1. CJCSI 3121.01A, Standing Rules of Engagement for U.S. Forces, 15 January 2000.
2. CJCSI 3121.02, Rules on the Use of Force by DoD Personnel During Military Operations Providing Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States, 31 May 2000.
3. DoD Instruction 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement and Security Duties, 25 February 1992.

Rules of Engagement (ROE) are the primary tool used to regulate the use of force, and thereby serve as one of the cornerstones of the Operational Law discipline. The legal factors which serve as a foundation for ROE, that is, customary and conventional law principles regarding the right of self defense and the laws of war, are varied and complex. They do not, however, stand alone: non-legal issues, such as political objectives and military mission limitations, also play an essential role in the construction and application of ROE. As a result of the multidisciplinary reach of ROE, judge advocates play a significant role in their preparation, dissemination, and training. Notwithstanding the import of their role, judge advocates must understand that, ultimately, ROE are the commander’s rules—and that those rules must be implemented by the soldier, sailor, airman, or marine who executes the mission.

In order to ensure that ROE are legally and tactically sound, versatile, understandable, and easily executed, both the judge advocate and operators must understand the full breadth of policy, legal, and mission concerns they embrace, and collaborate closely in their development, training, and implementation. Judge advocates must become familiar with mission and operational concepts, force and weapons systems capabilities and constraints, battlefield operating systems, and the Joint Operations Planning and Execution System (JOPES). Operators must familiarize themselves with the international and domestic legal limitations on the use of force and the laws of armed conflict. Above all, judge advocates and operators must talk the same language to provide effective ROE to the fighting forces.

This chapter will provide an overview of basic ROE concepts, survey CJCSI 3121.01A, Standing Rules of Engagement for U.S. Forces (SROE), and review the judge advocate’s role in the ROE process, while providing unclassified extracts from the SROE and specific operations in order to highlight critical issues and demonstrate effective implementation of ROE.

NOTE: This chapter is NOT intended to be a substitute for the SROE. The SROE is classified Secret, and there are important concepts within it that may not be reproduced here. The operational lawyer should ensure that he has ready access to the publication. Once he has access, he should read it from cover to cover until he knows it. Judge advocates play such an important role in the ROE process because we are experts in ROE—but you cannot be an expert unless you read the SROE.

Definition of ROE. Joint Pub 1-02, Dictionary of Military and Associated Terms:

Purposes of ROE. As a practical matter, ROE perform three functions: (1) Provide guidance from the National Command Authority (NCA) to deployed units on the use of force; (2) Act as a control mechanism for the transition from peacetime to combat operations (war); and (3) Provide a mechanism to facilitate planning. ROE provide a framework which encompasses national policy goals, mission requirements, and the rule of law.

Political Purposes: ROE ensure that national policy and objectives are reflected in the action of commanders in the field, particularly under circumstances in which communication with higher authority is not possible. For example, in reflecting national political and diplomatic purposes, the ROE may restrict the engagement of certain targets, or the use of particular weapons systems, out of a desire not to antagonize the enemy, tilt world opinion in a particular direction, or as a positive limit on the escalation of hostilities. Falling within the array of political concerns are such issues as the influence of international public opinion, particularly how it is affected by media coverage of a specific operation, the effect of host country law, and the status of forces agreements with the United States (i.e., SOFAs).

Military Purposes: ROE provide parameters within which the commander must operate in order to accomplish his assigned mission:

• ROE provide a ceiling on operations and ensure that U.S. actions do not trigger undesired escalation, i.e., forcing a potential opponent into a "self defense" response.

• ROE may regulate a commander’s capability to influence a military action by granting or withholding the authority to use particular weapons systems by vesting or restricting authority to use certain types of weapons or tactics.

• ROE may also reemphasize the scope of a mission. Units deployed overseas for training exercises may be limited to use of force only in self defense, reinforcing the training rather than combat nature of the mission

Legal Purposes: ROE provide restraints on a commander’s action consistent with both domestic and international law and may, under certain circumstances, impose greater restrictions on action than those required by the law. For many contemporary missions, particularly peace operations, the mission is stated in a document such as a UN Security Council Resolution, e.g., UNSCR 940 in Haiti or UNSCR 1031 in Bosnia. These Security Council Resolutions also detail the scope of force authorized to accomplish the purpose stated therein. Commanders must therefore be intimately familiar with the legal bases for their mission. The commander may issue ROE to reinforce principles of the law of war, such as prohibitions on the destruction of religious or cultural property, and minimization of injury to civilians and civilian property.

The new SROE went into effect on 15 January 2000, the result of an all-DoD review and revision of the previous 1994 edition. It provides implementation guidance on the inherent right of self defense and the application of force for mission accomplishment. It is designed to provide a common template for development and implementation of ROE for the full range of operations, from peace to war.

Applicability. The SROE applies to all U.S. forces responding to military attacks within the United States, and to all military operations outside the United States, with limited exceptions, the most prominent being for Multi-National Force operations. It no longer applies to peacetime domestic support operations. CJCSI 3121.02, Rules on the Use of Force by DoD Personnel During Military Operations Providing Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States, and DoD Instruction 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement and Security Duties, apply to these operations.

The SROE is divided as follows:

Enclosure A (Standing Rules of Engagement): This unclassified enclosure details the general purpose, intent, and scope of the SROE, emphasizing a commander’s right and obligation to use force in self defense. Critical principles, such as unit, individual, national, and collective self defense; hostile act and intent; and the determination to declare forces hostile are addressed as foundational elements of all ROE. [NOTE: The unclassified portion of the SROE, including Enclosure A without its appendices, is reprinted as Appendix A to this Chapter].

Enclosures B-I: These classified enclosures provide general guidance on specific types of operations: Maritime, Air, Land, and Space Operations; Information Operations; Noncombatant Evacuation Operations, Counterdrug Support Operations; and Domestic Support Operations.

Enclosure J (Supplemental Measures): Supplemental measures found in this enclosure enable a commander to obtain or grant those additional authorities necessary to accomplish an assigned mission. Tables of supplemental measures are divided into those actions requiring NCA approval, those that require either NCA or Combatant Commander approval, and those that are delegated to subordinate commanders (though the delegation may be withheld by higher authority). The new SROE now recognizes a fundamental difference between the supplemental measures. Those measures that are reserved to the NCA or CINC are generally restrictive, that is, either the NCA or CINC must specifically permit the particular operation, tactic, or weapon before a field commander may utilize them. Contrast this with the remainder of the supplemental measures, those delegated to subordinate commanders. These measures are all permissive in nature, allowing a commander to use any weapon or tactic available and to employ reasonable force to accomplish his mission, without having to get permission first. Inclusion within the subordinate commanders supplemental list does not suggest that a commander needs to seek authority to use any of the listed items. SUPPLEMENTAL ROE RELATE TO MISSION ACCOMPLISHMENT, NOT TO SELF DEFENSE, AND NEVER LIMIT A COMMANDER’S INHERENT RIGHT AND OBLIGATION OF SELF DEFENSE.

Enclosure K (Combatant Commanders’ Theater-Specific ROE): Enclosure K contains specific rules of engagement submitted by Combatant Commanders for use within their Area of Responsibility (AOR). Those special ROE address specific strategic and political sensitivities of the Combatant Commander’s AOR and must be approved by CJCS. They are included in the SROE as a means to assist commanders and units participating in operations outside their assigned AORs.

Enclosure L (Rules of Engagement Process): This new, unclassified enclosure (reprinted in Appendix A to this chapter) provides guidelines for incorporating ROE development into military planning processes. It introduces the ROE Planning Cell which may be utilized during the development process.

National self defense: The act of defending the United States, U.S. forces, and in certain circumstances, U.S. citizens and their property, and U.S. commercial assets from a hostile act, hostile intent, or hostile force.

Collective self defense. The act of defending designated non-U.S. citizens, forces, property, and interests from a hostile act or hostile intent. Only the NCA may authorize the exercise of collective self defense. Collective self defense is generally implemented during combined operations.

Unit self defense: The act of defending elements or personnel of a defined unit, as well as U.S. forces in the vicinity thereof, against a hostile act or hostile intent.

Individual self defense. The right to defend oneself and other U.S. forces in the vicinity from a hostile act or hostile intent.

Defense of Mission & Self Defense: The SROE distinguish between the right and obligation of self defense, which is non-derogable, and the use of force for the accomplishment of an assigned mission. Authority to use force in mission accomplishment may be limited in light of political, military or legal concerns, but such limitations have NO impact on a commander’s right and obligation of self defense.

Hostile Act: An attack or other use of force by a foreign force or terrorist unit against the United States, U.S. forces, or other designated persons and property, or a use of force intended to preclude or impede the mission of U.S. forces. A hostile act triggers the right to use proportional force in self defense to deter, neutralize, or destroy the threat.

Hostile Intent: The threat of imminent use of force by a foreign force or terrorist unit against the United States, U.S. forces, or other designated persons and property. When hostile intent is present, the right exists to use proportional force in self defense to deter, neutralize, or destroy the threat.

Hostile Force: Any force or unit that has committed a hostile act, demonstrated hostile intent, or has been declared hostile.

Declaring Forces Hostile: Once a force is declared to be "hostile," U.S. units may engage it without observing a hostile act or demonstration of hostile intent, i.e., the basis for engagement shifts from conduct to status. The authority to declare a force hostile is limited, and may be found at Appendix A to Enclosure A of the SROE.

Promulgation of ROE: Mission ROE are promulgated at Appendix 8, Annex C, of JOPES-formatted Operational Orders, and via formatted messages as found at Appendix F to Enclosure J of the SROE.

The judge advocate at all levels plays an important role in the ROE process. The remainder of this chapter will discuss the four major tasks with which the judge advocate will be confronted. Although presented as discrete tasks, the judge advocate may find himself involved with all of them at once.

A judge advocate in an operational unit will typically find himself tasked with briefing the ROE to a commander during the daily operational brief (at least during the first few days of the operation). In preparing his brief, a judge advocate will want to consult the following sources:

• The SROE related to self defense. The rights and obligations of commanders to defend their units is always applicable, and bears repeating at any ROE briefing. The concepts of hostile act and hostile intent may require additional explanation.
• As applicable, those enclosures of the SROE that deal with the type of operation (e.g., Maritime, Space, or Counterdrug operations).
• Depending on the location of an operation, the combatant commander’s special ROE for his AOR, found in Enclosure K.
• The base-line ROE for this particular mission as provided in the OPLAN or as promulgated by separate message.
• Any additional ROE promulgated as the operation evolves or changes, or in response to requests for additional ROE. This is often a challenging area for a judge advocate. During the first few days of an operation, the ROE may be quite fluid. A judge advocate will want to ensure that any ROE message is brought to his immediate attention (close liaison with the JOC/TOC Battle Captain is necessary here). A judge advocate should periodically review the message traffic himself to ensure that no ROE messages were missed, and should maintain close contact with judge advocates at higher levels who will be able to alert him that ROE changes were made or are on the way. Adhering to the rules for serializing ROE messages (appendix F to enclosure J) will help judge advocates at all levels determine where the ROE stands.

As the operation matures and the ROE become static, the judge advocate will probably be relieved of his daily briefing obligation. However, ROE should continue to be monitored, and notable changes should be brought to the commander’s attention.

The SROE provides that commanders at any level may request additional ROE. Commanders must look to their mission tasking and existing ROE when determining courses of action for the mission. The commander may decide that the existing ROE is unclear, or too restrictive, or otherwise unsuitable for his particular mission. In that case, he may request additional ROE.

Although the task of drafting an ROE request message (format for which will be found in appendix F to enclosure J) will often be assigned to the judge advocate, he cannot do it alone: there must be extensive command and operator input. The concept of an "ROE Planning Cell," consisting of representatives from all sections of the command, including the judge advocate, is recognized in Enclosure L of the SROE. Such a cell should prove ideal for the task of drafting an ROE request. The judge advocate, who should have the best grasp of ROE in general and the SROE in particular, will still play a significant advisory role in this process.

Some considerations for drafting an ROE request message:

• Base-line ROE typically are promulgated at the CINC-level and higher, and receive great thought. Be especially careful about requesting supplemental measures that require NCA approval—these items have already received the greatest thought. This is not to say that there are no circumstances for which requesting such a measure is appropriate, only that they will be relatively rare.
• In the request message, justify why the supplemental measure is needed. As above, those at higher headquarters who have reviewed the ROE reasonably believe that they have provided the most suitable rules. It is your job to prove otherwise. For example, your unit may have a mission which earlier ROE planners could not have foreseen, and which the ROE do not quite fit. If this circumstance is clearly explained, the approval authority is more likely to approve the request.
• Remember the policy regarding supplemental measures is that they are generally permissive in nature (except for those reserved to the NCA or CINC). It is not necessary to request authority to use every weapon and tactic available at the unit level: higher headquarters will restrict their use by an appropriate supplemental measure if that is thought necessary. See the discussion in enclosure J of the SROE for more detail.
• Maintain close contact with judge advocates at higher headquarters levels. Remember that ROE requests rise through the chain of command until they reach the appropriate approval authority, but that intermediate commands may disapprove the request. Your liaison may prove instrumental in having close cases approved, and in avoiding lost causes.
• Follow the message format. Although it may seem like form over substance, a properly formatted message indicates to those reviewing it up the chain of command that your command (and you) know the SROE process and should be taken seriously.

Recall that supplemental measures are grouped according to the authority who approves them, and that the last (and largest) group are those which may be delegated to commanders subordinate to the CINC. Rarely will this delegation go below the component commander/JTF level. Therefore, only judge advocates at that level and above will face this task.

The process involves taking what ROE have been provided by higher authority, adding your commander’s guidance (within the power delegated to him), and broadcasting it all to subordinate units. To illustrate, CJCS/Joint Staff ROE, reflecting the guidance of the NCA, are generally addressed to the CINC and Service level. The supported CINC takes those NCA-approved measures, adds appropriate supplemental measures from the group the CINC may approve, and addresses these to his subordinate commanders, or to a subordinate JTF, as applicable. If the subordinate commander/JTF commander has been delegated the authority to approve certain supplemental measures, he will take the NCA- and CINC-approved ROE, add any of his own, and distribute his ROE message throughout the rest of the force. To illustrate further, suppose that a JTF commander receives the CINC’s ROE, and there is no restriction on indirect, unobserved fire. The JTF commander, however, wants to restrict its use by his forces. The JTF ROE message to the field, therefore, should include the addition of the appropriate supplemental measure restricting unobserved, indirect fire (assuming that this is among the measures for which the JTF commander has been delegated authority).

Accordingly, the drafting of ROE is applicable at each of these levels. As above, however, a judge advocate cannot do it alone. The ROE Planning Cell concept is also appropriate to this task. Some of the considerations applicable include:

• Drafting

• Avoid Strategy and Doctrine. ROE should not be used as a mechanism through which to convey strategy or doctrine. The commander should express his battlefield philosophy through the battle order and his personally communicated guidance to subordinates.
• Avoid Restating the Law of War. ROE should not restate the law of war. Commanders may desire to emphasize an aspect of the law of war that is particularly relevant to a specific operation (e.g., see the DESERT STORM ROE regarding cultural property), but they should not include an extensive discussion of the Hague Regulations and Geneva Conventions.
• Avoid Tactics. Tactics and ROE are complimentary, not synonymous. ROE are designed to provide boundaries and guidance on the use of force that are neither tactical control measures nor substitutes for the exercise of the commander’s military judgment. Phase lines, control points, and other tactical control measures should not be contained in ROE. These measures belong in the coordinating instructions. Prescribing tactics in ROE only serves to limit flexibility.
• Avoid Safety-Related Restrictions. ROE should not deal with safety-related restrictions. Certain weapons require specific safety-related, pre-operation steps. These should not be detailed in the ROE, but may appear in the tactical or field SOP.
• ROE must be UNDERSTANDABLE, MEMORABLE, and APPLICABLE: ROE are useful and effective only when understood, remembered, and readily applied under stress. They are directive in nature and should avoid excessively qualified language. ROE must be tailored to both the unit and mission and must be applicable in a wide range of circumstances presented in the field. Well formulated ROE anticipate the circumstances of an operation and provide unambiguous guidance to a soldier, sailor, airman and marine before he confronts a threat.
• Once again, follow the message format

Once the mission specific ROE are received, the question becomes, "How can I as a judge advocate help to ensure that the troops understand the ROE and are able to apply the rules reflected in the ROE?" A judge advocate can play a significant role in assisting in the training of individual soldiers and the staff and leaders of the Battlefield Operating Systems (BOS).

It is the commander, not a judge advocate, who is responsible for training the soldiers assigned to the unit on the ROE and on every other mission essential task. The commander normally turns to the staff principal for training, the G3 or S3, to plan and coordinate all unit training. A judge advocate’s first task may be to help the commander see the value in organized ROE training. If the commander considers ROE training to be a "battle task," that is, a task that a subordinate command must accomplish in order for the command to accomplish its mission, it is more likely that junior leaders will see the advantages of ROE training. The "3" is more likely to be willing to set aside training time for ROE training if it can be accomplished in conjunction with other unit training. For example, at range training, it is very rare indeed that all soldiers will be on the firing line at once. Stations at a range could be set up for ROE training. Lane training for soldiers and staff training could be built into FTXs and CPXs as well.

There is no U.S. Army doctrine on how to specifically train soldiers on the SROE or on the mission-specific ROE. However, given that ROE are intended to be a control mechanism for operations in the field, there can be no substitute for individual and collective training programs. Realistic, rigorous scenario or vignette driven training exercises have been validated time and again, and proven to be far superior to classroom instruction on ROE. ROE training should be conducted by the soldiers’ NCOs and officers. The soldier will apply the ROE with his or her NCOs and officers, not with the judge advocate. The judge advocate should be willing to assist in drafting realistic training, and to be present when possible to observe training and to answer questions regarding the application of the ROE. If the soldiers at the squad and platoon level study and train to the ROE, they will be more likely to apply them as a team in the real world.

Training should begin with individual discussions between the soldier and the NCOs, on a one-on-one basis. A soldier should be able to articulate the meaning of the terms hostile force, hostile act, hostile intent, and other key ROE principals. Once each soldier in the squad is capable of doing this, the squad should be put through an ROE lane, or Situational Training Exercise (STX). This involves the creation of a plausible scenario a soldier and his squad may face related to the SROE or the relevant mission specific ROE. Soldiers move through the lane as a squad and confront role players acting out the scenario. For example, if the soldiers are preparing to deploy on a peacekeeping mission, the STX scenario may call for them to operate a roadblock or checkpoint. A group of paramilitary role players could approach the checkpoint in a non-threatening manner. As the scenario progresses, the role players may become more agitated and eventually they may begin shooting at the peacekeepers.

The goal in STX training is primarily to help the soldiers to recognize hostile acts and hostile intent and the appropriate level of force to apply in response. These concepts can usually best be taught by exposing the soldiers to varying degrees of threats of force. For example, in some lanes, the threat may be verbal abuse only. It may then progress to spitting, or physical attacks short of a threat to life or limb. Finally, significant threats of death or grievous bodily harm may be incorporated such as an attack on the soldier with a knife or club, or with a firearm. Although not specifically in the ROE, the soldiers might be taught that an immediate threat of force likely to result in death, or grievous bodily harm (such as the loss of limb or vital organs, or broken bones) is the type of hostile intent justifying a response with deadly force. They should be taught to understand that even in cases where deadly force is not authorized, they may use force short of deadly force in order to defend themselves and property.

In most military operations other than war, deadly force is not authorized to protect property that is not mission essential. However, some degree of force is authorized to protect non-mission essential property. A lane may be established where a role player attempts to steal some MREs. The soldier must understand that non-deadly force is authorized to protect the property. Moreover, if the role player suddenly threatens the soldier with deadly force to take the non-essential property, the soldier should be taught that deadly force would be authorized in response, not to prevent theft, but to defend him from the threat by the role player. Once they understand what actions they can take to defend themselves, members of their unit, and property, the mission specific ROE should be consulted and trained on the issue of third party defense of others.

Not only should the soldiers be trained on the ROE, but the staff and BOS elements should be trained as well. This can best be accomplished in FTXs and CPXs. Prior to a real world deployment, ROE integration and synchronization should be conducted to ensure that all BOS elements understand the ROE and how each system will apply the rules. The judge advocate should ensure that the planned course of action in terms of the application of the ROE is consistent with the ROE.

POCKET CARDS:

ROE cards are a summary or extract of mission specific ROE. Developed as a clear, concise and UNCLASSIFIED distillation of the ROE, they serve as both a training and memory tool; however, ROE CARDS ARE NOT A SUBSTITUTE FOR ACTUAL KNOWLEDGE OF THE ROE. When confronted with a crisis in the field, the soldier, sailor, airman or marine will not be able to consult his pocket card—he must depend upon principles of ROE internalized during the training process. Notwithstanding that limitation, ROE cards are a particularly useful tool when they conform to certain parameters:

• Brevity and clarity. Use short sentences and words found in the common vocabulary. Avoid using unusual acronyms or abbreviations. Express only one idea in each sentence, communicating the idea in a active, imperative format. Although such an approach—the classic "bullet" format—may not be possible in every case, it should be used whenever feasible.
• Avoid qualified language. ROE are directives, advising subordinates of the commander’s desires and mission plan. They should, therefore, be as direct as any other order issued by the commander. While qualifying language may obscure meaning, its use is often necessary to convey the proper guidance. In such a case, the drafter should use separate sentences or subparagraphs to assure clarity of expression.
• Tailored to the Audience. ROE cards are intended for the widest distribution possible—ultimately, they will be put in the hands of an individual soldier, sailor, airman, or marine. Be aware of the sophistication level of the audience and draft the card accordingly. ALWAYS REMEMBER, ROE are written for commanders, their subordinates, and the individual service member charged with executing the mission on the ground—they are not an exercise in lawyering.

NOTE: Examples of ROE cards employed in various missions—from peacekeeping to combat—are found at Appendix B of this chapter. These are not "go-bys," but are intended to provide a frame of reference for the command/operations/judge advocate team as they develop similar tools for assigned operations.