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What role do rules of engagement and command responsibility play in determining unlawfulness?
Executive summary
Rules of engagement (ROE) set the on‑the‑ground limits for when and how force may be used but cannot legalize conduct that international law already forbids; ROE may be guidance or binding orders depending on jurisdiction [1] [2] [3]. Command responsibility is the established doctrine that can make superiors criminally liable for war crimes committed by subordinates when they knew or should have known and failed to prevent or punish [4] [5] [6].
1. What ROE are and why they matter in law and practice
Rules of engagement are “orders issued by a competent military authority that delineate the circumstances and limitations” for initiating or continuing force; they translate political and legal constraints into actionable instructions for units and can be either guidance or lawful command depending on the state and manual in use [2] [1]. The San Remo handbook and NATO manuals are cited international references used to develop ROE in many contexts, and practitioners rely on ROE to reconcile mission aims with protections for civilians and prisoners [7] [8] [1].
2. ROE’s legal status: limits but no licence to break the law
Multiple sources underscore a simple legal boundary: ROE may restrict lawful uses of force but they cannot authorize actions that are unlawful under international law; in other words, an ROE that ordered or permitted a war crime would be ineffective to legalize that conduct [3]. Encyclopedic and doctrinal descriptions emphasize that ROE indicate unacceptable measures and cannot replace fundamental obligations under the Geneva Conventions and other law of armed conflict instruments [1] [2].
3. How ROE affect determinations of unlawfulness on the ground
ROE shape whether a soldier’s action is authorized at the operational level and thus influence internal accountability, investigations, and command decisions; breaches of ROE may trigger disciplinary or criminal proceedings even where the underlying act might also violate international law [9] [3]. Available sources do not mention a single universal test for when an ROE breach equals an international crime—this remains context dependent and mediated by domestic and international legal review [1] [2].
4. Command responsibility: the doctrine that connects leadership to subordinate acts
Command responsibility (also called superior responsibility) is the international‑law doctrine holding commanders and other superiors accountable for crimes committed by those under their control when they knew or had reason to know and failed to take reasonable measures to prevent or punish those crimes [4] [5] [6]. The doctrine is rooted in Hague and later Geneva/tribunal jurisprudence and is incorporated into ICC and ad hoc tribunal practice [4] [6].
5. Knowledge, control and the practical standards for liability
A key contested element is the knowledge standard—courts and commentators debate whether liability requires actual knowledge, constructive knowledge (“should have known”), or some hybrid; scholarship and cases show the standard remains “unsettled” in application even though the doctrine’s core elements are stable [10] [11]. Sources document that tribunals have sometimes inferred knowledge from the scale and openness of crimes (the Yamashita line), while others argue for clearer limits to avoid strict liability on commanders [11] [10].
6. Interaction between ROE and command responsibility in assessments of unlawfulness
When subordinates commit unlawful acts, investigators will examine both the ROE in force and the commander’s conduct: whether ROE allowed or prohibited the acts, whether commanders issued or enforced compliant ROE, and whether commanders took measures to prevent or punish violations—each factor feeds into whether the act is unlawful and whether superiors are culpable [3] [9] [5]. If ROE unlawfully purported to permit prohibited conduct, that would not absolve commanders or soldiers, because international law remains the baseline [3] [4].
7. Competing perspectives and practical friction points
Military practitioners stress ROE as necessary operational tools that may deliberately limit lawful force to protect civilians or policy aims; legal scholars and tribunals emphasize that ROE cannot create exceptions to core prohibitions and that command responsibility fills gaps where leaders tolerate or encourage abuses [9] [3] [6]. Tension arises where political directives shape ROE: soldiers must follow orders, but commanders and states can still face scrutiny under international law if those orders result in violations [1] [4].
8. What reporting does not cover / limits of available sources
Available sources do not mention a single, universally accepted checklist tying every ROE clause to criminal liability nor do they provide an exhaustive catalogue of how every national system implements ROE or prosecutorial discretion [1] [6]. For case‑specific conclusions — e.g., whether a particular ROE change made an action unlawful in a named incident — available reporting would need to be supplemented by that incident’s investigation records and domestic law analyses [3] [5].
Concluding note: ROE set operational boundaries and cannot legalize war crimes; command responsibility ensures leaders can be held to account where they knew or should have known of abuses and failed to act. The interplay is fact‑driven and determined against established international norms and evolving tribunal jurisprudence [3] [4] [6].