Should the Best Offense Ever Be a Good Defense? The Public Authority to Use Force in Military Operations: Recalibrating the Use of Force Rules in the Standing Rules of Engagement

Abstract

The Chairman of the Joint Chiefs of Staff's Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF) for U.S. Forces provides strategic guidance to the armed forces on the authority to use force during all military operations. The standing self-defense rules in the SROE for national, unit, and individual self-defense form the core of these use-of-force authorities. The SROE self-defense rules are incorrectly built on a unitary jus ad bellum framework, legally inapplicable below the level of national self-defense. Coupled with the pressures of sustained counter-insurgency operations, this misalignment of individual and unit self-defense authorities has led to a conflation of self-defense principles and offensive targeting authorities under the Law of Armed Conflict. In order to reverse this trend and realign individual and unit self-defense with governing legal frameworks, this Article considers self-defense through the lens of the public authority justification to better reflect the status of servicemembers as state actors whose actions are subject to the domestic and international legal obligations of the state.

Keywords: Rules of Engagement, Law of Armed Conflict, Human Rights Law, Self-Defense