Home | Business News | Browse by Publication | M | Melbourne Journal of International Law

The rules of engagement in occupied territory: should they be published?

Article Excerpt
[The traditional view amongst some states is that the rules of engagement are not published beyond those who need to know them in the armed forces of a state. The reason given for this is that publishing them widely would allow an enemy to know how a particular operation will be conducted and, for instance, the limitations imposed by them on soldiers before they are permitted to open fire. After discussing the nature of rules of engagement and the confusion over this term, this think piece will consider whether this traditional view should be maintained where territory is occupied and where Geneva Convention IV applies. It will be explored from both the standpoint of the civilian in occupied territory and that of the soldier. The conclusion is that the rules of engagement (in some form) should be published by a state in occupation of territory.]



CONTENTS I Introduction II What Are Rules of Engagement? III Arguments for Not Publishing the Rules of Engagement IV Arguments to Support Publication of the Rules of Engagement V Conclusion

I INTRODUCTION

The traditional view amongst some states is that current rules of engagement should not be published. This think piece will consider whether they should, nevertheless, be published when a state is in occupation of territory.

When a state is engaged in an international armed conflict, the limits of a soldier's (1) actions are judged by international humanitarian law. National law has little to contribute and is largely in abeyance, except where international humanitarian law has been implemented within it. (2) Soldiers may kill enemy soldiers and attack military objectives merely because the object of their use of force is an enemy soldier or a military objective. In judging the nature of the target and the methods deployed to do so, soldiers must comply with international humanitarian law.

The occupation of territory is quite different. It requires that the territory be 'actually placed under the authority of the hostile army'. (3) When this occurs the occupying state assumes some of the basic responsibilities of the territorial sovereign, such as the establishment and maintenance of public order and safety of those whom the Geneva Convention IV (4) describes as 'protected persons'. (5) In the absence of serious insurgent activity, the occupying army's role may look similar to that of a police force in terms of law enforcement functions. In order to preserve public order and safety, a regime of law applicable to that territory will have to be maintained or established. (6) International humanitarian law requires the occupier's actions to be controlled by law. (7)

II WHAT ARE RULES OF ENGAGEMENT?

The term 'rules of engagement' is often used in a number of distinct senses and individual states may, of course, interpret the phrase in different ways. It can apply to the detailed plans of a military campaign which can take into account political considerations, such as setting out what may be military objectives but which should not be attacked. Once given the task by the government, senior commanders are most commonly required to draw up an operational plan to achieve it. This is likely to provide considerable detail on the administrative and other arrangements involved in the mission. (8) Such plans may well need to be altered at short notice and commanders will frequently be directed by senior government ministers and advised by lawyers, particularly in regards to targeting, in the course of an armed conflict. During a period of occupation, however, soldiers and their commanders will seek to avoid 'engagement' with civilians except where they might need to search them or their property. The detail of an operational plan is likely to vary considerably as between a period of actual armed conflict and a period of occupation.

The term 'rules of engagement' can, however, be used in a different sense, which forms the subject of this think piece. In this sense, the rules of engagement refer to instructions actually issued to soldiers (usually in the form of a card (9)) clearly defining who and what may be attacked in the context of an international armed conflict, as well as other relevant details such as the appropriate treatment of any prisoners. (10) Like the operational plan referred to above, these instructions will need to be altered, if they are to have maximum realistic value, after the armed conflict part of an operation has been concluded and the period of occupation begins. They may then include instructions such as the challenging of intruders to areas being guarded, whether warning shots should be fired and how anyone detained should be treated. These two cards are likely to differ as helmets differ from soft hats.

In addition to relevant areas of international law, national law will play a much more significant part in the formulation of the rules of engagement where the military operation has been transformed from armed conflict to the occupation of territory. It will be argued below that where this has occurred, the criminal or military law of the occupying state will be the predominant arbiter of wrongful conduct after taking into account the circumstances faced by the soldier.

Some may find it difficult to distinguish rules of engagement from orders given by a military superior, particularly during the actual course of a military operation. (11) Rules of engagement (in the sense referred to above) are a species of superior orders but which have been produced (normally) on a card and issued to soldiers. Their standing in law cannot be any different from an oral military order or from other written orders and they are not considered law, as such. As a form of a military order, which the soldier is required to obey, their legal status cannot be independent of, or supplant, national or international law binding in or on the state concerned. (12) They must, therefore, reflect this law and to err on the safe side they may (but need not) be drawn up in such a way as to impose greater limitations on the actions of a soldier than national or international law would actually permit.

There may be some matters included in written orders rather than in the rules of engagement. This will be the case where details of military operations are likely to change on a frequent basis. Such items included in routine or daily orders avoid the need for frequent changes to, and printing of, the rules of engagement. (13) The soldier's obligation to obey military orders applies equally to these different categories unless rules of engagement (as such) are given a particular statutory basis. An attempt was made in the United Kingdom to achieve such a result during the passage of the Armed Forces Act 2006 (UK) through Parliament, an issue discussed below.

III ARGUMENTS FOR NOT PUBLISHING THE RULES OF ENGAGEMENT

The traditional answer, at least in some states, is that the rules...