Abstract
Rules of Engagement (ROE) are the classic tool for controlling the use of force, as well as other elements of military operations, in order to exercise control over the operation as a whole. However, many elements of the classic ROE concept and system are based on traditional methods and means of warfare and may not be readily applicable to emerging technologies, such as autonomous weapons and cyber operations. This chapter argues that while the classic ROE concept can meet these challenges, some customization of the ROE system may eventually become necessary, moving from operator-oriented to weapon-specific ROE.
J. F. R. Boddens Hosang is the Deputy Director of Legal Affairs of the Netherlands Ministry of Defence. This chapter was written in a personal capacity and does not necessarily reflect the official opinions of the Netherlands Ministry of Defence.
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Notes
- 1.
“Posture” in the context of military operations refers to the overall intent of the deployment in terms of de-escalating the situation, maintaining the status quo, or taking the initiative. This concept can be expanded with peacetime deployment concepts such as “deterrence”, “defensive” or “showing resolve” as modifiers for force posture.
- 2.
See, inter alia, NATO document MC 362/1, which defines ROE as 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.” While this definition does not rule out the application of ROE to self-defence, the right of self-defence is considered inherent in most legal systems, or at least a personal decision of the person invoking self-defence, and ROE therefore generally contain a phrase emphasizing that nothing in the ROE limits or negates the inherent right of self-defence. The right of self-defence itself and the interaction between ROE and self-defence is, however, beyond the scope of this chapter.
- 3.
NATO document MC 362/1.
- 4.
Escalation dominance refers to the ability (or at least intent) to control the level of hostilities in a given area of operations. ROE are a principal tool in achieving escalation dominance, but obviously rely on available assets and force capabilities to achieve the desired effect.
- 5.
There is no agreed international definition of hybrid warfare, and the term can be used to describe a variety of strategies. A common element in those strategies is, however, the exertion of influence and achieving generally hostile goals in and against other States without resorting to overt use of military forces or “traditional” armed attacks or invasions. The annexation of Crimea by the Russian Federation is an example of hybrid warfare, combining (dis)information tactics and similar activities to influence local parties and subsequently deploying first covert and later overt troops to “stabilize” the situation without large-scale military engagements or use of force. See, inter alia, Chivvis 2017.
- 6.
For example, in the debates on Syria, Security Council resolutions were vetoed 12 times since 2011; “Syria: Does Russia always use a veto at the UN Security Council?” BBC News, 16 April 2018, available online at https://www.bbc.com/news/world-43781954 (last accessed on 18 June 2018).
- 7.
For a more detailed discussion of the effects of legal paradigms on ROE, see Boddens Hosang 2017.
- 8.
- 9.
Roach 1983.
- 10.
MC 362/1, op. cit., see supra n 2, and the San Remo Handbook on Rules of Engagement 2009.
- 11.
Personal observations of the present author, including practical experience with the use of ROE in the Netherlands armed forces and discussions with military legal advisers from other States and NATO.
- 12.
Bear in mind that “targeting” means that the object or person may be made a target but does not ipso facto mean that they may be subjected to the use of force. Targeting can also refer to identifying useful subjects for information operations, military diplomacy, etc. See also Ducheine et al. 2016.
- 13.
For example, a tactical directive may prohibit indirect fire without forward observation, meaning long-range artillery can only provide fire support if the supported unit has eyes on target and can direct the artillery unit in its targeting. While this is not a legal requirement, provided the artillery unit applied the proper decisions and considerations as required by international humanitarian law, such a requirement may be instated for political or public relations reasons related to minimizing collateral damage beyond the requirements of international humanitarian law. Note that some ROE models do provide ROE for this purpose as well; see the San Remo Handbook on Rules of Engagement 2009, Series 27.
- 14.
Roach 1983.
- 15.
For example, the MC 362/1 within NATO; the EU Use of Force Policy document; the UN Model Rules of Engagement; the San Remo Handbook on Rules of Engagement 2009.
- 16.
For States adhering to a monistic approach towards international law, authorizations granted by rules of international (customary or treaty) law may apply directly to the national armed forces of those States. States which adhere to a dualistic approach may need a national law to implement such authorizations.
- 17.
The exception to this observation is the requirement to adhere to the principles of necessity and proportionality in all use of force (applying the definitions of those concepts in the applicable legal paradigm; op. cit. note 7). This requirement is not normally reflected in the text of the ROE themselves but is understood to apply to the ROE as a whole and to all use of force in a given operation.
- 18.
International Society for Military Law and the Law of War 2006.
- 19.
The three commonly used levels of command and control in military operations, and therefore levels at which to describe an operation, are the strategic, operational and tactical levels. The strategic level refers to the overarching political and the highest military levels of command, including the decision whether to participate in an operation and the overall goals of the operation. The operational level refers to the level directly in command of the operation, implementing the strategic goals and instructions and providing overall command and control of the operation itself. The tactical level refers to the actual conduct itself, including assigning specific attack or patrol missions, directing the participating units to carry out actual engagements, etc. Although additional levels can be identified, such as the technical level referring to the conduct of individual personnel operating a weapon or weapon system, those are less relevant for this discussion of political influences on ROE.
- 20.
MC 362/1, op. cit., see supra n 2.
- 21.
The term “minimum force” means that the least amount of force appropriate or suitable for resolving the situation must be used but includes deadly force if that is the suitable amount of force, bearing in mind the principles of necessity and proportionality, in the given situation.
- 22.
Bear in mind that while the additional directives or certain ROE may contain more detailed rules specific to certain weapon systems, they similarly do not set out how to operate the weapon (system) but merely regulate effects or the operational use of that weapon (system). Using the example of indirect fire, the directives may specify that unobserved indirect fire is prohibited but do not set out how the observers should be in contact with the fire support unit, how to aim the weapons in question, etc.
- 23.
An exception would be combat pilots, who normally carry a summary of the ROE as part of the so-called “Special Instructions” (SPINS) issued to such personnel.
- 24.
The term “serviceman” is used to refer to individual military personnel regardless of gender. While some States refer to the soldier’s cards as “ROE cards”, there is a difference in contents between the actual ROE set for an operation and such simplified cards issued to individual personnel.
- 25.
For a very brief bibliography, see the list provided online by the United Nations Office in Geneva at: https://www.unog.ch/80256EDD006B8954/(httpAssets)/4C452E8607E0FBC3C12581D400341DE1/$file/CCW+Website_Articles_LAWS_Archive.pdf (last accessed on 18 June 2018).
- 26.
See, for example, “Autonomous weapons are a game-changer,” The Economist, 25 January 2018, available online at https://www.economist.com/special-report/2018/01/25/autonomous-weapons-are-a-game-changer (last accessed on 18 June 2018); and the Campaign to Stop Killer Robots at https://www.stopkillerrobots.org/act/ (last accessed on 18 June 2018).
- 27.
The conference reports and various other information on the debates can be found online at: https://www.unog.ch/80256EE600585943/(httpPages)/8FA3C2562A60FF81C1257CE600393DF6?OpenDocument (last accessed on 18 June 2018).
- 28.
- 29.
For a discussion of the targeting process in relation to the debate on autonomous systems, see Ekelhof 2018.
- 30.
https://www.raytheon.com/capabilities/products/phalanx (last accessed on 19 June 2018).
- 31.
https://www.thalesgroup.com/en/goalkeeper-close-weapon-system (last accessed on 19 June 2018).
- 32.
https://www.raytheon.com/capabilities/products/patriot (last accessed on 19 June 2018).
- 33.
http://www.rafael.co.il/5614-689-EN/Marketing.aspx (last accessed on 19 June 2018).
- 34.
https://www.rheinmetall-defence.com/en/rheinmetall_defence/public_relations/themen_im_fokus/active_defence_system_ads/index.php (last accessed on 19 June 2018).
- 35.
As regards active protection systems, so-called “soft kill” systems exist as well, such as dispensers of chaff or flares to misdirect incoming homing missiles and various automatic smoke screen systems. As those normally do not equate to the use of force in the sense intended here, they will not be discussed as they are generally irrelevant to a discussion on ROE.
- 36.
As also discussed by the ICRC 2015, pp. 44–45. Note that the ICRC also indicates, as part of apparently explaining why these systems are less controversial than fully autonomous systems, that “most of these existing weapons are overseen in real time by a human operator.” Apart from the fact that this is, indeed, not always the case, the human operator cannot intervene once the system’s weapon fires (other than shutting down the system to prevent further weapons use). In other words, there is a significant difference between human oversight and actual human control (“human in the loop”).
- 37.
http://www.avinc.com/uas/adc/switchblade/ (last accessed on 19 June 2018).
- 38.
http://www.iai.co.il/2013/36694-46079-en/Business_Areas_Land.aspx (last accessed on 19 June 2018).
- 39.
An example would be NATO’s support to Turkey following the outbreak of the civil war in Syria. See https://www.nato.int/cps/ua/natohq/topics_92555.htm?; http://www.usafe.af.mil/News/Article-Display/Article/748507/dutch-relinquishes-nato-mission-to-spanish-allies/ and https://www.bundesregierung.de/Content/EN/Artikel/2015/01_en/2015-01-07-mandat-active-fence-tuerkei_en.html (all last accessed on 19 June 2018). While these deployments were considered part of a NATO operation by the States deploying assets to Turkey, it may also be argued that the deployments were not a separate operation but instead part of the standing NATO integrated air and missile defence system and methodology.
- 40.
See supra n 11 and accompanying text, and the discussion of the political element of ROE.
- 41.
Gillespie 2015, p. 52.
- 42.
Gillespie and West 2010, pp. 18–19.
- 43.
See supra n 19. Note, however, that these terms can also refer to a weapon’s capabilities and effects or to the command level at which the decision to use or deploy a weapon or weapon system is made. Given these various uses, the terminology can often be more confusing than clarifying in discussions on specific weapons. A controversial but clear example would be so-called “non-strategic nuclear weapons” (also called “tactical nuclear weapons”), in which the term itself refers to the weapon’s yield and area of effect, but the decision for deployment would definitely require authorization from the strategic level of command.
- 44.
As such systems may also be considered part of self-defence, see also supra n 2.
- 45.
Apart from valid concerns regarding such systems’ abilities to properly apply the law applicable to the situation, the armed forces using such systems would also require a remarkable level of trust that the systems will not accidentally target friendly forces or the operating armed forces themselves.
- 46.
This term is used to refer to intelligence operations in support of national policy and strategy, usually undertaken at the strategic level or under the direction and supervision of the strategic level, as opposed to operational and tactical intelligence activities carried out to support a military commander during the conduct of a military operation. While strategic intelligence can also aid such a military commander, what is at issue here is the nature of the activity, not the possible uses or addressees of the outcome (the products) of those activities.
- 47.
The use of antivirus or other software tools against malicious software broadly disseminated via the internet as a random threat is similarly not covered by ROE and the military nature of the response is coincidental, as civilian users would be similarly threatened and take similar responsive actions.
- 48.
- 49.
- 50.
For example: Choo 2018.
- 51.
Schmitt 2013 (Tallinn 1.0), pp. 48–51.
- 52.
Schmitt 2013 (Tallinn 1.0), p. 48.
- 53.
ICRC 2015, pp. 39–40.
- 54.
- 55.
Kehler et al. 2017 similarly conclude that cyber activities are provocative and sensitive, complicated further by the lack of experience among (most) military commanders with the cyber domain.
- 56.
- 57.
- 58.
See also Kehler et al. 2017.
- 59.
See supra n 15 and accompanying text.
- 60.
As ROE compendia only contain sample ROE intended as general inspiration or guidance, many of those ROE contain elements that can be filled into make the ROE in question specifically suitable for the operation in question. Those “fill in the blank” elements are indicated as [DESIG] in the text of the ROE in the NATO and EU compendia and as (SPECIFY) in the San Remo Handbook on Rules of Engagement 2009.
- 61.
Compare, for example, the ROE 131 series with the ROE 111 series in the San Remo Handbook on Rules of Engagement 2009.
- 62.
See supra n 55.
- 63.
See, for example, the ROE 42 and ROE 50–59 series in the San Remo Handbook on Rules of Engagement 2009.
- 64.
Obviously, this problem is compounded the more abstract one becomes, as regulating the use of computers or software in general would be even more meaningless.
- 65.
Obviously, the simplest defence against cyber attacks is to remove the system to be protected from any physical connection to the internet. In such cases, delivering a cyber weapon to that system will require human intervention, such as by connecting an infected USB-drive to the target system.
- 66.
See, for example, point 7 in the 2015 update of the Netherlands’ “Defence Cyber Strategy” at https://english.defensie.nl/topics/cyber-security/defence-cyber-strategy (last accessed on 21 June 2018).
- 67.
Netherlands Defence Cyber Strategy 2015. This is obviously not a challenge as such, but in the author’s personal experience still a challenge for most military operational planners. It may safely be assumed, however, that this is merely part of a learning process and the difficulties will decrease or even disappear over time.
- 68.
“Joint” operations are operations involving units from different armed forces services under unified command, such as combining air, land, and sea assets. “Combined” operations, a term often seen in conjunction with “joint” operations, are operations involving units from more than one State under unified (multinational or lead-nation) command.
- 69.
This view was supported and recognized by the NATO member States at the 2016 Warsaw summit; https://ccdcoe.org/nato-recognises-cyberspace-domain-operations-warsaw-summit.html (last accessed on 21 June 2018).
- 70.
Given the unique characteristics of cyber operations and cyber operators, it is possible that not all cyber operations in support of a military operation will be carried out by military personnel within the normal chain of command. It should be noted, however, that cyber operations amounting to the use of force or otherwise directly linked to the conduct of hostilities may amount to direct participation in hostilities on the part of the cyber operators. Militarization of such operators, even if temporary for the duration of such tasking or the participation in an operation, should therefore be considered from the perspective of adhering to international humanitarian law.
- 71.
It should be noted that such an approach is also required for the obligatory evaluation as to whether the weapons would in all or some circumstances violate applicable international law, which to States Parties to the First Additional Protocol to the Geneva Conventions is known as the “Article 36 review”. See also Gillespie 2015, op. cit., note 41 as regards new technologies and applying Article 36 reviews.
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Boddens Hosang, J.F.R. (2021). Control Through ROE in Military Operations: Autonomous Weapons and Cyber Operations as Reasons to Change the Classic ROE Concept?. In: Bartels, R., van den Boogaard, J., Ducheine, P., Pouw, E., Voetelink, J. (eds) Military Operations and the Notion of Control Under International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-395-5_19
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