What do special instructions bring to the rules of engagement? Chaos or clarity

Air Force Law Review, Spring, 2004 by Paul E. Jeter

To illustrate these concepts in an air operations scenario, assume the following situation. A conflict has occurred and military force was employed by U.S. national leadership. Air campaign ROE has been developed. The Joint Chiefs of Staff (JCS) published Operation Orders which proscribed the SROE and ROE limitations. This authoritative document has been disseminated to the participating U.S. forces, reinforcing the inherent right to self-defense. As the military operation continued the JFACC, through the detailed SPINS, has promulgated further ROE restrictions, including restrictions on self-defense which maybe in the form of operational constraints or tactical procedures. Assume further that the JFACC has included a provision in the SPINS operation section which states "do not put yourself in harms way and if you get fired on do not go back to engage the enemy." Now, the situation arises that an Army aviator aware of SPINS promulgated from the JAOC is mission tasked on the daily ATO. In contrast to the SPINS on self-defense, his Army Aviation Brigade Commander, also promulgates ROE for his brigade which emphasize the fundamental US policy on self-defense. (67) This clearly appears to be a potential conflict between ROE and SPINS. What does the aviator do?

There is no ROE-SPINS disconnect in this case. First, the aviator is a commander in the sense of the SROE. Second, the JFACC of the airspace is also a commander in the sense of the SROE. Third, the JFACC has the authority which is derived from the JFC to further restrict ROE through the SPINS. Although the aviator is assigned to the Army Commander, when he operates within the airspace of the JFACC which is scheduled on the ATO he takes on the status of a soldier under a senior commander. (68) Based on the JFACC's command authority there is a superior-subordinate relationship between him and the aviator. Finally, in the unclassified portion of the glossary in the SROE the parameters to invoke use of force in individual self-defense are established.

   Individual self-defense. The individual's inherent right of
   self-defense is an element of unit self-defense. It is critical
   that individuals are aware of and train to the principle that
   they have the authority to use all available means and to take all
   appropriate actions to defend themselves and other U.S.
   personnel in their vicinity. In the implementation of these
   SROE and other ROE, commanders have the obligation to
   ensure that the individuals within that commander's unit
   understand when and how they may use force in self-defense.
   When individuals assigned to a unit respond to a hostile act or
   demonstrated hostile intent in the exercise of self-defense their
   use of force must remain consistent with lawful orders of their
   superiors, the rules contained in this document, and other
   applicable rules of engagement promulgated for the mission or
   AOR. (69)

Therefore, the JFACC's superior orders in the form of the SPINS provide details for the aviator on how ROE will be applied in self-defense as he executes his mission. This includes restrictions on the inherent right of self-defense based on campaign strategy, operational constraints or tactical procedures. In addition, the ROE sections of the SPINS are as binding on the aviator as ROE from an OPORD. (70) So what is the aviator to do if confronted with engaging the enemy outside of his ATO tasking? The aviator should defer to the SPINS which have limited his use of force in self-defense. In order for the aviator to use force appropriately in a given situation triggering self-defense, he must comply with the SPINS. Accordingly, when given the situation to use force in self-defense and the JFACC has further restricted the ROE through the SPINS, the tactical operator has to comply with the limitations. There is no room for broadening the restrictions without approval by the appropriate authority such as the JFACC. (71)