Adventures in ROE: Waiting on the Lawyers

BY Herschel Smith
6 years ago

In Prosecution of U.S. Troops Under Iraq SOFA we broadly outlined some problems we have with the draft Status of Forces Agreement awaiting Iraqi parliament approval.  Review of the draft SOFA raises even more questions and forces the conclusion that things could very well be worse than first suspected.  A few examples are in order, followed by a review of international lawyer hand-wringing over Somalian pirates.

Article 3 [1] sets the context for review of the agreement: “All members of the U.S. armed forces and civilian members must follow Iraqi laws, customs, traditions, and agreements while conducting military operations in accordance to this agreement. They must also avoid any activities that do not agree with the text and spirit of this agreement. It is the responsibility of the U.S. to take all necessary measures to ensure this.”

Moving ahead in the document, Article 12 [9] says “The U.S. authorities submit, in accordance to paragraphs 1 and 2 of this article, a declaration explaining whether the alleged crime occurred while suspects where off duty or on duty. In case the Iraqi authorities think the conditions require such a decision to be reviewed or changed, the two sides discuss that through the joint committee, and the U.S. authorities takes into consideration all the conditions, events and any (sic) other information
submitted by the Iraqi authorities that might have an effect on changing the U.S. authorities (sic) decision.”

It should be fairly straight forward, shouldn’t it, to ascertain whether a Soldier or Marine is actively performing approved operations?  But the Kabuki dance is being done for the reason that by intent it isn’t really that simple.  There are the standing rules of engagement, theater-specific rules of engagement, and then unit-specific rules laid out by unit lawyers.  It’s this last category where the rubber meets the road, so to speak.

The Mental Health Advisory Team (MHAT) IV, Operation Iraqi Freedom 05-07, Final Report, 17 November 2006, Office of the Surgeon, Multi-National Force Iraq, and Office of the Surgeon General, United States Army Medical Command, outlines examples of problems that have come up on the level of application of the ROE:

More than one third of all Soldiers and Marines continue to report being in threatening situations where they were unable to respond due to Rules of Engagement (ROE).  In interviews, Soldiers reported that Iraqis would throw gasoline-filled bottles (i.e., Molotov Cocktails) at their vehicles, yet they were prohibited from responding with force for nearly a month until the ROE were changed.  Soldiers also reported they are still not allowed to respond with force when Iraqis drop large chunks of concrete blocks from second story buildings or overpasses on them when they drive by.  Every groups of Soldiers and Marines interviewed reported that they felt the existing ROE tied their hands, preventing them from doing what needed to be done to win the war (pages 13 – 14).

The lawyers know that the real power of the ROE lies in how they are applied.  If, for example, a unit has completed operations and is headed back to the FOB, and a vehicle takes chunks of concrete through the windshield killing the driver, when the son of a high profile Parliamentarian dies in the subsequent small arms fire because the unit feels under threat, the time will have come to invoke the clause where Iraqi authorities attempt to change the U.S. decision on who has authority over the actions of that unit.  Soldiers and Marines have seen stranger things, and that, at the hands of their own lawyers.  In fact, one of the most poweful and effective tactics that has been used by U.S. forces – patrols, entering houses, the “knock and talk” – is patently prohibited in Article 22 [5], and agreed to by U.S. lawyers.

U.S. forces are not permitted to search houses and other properties without a court
warrant, unless there was an active combat operation in accordance to article four, and in
coordinating with the specialized Iraqi authorities.

Turning to the Gulf of Aden, the U.S. Navy is absolutely hand-tied and impotent because lawyers across the globe can’t agree to how to treat pirates (h/t War News Updates).

The commander of a NATO task force on its way to tackle piracy off the coast of Somalia has said he still does not know what the rules are for taking on the high-seas bandits.

U.S. Admiral Mark Fitzgerald said while he was aware of where the pirates were operating, there was little he could do militarily to stop them and that guidelines on how to take them on — including whether to shoot — were still in the works.

“You know, I don’t think we’ve gotten the rules of engagement yet from NATO,” Fitzgerald told reporters on Monday during a briefing on U.S. naval operations in Europe and Africa.

“That’s all still being debated in the North Atlantic Council. All we’ve been told is to prepare a plan to go down there. So (the rules) are going to have to be debated.”

Six NATO members have contributed ships, including destroyers and frigates, to a special anti-piracy task force following a request from the United Nations.

The NATO group passed through the Suez Canal last week on its way to the Horn of Africa, where piracy has surged this year, with more than 30 ships seized and ransoms estimated at $18-$30 million have been paid to free hostages.

There are already naval assets from Britain, the United States and Russia in the region, but the area is so vast — more than 2.5 million square miles — that it is almost impossible for the pirates to be stopped unless they are caught red-handed.

“From a military standpoint, we certainly are limited by what we can do,” said Fitzgerald. “How do you prove a guy’s a pirate before he actually attacks a ship?

“We have a problem from the military side at sea because we can’t be omnipresent in the space, and the pirates operate at an advantage because … they don’t announce they’re a pirate until they attack a ship.”

Security specialists say there is a window of only about 15 minutes for a navy ship to respond to a distress call and get to another ship that’s being hijacked. Once pirates are on board, there’s little, legally, that can be done.

“You’ve got a very short window, a short time span, from the point where they decide to board a ship and (actually) board it. If you’re not right there, there’s not much you can do, and once the ship is taken hostage, then….”

The Danish navy learnt to its cost last month what can happen if you do seize suspected pirates.

They captured 10 people, but after holding them for six days aboard a Danish ship, the suspects were set free and put ashore in Somalia because the legal conditions surrounding their detention were unclear.

Denmark’s Defence Ministry said Danish law did not allow for prosecution of the men before a Danish court. The ministry said it had explored the possibility of handing them over to other countries but that was also not feasible.

A senior British naval commander admitted last week that it was essentially a legal minefield trying to take on the pirates, and urged commercial ships operating in the region to hire their own private security companies to deal with the threat.

Admiral Fitzgerald said the Danish experience showed how weak the impetus was going to be to capture pirates. Instead he said his task force would focus on escorting World Food Programme ships trying to deliver aid to Somalia.

The Captain’s Journal has weighed in saying:

This is easy. We tell the LOAC and ROE lawyers that they’re special and that they should go to their rooms and write high-sounding platitudes about compassion in war so that they’re out of the way, we land the Marines on the ship, and we kill every last pirate. Then we hunt down his domiciles in Somali and destroy them, and then we find his financiers and buyers and kill them. Regardless of the unfortunate potential loss of Ukrainian or Russian civilian life upon assaulting the ship, this weaponry and ordnance should never have been shipped in this part of the world without escort (and perhaps it shouldn’t have been shipped even with escort).  Negotiations will only serve to confirm the pirates in their methods. It’s killing time. It’s time to turn the United States Marines loose.

Ralph Peters has weighed in saying:

Piracy must be exterminated. Pirates aren’t folk heroes or champions of the oppressed. They’re terrorists and violent criminals whose ransom demands start at a million bucks. And they’re not impressed by the prospect of trials in a velvet-gloved Western court.  The response to piracy must be the same as it was when the British brought an end to the profession’s “golden age:” Sink them or board them, kill them or hang them.

Lt. Col. P at OpFor has weighed in saying:

Kill all of the pirates.

Seriously. Why do we allow a handful of khat-addled assholes to dominate one of the world’s most important sea lanes? We, the western powers, have sufficient naval units in the area to take care of the problem in very quick order. What we lack is the will. We apply an idiotically high standard of judicial due process to a situation that doesn’t lend itself well to a judicial solution. Anyone who has dealt with Somalis can tell you that they laugh at western legalisms, and what they perceive as western weaknesses. And then they redouble their violent efforts to take what they want from you. They do react very well to a boot on their necks, and a gun to their heads. Then they tend to wise up quickly.

Here’s how it needs to be done. Oil tanker sends distress call, takes evasive actions insofar as it is capable. (Or better yet, armed men aboard oil tanker defend by fire.) Coalition forces despatch (sic) vessels and boarding parties. Pirates who survive ensuing gun battle are lined up by the rail and shot in the head, then dumped overboard. Pirate boats are burned. If their bases or villages on the coast can be identified, said bases are raided and destroyed. No fuss no muss, no ransom, no hostages, no skyrocketing costs.

Apparently, the lawyers don’t think like we do.  But for the time being, the lawyers are setting the agenda.




You are currently reading "Adventures in ROE: Waiting on the Lawyers", entry #1398 on The Captain's Journal.

This article is filed under the category(s) Iraq,Iraq SOFA,Lawfare,Piracy,Rules of Engagement and was published October 22nd, 2008 by Herschel Smith.

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