NATO_Legal_Deskbook_ROE_LOAC_Draft_July_2016.pdf

PART XII INTRODUCTION TO THE LAW OF ARMED CONFLICT

AND RULES OF ENGAGEMENT

Disclaimer: The NATO Legal Deskbook is published by Allied Command Transformation/Staff Element Europe and contains sections written by legal Staff working at NATO, Ministries of Defence, and selected authors. However, this is not a formal NATO document and therefore may not represent the official opinions or positions of NATO or individual governments, or organisations.

The intellectual property rights reside with NATO and the contributors and absent specific permission, the NATO legal Deskbook can not be sold or reproduced for commercial purposes.

Additionally, the following section is provided solely for the purposes of illustration for those bidding on the Statement of Requirement for the Digital Game – NATO Law of Armed Conflict and related purposes.

References and suggested reading:

- AAP-6 (2014), NATO Glossary of terms and definitions (English and French)

- MC 362/l, NATO Rules of Engagement

- STANAG 2449, Training in the Law of Armed Conflict, dated 20 March 2013

- STANAG 2597, Training in Rules of Engagement, dated 4 May 2015

- CAN: The Law of Armed Conflict at the Operational and Tactical Levels, Canadian Forces, (B-GJ-005-104/FP-021 / 2001-08-13)

- CAN: The Use of Force in CF Operations, Canadian Forces, 2008 (B-GJ-005-501/FP-001)

- UK Ministry of Defence: The Manual of the Law of Armed Conflict, Oxford University

Press, Oxford, 2004

- USA: Law Of War Deskbook, International And Operational Law Department International

And Operational Law Department The Judge Advocate General‘s Legal Center and School, U.S. Army Charlottesville, VA, USA, 2012

- USA: Law Of War Documentary Supplement, International And Operational Law

Department The United States Army Judge Advocate General's Legal Center and School

Charlottesville, VA, USA, 2011

- USA: Operational Law Handbook, International and Operational Law Department, The

Judge Advocate General‘s Legal Center & School, U.S. Army, Charlottesville, Virginia, 2015

(annual publication)

- USA: Department of Defence Law of War Manual, June 2015

- www.icrc.org/ihl

- ICRC Opinion Paper March 2008: “How is the term “armed conflict” defined in

International Humanitarian Law?” available at https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf

- Chalanouli, Nikoleta-Paraskevi and Bumgardner, Sherrod Lewis, ‘Rules of engagement, NATO’s approach and national caveats’ in Zasady użycia siły (ang. Rules of Engagement) – wybrane problemy prawne [Rules of Engagement – legal problems], Barbara Janusz-Pawletta

(ed.), Towarzystwo Wiedzy Obronnej, Warsaw, 2011, Ch. 2.

- Cooper, Camilla Guldahl: ‘Rules of Engagement Demystified: A Study of the History, Development and Use of ROEs’, Military Law and the Law of War Review 53/1, 2014

- Dinstein, Yoram: The conduct of hostilities under the law of international armed conflict.

Cambridge University Press, 2004

- Fleck, Dieter: (ed.) The Handbook of International Humanitarian Law, Oxford University

Press, Oxford, 2008

- Fournet, Caroline: International Crimes: Theories, Practice and Evolution, Cameron May, London, 2007

- Fournier, Sylvain: "NATO Intervention Abroad: How Roe Are Adopted and Jurisdictional

Rights Negotiated", in Criminal Law between War and Peace: Justice and Cooperation in

Criminal Matters in International Military Interventions : Proceedings of the Xvth

International Congress on Social Defense, edited by Stefano Manacorda and Adán Nieto

Martin. Spain: Ministerio de Justicia, 2009

- Green, Leslie: The Contemporary Law Of Armed Conflict, Melland Schill Studies in

International Law / Juris Publishing, 3 edition, 2008

- Hosang, J.F.R. Boddens: ‘Self-Defence in Military Operations: The Interaction between the

Legal Bases for Military Self-Defence and Rules of Engagement’, 47 Military Law and Law of War Review 25 (2008) http://www.icrc.org/ihl

- Levine, Eugenia: Command Responsibility, Global Policy Forum, www.globalpolicy.org,

- Martin, Mark S: Rules of engagement for Land forces, A Matter of Training not Lawyering, Military Law Review Vol. 143, Winter 1994, 1-160

- Roach, Ashley: ‘Rules of engagement’, US Naval War College Review Jan/Feb 1983, 46

- Roberts, Adam and Guelff, Robert: Documents on the Laws of War, Oxford University

Press, Oxford, 2000

- Rogers, A.P.V.: Law on the Battlefield, Juris Publishing, Manchester, 2004

- Sagan, Scott D., ‘Rules of engagement’ in George, Alexander L. (ed): Avoiding war –

Problems of Crisis Management, Westview Press, Oxford, 1991- Sassòli, Marco and Bouvier, Antoine (eds.): How does law protect in war? Cases, documents and teaching materials on contemporary practice in international humanitarian law, ICRC, Geneva, 2nd edition 2006

- Solis, Gary D.: The law of armed conflict: international humanitarian law in war.

Cambridge University Press, 2010

- Wallach, Evan and Marcus, Maxine: ‘Command Responsibility’, in Cherif Bassiouni, International Criminal Law: Vol. III International Enforcement, Brill, Leiden, 2008

INTRODUCTION

A primary function of the legal adviser is the provision of advice and training on the Law of

Armed Conflict and the Rules of Engagement. This section will provide an overview of these subjects. First, a brief overview of the sources and principles of the Law of Armed Conflict

(LOAC) will be provided. Next, NATO Rules of Engagement (ROE) doctrine and terminology are introduced, before the final part of this section deals with planning and drafting of NATO ROE.

LOAC and ROE are related subjects about which there have been volumes written, and much continues to be written on these subjects, both from the NATO perspective and from the perspective of different national military forces. For this reason, the discussion below should not by any means be considered exhaustive. Any legal adviser who intends to work in the operational context should invest time in a detailed course of instruction as well as more detailed reference texts on the subjects.

THE LAW OF ARMED CONFLICT

1. Introduction, sources and principles

Law of armed conflict (LOAC) is the part of the international law relating to the conduct of armed conflict and military occupation. It is also known as the law of war (LOW), international humanitarian law (IHL) or jus in bello. LOAC represents the international community’s attempt to balance two basic criteria: military necessity and concerns that affect the successful planning and execution of military operations on the one hand, and the humanitarian concerns which allow all societies to meet the basic moral and ethical norms, on the other. This balance has taken place, and continues to take place, in all cultures and times.

Where the balance is struck in any particular conflict or operation may vary, just as the specific application of LOAC has varied across cultures and times. However, the basic principles remain.

By regulating the conduct of hostilities, the purpose of LOAC is:

- to protect combatants from unnecessary suffering;

- to protect those who are not, or are no longer, taking part in hostilities; such as civilians, the wounded, sick and shipwrecked, and prisoners of war (POWs);

- to protect certain objects and the natural environment from the effects of armed conflict; and

- to facilitate the restoration of peace and resumption of friendly relations between belligerents following hostilities.

Whilst LOAC regulates the means and methods of armed force during armed conflict, the circumstances when states may use force in the first place is regulated by jus ad bellum.

LOAC addresses the reality of armed conflict without considering the reasons for or legality of the initial resort to force. As soon as we are in presence of an armed conflict, LOAC applies. Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.

LOAC applies in international armed conflicts (IAC), non-international armed conflict

(NIAC), and occupation. LOAC does not, however, provide a clear definition of armed conflict. For the assessment of whether an armed conflict exists, the factual circumstances are relevant. In this respect, both the extent and duration of armed violence are key factors. For example, many isolated incidents, such as border clashes and naval incidents, are not treated as “armed conflict” because they often do not involve the level of intensity necessary to be considered an “armed conflict”. Furthermore, situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature are not considered to qualify as “armed conflict”. 1

IAC may be defined as “whenever there is a resort to armed force between States”, and

NIAC as “whenever there is protracted armed violence between governmental authorities and organised groups within a State”.2 The Hague Regulation provides the following definition of occupation: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”3

i. Sources

LOAC, like other parts of international law, arises from two basic sources: customary and treaty law.

Customary international law encompasses rules which, as a result of state practice accompanied by the respective legal belief (opinion iuris) over a period of time, have become accepted as legally binding.4 Generally, customary international law is binding on all States, except for those states having persistently objected to the application of such a rule to them.5

1 For a discussion on the definition of armed conflict, see ICRC Opinion Paper March 2008: “How is the term

“armed conflict” defined in International Humanitarian Law?” available at https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf 2 ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on

Jurisdiction, IT-94-1-A, 2 October 1995, para. 70. The definition has been adopted by other international bodies since then.

3 Art. 42 of Hague Regulations of 1907 (Hague Reg.)

4 See the Statute of the International Court of Justice, Art. 38 (1) b): “general practice accepted as law”.

5 See for instance C.G. Guldahl: “The role of persistent objection in International Humanitarian Law”, Nordic

Journal of International Law 77 (1), 51-86.

Treaty law mainly arises through the conclusion of international agreements and treaties between two or more States (there are also treaties between States and intergovernmental organisations, or between intergovernmental organisations). Generally, treaties are binding only on the States party to them. Much of LOAC in today‘s environment is a mixture of these sources. For IAC, there is extensive applicable LOAC treaty law, most importantly the four

Geneva Conventions of 1949 and the first Additional Protocol of 1977 and various conventions regulating the means and methods of warfare (so-called “Hague stream” conventions). During NIAC, however, there is significantly less applicable treaty law. This does not mean that States do not apply any LOAC, but rather that customary law plays a greater role. For instance, many of the provisions found in Additional Protocol I have been recognised as customary law.

LOAC initially developed through two different streams. The Geneva stream, which emanates from the various Geneva Conventions, provides the international community‘s perspective on protection of victims of war. The Hague stream, originating from the Hague Conventions of the late 19th and early 20th century, focuses on the means and methods of warfare, such as bombardment, weapons, and perfidy. Note, however, that this distinction no longer is as clear, especially because AP I provides regulation both on protection and on means and methods of warfare.

The following is a non-exhaustive list of LOAC sources. Note that not all NATO Member

States are party to all.

- 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive

Projectiles under 400 Grams Weight (St Petersburg Declaration 1868)

- 1899 Hague Declaration (IV, 3) concerning Expanding Bullets (Hague Declaration

1899)

- 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land, and its annex: Regulations concerning the Laws and Customs of War on Land (Hague Reg

1907)

- 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or

Other Gases, and of Bacteriological Methods of Warfare (Geneva Gas Prot 1925)

- 1948 Convention on the Prevention and Punishment of the Crime of Genocide adopted by Resolution 260 (III) A of the United Nations General Assembly (Genocide

Convention 1948)

- 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (GC III

1949)

- 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of

War (GC IV 1949)

- 1949 Geneva Convention (I) for the Amelioration of the Condition of Wounded and

Sick in Armed Forces in the Field (GC I 1949)

- 1949 Geneva Convention (II) for the Amelioration of the Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea (GC II 1949

- 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed

Conflict (Hague Conv 1954)

- 1954 Hague Protocol to the Convention for the Protection of Cultural Property in the

Event of Armed Conflict (Hague Prot 1954)

- 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC

1972)

- 1976 Convention on the Prohibition of Military or any other Hostile Use of

Environmental Modification Techniques, adopted by the General Assembly of the

United Nations (ENMOD Conv 1976)

- 1977 Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (AP I 1977)

- 1977 Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (AP II

1977)

- 1980 Convention on Prohibitions or Restrictions on the use of Certain Conventional

Weapons Which May be Deemed to be Excessively Injurious or to Have

Indiscriminate Effects (“Convention on Conventional Weapons”), and Amendment

Article 1, 21 December 2001 (CCW 1980 / CCW Amdt 2001)

- 1980 Protocol on Non-Detectable Fragments (Protocol I) to the Convention on

Conventional Weapons (CCW Prot I 1980)

- 1980 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and

Other Devices (Protocol II) to Convention on Conventional Weapons (Protocol II as amended in 1996) (CCW Prot II 1980)

- 1980 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons

(Protocol III) to the Convention on Conventional Weapons (CCW Prot III 1980)

- 1993 Convention on the Prohibition of the Development, Production, Stockpiling and

Use of Chemical Weapons and on their Destruction (CWC 1993)

- 1995 Protocol on blinding laser weapons (Protocol IV) to the Convention on

Conventional Weapons (CCW Prot IV 1995)

- 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (“Ottawa Convention”) (AP Mine

Ban Conv 1997)

- 1998 Rome Statute of the International Criminal Court (ICC Statute 1998)

- 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural

Property in the Event of Armed Conflict (Hague Prot 1999)

- 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (Opt Prot CRC 2000)

- 2003 Protocol on Explosive Remnants of War (Protocol V) to the Convention on

Conventional Weapons (CCW Prot V 2003)

- 2005 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III) (AP III 2005)

- 2008 Convention on Cluster Munitions (CCM 2008)

According to Article 38 of the Statute of the International Court of Justice, judicial decisions

(and the teachings of the most highly qualified publicists) may be applied as subsidiary means for the determination of rules of law.

ii. Principles

Arising from these agreements, and as will be more fully discussed below, are the following core principles of LOAC:6

- Military Necessity

- Distinction

6 The list of basic principles of LOAC varies, and other lists may include additional principles such as non-discrimination, chivalry, limitation, good faith or military objective. The present list is taken from NATO

STANAG 2449, second edition, of 2013.

- Proportionality

- Humanity

Generally speaking, these principles trace their origins in 1907 Hague Convention, acknowledging that the rights of belligerents to adopt means of injuring the enemy are not unlimited. It is important to note that all these principles interact with each other.

a. Military Necessity

This principle could be considered, in many ways, as the foundation of all of LOAC. Under this principle, States may only use force (not otherwise prohibited by LOAC) that is necessary or required for the submission of the enemy. Thus, the right of belligerents to adopt means of injuring the enemy is not unlimited.7 The principle contains two additional elements: the force used can be and is being controlled, and unnecessary force is unlawful. Necessity is a condition precedent to legitimacy, not a final determiner; in other words, military necessity is not an overriding principle allowing breaches of LOAC rules. It does not justify violations of

LOAC because it is already factored into LOAC.

Military necessity is defined in AAP 6 (2014) as: “The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war.”

In the St. Petersburg Declaration of 1868 it is stated that “The only legitimate objective which

States should endeavour to accomplish during war is to weaken the military forces of the enemy”. This quotation demonstrates the longstanding nature of the principle of military necessity in treaty law. However, modern authors have suggested that it is permissible to aim to ‘defeat’ rather than simply ‘weaken’ the enemy.

b. Distinction

This principle is central8 to LOAC and requires forces to identify and differentiate between civilians and combatants, and between military objectives and civilian objects. Military attacks may only be directed at military objectives (combatants and military targets). Civilians or civilian property must not be the object of attack.9 The application of the principle is dependant on the information available at the time the decision is made. AP I 1977 requires that those who plan or decide upon an attack “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives”10. If reasonable efforts are made, in in good faith, to determine the status of a target, but it later proves to be a mistake, this will generally not be a

LOAC violation.

Combatants are lawful targets unless they are hors de combat.11 Civilians are generally protected from attack; however, this protection is lost if and while they directly participate in

7 Cf. Art. 22 Hague Reg 1907 and Art. 35.1 AP I 1977.

8 See advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep. 26, 257. The court recognised this principle of distinction between combatants and civilians.

9 The principle of distinction is set out in Art. 48 of AP I 1977: “[T]he parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

10 AP I 1977 Art. 57.2.a.i.

11 AP I 1977 Art. 41 and 43.

hostilities.12 Civilian objects are all objects that are not military objectives, namely objects which “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”13 The application of this test will in some cases result in an object such as a bridge, a power grid or an airport both being a military objective and used by civilians – so-called dual use objects. In such cases, the object is still a lawful target, but the civilian use will have to be taken into consideration as well.

This is done through the application of the principle of proportionality.

c. Proportionality

Having determined that an object or a person may be the object of an attack (i.e. is a lawful target), it must be considered whether it would be lawful to carry out the intended attack. The principle of proportionality requires that the incidental loss of civilian life or damage to civilian objects, the humanitarian interest, must not be excessive compared to the concrete and direct military advantage anticipated, the military interest. The commonly stated principle of proportionality is summarised in Articles 51 (5) (b) and 57 (2) (b) of AP I 1977: “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is considered to be disproportionate.”

Attacks which are not proportionate are considered to be indiscriminate, and are hence unlawful.

As in the case of distinction, the assessment must be made based on the information reasonably available at the time (“expected” incidental losses and “anticipated” military advantage). AP I 1977 require those who plan or decide upon an attack to ”take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”. Furthermore, if the attack is expected to cause disproportionate incidental loss of civilians, they must “refrain from deciding to launch [the] attack”.14

Incidental loss of civilian life, injury to civilians, damage to civilian objects is also referred to as “collateral damage”. Such damage must never be the objective of an attack, but may be lawful even if foreseeable. The key is that such unintended damage must not be excessive or disproportionate to the concrete and direct military advantage to be gained from the act or attack.

d. Humanity

The principle of humanity, or humanitarian considerations as it is also referred to, prohibits the infliction of personal suffering or destruction of property that is not necessary for compelling the submission of the opposing forces. This principle places limits on actions that might otherwise be justified by the principle of necessity. For instance, a Commander could say that military necessity requires him to kill wounded enemy combatants, on the basis that once recovered, they would continue to fight. However, humanity intercedes on behalf of the

12 AP I 1977 Art. 51.3. This complex rule is further elaborated on in the ICRC Interpretive Guidance on the notion of Direct Participation in Hostilities in International Humanitarian Law (2009). Parts of this publication have, however, received significant criticism. See for instance New York University Journal of International

Law and Politics 42:3 (2010).

13 AP I 1977 Art. 52.2.

14 AP I 1977 Art. 57.2.a.ii-iii.

wounded, recognising that they are out of action (hors de combat) and no longer an immediate threat, and requires them to be protected and treated humanely.

This principle is the basis for LOAC provisions prohibiting the employment weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. This prohibition is found both as a general rule in AP I 1977 Article

35.2, and more specifically in several conventions limiting or prohibiting the use of certain means and methods of warfare, such as Geneva Gas Protocol 1925, BWC 1972, and CCW

1980 and its Protocols. Humanity is also reflected in provisions regulating the standard of treatment of protected persons.15 Protected persons shall in all circumstances be treated humanely, and inhumane treatment of protected persons is a grave breach of the Geneva

Conventions and hence a war crime.16

Finally, where LOAC does not provide specific rules, the principle of humanity applies as a general standard of behaviour in armed conflict. This is the so-called Martens’ clause, which first appeared in the Preamble to 1899 Hague Convention II on Laws and Customs of War on

Land, and is repeated amongst others in Article 1.2 AP I 1977: “In cases not covered by this

Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.”17

2. Enforcement of LOAC Principles

It should first be kept in mind that LOAC was developed and continues to bear legitimacy because it serves higher purposes. Those purposes have traditionally included the goal of reducing unnecessary suffering; protection of the victims of armed conflict - both combatants and non-combatants; and, through these two purposes, the higher purpose of facilitating an earlier restoration of peace than might otherwise be the case.

Militaries have, over the years, found a number of reasons to obey LOAC. These include the principled reasons of common human nature, professionalism, chivalry, conscience, and legal obligations. Aside from these principled reasons, though, there are some very pragmatic reasons to comply with LOAC as well. Avoiding criminal liability for LOAC violations, both individual and of the command, is one such reason. Reciprocity is often cited as another, particularly important, pragmatic reason. Belligerents must treat their opponents in the same manner that they themselves wish to be treated. By treating others as we want to be treated ourselves, in accordance with the rules of LOAC, we encourage our enemies to do likewise.

Compliance with the law by one party is therefore a strong inducement for the adverse party to comply with the law. For instance, if one party treats Prisoners of War (PoWs) properly or confines its attacks to military objectives, the adverse party may be less likely to be tempted to breach the law. Another reason to comply with LOAC is the goal of operational effectiveness. LOAC and its requirement of military necessity is consistent with the economic and efficient use of force, which in turn preserves military resources. Finally, and especially important in the current climate of global information sharing, is the desire for maintaining public support – foreign as well as domestic. Alleged violations of LOAC severely threaten to

15 See e,g, GC I-IV Common Art. 3, GC I Art. 12, first para., GC II Art. 12, first para., GC III Art. 13, GC IV

Art. 5 and 27, first para., AP I Art. 75.1 and AP II Art. 4.1.

16 See GC I Art. 50, GC II Art. 51, GC III Art. 130, GC IV Art. 147, and AP I Art. 85.

17 See also Art. 63 GC I, Art. 62 GC II, Art. 142 GC III, Art. 158 GC IV, and Preamble of AP II.

undermine the perceived legitimacy of a nation‘s or coalition‘s efforts, and with the erosion of public support comes a reduction of political and economic support.18

Note that the obligation to respect and ensure respect for LOAC does not depend on reciprocity.19 This means that violation of LOAC by one party will not release the other party of its obligations.

3. Individual criminal responsibility

It is a basic principle of criminal law that individuals are responsible for crimes they commit or assist others to commit, and the application of this principle to LOAC has been recognised since the 1863 Lieber Code. According to Article 25 of the ICC Statute 1998, individuals are responsible for any criminal acts (including war crimes) that they:

a. Commit, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

b. Order, solicit or induce the commission of such a crime which in fact occurs or is attempted;

c. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

d. In any other way contribute to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.

States are required to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, grave breaches of LOAC. Furthermore, States are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts or hand such persons over for trial to another State that has made out a ' prima facie ' case.20 Individual responsibility for acts done by individual service members is primarily addressed by national sanctions.

Obeying a superior order does not relieve a subordinate of criminal responsibility unless the person was under a legal obligation to obey the order; the subordinate did not know that the order was unlawful; and the order was not manifestly unlawful.21

4. Command responsibility

18 Other sources: in Dieter Fleck‘s Handbook of International Humanitarian Law, the following factors are grouped under enforcement measures: public opinion, reciprocal interests, maintenance of discipline, reprisals, penal and disciplinary measures, compensation, protecting powers, international fact finding, ICRC‘s activities, diplomatic activities, dissemination of humanitarian law, and personal liability. The Canadian The Law of

Armed Conflict at the Operational and Tactical Levels (B-GJ-005-104/FP-021 / 2001-08-13) lists the following among “Preventative and enforcement measures”: dissemination, command responsibility, state responsibility, reprisals, complaint procedure under the Geneva Conventions, complaints, good offices, mediation and intervention, fact-finding commission under Protocol I.

19 See GC I-IV 1949 Common Art. 1 emphasises that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” (emphasis added). See also Common Art. 3 and

AP I 1977 Art. 1.1.

20 See e.g. GC I Art. 49, GC II Art. 50, GC III Art. 129, GC IV Art. 146, AP I Art. 85, Hague Conv 1954 Art. 28, Hague Prot 1999 Art. 15, CCW Prot II 1980 Art. 14, AP Mine Ban Conv (Ottawa Conv) 1997 Art. 9, and Opt

Prot CRC 2000 Art. 4.

21 ICC Statute, Art. 33.

Commanders are responsible for preventing violations of the law and for taking necessary actions to prevent and report violations by their subordinates. Commensurate with their level of responsibility, Commanders also have a duty to ensure that members of the armed forces under their command are aware of their obligations under LOAC.22

Under the concept of command responsibility, Commanders may be held criminally responsible not only for acts they have ordered, but also for acts committed by their subordinates that the Commander should have been aware of. The concept of command responsibility is old, but a modern version is codified in Article 86.2 of AP I 1977 where it is stated that Commanders may be held responsible for the acts of a subordinate: “if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach”

HISTORIC EXAMPLES OF COMMAND RESPONSIBILITY

“In 1439 when Charles VII of France issued the Ordinance of Orleans, which imposed blanket responsibility on Commanders for all unlawful acts of their subordinates, without requiring any standard of knowledge. The first international recognition of

Commanders‘ obligation to act lawfully occurred during the trial of Peter von

Hagenbach by an ad hoc tribunal in the Holy Roman Empire who convicted Von

Hagenbach of murder, rape, and other crimes which ‘he as a knight was deemed to have a duty to prevent’”.23

In 1625, Grotius wrote that: “As for the ways by which rulers over others may become implicated in their crimes, there are two…tolerance and protection…we must hold that a person who knows of a crime and is able and bound to forbid it and does not do so, himself commits a crime...the people or the king are [not] rigidly bound to surrender the offender, but…they [must] either surrender or punish him.”24

On 24 April 1863, during the United States Civil War, President Lincoln passed

General Orders no. 100, setting out the “Lieber Code” which imposed criminal responsibility on Commanders for ordering or encouraging soldiers to wound or kill already disabled enemies. The first codification of the concept in treaty law was in the

1907 Hague Convention (IV).

In 1946, General Yamashita was charged and convicted for having “unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he … thereby violated the laws of war."25 However, later cases have come to the conclusion that there is a limit to what a Commander is expected to have knowledge of. In the Von Leeb Nuremberg case, the court stated that: “A high Commander cannot be kept completely informed of the details of

22 AP I Art. 87.

23 E. Levine: ‘Command Responsibility’, Global Policy Forum, www.globalpolicy.org, 2005.

24 H. de Groot (Grotius): The Law of War and Peace (De Jure Belli ac Pacis), L. Loomis Trans., Walter Black, NY pp 235-237 (1949), cited in Evan Wallach and Maxine Marcus, ‘Command Responsibility’, in C. Bassiouni, International Criminal Law (3rd Ed., Brill, 2008), p. 459.

25 United States Supreme Court, Yamashita case, Judgement, 4 February 1946, 327 U.S. 1 (1946).

http://www.globalpolicy.org/ military operations of subordinates and must assuredly not know of every administrative measure. He has the right to assume that details entrusted to responsible subordinates will be legally executed”.26

Contemporary developments and contribution to the concept of command responsibility may be found in the case law of Nuremberg and Tokyo trials; AP I

1977; the rulings passed by the International Criminal Tribunals for the former

Yugoslavia and Rwanda27; and the doctrine codified by Article 28 of the Rome Statute of the International Criminal Court.

For State Parties to the ICC Statute, Article 28 of the Statute lays down that a military commander, or a person effectively acting as a military commander, is criminally responsible for crimes within the jurisdiction of the ICC committed by forces or persons under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

a. he or she either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

b. he or she failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Similarly, a civilian hierarchical superior, not effectively acting as a military commander, shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

a. he or she either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

b. the crimes concerned activities that were within the effective responsibility and control of the superior; and

c. the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

NATO RULES OF ENGAGEMENT28

1. Introduction

The MC 362/l, “NATO Rules of Engagement” was approved by the North Atlantic Council in

2003. It provides the policies and procedures to create mission specific ROE, have it approved by the NATO chain of command, and released for use at operational and tactical levels of

NATO/NATO-led forces. The MC 362/1 is used to develop NATO ROE for all types of

NATO/NATO-led operations, and all types of forces and other provocative actions.

26 See Law-Reports of Trials of War Criminals, The United nations War Crimes Commission, Vol. XII, London

1949, no. 72, the High Command Trial: United States-Von Leeb et al. United States Military Tribunal, Nuremberg.

27 See C. Fournet, International Crimes: Theories, Practice and Evolution, London: Cameron May 2007, p. 116-

123 and the websites <http://www.un.org/icty/> and <http://www.69.94.11.53/>.

28 This part is largely based on the forthcoming STANAG 2597 and its Allied Training Publication in Training in

Rules of Engagement, and the quotations and references to MC 362/1 therein.

Rules of Engagement (ROE) are defined in MC 362/1 as:

“ROE are directives to military forces (including individuals) that define the circumstances, conditions, degree, and manner in which force, or actions which might be construed as provocative, may be applied."

NATO ROE provide the parameters within which NATO/NATO-led forces must operate in order to accomplish an assigned mission. They are not used to assign missions or tasks, which will be specified in SACEUR’s OPLAN. Instead, ROE are an important instrument by which the political and strategic leadership exercises control of the means of armed force. They have an important role in ensuring that military force is used to contribute to the solution a social or political problem. As Clausewitz stated in his treatise, “war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on by other means

(…) The political object is the goal, war is the means of reaching it, and means can never be considered in isolation from their purpose.”29 Furthermore, the ROE play an important role as a command and control tool for the Commanders at all levels. For the Commander, they ensure that the forces can be expected to act in a foreseeable manner, and for the forces, they provide a framework within which they have room for manoeuvre.

Basically, NATO ROE are sets of prohibitions and authorisations that define:

When force may be used. For instance, to board vessels, prevent interference with freedom of movement, defend military facilities, or attack opposing forces.

Where force may be used or forces may operate. For instance, NATO ROE may limit operations to a specific geographic area.

How force may be used to achieve the desired ends. For instance, prohibiting or restricting use of specific weapons in designated circumstances or use of riot control agents.

How much force may be used. NATO ROE may limit the degree, intensity and the necessary duration of the use of force. An example is limiting the use of force to the

“use of force not including deadly force.”

Against whom force may be used. For instance, interfering with NATO/NATO-led mission, persons demonstrating hostile intent (not constituting an imminent attack) against NATO/NATO-led forces, or attacking forces declared hostile.

The ROE are normally formulated on the basis of three important categories of considerations:30

Political considerations: The ROE developed must reflect the political guidance provided by the NAC in the NAC Initiating Directive (NID) to achieve a desired end state.

Operational considerations: The ROE developed must enable mission accomplishment by taking into account key factors such as mission objectives and end state, available forces, military capabilities, force protection, area of responsibility, and geography.

29 C.von Clausewitz, edited and translated by M. Howard and P. Paret: On war, Princeton University Press, Princeton NJ, 1984, p. 87.

30 The Use of Force in CF Operations (issued 2008 by Canadian Forces, B-GJ-005-501/FP-001) lists a fourth one: c. Diplomatic Considerations (p.2-5): “During international operations and, in particular, during combined operations, the overall military objectives and the use of force will be influenced by the collective objectives of the alliance or coalition. These diplomatic considerations may ultimately limit legitimate uses of force, or they may permit a greater latitude in the use of force than would be permitted in a purely Canadian operation”.

Legal considerations: The ROE developed must comply with the applicable legal framework for the NATO/NATO-led operation (which may include amongst others a

UNSC mandate, host nation consent, law of armed conflict, international human rights law, host nation law, status of forces provisions).

ROE must be differentiated from the Law of Armed Conflict. The conduct of NATO/NATO-led operations is controlled by international law, including the applicable provisions of the law of armed conflict (LOAC) and human rights law. NATO ROE, and the application of them, may never authorise the use of force that violates applicable international law.

However, NATO ROE may impose greater limitations on the use of force or provocative actions than those required by law. This may be done for political or policy reasons, or due to operational considerations, as depicted on the diagram below. Troop Contributing Nations must also ensure that ROE are in compliance with their respective national legislation. See part D.2 below below for further information on ROE compliance with applicable law.

As mentioned above, NATO ROE defines the boundaries within which NATO/NATO-led forces must operate in order to accomplish an assigned mission. For instance, in high intensity conflicts, the ROE should enable domination of the battle space. In post-conflict situations, NATO ROE are designed to reduce violence during the NATO/NATO-led operations. The more complex the operational and tactical environment, the more complex the ROE will likely be. It is therefore critical that the development and application of ROE is fully understood, so that the ROE are as well tailored to deal with situation as possible. This will reduce the risk that the application of ROE will result in either an under-reaction or an over-reaction to a situation.

2. ROE in the NATO framework:

The MC 362/1 provides guidance and direction on rules of engagement for NATO in both joint and combined operations. The current version, which is NATO UNCLASSIFIED,31 was promulgated in 2003 and is an update of NATO MC 362 of 1999. The document‘s function, 31 Note that NATO UNCLASSIFIED does not mean open access. According to C -M(2002)60, THE

MANAGEMENT OF NON-CLASSIFIED NATO INFORMATION, of 11 July 2002, para. 2.a: “NATO

UNCLASSIFIED information shall only be used for official purposes and only individuals, bodies or organisations that require it for official NATO purposes may have access to it. NATO information marked

NATO UNCLASSIFIED is subject to the release procedures, set out in paragraphs 11-15 [of this document]”.

as stated earlier, is to provide NATO policy and procedural guidance on the use of force and other provocative actions. The document also provides a generic ROE catalogue of individual rules, in Annex A. As a ROE Catalogue, it groups and integrates land, sea and air rules. The rules contained within, as well as the more general guidance, are designed for all aspects of operations, from peace through crisis and, potentially, up to armed conflict. NATO ROE are intended to regulate all actions that can be construed as provocative at all levels: strategic, operational, and tactical.

The rules in Annex A are in message forms and in a numerical order. They are grouped into a number of “Series” which cover different aspects of military actions. These range from geographic positioning, detention, harassment and counter-harassment, to attack. For instance, Annex A contains amongst others the following series:

14 - Intervention in Non-military Activities

17 – Boarding

32 – Riot Control Agents

33 – Use of Force in Designated Operations

37 – Use of Electronic Countermeasures

42 – Attack

When developing the ROE for a mission, the appropriate rules for the operation are selected from the various series. Some NATO ROE authorise actions and others restrain actions, and every “Rule” is written either as a prohibition or authorisation. For instance, in series 37 on

“Use of Electronic countermeasures”, two of the alternative rules are:

Rule 370. Use of Electronic countermeasures is prohibited.

Rule 374. Unrestricted use of Electronic countermeasures is authorised.

Not all series may be relevant, and in some cases more than one rule may be needed from a series. When multiple rules with the same number are requested during an operation, SACEUR will add consecutive letter suffixes (i.e., A, B, C . . . AA, BB, CC . . .) for each proposed rule.

Some possible ROE contain the element DESIG, requiring further specification to adopt the

ROE to mission at hand. The following is an example of an ROE with DESIG elements being identified:

Rule132. Use of DESIG force to prevent boarding, detention or seizure of DESIG vessels, aircraft, vehicles or property is authorised.

Rule 132. Use of minimum force to prevent boarding, detention or seizure of NATO vessels, aircraft, vehicles or property is authorised.

Some rules have the indicator “(SC)” at the beginning of the rule. This means that when such rule is chosen by drafters, the “(SC)” which means Strategic Commander (SACEUR) must immediately notify the NAC when such NATO ROE are implemented.

Other examples of ROE commonly used are:

Rule 321 Use of DESIG riot control agents for DESIG purposes, subject to DESIG restrictions is authorised.

Rule 331 Use of up to non-deadly force to prevent interference with NATO-led personnel during the conduct of the mission is authorised.

Rule 337 Use of minimum/DESIG force to prevent commission of DESIG crimes that are occurring or are about to occur in DESIG circumstances is authorised.

Rule 421 Attack against DESIG force(s) or DESIG target(s) demonstrating hostile intent (not constituting an imminent attack) against NATO/NATO-led forces is authorised.

Rule 422 Attack against DESIG force(s) or DESIG target(s) which commit or directly contribute to a hostile act (not constituting an actual attack) against NATO/NATO-led forces is authorised.

Rule 423 Attack against DESIG forces or DESIG target(s) demonstrating hostile intent (not constituting an imminent attack) against DESIG forces or personnel is authorised.

Rule 424 Attack against DESIG forces or DESIG target(s) which commit or directly contribute to a hostile act (not constituting an actual attack) against DESIG forces or personnel is authorised.

The MC 362/1 distinguishes peacetime NATO ROE from armed conflict ROE, stating that during peacetime and operations prior to the commencement of armed conflict, the ROE provide the sole authority for the use of force, with the exception of self-defence. During armed conflict, ROE generally limit the otherwise lawful use of force. This may be interpreted to mean that ROE peacetime would only include the authorisation of the use of force, while during armed conflict, the ROE would consist of prohibitions. However, for policy reasons that have emerged from NATO’s recent operations, this distinction is no longer as certain. Current NATO ROE, whether in peacetime or armed conflict, are a mixture of authorisations and limitations. As a result, any use of force other than in self-defence requires

ROE.32

Peacetime operations and operations prior to the commencement of armed conflict will generally be conducted in order to limit or de-escalate the situation in order to avoid hostilities. Although civilian law enforcement is not a NATO function, situations may arise where NATO/NATO-led forces become involved in support or the conduct of civilian law enforcement functions. Furthermore, in some cases, provocative measures may be authorised in order to determine strengths, capabilities and reactions of enemy forces and to defend

NATO/NATO-led forces and operations in situations not covered by the right of self-defence.

For peacetime operations and operations prior to the commencement of armed conflict, NATO ROE will be drawn from Series 10-19, 20-29 and/or 30-39, and Rules 421-426.

During armed conflict, persons and objects may be determined to be lawful targets (“declared hostile”) in accordance with the law of armed conflict, and attacked on the basis of this status.

Rules 427-429 are used to authorise such attacks. Therefore, for armed conflict, NATO ROE will be drawn from all Series.

32 STANAG 2597 Training in Rules of Engagement (4 May 2015), Annex B to ATrainP-4, slide 25.

MC 362/1 ROE generally do not specify the means or methods to be used. This makes the

ROE more flexible and adoptable to changes such as new technology. For instance, the development of drones has therefore not resulted in a need for new ROE. The ROE focus is on the activity, not the tool. The ROE previously applied to aircrafts will also be applicable to drones, whether they are involved in information gathering or attack.