Defining the Right of Self-Defense: Working toward the Use of a Deadly Force Appendix to the Standing Rules of Engagement for the Department of Defense

By Bolgiano, David; Leach, Mark et al. | Infantry, Summer 2002 | Go to article overview

Defining the Right of Self-Defense: Working toward the Use of a Deadly Force Appendix to the Standing Rules of Engagement for the Department of Defense


Bolgiano, David, Leach, Mark, Smith, Stephanie, Taylor, John, Infantry


When we send fine young Americans into harm's way, we have a moral and legal obligation to provide them with Rules of Engagement (ROEs) that protect their right of self-defense. Our soldiers, sailors, airmen, and marines must expect ROEs that best ensure their safe return, to the maximum extent possible consistent with the mission parameters. Indeed, this is the stated policy of the Chairman of the Joint Chiefs of Staff's Standing Rules of Engagement (SROEs).1 The SROEs are silent, however, concerning that ultimate and maximum exercise of self-defense-the use of deadly force. Simply stated, the SROEs fail to answer, clearly and unequivocally, the foremost question of those at the tip of the spear: "When can I pull the trigger?"

Silence at the strategic level regarding the use of deadly force level has resulted in the confusing and potentially life-threatening absence of operationally specific guidance at the tactical level.2 As recently as March 25, 2001, the rules of engagement in place for soldiers serving in the peacekeeping action in Kosovo gave specious guidance on the use of deadly force that required them to "shoot to wound."3 This order should not be surprising considering the restrictive guidelines given in Bosnia for NATO's Implementation Force (IFOR): "If you have to open fire, you must: Fire only aimed shots, and fire no more rounds than necessary and . . . stop firing as soon as the situation permits."4 Further, warning shots were permitted, even encouraged, and the use of deadly force against assailants fleeing an attack was not even covered. These rules remained the same for the Peace Stabilization Force (SFOR), as well.5 More disturbingly, many commanders have imposed "no rounds in the chamber" rules for perimeter security and patrols.6

It would be an understatement to say that confusion exists among commanders and judge advocates as to what constitutes a reasonable use of deadly force by U.S. forces and when that force is authorized.7 It is no wonder that commanders are left with insufficient legal guidance and ad hoc methods for training their troops on when and how to use deadly force. The United States military forces, whose mission was once described as "to kill people and break things" has a 300-page regulation on the issuance of I.D. cards,8 but lacks any specific guidance on the use of deadly force for its soldiers, sailors, airmen and marines on world-wide deployments.9 After having examined some sources upon which to base that guidance, this article concludes with a proposed appendix to the SROEs on the use of deadly force as the benchmark mechanism with which to provide that specific guidance. In light of the recent terrorist activity in this country, the need for clear and robust guidance is essential.

International law, as well as the common law of the United States, provides ample support for the establishment of vigorous guidelines concerning the use of deadly force. As discussed later in this article, every relevant legal system in the free world makes aggression a crime and protects the right of self-defense. This right is often referred to as an "inherent right" or a "divine right." Our own federal common law, as well as many latter-day constitutional law cases concerning this right, strongly defines and permits a rigorous force protection stance. Judge advocates and commanders crafting rules of engagement have ignored this rich source of law favorable to a vigorous defensive posture.

Incorporation of federal constitutional law and common law into the development of enhanced force protection and self-defense rules will only enhance our forces' ability to accomplish their missions. From humanitarian assistance to force-on-force conflicts, if potential opponents believe our forces vulnerable, the mission is compromised. Recurrent, hands-on tactical exercises that provide service members an opportunity to viscerally experience the psychological and physiological dynamics of tactical encounters recognized by the law is a critical requirement for effective training. …

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