CYIL 2010

MARTIN FAIX

CYIL 1 ȍ2010Ȏ

2.2 Legal, military, and policy purposes of ROE There are several factors that have an impact on shaping the content of ROE: international law (mainly the law of armed conflict), but also the domestic law of the countries sending the troops, as well as operational and political factors. 16 In general, they help to synchronize the political-diplomatic and military components of a strategy by allowing political commanders to better understand, forecast, and tailor the actions of a force. Looking briefly at the political purpose of ROE, here the intent is simply to ensure the coherence of military actions taken in the course of an operation and to comply with the political parameters of the sending nation or international organization. The military purpose may be easily derived from the ROE definition stated above: ROE stipulate in precise terms the limits on the use of the force which may be used in order to achieve the objectives of the operation. The commander thus has clear guidance, allowing him to tailor the actions of forces in a manner reflecting the operation’s parameters, in a manner that therefore ensures that these actions are lawful. As to the legal purpose it is particularly important to note that ROE are not a separate source of legal obligations. Hence they cannot serve to justify unlawful conduct, nor do they expand (and cannot expand) the applicable international law. ROE in fact clarify, emphasize and restrict the relevant legal norms – the commander is given operational guidance on how to accomplish the mission within the constraints of international law. Thus, it can be argued that from the viewpoint of legal purpose, ROE safeguard compliance with international law. To provide examples: the ROE may reproduce the interdiction of attacks on certain targets (direct attacks against civilians, etc.) as stipulated in international humanitarian law norms, or restrict the competence to order attacks on targets permissible under IHL; ROE may also limit or prohibit (even in cases where this would be proper and permissible under IHL) the use of certain weapons and military tactics; they may also determine the level in the chain of command from which authorization must be sought for the use of certain weapons. Such restrictions which go beyond what is required by the applicable international (and possibly also domestic) norms may be based on extralegal purposes, reflecting, for example, the cultural or other specificities of the operating area. Furthermore, current developments in military missions show that there may be further constraints by specific grants of authority under UN or military agreements. Hence it falls to the ROE to reflect such constraints enshrined in the specific legal frameworks of a particular operation, as stated above. The legal purpose of ROE is not only to ensure compliance with international law but also to ensure compliance with the domestic law of the troop contributing country. 17 It goes without saying that domestic constitutional and other legal the Gabonese Republic on the status of the European Union-led forces in the Gabonese Republic, OJ L 187, 8. 7. 2006, pp. 43-48, especially Article 15. 16 This is not an exclusive list, so further (extralegal) factors could certainly be added. 17 This question becomes more complicated in cases where multinational troops of international

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