ROE … also a matter of doctrine

Army Lawyer, June, 2002 by Howard H. Hoege, III

Introduction

Judge advocates (JAs) have developed the U.S. Army's concept of operational law and rules of engagement (ROE) at an exponential rate over the past decade. (1) Several years ago, commentators and the Judge Advocate General's Corps (JAGC) correctly decided to emphasize training and doctrinal issues as JAs developed strategies to mitigate the foreseeable challenges that ROE would present. (2) Recent articles debate the effect of the current operational environment on the current approach to ROE training and development from the perspective of the challenges that ROE present to commanders and JAs. (3) The debate takes the form of first establishing whether these challenges generally rise to the level of actual "problems" in the current approach to ROE, and then recommending changes in or affirming a universal approach to ROE based on the existence or non-existence of "problems."

This method of evaluating the JAGC approach to ROE may not provide sufficient assistance to the JA struggling with a particular ROE challenge in a particular unit. Because ROE are mission-specific, because ROE are the tool of the individual commander, and because several layers of commanders may promulgate ROE in a given operation, (4) a "problem" in the development or training of ROE in one context may or may not translate into another context. Lessons learned from one operation surely inform and assist the implementation of ROE in another operation. Standing alone, however, lessons learned can advance efforts to develop and refine the JA's role in training and developing ROE only so far.

While the collective challenges encountered by JAs may not provide the unifying perspective needed to formulate strategies to continue the development of the JA's role in training and developing ROE, U.S. Army doctrine could provide that perspective. The term "doctrine," as a legal concept, of course has a particular meaning: "A principle, [especially] a legal principle, that is widely adhered to." (5) Courts are essentially free from one jurisdiction to the next to consider the merits of a particular doctrine before determining whether to adopt that doctrine as law. Furthermore, legal doctrine is a fairly limited concept in the sense that it captures a single principle to be applied to a very specific legal issue.

The term "doctrine," as a military concept, has a much more expansive meaning. Consider the following discussion of doctrine contained in Field Manual (FM) 3-0:

   Doctrine touches all aspects of the Army. It facilitates communication
   among soldiers no matter where they serve, contributes to a shared
   professional culture, and serves as the basis for curricula in the Army
   Education System. Army doctrine provides a common language and a common
   understanding of how Army forces conduct operations. It is rooted in
   time-tested principles but is forward-looking and adaptable to changing
   technologies, threats, and missions. Army doctrine is detailed enough to
   guide operations, yet flexible enough to allow commanders to exercise
   initiative when dealing with specific tactical and operational situations.
   To be useful, doctrine must be well known and commonly understood. (6)

This recent description of the function of doctrine in the military builds upon similarly accepted conceptions of doctrine held by past commentators:

   Doctrine is an approved, shared idea about the conduct of warfare that
   undergirds an army's planning, organization, training, leadership style,
   tactics, weapons, and equipment. These activities in preparation for future
   war lie at the heart of the military profession in modern societies. When
   well-conceived and clearly articulated, doctrine can instill confidence
   throughout an army. An army's doctrine, therefore, can have the most
   profound effect on its performance in war. (7)

As these writings indicate, adherence to Army doctrine affects everything from confidence and trust among soldiers to efficacy of training and success on the battlefield. Conversely, failure to incorporate doctrine in any venture can have serious negative implications for the success of that venture. The JAGC's emphasis on ROE training and development already reflects some doctrinal language. (8) Only recently, U.S. Army operational and leadership doctrine underwent revision. (9) To continue the JAGC's success in training and developing ROE, JAs should incorporate as much of the new doctrine in their approach to ROE training and development as possible. (10)

A recommitment to U.S. Army operational and leadership doctrine in the approach to ROE training and development offers the greatest potential for continued development of the JA's role in the training and development of ROE. A recommitment to doctrine suggests making slight adjustments to the JA's conception of and approach to ROE training and development. Clearly, the proposition that the individual soldier's repetitive performance of ROE-guided tasks is the best way to ensure U.S. Army adherence to ROE is correct. (11) The JAGC should take two steps to further strengthen the training of the individual soldier on ROE. First, the JAGC has not fully capitalized on the vital role of the noncommissioned officer (NCO) in conducting individual training. Second, the JAGC has not adequately accounted for the challenges that NCOs face in training individual soldiers as indicated by the relative lack of off-the-shelf training resources available to these junior leaders.