilian casualties.10 The Army's investigation into the incident largely blamed absent and negligent battalion-level leadership for the failure. Indeed, a few battalion officers in the operations center that day saw the end of their careers.11 The true causes of the incident may be forever lost to reasonable disagreement, but one truth is readily apparent: the importance of employing assets in self-defense was lost to somebody, somewhere, that day. As a theme, self-defense was not pervasive. 

To prevent the disenfranchisement of the force, leaders must ensure that all members understand the nature of self-defense. By "understand," I mean fully grasp, which requires a deeper understanding of the origins and limits of
the concept. 

There are essentially two types of self-defense engaged in by U.S. servicemembers: in extremis self-defense and U.S. self-defense.12 In extremis self-defense, which involves life-or-death situations, leaves no room for discretion, and individual servicemembers maintain the greatest freedom of action. In the in extremis realm, concerns over collateral damage are appropriately minimized, and the only true limitations are the Law of Armed Conflict's broad requirements of necessity, discrimination, proportionality, and the prevention of unnecessary suffering. Simply put, servicemembers have a right to use all necessary and available means for defense in such a situation, and no strategic concern or rule can defeat this right. Although "in extremis self-defense" is not a doctrinal term or a concept expressly recognized in the Chairman of the Joint Chiefs of Staff Standing Rules of Engagement (SROE)13 or other legal scholarship on the subject, the term's usage has risen to prominence among American commanders, staff officers, and judge advocates in counterinsurgency combat theaters. The term is important in counterinsurgency operations because it distinguishes between the common, everyday defensive use of force on the battlefield under the broad SROE, in which discretion is possible, and the "at the point of death" scenarios in which the ground force commander or individual servicemember must immediately use lethal force to survive or preserve the lives of his comrades.

To the contrary, "U.S. self-defense" is broad, can be subjective and discretionary, and may invite limitations by higher headquarters on the manner and method of execution. For example, strategic leaders may require ground forces to de-escalate a situation through maneuver or withdrawal prior to deploying air strikes on structures. The type of self-defense to be invoked in a particular situation has important implications, and confusing the two concepts invites perceptions of disenfranchisement and the incorrect belief that the ROE, by their very nature, risk lives through restrictiveness. Thus, leaders must examine and understand each of these distinct self-defense concepts. 

In Extremis Self-defense

Since their inception, the SROE have directed that "unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or hostile intent."14 This notion is not unique to the United States: self-defense is a basic tenet of the rules of engagement for military forces around the world.15 Despite universal acceptance of the basic principle, the source and scope of the right to unit self-defense is unsettled.16 The right is not codified in any international convention or treaty and can be attributed to various sources.17 Several commentators who have discussed the concept have argued that the right is grounded in natural law and has evolved through state practice to constitute customary international law.18

Writing in the thirteenth century, Saint Thomas Aquinas built on the work of the Romans and recognized self-preservation among man's "natural inclinations."19 From these natural inclinations flow natural laws, or "true directives that every person can easily formulate for himself."20 Aquinas believed that no authority, or set of positive laws, can circumvent or take away rights grounded in this natural law.21 These rights exist by virtue of reason alone.22 Indeed, the founding document of the United States invoked this very principle when it declared certain truths "self-evident," among them the right to life.23 Aquinas also recognized that the right to self-preservation is not absolute and must operate with due consideration for the equally desirable goal of a peaceful society.24 In this vein, Aquinas first articulated the principles of necessity and proportionality in the execution of the right to self-defense, declaring unlawful the use of "more than necessary force," "out of proportion to its end."25

In the seventeenth century, the Dutch jurist Hugo Grotius expanded on Aquinas's view of the natural-law right to self-defense.26 Grotius also recognized the principles of necessity and proportionality but first articulated the requirement of immediacy as a component of necessity.27 In Grotius's view, if alternatives exist, then danger is not immediate, and thus force is not necessary.28

Grotius's views on immediacy became a key principle in the natural-law approach to self-defense,29 and informed the eventual international-law concept embodied in the ROE of Western military forces.30 Under this customary international-law concept of self-defense, troops in immediate danger, without alternatives to avoid it, may use lethal force to protect their lives.31 It is their right to do so, but only when the danger is immediate.

U.S. Self-defense 

U.S. policy as codified in the SROE diverges significantly from the international legal understanding of self-defense as informed by natural law.32 The SROE's notion of self-defense is broad and encompasses a variety of scenarios that do not amount to an in extremis self-defense situation. Indeed, the preponderance of lethal force used by American troops in Afghanistan falls under the broad concept of "U.S. self-defense." 

Under the SROE, hostile intent is defined as "the threat of imminent use of force."33 The decision as to whether a threat is imminent is "based on an assessment of all facts and circumstances known to U.S. forces at the time and may be made at any level."34 Most importantly, "imminent does not necessarily mean immediate or instantaneous."35 Contributing further to the broad nature of U.S. self-defense, the SROE expressly include the ability to "pursue and engage forces that have committed a hostile act or demonstrated hostile intent, if those forces continue to commit hostile acts or demonstrate hostile intent."36 

Hostile intent may be manifested in a variety of ways not amounting to an actual attack. For example, U.S. forces might positively identify individuals with heavy weapons two kilometers away, traversing toward a known fighting position historically used to attack friendly elements. U.S. policy does not require the ground force commander to wait to strike until the ambush is underway, or to seek higher approval to strike under an offensive framework. Although lethal force in this situation would, without question, be authorized under current U.S. self-defense principles, it is not an in extremis self-defense situation, and there is technically no right to self-defense under international law. If deemed appropriate, a higher-level commander could certainly restrict his ground force commander's use of a particular weapon system in such a scenario, or altogether deny the use of lethal force. 

This broadness in the SROE is not without detractors. Despite the common complaint in the media and throughout the force that the American ROE are overly restrictive, several commentators call for a narrower definition of imminence in order to bring the concept of U.S. self-defense in line with the customary international-law concept.37 

The force must understand these concepts, because in a web of complicated policies and restrictions, one simple truth remains at the forefront: a ground force commander has the inherent right to defend his unit in an in extremis situation. In combat, this concept trumps all others. No commander may ask his men to die when means of survival remain, regardless of the strategic fallout that might result. This right to self-preservation is as old as time, derived from reason and centuries of philosophy and jurisprudence. Every discussion of operational restrictions must lead with this concept, without exception.38 

In sensitive political environments, the broadness of U.S. self-defense invites attempts by U.S. strategic leaders to reign in the subjective nature of the SROE. Modern counterinsurgency campaigns come with a host of limitations on the use of combat power, most visibly restrictions on the use of air-to-ground munitions in certain situations. However, if the enemy is using a civilian dwelling to attack American troops, or a hospital or mosque for that matter, and the only method for maneuvering to safety involves the use of indirect fire, there should be no hesitation. American troops are authorized to use all necessary and proportionate means in self-defense. This concept must be indoctrinated, pervasive, and understood at the lowest level of any American military organization. This is not to claim that strategic leaders have ever openly restricted the right to in extremis self-defense. No leader would endorse such an approach. Leaders must nevertheless transcend mere token reference to the right to self-defense. 

2. Empower Ground Force Commanders in the Use of Munitions in Self-defense 

Increasingly, higher commanders limit the ground force commander's use of certain munitions, even in self-defense. Matrices of approval authorities for the release of bombs, missiles, field artillery, mortars, and even direct-fire weapons are common in Afghanistan. Such documents may span several pages, with contingencies based on contingencies. The Counterinsurgency field manual implores commanders to use caution in the use of particular munitions during a counterinsurgency campaign, specifically warning against an "inappropriate" use of air strikes.39 

Commanders understandably seek to maintain the ability to control the lethal effects used within their battlespace, as they are the ones our military and society ultimately hold accountable for those effects.40 Requiring the ground force commander to seek approval to use a particular munition in self-defense, however, without expressly drawing the critical distinction between in extremis and U.S. self-defense, may not only contribute to perceptions of disenfranchisement but could actually disenfranchise by violating the ground force commander's legal right to protect his unit. 

A higher commander may decide on the one hand that, given a certain politico-strategic environment, the risk of using a destructive munition in a discretionary self-defense situation outweighs any potential benefit. On the other hand, as a matter of law and policy, if a unit is pinned down receiving effective fire from massing enemy forces spread over a large target area and using the cover of compounds and natural barriers, a ground force commander does not have to wait for approval from a higher headquarters before lawfully using whatever munitions are at his disposal. The ability of a commander's guidance for fires to distinguish between the discretionary and non-discretionary uses of force is crucial. To the extent that any failure in the Ganjgal incident is actually attributable to a higher headquarters' rules-based disapproval of the ground force commander's choice of munition, this important distinction was not madeat the time, and the disenfranchisement was not merely perceived but very real. 

A properly drafted fires approval matrix can easily account for the in extremis self-defense scenario by expressly allowing the ground force commander to determine for himself whether approval is necessary based on the facts on the ground. Fires guidance should state at the outset, "This guidance does not apply in any situation in which the ground force commander determines that seeking the required approval is not possible without risk to life." This exception to the commander's guidance for fires should be clearly stated on the controlling document, whether it is a fires appendix to an operations order or a stand-alone policy. Judge advocates and fire support personnel will play crucial roles in ensuring that the entire force understands the concept. But more importantly, the concept will not work without a thorough understanding of self-defense throughout the force. By stressing these principles early in a pre-deployment cycle, and at every available opportunity thereafter, the concept can be ingrained throughout the formation. 

The incorporation of this framework provides two important advantages. First, and foremost, it increases the confidence of ground forces that the ROE and operational guidance will never put them in a situation that might endanger the lives of their personnel. The ROE themselves cannot endanger lives, but a misapplication or misunderstanding of the ROE certainly will. It is vitally important for commanders to prevent the emergence of the toxic perception among troops on the ground that strategic leaders are overly restricting their ability to defend themselves. 

Second, this framework provides the higher commander with the ability to shape the large majority of lethal effects on the battlefield through the issuance of lawful restrictions on the use of certain munitions in non-immediate self-defense situations. When operators fully understand and appreciate the first advantage, they more readily accept the second. 

From an operational perspective, a cautious commander may express concern that the exception might be unnecessarily invoked by a ground force commander who abuses the rule in order to maintain control over the particular munition employed. These concerns should be easily dissuaded. When the ground force commander operates outside of the commander's fires guidance and invokes the in extremis exception, he "buys the rounds," taking full responsibility for any resulting negative effects. If strategic consequences result from the ground force commander's invocation of the exception under reported in extremis circumstances, a thorough administrative investigation of the matter will provide the command with the information necessary to validate the decision. When the facts show that ground forces were under direct attack and unable to respond effectively with organic weapons or to de-escalate the situation through maneuver or withdrawal, the engagement is a success, and strategic-level considerations are secondary to the legal right to unit self-defense against the immediate threat. 

3. Underwrite Mistakes, Don't Punish Them 

Empowering ground force commanders alone is not enough. For the preceding framework to be effective, strategic leaders must fully endorse the approach. Perceived disenfranchisement in the force is partially attributable to the common belief that harsh consequences may follow a violation of the ROE.41 When strategic leaders endorse the empowerment of the ground force commander, and self-defense has truly become a pervasive theme in an organization, misapplications of the ROE are going to occur. As the culture of empowerment proliferates, servicemembers will grow increasingly prone to broad interpretations of the U.S. self-defense doctrine and might, as a result, misidentify a hostile act, or errantly stretch the definition of imminence in hostile intent. 

Individual consequences must not follow these good-faith ROE mistakes.42 If a servicemember misapplies the ROE in an attempt to destroy the enemy, a careful analysis must follow. Too often, commanders shy away from finding that an ROE violation occurred, believing that the violation must result in some sort of adverse action.43 This belief is fed by the failure of strategic leadership to fully institutionalize the culture of self-defense. Instead, commanders and leaders should not hesitate to call a violation of the ROE what it is. At the same time, they must underwrite the mistake and disseminate the vignette to the force in the form of a lesson to be learned.44 By reserving adverse action or criminal liability for the rare, extreme scenario in which a servicemember deliberately and wrongfully disregards the ROE, thus causing harmful effects, leaders will discourage hesitation and reduce perceived disenfranchisement. 

4. Don't Make the Judge Advocate the "ROE Guy" 

Judge advocates play an important role in advising commanders as they apply increasingly complex battlefield regulation to difficult circumstances. Complicated scenarios requiring careful analysis do arise. But these are the exceptions. More common are relatively straightforward decisions to use lethal force. Avoiding perceptions of disenfranchisement in the force does not come easy when the lawyer is at the center of every targeting decision. 

This viewpoint is not to detract from the role of judge advocates. The ROE with regard to offensive targeting can be fluid and difficult to execute, requiring knowledgeable legal advisors who are ready to assist in the decision-making process. Additionally, due to its broadness, difficult issues might arise in the application of U.S. self-defense in a given scenario. Legal consultation should absolutely occur in the gray areas that naturally arise with such a subjective policy. But when the force fully understands the concept of self-defense, the lawyer should rarely find himself consulted prior to a true defensive situation. Just as a well-run corporation does not run every decision by its general counsel, neither does a well-run military unit ask for a judge advocate's opinion every time it seeks to use lethal force. Some commanders fall into the trap of running routine targeting decisions by the judge advocate:

Commander: "This guy is digging in the ground in a historic IED location. Can I kill him?" Judge Advocate: "Are you reasonably certain that he is emplacing an IED?" Commander: "Yes." Judge Advocate (to himself): "Then why are you asking me?"

While the judge advocate should be present or easily accessible during operations, overreliance on legal advice creates an environment of hesitation and bureaucracy, which can trickle down to the ground force operator. 

To reinforce the commander's role in the execution of the ROE, commanders should consider briefing the ROE to subordinate commanders, with instructions for subordinate commanders to do the same. An effective top-down, command-driven approach to ROE training would ultimately result in the absorption of the commander's emphasis on self-defense by those responsible for the day-to-day training of troops—the small-unit leaders.45 The ROE are the commander's rules, and there is no requirement that the judge advocate solely occupy the domain of ROE dissemination. The ROE lose their true purpose and authority when the lawyer is the "ROE guy." 

5. Take a Practical Approach and Consider the Freedom-of-Action Spectrum 

There exists a cold reality in the ROE arena, readily apparent yet infrequently openly espoused. When the enemy is killed, rarely does anyone mourn the loss or allege an ROE violation. When civilians are killed, quite to the contrary, the question "Was the ground force commander following the ROE and tactical directives?" will inevitably arise. 

Simply put, a ground force commander's freedom of action within the ROE is directly proportionate to the risk of civilian casualties in any given situation (see figure 1). As the likelihood of civilian casualties increases, the ability of the ground force commander to take a broad approach to the ROE decreases. A practical approach to the ROE will not shy away from this truth. Servicemembers must understand that, prior to taking a broad approach to the definition of imminence under U.S. self-defense policy, the risk of causing civilian casualties and thus triggering heightened scrutiny must be considered. Civilian casualties trigger investigations, and investigators ask questions. Appreciating this reality is crucial to the effective implementation of U.S. self-defense doctrine.

Consider the following hypothetical as an illustration. Utilizing an armed unmanned aerial vehicle (UAV), a ground force observes via full-motion video five insurgents engaging friendly foreign forces with small-arms fire. The ROE would unquestionably authorize the use of lethal force against these positively identified hostile acts. Before the ground force commander is able to strike from the UAV platform, however, the enemy forces disengage and begin to travel away from the engagement area, carrying their weapons. Even so, the pursuit provisions of U.S. self-defense doctrine would authorize a strike, although the international legal standard might consider this an offensive use of force. As the insurgents depart the engagement area, three additional individuals with weapons join the hostile group. Suddenly, a previously straightforward situation is murky. The additional three individuals are clearly "bad," but they have not been observed engaging in hostile acts. Can they be said to have demonstrated hostile intent, simply by association with the previously hostile group? Many observers would answer no. The ground force commander may believe otherwise. 

In such a scenario, not uncommon in Afghanistan, the ground force commander must consider the freedom-of-action spectrum before using force against the entire group. If he engages and kills all eight insurgents, few on his side will mourn the loss, and few will feel a compulsion to question the decision. If a young child enters the fray at the wrong moment and is injured in the strike, questions will follow. An armchair quarterback might question this use of force, even under broad U.S. self-defense principles, because the three additional individuals were not observed engaging in hostile acts, and were moving away from friendly forces. 

Through an understanding of the freedom-of-action spectrum, the ground force commander has the ability to take calculated risks in these difficult scenarios. He must ask, "What is the risk that I might cause a civilian casualty and invite scrutiny? Are buildings nearby? What is the pattern of life in this area?" If, on the one hand, he assesses that the risk of unintended damage is low, he might comfortably decide to disregard the academic legal concerns on the limits of self-defense. On the other hand, if the risk of civilian casualties outweighs the advantage of taking eight insurgents off the battlefield, he might decide on tactical patience. Through this practical freedom-of-action analysis, a difficult ROE question becomes easier to address.

Conclusion 

Modern counterinsurgency campaigns are subject to increased international scrutiny unrivaled in conflicts of previous eras, both in the media and in political realms. This scrutiny has the tendency to result in significant battlefield regulation, much to the chagrin of ground force operators. Perceived disenfranchisement in the force at the hands of this regulation is at best a detriment to morale, and at worst an invitation for hesitation and the degradation of combat effectiveness. When understood, emphasized, and correctly applied, the concept of self-defense is a key mitigation tool against this perception. It is unlikely that ground force operators will ever fully embrace the limitations on their capabilities in a politically ultra-sensitive theater like Afghanistan. But as the five points described in this essay demonstrate, these limitations are easier to swallow when (1) they exist within a culture of self-defense, (2) the lawyer's role is appropriately minimized, (3) ground force commanders are free to make tactical decisions on the weapons they employ, (4) servicemembers are permitted to make mistakes in the application of the ROE without the threat that their careers will be damaged, and (5) commanders are encouraged to adopt a practical approach to the broad notion of U.S. self-defense. 

Finally, our coalition partners in Afghanistan, and in future conflicts, might similarly benefit from stressing self-defense in the force. The customary international-law concept of self-defense, grounded in natural law, is indeed an international concept, while the broader notion of imminence in the SROE is an American concept. Because of the more stringent international standard for invoking self-defense, the threat of disenfranchisement in a foreign military force is potentially greater than it is in the American military. The concepts discussed here may, with some refinement, be equally applicable to foreign forces operating under a strict international-law concept of unit self-defense.

About the Author(s): CPT David Hammond is a judge advocate in the U.S. Army.


NOTES:

1. The Counterinsurgency field manual states, "The military forces that successfully defeat insurgencies are usually those able to overcome their institutional inclination to wage conventional war against insurgents." Headquarters, Department of the Army, introduction to Counterinsurgency, FM 3-24/MCWP 3-33.5 (Washington, D.C.: HQ, Dept. of the Army, 15 December 2006): https://rdl.train.army.mil/ catalog-ws/view/100.ATSC/41449AB4-E8E0-46C4-8443- E4276B6F0481-1274576841878/3-24/intro.htm 

2. Alexander Gualdoni, "The Law of War: Restrictive Rules of Engagement and Increased Consequences for Soldiers Prevents Soldier Action," 20 November 2012: http://www.micourthistory. org/2013_ms/#_ftnref103 

3. Ralph Peters, "The Rules Murdering Our Troops," New York Post, 24 September 2009: http://nypost.com/2009/09/24/ the-rules-murdering-our-troops/ ; Rowan Scarborough, "Shades of Vietnam: Spike in U.S. Troop Deaths Tied to Stricter Rules of Engagement," Washington Times, 5 December 2013: http://www.washingtontimes.com/news/2013/dec/5/ increase-in-battlefield-deaths-linked-to-new-rules/?page=all; Billy and Karen Vaughn, "The Reckless Endangerment of U.S. Warfighters Has Got to Stop," WorldTribune.com, 16 February 2014: http://www.worldtribune.com/2014/02/16/ the-reckless-endangerment-of-u-s-warfighters-has-got-to-stop/ 

4. Jonathan Owen, "British Soldiers Resort to ‘Baiting' Taliban to Beat Rules of Engagement," Independent, 27 August 2012: http:// www.independent.co.uk/news/uk/home-news/british-soldiers-resort-to-baiting-taliban-to-beat-rules-of-engagement-8082165. html; German Radio, "New Rules of Engagement for German Troops in Afghanistan," DefenceTalk.com, 7 July 2009: http:// www.defencetalk.com/new-rules-of-engagement-for-german-troops-in-afghanistan-20333/ 

5. Mark S. Martins, "Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering," Military Law Review 143 (Winter 1994): 24: http://www.loc.gov/rr/frd/Military_Law/ Military_Law_Review/pdf-files/27687D~1.pdf 

6. Ibid., 25. 

7. In July 2010, during a visit to Afghanistan, then-Senator Joseph Lieberman made headlines when he observed that the rules of engagement imposed by General Stanley McChrystal "have hurt morale here." Senator Lieberman's comments came in the immediate aftermath of General David Petraeus's assumption of United States Forces–Afghanistan command from General McChrystal. During his Senate confirmation hearing, General Petraeus pledged to review General McChrystal's rules of engagement. Ultimately, however, General Petraeus's review of the tactical directives resulted in additional restrictions on American forces in Afghanistan. See Roxana Tiron, "Lieberman: Rules of Engagement Hurting Morale of U.S. Troops in Afghanistan," 4 July 2010: http://thehill.com/homenews/senate/107125- lieberman-rules-of-engagement-hurting-troop-morale-in-afghanistan . See also Jason Motlagh, "Petraeus Toughens Afghan Rules of Engagement," Time, 6 August 2010: http://content.time. com/time/world/article/0,8599,2008863,00.html 

8. In the words of senior judge advocate Brigadier General Mark Martins, "To know these verbal incantations is to know nothing particularly helpful in a jam." Mark S. Martins, "Deadly Force Is Authorized, but Also Trained," Army Lawyer (September/ October 2001): 2: http://www.au.af.mil/au/awc/awcgate/army/ roe_article.pdf 

9. Winston S. Williams, "Training the Rules of Engagement for the Counterinsurgency Fight," Army Lawyer ( January 2012): 45.

10. Captain Swenson's sentiments are representative of the perceived disenfranchisement common among ground force commanders in Afghanistan. He said, "If I call for artillery support, I do so understanding the possibility of civilian casualties. … But that's my decision. That's my responsibility, my call—by doctrine—not somebody who is sitting several kilometers away. … I'm being second guessed by higher commanders, by somebody who's sitting in an air conditioned operations center; why the hell am I even out there in the first place?" "A Hero's Tale," CBS News, 20 October 2013: http://www.cbsnews.com/news/a-heros-tale/ 

11. A heavily redacted version of the Army Regulation 15-6 report of investigation regarding the incident may be accessed at http:// www.scribd.com/doc/27077099/Ganjgal-Report 

12. In extremis is Latin for "at the point of death." Black's Law Dictionary circularly defines the term as the condition of being "in extreme circumstances." In legal practice, the in extremis doctrine has traditionally applied to the notion in admiralty law that vessels involved in an imminent collision may depart from the rules to avoid immediate danger. See Craig H. Allen, "Admiralty's In Extremis Doctrine: What Can Be Learned from the Restatement (Third) of Torts Approach?," Journal of Maritime Law & Commerce 43, no. 2 (April 2012): 169–70. 

13. Chairman of the Joint Chiefs of Staff, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces, Instruction 3121.01B (13 June 2005), 104: http://www. alphaomega777.com/Documents/US_Rules_Of_Engagement. pdf 

14. Chairman of the Joint Chiefs of Staff, Standing Rules of Engagement, 103. 

15. Charles P. Trumbull, "The Basis of Unit Self-defense and Implications for the Use of Force," Duke Journal of Comparative & International Law 23 (Fall 2012): 121: http://scholarship.law. duke.edu/cgi/viewcontent.cgi?article=1384&context=djcil 

16. Ibid., 122. 

17. Ibid. 

18. John Merriam, "Natural Law and Self-defense," Military Law Review 206 (Winter 2010): 58–59: https://www.jagcnet.army. mil/DOCLIBS/MILITARYLAWREVIEW.NSF/0/b5974c05f0 a57579852578c70042d25f/$FILE/Article%202%20-%20By%20 MAJ%20John%20J.%20Merriam.pdf ; Sean D. Magenis, "Natural Law as the Customary International Law of Self-defense," Boston University International Law Journal 20 (Fall 2002): 418–19. 

19. Thomas Aquinas, Summa Theologica, part I-II, Q. 94, Art. 2, quoted in Merriam, "Natural Law and Self-defense," 50. 

20. Ralph McInerny, "The Principles of Natural Law," American Journal of Jurisprudence 25 (1980), quoted in Merriam, "Natural Law and Self-defense," 46. 

21. Merriam, "Natural Law and Self-defense," 51. 

22. Ibid., 46–47. 

23. The Declaration of Independence para. 2 (U.S. 1776), quoted in Merriam, "Natural Law and Self-defense," 50, n. 56. 

24. Merriam, "Natural Law and Self-defense," 50. 

25. Aquinas, Summa Theologica, part II-II, Q. 64, Art. 7, quoted in Merriam, "Natural Law and Self-defense," 52. 

26. Merriam, "Natural Law and Self-defense," 54. 

27. Hugo Grotius, "Defence of Person and Property," in The Rights of War and Peace, trans. A.C. Campbell (New York: M. Walter Dunne, 1901): http://oll.libertyfund.org/title/553/90752 , quoted in Merriam, "Natural Law and Self-defense," 56–57. 

28. Ibid.

29. Magenis, "Natural Law as the Customary International Law of Self-defense," 417–19. 

30. Trumbull, "The Basis of Unit Self-defense," 133. 

31. The modern customary international-law requirement of immediacy, although influenced by the natural-law concepts of Aquinas and Grotius, is traced to the famous Caroline case. In 1837, on Lake Erie, the British sank the U.S.-flagged Caroline, a small steamboat suspected by the British to be carrying arms and equipment in support of a rebellion in British Canada. When the British claimed that the act was lawful in self-defense, the U.S. Secretary of State, Daniel Webster, responded, "While it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to cases in which the ‘necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.'" Secretary of State Daniel Webster to Lord Ashburton, letter, 6 August 1842: http://avalon.law.yale.edu/19th_century/br-1842d. asp , discussed in Merriam, "Natural Law and Self-defense," 59–61. 

32. Merriam, "Natural Law and Self-defense," 80–81, comparing Standing Rules of Engagement (SROE) to natural law and noting a "fundamental problem facing the United States: There is disharmony between the U.S. SROE and the natural law, as found in the international and domestic law that flow from it. The natural law of self-defense stresses the immediacy of the threat as a precondition to the legitimate use of self-defensive force. The U.S. SROE contradicts that immediacy requirement." 

33. Chairman of the Joint Chiefs of Staff, Standing Rules of Engagement, 105. 

34. Ibid. 

35. Ibid. 

36. Ibid. The effect of this language is an authority for the ground force commander to engage in conduct under the rubric of self-defense that many countries consider offensive in nature. For instance, an individual who has emplaced an IED may be pursued until destroyed, as long as he continues to demonstrate the intent to continue placing IEDs. How does one identify this continued intent, once the act is complete? In the case of a remotely detonated IED, the intent may remain as long as the IED is emplaced. In the case of a pressure-plate IED, further intent to emplace IEDs might be reasonably inferred from the act just witnessed. In either case, there comes a time when the hostile act or hostile intent is complete, and the potential engagement becomes increasingly offensive in nature. This highly subjective time-and-space continuum is frequently one of the more difficult targeting issues for commanders and lawyers. 

37. Eric D. Montalvo, "When Did Imminent Stop Meaning Immediate? Jus In Bello Hostile Intent, Imminence, and Self-defense in Counterinsurgency," Army Lawyer (August 2013): 31–33; Merriam, "Natural Law and Self-defense," 81, arguing that the "increase in ability to use force in self-defense may come at some cost," by (1) exposing servicemembers to prosecution under the Uniform Code of Military Justice for actions that do not violate the rules of engagement (ROE) and (2) causing an increase in "mistaken killings," thus undermining U.S. legitimacy 

38. "ROE philosophy is not derived from ROE classes, but from constant interaction between the commander and his subordinates. Commanders must try and weave ROE into all of their communications." Montalvo, "When Did Imminent Stop Meaning Immediate?," 33, quoting Colonel Eric M. Smith, director, Capabilities Development Directorate, Marine Corps Combat Development Command. 

39. "The proper and well-executed use of aerial attack can conserve resources, increase effectiveness, and reduce risk to U.S. forces. Given timely, accurate intelligence, precisely delivered weapons with a demonstrated low failure rate, appropriate yield, and proper fuse can achieve desired effects while mitigating adverse effects. However, inappropriate or indiscriminate use of air strikes can erode popular support and fuel insurgent propaganda. For these reasons, commanders should consider the use of air strikes carefully during COIN operations, neither disregarding them outright nor employing them excessively." Headquarters, Department of the Army, Counterinsurgency, FM 3-24/MCWP 3-33.5 (Washington, D.C.: HQ, Dept. of the Army, 15 December 2006), App. E-6: https://rdl.train.army. mil/catalog/view/100.ATSC/41449AB4-E8E0-46C4-8443- E4276B6F0481-1274576841878/3-24/appe.htm 

40. International sensitivity to air strikes and the accountability of senior leaders for their effects is illustrated by the November 2009 relief of Wolfgang Schneiderhan, chief of staff of the German Army, in the aftermath of an air strike in Kunduz Province, Afghanistan. The strike, carried out by the U.S. Air Force at German request, resulted in about 100 deaths, both civilians and insurgents. See Marcus Walker, "German Military Chief Resigns over Afghan Strike," Wall Street Journal, 27 November 2009: http://online.wsj.com/news/articles/SB125922787790365143 

41. This common belief is not without justification. For example, in August 2013, First Lieutenant Clint Lorance was found guilty of murder and sentenced to dismissal and 20 years in confinement for violating the ROE in Kandahar Province, Afghanistan, in July 2012. Lieutenant Lorance ordered his men to fire on two men on motorcycles who were not engaging in hostile acts or demonstrating hostile intent. The platoon leader claimed he believed the men were Taliban suicide bombers. See David Adams, "U.S. Soldier Convicted of Murdering Two Afghans Is ‘Scapegoat': Lawyer," Reuters, 2 August 2013: http://www.reuters.com/article/2013/08/02/ us-usa-military-murder-idUSBRE97115V20130802 

42. Montalvo, "When Did Imminent Stop Meaning Immediate?" 34. 

43. Ibid. 

44. Ibid. 

45. Williams, "Training the Rules of Engagement," 46. Major Williams advocates a similar approach to ROE training to empower small-unit leaders.

 
 
 

 

 
 
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