It is Not Self-Defense: Direct Participation in Hostilities Authority at the Tactical Level

The Military Law Review, Vol. 224, No. 1, 2016

47 Pages Posted: 13 Jun 2017

See all articles by Randall Bagwell

Randall Bagwell

The Judge Advocate General's Legal Center and School

Molly Kovite

Government of the United States of America - Army

Date Written: July 15, 2016

Abstract

The current use of force structure in the U.S. military relies on two authorities for using force in combat - combatant status (referred to in the U.S. Standing Rules of Engagement as declared hostile force) or self-defense. The current Standing Rules of Engagement do not discuss the use of force against civilians who take a Direct Part in Hostilities (DPH). When only self-defense or declared hostile force authority are available, U.S. forces have defaulted to using self-defense as their main use of force authority in many tactical engagement situations. This result is untenable. It undermines counterinsurgency campaigns and imposes restrictions on soldiers that are not required by the Law of Armed Conflict (also known as International Humanitarian Law). It also leaves commanders and soldiers little option but to distort or ignore the rules of engagement and self-defense requirements in order to accomplish their mission. This paper explores U.S. use of force doctrine contained in the Standing Rules of Engagement. It then discussed how direct participation in hostilities authority is a more accurate approach and is actually the use of force authority commanders and soldiers should be using. Finally, it advocates for changes in U.S. policy, rules of engagement and training to incorporate direct participation in hostilities authority for U.S. forces.

Keywords: Self-Defense, Unit Self-Defense, Individual Self-Defense, Direct Participation in Hostilities, DPH

Suggested Citation

Bagwell, Randall and Kovite, Molly, It is Not Self-Defense: Direct Participation in Hostilities Authority at the Tactical Level (July 15, 2016). The Military Law Review, Vol. 224, No. 1, 2016. Available at SSRN: https://ssrn.com/abstract=2984267

Randall Bagwell (Contact Author)

The Judge Advocate General's Legal Center and School ( email )

600 Massie Road
Charlottesville, VA 22903-1781
United States

Molly Kovite

Government of the United States of America - Army ( email )

United States Military Academy
West Point, NY 10996
United States

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