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