Gulf War Air Power Survey
Wartime Rules of Engagement
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Wartime Rules of Engagement At the same time operations personnel and judge advocates were working issues regarding transitional rules, they began drafting wartime rules of engagement. This was complicated by the fact that the Director of Air Defense, the person principally responsible for promulgating the rules, was not aware of the planning activities of the Special Planning Cell, or “Black Hole.”894 In contrast, CENTAF's principal operations lawyer had been busy in the Black Hole advising planners on legal issues associated with the offensive air campaign since August 1990. Upon direction of Brig. Gen. Buster Glosson and with the assistance of operational planners from the Special Planning Cell and CENTCOM, CENTAF lawyers drafted the first wartime rules of engagement in the Black Hole, in August 1990, and incorporated them into the Strategic Bombing Plan. These first wartime rules were drafted to cover the possibility that strategic bombing would begin before a more thorough version of rules could be staffed through the other components and CENTCOM. In September 1990, the Director of Air Defenses and the Judge Advocate's Office began a more structured and formal review of wartime rules. After reviewing the combat rules contained in the USCENTCOM OPLAN 1021, CENTAF lawyers suggested reducing wartime rules to their most basic precepts, only covering those contingencies that friendly operators might face. Their goal was to make the rules more “user friendly.” This suggestion was driven, in part, by a concern that the rules be universally understandable by U.S. aviators and air defense personnel and amenable to Coalition partners with a limited command of English. The revised rules of engagement were organized using an “onion peel” approach, establishing separate sections to cover rules of engagement for specialized missions such as “Air to Air Engagements” or “Ground-Based Air Defense Systems.” This revision permitted operators to shred out the rules of engagement pertinent to their mission for quick, easy reference. It also solved certain foreign releasability problems, as relevant sections could stand alone and be distributed to, or withheld from, Coalition partners on a need to know basis. With concurrence of the Director of Operations, the Judge Advocate at CENTAF drafted a new version of wartime rules of engagement that eliminated references, deleted definitions not pertinent to air or air defense operations, and reduced the rules to basics. The initial draft contained less than twelve paragraphs. Four major areas discussed were beyond visual range rules, ground-based air defense rules, long-range deployment rules, and command and control wartime identification procedures. As a way of illustrating how the rules of engagement were drafted, the final approved version of the basic Joint Force Air Component Commander (JFACC), COMUSCENTAF, the Wartime Rules of Engagement read as follows: Upon the direction of USCINCCENT, the following rules of engagement apply: [DELETED] All reasonable measures must be taken to spare, as far as possible, buildings (such as mosques) dedicated to religion, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not used for military purposes. [DELETED] Targeting The essence of targeting is to exert every reasonable effort to pinpoint bombs on a military target. Absent specific target restrictions established under international law or imposed by commanders through mechanisms, such as the CENTCOM Joint No-Fire Target List, there are essentially two legal principles considered in targeting decisionsmilitary necessity and proportionality.895 Strategic Targets General Glosson gave the Special Planning Cell's legal advisor the original strategic target list for review as soon as it arrived in theater in mid-August 1990. Many of the 84 targets on the original list were familiar to the legal advisor because they had been included in target sets compiled during Internal Look 90. The strategic target list was expanded to 238 targets over the next several months. The legal advisor worked with intelligence and operations personnel to ensure that the methods of engaging targets met the legal criteria for a military target and proportionality. In most instances the legal issue raised by a given target was how to design a means of attack that met the criteria of proportionality. Unquestionably, the strategic targets that posed the most challenging legal problems were Iraq's Nuclear/Biological/Chemical (NBC) assets. The intelligence and scientific community provided the Planning Cell with detailed information that helped in the development of attack methodologies meeting the requirements of international law. [DELETED] For example, the potential collateral damage caused by venting radioactive fallout into the atmosphere precluded conventional bombing attacks on the nuclear reactor where the fissile material was probably stored. After extensive discussions with engineers and studies of the building housing the reactor, an acceptable plan of attack that met collateral damage concerns was developed. Precision-guided munitions were employed against key points of the structure causing the building to collapse and precluding Iraqi access to or employment of nuclear material. Similar approaches were taken to develop attack sequences for the engagement of biological and chemical research and storage facilities. Planners demonstrated an appreciation of the legal issues involved in reviewing targets and weapon system and munitions selections to use against a target. Attacks on “dual use” facilities such as electric power generation stations, petroleum manufacturing and storage, communications, and transportation nodes were designed to temporarily disable the facility to avoid collateral damage concerns. POL storage tanks were destroyed rather than the cracking towers. In most cases electronic grids were targeted rather than electric generators. In each case, a lawyer reviewed the master attack plan and rarely had to voice legal concerns that required further review of the method and means of attack. Within CENTAF there was complete agreement between operators and lawyers on even the two most contentious targetsSaddam Hussein's statue and the Al Firdos bunker. The Hussein statue was one of several “psychological targets.” When this target was evaluated prior to the war, it was deemed a legitimate military objective because by its nature, location, and purpose, it contributed to the Iraqi war-fighting and war-sustaining capability. Its destruction would reduce psychological support for Saddam's regime and possibly sap the Iraqis' will to resist. As the air campaign progressed, characterization of the statue as a legitimate military target changed. CENTAF lawyers argued that the statue remained a lawful target and that any decision to deploy a weapon system, put an aircrew at risk, and expend munitions to destroy it was a commander's decision. Lawyers at CENTCOM and in Tactical Air Control did not share this view. Ultimately, the Secretary of Defense decided against targeting Saddam's statue because at that stage of the conflict such an attack would be gratuitous. The Al Firdos bunker was one of the command and control bunkers listed on the final approved strategic target list. Because these command and control facilities were located in civilian sections of Baghdad and were not operational, planners in the Black Hole did not intend to target them. However, after inputs from the intelligence community indicated that the bunker at Al Firdos was operational, it was selected as a target. The review of imagery indicated the bunker was fenced off from adjoining public buildings, and civilian bomb shelters were located elsewhere in the vicinity. Based on the weapon system and munitions selected against the bunker, no legal problems were presented. Credible evidence supported the conclusion that Al Firdos was an operational command and control center and a legitimate military target. As an added precaution, the attack was scheduled before dawn to avoid potential collateral injury to civilians outside the bunker's perimeter. Targets in the Kuwaiti Theater of Operations From mid-August 1990 through the cessation of hostilities, the Joint Target Coordination Board (JTCB) met daily.896 For the first several months, target lists were built and updated by Army, U.S. Marines, MARCENT, and CENTAF representatives. (Only three people that participated on the boardtwo CENTAF targeteers and a CENTAF operations lawyerwere also involved in the initial planning of the Offensive Air Campaign in the Black Hole). When the air campaign shifted to targets in the Kuwaiti Theater of Operations (KTO), the JTCB became the mechanism to feed validated targets nominated by Army, Navy, Marine Corps, and Coalition representatives into the Black Hole's KTO Cell.897 Dependent on USCINCCENT's announced priorities and the allocation of sorties by the Joint Forces Air Component Commander, the board consolidated validated target nominations submitted by the supported land and naval components into a single list in order of priority. To thwart potential criticism of the United States in its target selection within the KTO, the CENTAF Judge Advocate (with COMUSCENTAF approval) reviewed target nominations with representatives of the Kuwaiti Air Force and obtained concurrence on the nominated targets. Using a mosaic of overhead imagery of the KTO, the lawyer and the Kuwaitis would review the daily target lists. They would annotate the target lists with information that could be used in selecting the right mission package that would limit collateral damage. For example, when an Iraqi unit in Kuwait City was to be attacked, warnings were provided to the aircrew assigned the mission to avoid damage to a nearby oil-gathering center that serviced the Kuwait City desalinization plant. After the list was created and approved at CENTCOM, it was returned to the planners in the KTO Cell for inclusion in the Air Tasking Order, subject to allocation by the Joint Force Air Component Commander. Judge advocates also resolved target selection issues raised by the combat operations section of the control center. For instance, when operators sought to strike Matherra airfield in Baghdad, known to be the location of the Iraqi Air Force Headquarters, lawyers were asked if it was permissible to strike commercial aircraft found on the field. Based on intelligence reports, judge advocates determined that Iraq had clearly used its civilian air fleet for military purposes, such as the movement of troops and equipment in and out of Kuwait City. Therefore, any protection which would otherwise be afforded civilian aircraft had been lost. [DELETED]898 [DELETED]899 Supporting Deployed Forces Use of Civilians in Combatant Roles Attorneys in the Gulf were confronted with situations requiring knowledge of the law of armed conflict. This was especially true regarding the status of civilians and service noncombatants involved in the Gulf War. Judge advocates helped interpret the sections of the 1949 Geneva Conventions that recognized a role some civilians could play in armed conflict without necessarily losing the protection accorded them as civilians. For instance, civilian members of aircrews and war correspondents were considered to be “noncombatants” for the purposes of the Convention Relative to the Protection of Prisoners of War so long as they did not directly take part in hostilities.900 However, upon capture they would be considered as combatants and therefore entitled to be protected as prisoners of war. This status was vital to members of the news media who had been authorized, by the Secretary of Defense, to accompany aircrews on B-52, tanker, and AWACS missions in-theater.901 The crew of the Joint Stars aircraft included civilian contractor personnel largely responsible for on-board analysis of technical information acquired by mission-related systems.902 Although civilian members of military aircrews were specifically protected under the convention, some argued that opposing forces would construe their participation as a direct support of the war, therefore removing any protection to which they may have been entitled. Nor would these civilians be considered as “lawful combatants,” because they did not satisfy the necessary requirements for such status (i.e., authorized by a competent authority to engage directly in armed conflict, commanded by a person responsible for his subordinates, wearing a uniform or having a fixed, distinctive sign, recognizable at a distance, and carrying any arms openly). For civilians, the consequences of losing the protection of combatant as well as noncombatant status are serious: if captured they can be tried as spies under the criminal law and incarcerated or executed, as the offense permits. For this reason, civilian personnel participating in support of the Gulf War received careful legal scrutiny as well as legal briefings on the possible consequences of their participation. Medical and Religious Personnel Medical personnel and chaplains are also accorded noncombatant status. The 1949 Geneva Conventions recognized two categories of medical personnel: those “exclusively engaged” in medical duties (including administration of medical units)903 and those considered part-time medical personnel.904 Those considered exclusively engaged in medical duties are to be accorded respect and protection at all times. Upon capture, they are not to be considered as prisoners of war, and are to be retained only until their services are no longer needed.905 Those that are considered part-time medical personnel are also to be respected and protected if they are performing medical duties at the time they fall into enemy hands.906 However, they are considered prisoners of war and are retained by the enemy until the end of active hostilities. By Air Force policy, permanent medical personnel are not assigned duties incompatible with their medical service. Despite this policy, questions arose regarding the protected status of medical personnel. In response to these questions, the CENTAF Judge Advocate promulgated opinions delineating the nonmedical duties of auxiliary medical personnel and describing permissible protection for aircrew members in the event of capture.907 Requesting agencies were informed that it was not permissible to “sanitize” their flight suits, remove all identification, such as rank, name tags, and patches) to be certain they would be accorded protected status as noncombatants. However, it was permissible to arm themselves if extreme caution were exercised.908 [DELETED]909 [DELETED]910 International Law Addressing issues of international law between U.S. and host nations was difficult because of the limited presence of U.S. forces in the region prior to Operation Desert Shield. The only official relationship took place through military assistance programs and annual or biannual exercises. Status of forces and other international law issues had only been raised on an ad hoc basis.911 At the outset of Operation Desert Shield, the United States had status of forces agreements in effect with Bahrain, Egypt, Saudi Arabia, and Oman, all of which were primarily designed to cover security assistance personnel. Subsequently, Saudi Arabia extended the same immunity covering the diplomatic mission to all deploying forces. [DELETED]912 Without a status of forces agreement in Qatar prior to Operation Desert Shield, judge advocate personnel were rebuffed during negotiations more than once by the ambassador and his staff when they tried to determine the status of negotiations.913 In the absence of any formal agreement, attorneys, security police, and the Office of Special Investigations coordinated with the Qatar Ministry of Information and Police and established informal procedures covering the exercise of criminal jurisdiction and other status of forces agreement issues. Pursuant to these informal procedures, several U.S. military personnel who committed minor criminal offenses were turned over to U.S. forces for disciplinary action. Canada and France also adopted such informal policies and procedures. The deployment of U.S. civilian contractors to the Gulf region presented the judge advocates a unique problem. Under the terms of the U.S. Saudi Exchange of Notes of 12 October and 3 November 1990,914 civilian and military personnel were to be accorded status equivalent to the technical and administrative staff of the U.S. Embassy. What wasn't clear was whether civilian contractor employees were considered part of the “United States Forces” as used in the agreement. The Joint Chiefs of Staff legal advisor and the Service's Judge Advocates General's offices all agreed to interpret the agreement to include contractor employees as part of the U.S. Forces in the absence of any negotiated status for such personnel. However, because of the unilateral nature of this interpretation, U.S. contractors could have been placed in a rather precarious position had the Saudi Arabian Government ever challenged their presence in Saudi Arabia. In addition to the lack of status of forces agreement interpretations, operations were hampered by the lack of agreements to cover such contingencies as air refueling between host nations and third-party countries. U.S. law itself occasionally impeded actions because it was not flexible enough to respond immediately to the exigencies of the war. For example, the Arms Export Control Act prohibits U.S. personnel from performing duties of a combatant nature, including “training and advising” foreign forces engaged in combat activities outside the United States.915 As written, the Act seemed to preclude U.S. technical teams from continuing to assist Saudi forces because they were engaged in combat, even though they were allies. Without time to amend the law, key Congressmen resolved the issue at a briefing, agreeing to interpret the law in a broader sense. Legal advisors provided critical advice to commanders regarding the legal limits of their authority. For example, commanders were not generally aware that their authority to loan or transfer property to host governments was practically nonexistent. At Incirlik Air Base, Turkey, the host nation commander requested the U.S. loan or transfer essential equipment to his forces in support of the war effort.916 Another time, the Turkish commander requested chemical gear for Turkish personnel guarding the base. In some cases, the only viable fix proved to be a demand for the return of the equipment provided, to the embarrassment of the U.S. commander and the frustration of the host nation commander. Claims The Department of Defense, through DOD Directive 5515.8, assigned the Air Force responsibility, as Executive Agent, to administer claims for the entire theater (with the exception of Bahrain, where this responsibility fell upon the Navy).917 The Air Force, in turn, delegated this authority to the CENTAF staff judge advocate (for CENTCOM) and the staff judge advocate of each air base, station, and fixed installation in the theater. However, during Operation Desert Shield, claims authority was redelegated to military attorneys in the other military Services.918 The senior military attorney at each installation became the staff judge advocate with delegated claims authority. Ultimately, judge advocates from other military Services were appointed as Foreign Claims Commissions to process and approve claims. Egypt and Oman waived intergovernmental claims with the United States. However, these agreements affected only a small portion of the military members deployed to the theater. At the commencement of Desert Shield, for example, the Air Force paid claims to Saudi Arabia and the United Arab Emirates for damages to government property. Subsequently, at the direction of the Joint Chiefs of Staff, the Air Force accepted claims for damaged Saudi military property but declined to pay pending negotiation of a mutual waiver of claims. Similarly, the Air Force did not pay claims for death or injury to Saudi military personnel caused by its personnel acting in the scope of their official duties. During the Gulf War, payment of claims to individual claimants was also complicated by cultural and logistical differences. Because of this, the Air Force procedure for progovernment claims processing became largely unusable.919 For example, claimants in the Middle East were accustomed to asserting claims verbally and objected to signing any claim document, particularly a Standard Form 95.920 In cases where potential claimants were illiterate, however, it was necessary to accept verbal requests for compensation as long as the requests were accompanied by sufficient proof of injury or damage. Military Justice Overall, the military justice system functioned successfully during the Gulf War. However, there was an early, fundamental problem: the military justice system depends on the existence of properly created organizations (and officers to command them). Early in Operation Desert Shield those organizations did not exist.921 Air Force personnel deployed primarily by Unit Type Code, not by unit, and in the theater of operations, there were no CENTAF or CENTCOM units to which Air Force personnel could be attached. As a result, deploying major command commanders had no units to command when they arrived in the theater. Without a definitive USAF organizational structure, Air Force officers were initially without authority to administer military justice, and confusion arose as to who was in command for administrative and disciplinary purposes, especially where active, Guard, and Reserve personnel were deployed. Under the terms of Air Force Regulation 26-2, CENTAF was not authorized to create units (only HQ USAF had that authority). To resolve the organizational problems, the participating major commands deployed provisional units, attached deployed personnel to them, and appointed commanders of the units. Strategic Air Command, Military Airlift Command, and U.S. Air Force Europe activated provisional units; Tactical Air Command initially set up “deployed” units [e.g., 1 TFW (Deployed)], then converted to provisional units.922 A comprehensive organizational structure was not in place until about four months into Operation Desert Shield. Ultimately, CENTAF/CC recognized Air Force hosts for each installation (from the participating major commands), and designated the senior commander of the host unit as a special court-martial convening authority.923 CENTAF/CC was the only such Air Force general authority in the theater. The Air Force reconsidered its position on the imposition of nonjudicial punishment (Article 15, UCMJ) on Air Force members of a joint command, when the joint commander represented a different Service.924 Tension existed between the competing interests of a joint commander needing the disciplinary authority of command and a Service's interest in the consistency applying the code of military justice on its members. The Air Force regulation on nonjudicial punishment (AFR 111-9) defines “commander” for Article 15 purposes as being an Air Force officer only. In at least one case, Article 15 action was delayed to find an appropriate Air Force officer to impose the Article 15, while the joint commander (Army, Joint Communication Support Element) was available and willing to take action. Ultimately, the rules of 337 Article 15s were imposed in the theater during Operations Desert Shield/Desert Storm, all by Air Force Commanders. The Air Force did designate a joint commander to act on appeals from nonjudicial punishment imposed by CENTAF/CC.925 Military justice problems did not end once nonjudicial punishment was imposed: punishment implementation problems were varied and pervasive. Forfeitures of pay often were not deducted in a timely manner,926 obtaining pay statements while deployed was problematical, and installation-level administrative teams and CENTAF Directorate of Personnel staff were unable to enter new dates of rank into the personnel system for members reduced in rank.927 Additionally, personnel information sheets were unavailable for processing military justice actions. In each case, a message had to be sent to the member's home station requesting that the data be sent to CENTAF.928 Another impediment to the administration of theater military justice was the unavailability of drug and alcohol deterrence and detection measures [blood alcohol (BAT) and urinalysis testing].929 This could have led to a host nation demanding surrender of an Air Force member for testing, a potentially serious problem, particularly in Saudi Arabia where alcohol consumption is a serious crime. Directory: sgp -> library sgp -> Sgp country Programme Strategy for op6 sgp -> Itu-d study groups sgp -> Internship with Congressional Campaign Exploratory Committee — Only 4 spots left! sgp -> Using Well Logs in the Petroleum Industry sgp -> Telecommunication development bureau itu-d study groups Download 5.55 Mb. Share with your friends:
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