Actual Rules of Engagement are strong

By: THAD COAKLEY - Commentary
ROE misperceptions fueled by media distortionApplication of the Rules of Engagement is at the core of the charges against the two enlisted Marines for their involvement in the deaths of civilians in Haditha, Iraq. | Saturday, March 8, 2008 9:05 PM PST ∞

Their adherence to those rules will be judged in the pending courts-martial by fellow Marines experienced in the use of force in Iraq's environment.

But Haditha and other events have been used to present a regrettable litany of public misrepresentations regarding legitimate use of force in self-defense situations. While long on criticism, commentators offer no actual solutions to the "deficiencies" they decry.

The misinformation that has been spread is harmful for a number of reasons. The public is left with the false perception that their sons and daughters are being sent to the slaughter with no means of self-preservation.

Enemies, believing U.S. personnel are so limited, are further emboldened to increase attacks on service members and innocent noncombatants alike.

Service members, who absorb flat-out wrong limitations on their defensive abilities, may become confused or hesitant in situations where deadly force would be absolutely permissible.

In sum, enemy propaganda is enhanced while Rules of Engagement training and American morale are eroded. If Rules of Engagement issues give an enemy reason to be "laughing at us," it is due to the hysterical infighting and self-flagellation caused by false Rules of Engagement descriptions within our own media and politics.

The Rules of Engagement are not a suicide pact. Basic understanding of the globally applicable Rules of Engagement for self-defense reveals public criticisms to be incorrect or misleading on a number of points.

There is no mandatory incremental "checklist" that a service member must exhaust before using force to defend himself. The oft-cited four-step process of "shout, show, shove, shoot" and other variants are merely techniques to assist in distinguishing between innocent and hostile behaviors.

How the Rules of Engagement are applied
The application of any such escalation of force measure is situation-dependent. It is false that a service member must comply with a menu of escalation of force steps if circumstances render such measures ineffectual or unnecessary to determining intent.

At any time a service member reasonably perceives an imminent ability and intent to cause him or others serious bodily harm or death, he is authorized to use deadly force in defense.

It is also incorrect that both a hostile intent and a hostile act must be demonstrated before use of force is permitted. Identified hostile acts or intentions each equate with authorization to engage if a service member decides it necessary to defend himself.

A hostile act is usually simple to perceive, e.g., taking direct fire or an Improvised Explosive Device detonation. But hostile intent can be very difficult to determine; no definitive, preset criteria can cover every scenario.

Situational ambiguity results in a subjective determination based on all that a service member knows and perceives at the time of a given event. Those judging his actions afterwards can only consider those conditions as the service member perceived them at the moment of the decision to engage.

If the service member reasonably perceived a hostile threat, his use of the force necessary to neutralize it is in accord with the Rules of Engagement, even if he was later shown to be mistaken. As one battalion commander has put it, those who make an error, but with a "pure heart," will be deemed to have acted within the Rules of Engagement.

It is those who act without reason on the battlefield who not only violate those Rules of Engagement but impede the efforts of all other service members in accomplishing their mission. Unreasonable acts of violence profane the efforts and sacrifices of an honorable, professional military force and must be held to account.

Public misconceptions
Two misconceptions are common in the public critiques of the Rules of Engagement.

In the first scenario, someone is purposely orienting a rifle towards a service member who is somehow procedurally constrained by the Rules of Engagement. Without further circumstances belying that person's purpose, this is a clear demonstration of hostile intent permissibly countered with deadly force

The second scenario depicts people fleeing a roadside bomb attack ---ñ a hostile act ---ñ as permissible to shoot without further amplification. Absent other indications that they were involved in the attack, it is impermissible to engage them for the mere act of running. Running alone provides no means of distinguishing between fleeing triggermen and innocent civilians trying to escape the attack themselves.

The term "positive identification" also has been misunderstood as an undue limitation. In a self-defense situation, "positive identification" merely highlights the attempt to distinguish between a person's hostile act or threat and otherwise innocent civilian behavior.

This concept is long-standing in understanding and application. A service member, upon seeing a person in a crowd pointing a rifle at him, aims and fires his own rifle at that person threatening him ---ñ not at those people without apparent means to immediately harm him.

Common sense dictates
Common sense dictates the service member will not waste the time to shoot at nonthreats while allowing a real threat an opportunity to first engage him. If the service member inadvertently misses the threat and hits an innocent bystander, that is a collateral injury brought about by the hostile's deliberate choice to fight amid civilians.

But the service member's use of force remains lawful, albeit in error. The Law of War and the Rules of Engagement understand the reality of unintended collateral injuries to civilians and their property, and allow for its reasonable occurrence without criminal repercussion.

Critics often ignore or confuse the Rules of Engagement with the practical aspects of the different weapons used in authorized self-defense. The rules' concepts of hostile act, hostile intent and threat identification are constant; the particular circumstances and means available to respond vary in each fleeting situation.

An attack pilot flying at high altitude and speed while aiming a 500-pound bomb at a house has a different perspective and responsive force from a Marine with a rifle on the ground near or in that house. Where necessary in self-defense, either may lawfully use force to defend themselves, but their ability to distinguish between hostiles and innocents and options for force are greatly varied.

Contrary to tying the hands of U.S. personnel, the legal portion of the Rules of Engagement allows wide latitude in defending against either a hostile act or hostile intent. The rules are derived from mission accomplishment requirements, national policy intentions, and the Law of War.

When one appreciates the full context of all three bases of the Rules of Engagement, particularly the accepted risks and focus of effort in ongoing counterinsurgency campaigns, no greater authorizations to use force in self-defense are necessary.

Thad Coakley is a former Marine judge advocate with experience as a prosecutor, an operational law attorney, and an international law and Rules of Engagement instructor. He is a veteran of multiple deployments in support of Operation Enduring Freedom and Operation Iraqi Freedom, including a tour with an infantry battalion in the Hit-Haditha Corridor of al-Anbar Province, where he received the Combat Action Ribbon. His comments are made in his personal capacity and are not intended to represent any official statement by either the Marine Corps or the Defense Department.