NATO RULES OF ENGAGEMENT AND USE OF FORCE. Lt Col Brian Bengs, USAF Legal Advisor NATO School

Transcription

1 NATO RULES OF ENGAGEMENT AND USE OF FORCE Lt Col Brian Bengs, USAF Legal Advisor NATO School

2 Nations vs NATO What is the source of NATO s power/authority? NATIONS NATO SOVEREIGNTY PARLIAMENT/CONGRESS MILITARY FORCES ENACT LAWS ENFORCE LAWS PUNISH VIOLATIONS NO SOVEREIGNTY NO PARLIAMENT/CONGRESS NO MILITARY FORCES NO AUTHORITY TO ENACT LAWS NO LAW ENFORCEMENT NO PUNISHMENT ABILITY

3 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)

4 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

5 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

6 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)

7 What R ROE? The NATO Definition: Directives issued by competent military authority which specify the circumstances and limitations under which forces will initiate and/or continue combat engagement with other forces encountered. -- Allied Administrative Publication (AAP)-6, NATO Glossary of Terms and Definitions

8 Practical Definition ROEs are a State s guidance to its military forces 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?

9 So There s No Confusion... 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?

10 Law vs ROE Limits of Law

11 Law vs ROE Limits of Law ROE

12 Law vs ROE Limits of Law ROE

13 Law vs ROE Limits of Law ROE This overlap should never happen.

14 Where Do ROE Come From? Politics and Policy Operational Concerns International Law Domestic Law

15 Sources of ROE Operational Factors ROE Policy Law

16 ROE Development and Approval 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

17 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

18 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

19 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?

20 Use of Force

21 Use of Force ON (War) OFF (Peace)

22 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!

23 Always Use The Correct Tool For The Mission Know the specific details of the job before you go to do it

24 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

25 Why Do We Need More Rules? Peace Enforcement ON (War) Peace Keeping (Peace)

26 Only two possibilities: Use of Force in Peace Authorized by the rules of engagement or In self-defense including extended selfdefense You do not need ROE for self-defense!

27 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

28 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

29 Rule 421 Hostile Intent Self-Defense in NATO 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

30 Rule 422 Hostile Act Self-Defense in NATO 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

31 Rule 429 Attack Offensive Use of Force in NATO 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

32 Use of Force Continuum DEFENSIVE OFFENSIVE ATTACK OR IMMINENT ATTACK HOSTILE ACT HOSTILE INTENT NO HOSTILE ACT OR INTENT REQUIRED SELF DEFENSE ROE 422 ROE 421 ROE 429

33 Scenarios A group of INS fire RPG and AK47 at your dismounted ISAF 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.

34 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.

35 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 ISAF vehicle. 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.

36 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? Scenarios The INS is demonstrating hostile intent. Use of force is authorized under Rule 421.

37 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? Scenarios Attack against DESIG force(s) or DESIG target(s), which have previously attacked, or directly contributed to an attack, is authorized.

38 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

39 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

40 Example Escalation of Force (EOF) HAZARD Deadly force Shoot at foot Rubber Bullets Warning Shots Pepper Spray Agencies, e. g. tear gas Shock grenade CRC & dogs - high level CRC - low level Obstacles Activation restricted area Warning Information THREAT

41 Questions? +49(0)