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FORCE POLICY The Use of Force and EU-led Military Operations By Lt Col Neville Galea Roberts (MT), formerly EUMS Operations Directorate. Lt Col Neville Galea Robers (MT), formerly EUMS Operations Directorate. The term ‘use of force’ has a number of different meanings. It refers to the rules under international law which permit States to resort to the use of force under certain conditions. It also refers to the use of force by individual personnel and units of the armed forces during operations. The link between ‘use of force’ as a conditional concession to States, and ‘use of force’ on operations, is that the former sets important elements of the legal basis and framework, within which the boundaries of operational use of force must be kept. ‘Use of force’ is also one distinct area of Operational Law, which, as a result of the above relationship, is heavily influenced by the legal basis and mandate. With the one exception of self-defence, for which a universal and inherent right exists to take action in an expeditious way, deliberately planned use of force by the military normally follows a series of principled political decisions that allocate and authorise certain military capabilities to deliver force in a legal manner across agreed timelines and spatial confines. Use of Force in Self-defence The use of force in self-defence is a right which is rooted in natural law 1 and the development of national law, 1 Natural law or lex naturalis is a code of rules prescribed by nature. One such natural right, or ius naturale, is the right to self-defence. The right and notion of self-defence are also encapsulated and promoted in contrasting works of political philosophy. E.g. Thomas Hobbes (Leviathan, 1651) and John Locke (An Essay Concerning the True Original, Extent and End of Civil Government, 1689) both profess the natural right to self-defence, albeit in a different way. 16 with each State providing its citizens, including its service personnel, precise legal limits to their possibility to protect themselves, and in some cases, other designated persons and property. Since the EU has no single, agreed notion or legal definition of self-defence, any EU concept on the use of force by the military must be able to successfully accommodate and reflect the nuances introduced by the legislation of 27 Member States, whilst ensuring that adequate and homogenous selfdefence is deliverable on operations. This is an important consideration when contemplating and planning Force Protection, and an issue that Force Commanders and Component Commanders operating in a multinational configuration need to be aware of, and to tackle. In truth, the challenge of reflecting national law in such matters is somewhat offset by two elements. Firstly, the fact that, in the context of the military, when a situation so requires, weapons are routinely available for the purpose of legitimate self-defence. 2 This should imply that Member States’ authorisations regarding the scope for individual self-defence of their armed forces personnel are not drastically different. 3 This aspect of ‘available capability’ is also important since self-defence is only achievable to the extent of the means available to provide it. A second source of mitigation to Member States’ differentiated legal understandings of selfdefence is the availability to the Commander of specific Rules of Engagement (ROE) that may cover the gap between various national legislations. Rules of Engagement For those States whose legal definition of self-defence is limited, the inclusion of specific ROE allow the Commander the possibility to activate a common level of individual and corporate self-defence. However, in general, the function of ROE is to extend the limits of use of force beyond the restrictive concept of selfdefence. Although ROE obviously reflect any potential needs for lethal or less-than-lethal force, it must be emphasised that ROE are also created for other, nonlethal actions, not involving the use of weapons, but 2 In contrast, self-defence in an EU civilian context is far more difficult to streamline, or approximate, since the ability to defend is largely conditioned by the legal possibilities to bear, store and use arms, something which varies considerably from one Member State to another. 3 In practice, however, some differences persist, especially concerning the question whether the different legislation of Member States allows for use of force to protect Mission-essential property, and foreign colleagues of the same Force and, if so, to what extent.
that could be perceived as hostile. So ROE are not synonymous solely with the use of kinetic and deadly force! Through various formal messages, and based on a compendium of options which is periodically reviewed, ROE are requested by an Operation Commander, authorised by the political strategic level and finally implemented in their authorised form by subordinate commanders at the operational and tactical levels. Political Control of the Use of Force Besides the broader parameters for the potential use of force which are preconfigured in the mandate, political approval of the force that may actually be used by the armed forces hinges on the ability of an appointed Commander to justify – often in advance – his or her concept for the application of force on the basis of the fundamental principles of necessity, proportionality and minimum force, as they relate to specific conditions expected in a particular operation. This element of the military convincing the politicians, and vice versa, if appropriately handled, provides healthy checks and balances. Ultimately, though, ‘force’ must be considered as one possible enabler of previously-defined national, multinational and/or organisational political interests, and the threat and use of such force must correspond to the respective public’s overall will on such matters. On a national level, use of force policy for the military must be consistent with a State’s obligations under international law, and is also conditioned by applicable national law. Such policy must continuously reflect any relevant shifts in the political posture of government, whilst taking into account any State consent to be bound by new provisions of international treaties, customary law interpretations, decisions of particular courts, and relevant eminent views. Within a multinational context, things obviously become somewhat more complicated in what becomes an aggregate of national positions. Multinational use of force policy and plans must therefore accommodate to a high degree the political wills and legal requirements of all participating States, whether in coalition, or acting as an organisation. The limits or bounds of permissible use of such force therefore require much crafting and often contain an element or two of otherwise unwanted compromise. Often, strong political strategic cohesion, national caveats, and a sense of shared urgency, can jointly resolve differences concerning the operational use of force. EU-led Military Operations With the widespread increase in foreign deployments in the post-Cold War 1990s, military forces were required to adapt and expand their thinking on use of force to allow for new, and often dynamic, situations. With the important territorial defence scenario sinking somewhat into the background, the increased use of the military in peace support operations and non- consistant with a State’s obligations 17 FORCE POLICY defence taskings, and the strategic tendency to think in terms of combined and joint frameworks, have invariably impacted use of force theories and concepts at all levels. In a sense, the EU did not really fully experience this shift since ESDP, and now CSDP, military operations, were born in this environment, and have consistently been geared towards collective security activities conducted outside EU territory in a new era. 4 The Council, which authorises the ROE, and the Political and Security Committee, which provides political guidance and strategic direction under the authority of the Council and the High Representative for the Common Foreign and Security Policy, are invested through the Treaty on European Union with the responsibility to oversee EU-led Military Operations. In conjunction with the European External Action Service, they play important roles in defining and directing to what extent force plays a part. Since the operationalisation of the ESDP in 2003, the Use of Force Concept has provided the structure for formulating operation-specific plans for use of force. The document, which was last revised during 2009, must accommodate and reflect the various permutations available to the EU, including operations having recourse to NATO common assets and capabilities, and those of EU Battlegroups. With force still needed as a top-drawer solution at times, it is understandable that the Use of Force Concept remains a key part of the overall doctrine guiding EU-led Military Operations. The EU has launched six military operations and one military training mission, and in addition, stood ready to assist in humanitarian operations in Libya should UN OCHA request assistance. Whether it is counter-piracy naval operations off Somalia, or activities in support of the UN in Sudan, Chad or elsewhere; throughout each operation, Legal Advisors (LEGADs) and military planners at the strategic, operational and tactical levels jointly assess the requirements for use of force with the intent of ensuring that each Commander has the necessary authorisations to fulfil his mission. Although every level tends to attract a particular focus, a similar pattern prevails with the cycle completed through the Operation Commander’s periodic briefings to, and guidance and questions from, the EU political level, in which such matters are always accorded their due prominence. Use of Force in Future EU-led Military Operations CSDP is still a fairly new policy. Although it is rather difficult to accurately predict the nature of the next CSDP operation, there is no escaping the fact that EU military forces and their use of force must, in all instances, remain true to the values of the Union and the legal requirements of Member States. n 4 The Post-post-Cold War period, which is generally recognised to have commenced on 11 September 2001.
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