Enforcing LOAC Rules
Military members who violate the LOAC are subject to criminal prosecution and punishment. Criminal prosecutions may take place in a national or international forum. In theory, US Armed Forces could be prosecuted by courts-martial under the UCMJ or through an international military tribunal, such as those used in Nuremberg and Tokyo after WWII or in Yugoslavia and Rwanda. The defense, I was only following orders, has generally not been accepted by national or international tribunals as a defense in war crime trials. An individual airman/soldier/sailor/marine remains responsible for his or her actions and is expected to comply with the LOAC.
Reprisal. Prosecuting a LOAC violation may not be possible or practical if the enemy who violates the LOAC remains engaged in armed conflict. However, there is no statute of limitations on a war crime. Moreover, the LOAC permits combatants to engage in acts of reprisal to enforce an enemy forces compliance with LOAC rules. Reprisals are acts in response to LOAC violations. The act of reprisal would be otherwise forbidden if it was not for the prior unlawful act of the enemy. A lawful act of reprisal cannot be the basis for a counter-reprisal. Reprisals are always prohibited if directed against POWs; wounded, sick, or shipwrecked persons at sea; civilian persons and their property; or religious or cultural property. To be lawful, a reprisal must:
- Timely respond to grave and manifestly (clearly) unlawful acts.
- Be for the purpose of compelling the adversary to observe the LOAC and not for revenge, spite, or punishment.
- Give reasonable notice that reprisals will be taken.
- Have had other reasonable means attempted to secure compliance.
- Be directed against the personnel or property of an adversary.
- Be proportional to the original violation.
- Be publicized.
- Be authorized by national authorities at the highest political level. Only the President of the United States, as Commander in Chief, may authorize US forces to take such an action.
ROE (Rules of Engagement)
Competent commanders, typically geographic combatant commanders, after JCS review and approval, issue ROE. ROE describe the circumstances and limitations under which forces will begin or continue to engage in combat. Normally, execution orders (EXORD), operations plans (OPLAN), and operations orders (OPORD) contain ROE. ROE ensure use of force in an operation occurs in accordance with national policy goals, mission requirements, and the rule of law. In general, ROE present a more detailed application of LOAC principles tailored to the political and military nature of a mission. ROE set forth the parameters of an airmans right to self-defense. All airmen have a duty and a legal obligation to understand, remember, and apply mission ROE. During military operations, LOAC and specifically tailored ROE provide guidance on the use of force. The standing rules of engagement (SROE) of the CJCS give commanders direction on the use of force in self-defense against a hostile act or hostile intent. The SROE do not limit an airmans inherent right to use all means necessary and appropriate for personal or unit self-defense. Some basic considerations based on the SROE follow:
- The use of force in self-defense must be necessary and limited to the amount needed to eliminate the threat and control the situation.
- Deadly force should only be used in response to a hostile act or a demonstration of hostile intent. Deadly force is defined as force that causes or has a substantial risk of causing death or serious bodily harm.
- Failure to comply with ROE may be punishable under the UCMJ.
- ROE questions and concerns should be promptly elevated up the chain of command for resolution.