Should the best offense ever be a good defense? The public authority to use force in military operations: recalibrating the use of force rules in the standing rules of engagement.

• Author: Corn, Gary P.
• Position: Abstract through III. The Public Authority to Use Force in Military Operations A. Servicemembers as State, Not Independent, Actors, p. 1-27

Abstract

The Chairman of the Joint Chiefs of Staff's Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF) for U.S. Forces provides strategic guidance to the armed forces on the authority to use force during all military operations. The standing self-defense rules in the SROE for national, unit, and individual self-defense form the core of these use-of-force authorities. The SROE self-defense rules are incorrectly built on a unitary jus ad bellum framework, legally inapplicable below the level of national self-defense. Coupled with the pressures of sustained counter-insurgency operations, this misalignment of individual and unit self-defense authorities has led to a conflation of self-defense principles and offensive targeting authorities under the Law of Armed Conflict. In order to reverse this trend and realign individual and unit self-defense with governing legal frameworks, this Article considers self-defense through the lens of the public authority justification to better reflect the status of servicemembers as state actors whose actions are subject to the domestic and international legal obligations of the state.

Table of Contents I. Self-Defense and Offensive Targeting--The Blurring Lines II. The SROE Self-Defense Rules A. History of the SROE B. The SROE Unitary Self-Defense Framework C. The Ad Bellum Roots of the SROE Self-Defense Construct D. The "Right and Obligation" of Self-Defense E. The Expansion of Self-Defense Authorities III. The Public Authority to Use Force in Military Operations A. Servicemembers as State, Not Independent, Actors B. The Public Authority Doctrine IV. The Regulation of Force During Military Operations A. The Legal Regimes Governing the Use of Force in Military Operations B. The Lex Generalis of IHRL: The Arbitrary Deprivation Standard and Conduct-Based Uses of Force C. The Lex Specialis of LOAC: Attacks and Status Based Targeting D. The Hybrid of Civilians Directly Participating in Hostilities V. Toward a New Use-of-Force Construct For the SROE A. Individual and Small-Unit Self-Defense--Getting Back to the Roots B. Beyond Self-Defense C. Standing versus Mission Accomplishment ROE VI. Conclusion **********

What is the meaning of our retinues, what of our swords? Surely it would never be permitted to us to have them if we might never use them. (1)

The More Successful the Counterinsurgency Is, the Less Force Can Be Used and the More Risk Must Be Accepted (2)

Military leaders should never place Soldiers, Sailors, Airmen, Marines or Coast Guardsmen at any risk beyond what is manifestly necessary for mission accomplishment. But risk is inherent in every military operation, especially in combat, and the success of some missions depends on assuming greater risk than in others. Nowhere has this reality been brought into sharper focus than in contemporary counterinsurgency (COIN) operations where the use of lethal combat power may be more likely to undermine rather than to advance strategic aims. Within this context, few issues generate greater emotional debate, both within and outside the armed forces, than the question of whether, and to what degree, servicemembers may use lethal force in the exercise of self-defense. (3)

During any military operation, policy, law, and strategy often demand restraint in the application of force and under certain circumstances may prohibit it altogether. Rules of engagement (ROE) have evolved as the primary command-and-control tool for regulating and aligning the use of force with political, military, and legal imperatives. Rules of engagement must strike the delicate balance between achieving the legitimate and necessary application of combat power and the risk of inhibiting initiative and creating hesitancy of the military force to protect and defend itself. Achieving this balance begins with drafting ROE at the strategic level that are not only operationally coherent and easily executable, but also firmly grounded in and consonant with the normative frameworks applicable to each particular military operation. (4)

This Article focuses on the legal underpinnings of the current strategic use-of-force direction applicable to the U.S. armed forces commonly referred to as the Standing Rules of Engagement (SROE). (5) Specifically, the Article examines the SROE provisions governing self-defense, which are a vestige of outdated Cold War concepts misaligned with the underlying legal basis for authorizing individuals and small-unit commanders to exercise self-defense at the subnational level. (6) This misalignment has contributed to a misunderstanding and conflation of the basic legal frameworks governing the use of force during military operations and a growing distortion of tactical-level self-defense authorities and principles during recent combat operations.

Consider the case of First Lieutenant Michael Behenna, who was court-martialed in 2009 for shooting and killing a detainee in Iraq while conducting an unauthorized interrogation at a remote location in the desert, during which he was pointing his sidearm at the detainee's head and threatening to kill him. (7) At trial, Lieutenant Behenna did not dispute these facts, but instead claimed that he had shot the detainee in self-defense. (8) He testified that during the interrogation the detainee threw a piece of concrete at him and lunged toward him in an attempt to grab his pistol. (9) The court-martial panel was not persuaded, finding him guilty and sentencing him to, inter alia, twenty-five years of confinement. (10)

On February 27, 2013, thirty-seven retired flag and general officers, including a former International Security and Assistance Force (ISAF) commander, petitioned the U.S. Supreme Court as amici curiae to review and overturn First Lieutenant Behenna's court-martial conviction. (11) The primary issue before the Supreme Court on petition for a Writ of Certiorari was whether the military trial judge provided erroneous instructions to the panel regarding Lieutenant Behenna's self-defense claim. (12) Applying established principles of criminal law, the Court of Appeals for the Armed Forces concluded that any instructional errors were harmless beyond a reasonable doubt because, based on the undisputed facts adduced at trial, Lieutenant Behenna had unlawfully assaulted the detainee with deadly force during an unauthorized interrogation and thus had lost the right to act in self-defense as a matter of law. (13)

For the thirty-seven amici, the notion that a soldier's use of force against a suspected enemy operative in an active combat zone should be judged according to the same principles applicable to "a soldier's stateside barroom brawl" was anathema and a dangerous precedent. (14) According to these retired officers, "no servicemember in a combat zone should categorically forfeit the right to self-defense because his or her conduct was unauthorized." (15)

The observation of these retired officers that the "everyday risks to servicemembers in far-flung combat zones around the world are different in kind from the risks inherent in stateside altercations" (16) is no doubt an understatement and should be given great weight when assessing the legality of any particular use of force. What is remarkable about their position, however, is their fundamental misapprehension of the legal implications of what they acknowledge were Behenna's unauthorized and unlawful conduct, and their related view that the law governing the authority of individual servicemembers to exercise self-defense in such situations is or ought to be different from settled principles of domestic and international law. (17) This misconception should not be surprising, however, given the SROE use-of-force framework these officers have trained on and applied throughout their long and honorable careers.

The Behenna case and the position taken by the amici highlight a growing and concerning misunderstanding and conflation of the basic legal frameworks governing the use of force during military operations and a growing distortion of tactical-level self-defense authorities and principles. The reasons for this trend are multifold, but ultimately begin with and emanate from imprecision in the outdated self-defense construct contained in the strategic use-of-force direction to U.S. forces in the SROE and basic misconceptions about its legal foundations. The SROE's unitary self-defense framework, originally designed to provide national self-defense guidance to naval forces operating during the Cold War, is derived from jus ad bellum principles inapposite to the use of force at the individual and small-unit level. (18)

Owing to the SROE's ad bellum roots, many have long held the flawed view that individual and unit self-defense are derivative of the inherent right of national...