US Military Rules of Engagement and the Iraq War
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Since 01-30-07

 

Thoughts on the Middle East, History, and Religion

Juan Cole is President of the Global Americana Institute

Wednesday, August 10, 2005

US Military Rules of Engagement and the Iraq War

http://www.juancole.com/2005/08/us-military-rules-of-engagement-and.html

An informed reader sent in what I found to be a fascinating reply to my comment that I thought the U.S. military's rules of engagement were wrong for a clannish society such as Iraq. My point was that as I understood it, the US rules of engagement favor meeting any violent challenge with massive force, whereas the British are more restrained. It is my impression that the force with which US troops often riposte to mortar and other attacks ends up killing innocent bystanders. Iraq is still a clan-based society, such that people know and care about and would avenge their cousins (clan feuds still are fought and deeply felt), how much more so a sibling or parent or child. So my argument would be that the US military has by now incurred large numbers of clan feuds with Sunni Arab families, and is making more feuds with each passing day.

Rules of engagement below is given as ROE.

My correspondent explains the U.S. military rules of engagement, compares them to those of the British, and questions whether they are that different. In essence, his argument is that I was not complaining about the rules of engagement but rather about a difference in mindset. The British, he says, think of their task in Iraq as a sort of police work, regardless of the rules of engagement.

I should also say that I think it is crucial to separate out the politics of the Iraq war from the question of the safety of US troops. Each and every one of these brave men and women is serving our country under incredibly difficult conditions and deserves our undying thanks and support, whatever we think of the political mission. They removed a Saddamist regime that was frankly genocidal, and that overthrow was in itself a noble act. But the remaining tasks in Iraq (most of them in some way political even when military) are not something it is fair to ask them to stay on for, or to which their training and mindset suits them. I personally think it is time to bring them home.


'The most useful [resource for this discussion] is Chapter 5 of the Operational Law Handbook put out by the Judge Advocate School of the Army. It can be found by googling hostile act/hostile intent chapter 5. This is actually the first publication we turn to when we are working an operational law issue (not limited to ROE issues). In addition to an outstanding overall explanation of what ROE is, what it does, and how it is developed, it also contains the unclassified portions of the JCS's Standing Rules of Engagement, CJCSI 3121.01A (the "SROE"), as enclosure A. Of particular importance in the SROE is Enclosure A, entitled "Standing Rules of Engagement for US Forces."

A common misconception is that ROE and the Law of War (LOW) are synonymous. While they are inextricably linked, they are not the same. (At least at this point,) LOW subsumes ROE. The ROE cannot authorize anything that would be a LOW violation, but the ROE can prohibit many things (maybe anything) that IS permitted by the LOW. In the final analysis, ROE is essentially a policy decision. It is the commanders, up to and including the President, determining what limitations on the use of force are advisable in order to facilitate accomplishment of the units' missions and the nation's goals.

As you will see by reviewing the SROE, the ROE world is broken down into two distinct components: mission accomplishment and self-defense. [E.g., CJCSI 3121.01A, para. 6.b. "The SROE differentiate between the use of force for self-defense and for mission accomplishment."] When we talk about mission ROE, what we are really talking about are the "supplemental measures" to the SROE. There are two types of supplemental measures, "those that authorize a certain action and those that place limits on the use of force for mission accomplishment." When we talk about the differences between our ROE and the Brits' ROE, we are almost exclusively talking about the difference in the supplemental measures that have been approved for our use versus the supplemental measures that have been approved for their use. For example, one of us might be allowed to use riot control agents, such as tear gas, while the other isn't.

It is crucial to understand and remember, therefore, that "ROE supplemental measures apply only to the use of force for mission accomplishment and do not limit a commander's use of force in self-defense." The reason this is so crucial to remember is because probably more than 95% of what we are doing over there is under the rubric of self-defense. ROE differences can only be the cause of the differences between how we use force and how the Brits use force over there if we have materially different rules for self-defense. We don't.

Our concept of our "inherent right of self-defense" is predicated on our interpretation of Article 51 of the United Nations Charter ["Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security."] The key here is "predicated." We can leave it for another day whether it means that lance corporals can call in B-52 strikes in populated cities to protect themselves and their three other Marines. Time and time again, the phrase, "inherent right of self-defense," is the key that unlocks the door to the use of force. [One might recall Inigo Montoya's remark to Vizzini on his overuse of the word "inconceivable." "You keep using that word. I do not think it means what you think it means."]

As our ROE makes abundantly clear through repetition, restatement, and boldface type, "[t]hese rules do not limit a commander's inherent authority and obligation to use all necessary means available and to take all appropriate actions in self-defense of the commander's unit and other US forces in the vicinity." (Enclosure A, para. 2.a.) Enclosure A, para. 5., reiterates


"Definitions.

a. Inherent Right of Self-Defense. A commander has the authority and obligation to use all necessary means available and to take all appropriate actions to defend that commander's unit and other US forces in the vicinity from a hostile act or demonstration of hostile intent. Neither these rules, nor the supplemental measures activated to augment these rules, limit this inherent right and obligation. At all times, the requirements of necessity and proportionality, as amplified in these SROE, will form the basis for the judgment of the on-scene commander (OSC) or individual as to what constitutes an appropriate response to a particular act or demonstration of hostile intent. . . .

e. Individual Self-Defense. The inherent right to use all necessary means available and to take all appropriate actions to defend oneself and US forces in one's vicinity from a hostile act or demonstrated hostile intent. . . . " (emphasis added)



As you can see, the definition of self-defense has holes that you could drive a truck (or a tank, JDAM, or Cobra gunship) through. It gives the on scene individual (potentially the lowest private) the authority to determine both whether force is a "necessity" and what amount of force is "appropriate." To be sure, there are key definitions that should limit the individual's use of force. Unfortunately, however, due to the vagaries of language and the impossibility of encapsulating all possibilities into a small, readily comprehensible blurb, each definition offers more room for confusion and liberal use of force.

The bottom line is that an individual may use "deadly force" when a "hostile act" occurs or when a force or terrorist exhibits "hostile intent."

"Deadly force" is "that force which a person uses with the purpose of causing, or which he knows or should reasonably know, will cause death or serious bodily harm."

A "hostile act" is "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.

"Hostile intent" is 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."

Once a hostile act has occurred, or once hostile intent is present, the right exists to use force in self-defense to deter, neutralize, or destroy the threat. Hostile act/hostile intent is not a blank check to use all force available. The force used must still be reasonable in intensity, duration, and magnitude to the perceived or demonstrated threat based on all facts known to the commander or individual. This used to be referred to as the "proportional use of force," but that caused many people to confuse it with the concept of "proportionality," which is a concept that applies to planned missions (i.e., mission accomplishment ROE vice self-defense), and which deals with insuring that "collateral damage" is proportionate to the military advantage of the mission. Confused? So is everyone else. This is being changed in the new SROE which is to be released imminently.

Per Enclosure A, para. 8, you will note that


"All necessary means available and all appropriate actions may be used in self-defense." "When time and circumstances permit, the hostile force should be warned and given the opportunity to withdraw or cease threatening actions." "When the use of force in self-defense is necessary, the nature, duration, and scope of the engagement should not exceed that which is required to decisively counter the hostile act or demonstrated hostile intent and to ensure the continued protection of US forces or other protected personnel or property." "An attack to disable or destroy a hostile force is authorized when such action is the only prudent means by which a hostile act or demonstration of hostile intent can be prevented or terminated. When such conditions exist, engagement is authorized only while the hostile force continues to commit hostile acts or exhibit hostile intent."


Paragraph 8 is eminently cogent and reasonable, but as subject to interpretation as "Congress shall make no law respecting an establishment of religion," "The right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated," or "Islam will be a main source for legislation."

Although this language is from our ROE, the same concepts for self-defense are all included in the Brits' ROE. They, too, make clear that nothing in their ROE limits a commander's or individual's inherent right of self-defense. They, too, utilize the concepts of hostile act and hostile intent and remind the individual that force used must be reasonable and proportionate to the threat.

Because almost all of our questioned actions have taken place under the penumbra of self-defense, and because our rules for self-defense are materially the same as the Brits', the difference must lie, and does lie, elsewhere. The difference arises primarily from our attitudes and personalities. The Brits explicitly view this as a police action. With that comes a "law enforcement" outlook on the use of deadly force. Specifically, deadly force is justified only when all lesser means have failed or cannot reasonably be employed. They may only use the minimum amount of force necessary to make the threat stop acting like a threat. We see this as a combat operation. Once you demonstrate hostile act/hostile intent, we take that as the green light to eliminate you. This attitude difference also leads to a different interpretation of what constitutes proportionate force. Where the Brits would try to take the utmost care to insure that innocent civilians are not killed and civilian property isn't damaged, our only concern is to insure that we don't recklessly kill more innocent civilians and damage more property then we consider to be reasonably necessary.

This law enforcement/combat ops dichotomy has a profound effect on how we each respond. The Brits really try to do whatever it takes to avoid the need to use deadly force. A British soldier would think, "What's the minimum I can do to cause this person to stop his hostile conduct?" On the other hand, we constantly tell out troops not to be timid. If deadly force is required, use deadly force. Our first thought would be, "What do I have available to me? Artillery? Air support? Grenade launchers?"

This is not to say that there are no differences between the two ROEs. As you can see by various statements made by British troops, the Brits aren't allowed to use deadly force to protect property unless loss of that property would result in an immediate threat to human life, e.g., weapons systems, essential public health facilities, etc. Our ROE allows more latitude for the use of force to protect property. However, our uses of force have seldom relied on this broader authorization. It does not account for any significant difference.

The Brits are also required to provide a warning to the hostile actor before using deadly force. We seldom provide a warning. However, this also isn't really a material ROE difference. As you can see above, a warning is contemplated by the SROE. Our interpretation of the rules as they relate to the reality of the situation in MNF-W, however, is that a warning is often not practicable and in many other cases (such as escalation of force incidents like the shooting of the driver of the Italian journalist) ineffective.

The crucial difference is simply one of mindset. The British ROE is broad enough that, even if we operated under it, we would still be doing everything exactly as we are now. We see everything as an imminent threat to our safety and we believe that it is absolutely necessary, and appropriate, to use all available means to eliminate the threat. I've have heard several people accurately point out that for us, force protection is the number 1 priority. For the Brits, it's A priority, but it is by no means their first priority. To most Americans, the Brits' outlook probably sounds bizarre or naïve. Then again, force protection wasn't the number 1 priority on Iwo Jima; mission accomplishment was. When I brief the battalions that will deploy with us, I always try to remind them that it doesn't help us accomplish our mission if we kill one insurgent on Tuesday, but the way we handle it creates three insurgents on Thursday. However, I don't think any commander, or pundit, is going to be suggesting anytime soon that we're failing at our mission because we aren't taking enough casualties.

I think that many people use the phrase, "Rules of Engagement," to mean "the manner in which you use force." It may have value as shorthand, but because it actually is a term of art with a real meaning, it tends to confuse the issue. When the Brits say they don't like our ROE, they really mean that they think we are a bunch of cowboys who respond with overwhelming lethal fire to every actual or arguable threat. When we say we don't like their ROE, it means something to the effect that we think they don't understand what's really going on over there and that they are a bunch of [expurgated version] namby-pamby wankers who are afraid to do real fighting.

[Potential non-sequitur: I am reminded of an Irish pub song my father used to like where an IRA man taunts the Black and Tans, "Come tell us how you slew, those brave Arabs two by two. Like the Zulus they had spears and bows and arrows. How you bravely slew each one, with your sixteen pounder gun. And you frightened them poor natives to their marrow." As I recall, I thought that wasn't really a song about how brave the Black and Tans were. Maybe I was wrong back then.]

Juan, the real self-defense ROE is summed up in the phrase used by all the troops, "Better to be judged by twelve than carried by six." The troops have an incredibly broad view of what constitutes hostile act. As far as they're concerned, if someone could conceivably be about to do them harm, they think, "better safe than sorry," and "better him than me." With many of our Marines on their third tours over there and no real improvement in the situation, mission #1 is coming home alive.

One of the ways we train our Marines is by going over scenarios with them. In one, I propose that they are traveling down the highway in a convoy. As they approach an overpass, they see a MAM (military age male) standing on the middle of the overpass with something about the size of a baseball (grenade-sized) in his hands. When he sees the convoy, he freezes. What should you do? Most of the Marines will say, "He's demonstrated hostile intent, you need to waste him. He could be holding a hand grenade and be intending to drop it into one of the trucks as you pass under." (This is an actual tactic used by the insurgents).

I change the scenario and say that when he sees you, he drops to the ground on the overpass. Some Marine will invariably answer, to the acclaim of his fellow Marines, "That's a hostile act. He's taking cover because he's about to detonate an IED on you. You need to take him out." (Also something they've actually seen.)

Finally, I change the scenario to say that, when he sees you, he turns around in the direction from which he came and starts running off the overpass (you can see where this is going). The answer is usually that that too is a hostile act or hostile intent because he is clearly trying to get off that overpass before the IED goes off.

Apparently, the only safe action for the MAM to take is to have Scotty beam him up. As far as some Marines are concerned, the presence of an Arab male in proximity to an American convoy may be all you need to find hostile act/hostile intent. This is, of course, highly reminiscent of that quip in Michael Herr's Dispatches, "The ones who run are VC. The ones who don't run are well-disciplined VC."

It would be easy for anyone who doesn't have to drive those highways in a US convoy to castigate our young troops over there for their trigger-happy mentality, but it's just not that simple. Those young Marines are doing the hardest thing the Corps has ever done. At least in Viet Nam there were places where anybody in front of you was definitely a bad guy. Oh, for the simple (though not easy) days of Tarawa and Iwo Jima. They're not a bunch of amoral killers. They're just a bunch of well intentioned, highly trained, and highly armed young men and women stuck in a Serbonian bog with minimal clarity of purpose.

[Additional possible non sequitur: I think every Marine infantry officer has Henry V's "Once more into the breach dear friends" speech memorized. Less remembered is the soldier's remarks before Agincourt when he gets a "little touch of Harry in the night." "But if the cause be not good, the king himself hath a heavy reckoning to make, when all those legs and arms and heads, chopped off in battle, shall join together at the latter day and cry all 'We died at such a place.'"]