Interpreting recent changes to the standing rules for the use of force

Army Lawyer, Nov, 2007 by Daniel J. Sennott

III. Recent Changes to SRUF

A. Beneficial Changes

The form and layout of the new SRUF is drastically different from, and in many ways an improvement over, previous versions. The current SRUF serves as one comprehensive source that consolidates the previous versions of RUF into several core principles that are applicable to every type of domestic operation. This approach allows for mission-specific RUF to be developed from these basic principles, thereby reducing the need for commanders to consult several different sources for guidance.

1. How Imminent Is "Imminent"?

The definition of the term "imminent" under the new SRUF is an example of the improvements over previous versions. The old RUF merely stated, "[t]he determination of whether a particular threat or danger is 'imminent' is based on an assessment of all the circumstances known to DoD personnel at the time. 'Imminent' does not necessarily mean 'immediate' or 'instantaneous.'" (35) However, if a Judge Advocate were searching for additional guidance, R.UF for counter drug operations contained not only that definition, but the following clarification: "Thus, an individual could pose an imminent danger even if he or she is not at that very moment pointing a weapon at DOD personnel or someone within the immediate vicinity of the DOD personnel." (36) In addition, the counter drug operation RUF provided specific examples of when a threat may be imminent. (37) By consolidating various RUF into one complete document, the new SRUF states:

   Imminent Threat. The determination of whether the danger of death
   or serious bodily harm is imminent will be based on an assessment
   of all facts and circumstances known to DOD forces at the time and
   may be made at any level. Imminent does not necessarily mean
   immediate or instantaneous. Individuals with the capability to
   inflict death or serious bodily harm and who demonstrate intent to
   do so may be considered an imminent threat. (38)

In addition to attempting to clarify the meaning of "imminent," the new definition also reminds Soldiers that they are responsible for making a subjective determination based on the facts available at that time. (39) While the language still leaves some room for ambiguity regarding demonstrated intent, the new language is a vast improvement over previous versions and succeeds in providing guidance in one source.

2. Escalation of Force

The current SRUF also provides a definitive statement on the escalation of force (EOF). (40) Soldiers have an inherent right to use force in self-defense. (41) However, prior to employing force, they are encouraged to defuse the situation, thereby avoiding the necessity to use force. (42) Escalation of force is a concern in any operation involving civilians, whether in the United States or in a foreign country. For example, commanders in Iraq have greatly emphasized de-escalation, particularly given the relatively large number of EOF incidents. (43) Lieutenant General (LTG) Peter Chiarelli, former Multi-National Corps--Iraq commander, recently instituted additional training requirements and revamped the ROE card to provide additional guidance on EOF issues. (44) The challenge with such an emphasis, however, is ensuring a proper balance between the need to use the minimum amount of force, while not appearing to restrict the individual Soldier's right to self-defense. Lieutenant General Chiarelli faced skepticism with his introduction of the EOF measures, to which he responded: '"I'm not trying to change the ROE ... I'm trying to prepare soldiers better. Give them more tools and data. It's a force protection issue." (45)