Practice Relating to Rule 139. Respect for International Humanitarian Law
Section B. Orders and instructions to ensure respect for international humanitarian law
Canada’s LOAC Manual (1999) defines the rules of engagement as “orders issued by competent military authority which delineate the circumstances and limitations within which force may be applied by the CF [Canadian Forces] to achieve military objectives in furtherance of national policy”.
Canada’s Code of Conduct (2001) provides:
The purpose of the Code … is to provide simple and understandable instructions to ensure that CF [Canadian Force] members apply as a minimum, the spirit and principles of the Law of Armed Conflict in all CF operations other than Canadian domestic operations.
Canada’s Code of Conduct (2005) explains:
4. Operational missions often require CF [Canadian Forces] members to make decisions under considerable stress and in times of confusion. Moreover, the course of action one elects to make during operations can have serious consequences. Decisions must often be made very quickly. Compliance with this simple Code of Conduct helps to ensure that split second decisions are consistent with the Law of Armed Conflict and Canadian law.
5. The purpose of the Code, therefore, is to provide simple and understandable instructions to ensure that CF members apply as a minimum, the spirit and principles of the Law of Armed Conflict in all CF operations other than Canadian domestic operations.
Canada’s Use of Force Manual (2008) states:
CHAPTER 1: THE USE OF FORCE AND LAW
SECTION I – GENERAL
2. Rules of Engagement (ROE) are the command and control (C2) instrument by which the CDS [Chief of the Defence Staff] controls the application of force or actions which may be construed as provocative in CF [Canadian Forces] operations.
SECTION II - LEGAL FOUNDATIONS
102. REQUIREMENTS TO CONTROL THE USE OF FORCE
2. As the interpretation of the law will affect the definition of the operation’s mission and its execution, commanders at all levels and their subordinates are responsible for the correct and comprehensive application of the law in planning and conducting an operation.
104. INTERNATIONAL LAW
2. … As with any legal issue, an operational commander is not expected to be a legal expert, but is required to understand the principles in sufficient detail to ensure the following:
a. that international law is correctly applied in planning and conducting operations; and
b. that all members of the force understand their legal responsibilities with respect to the use of force, whether during an armed conflict or not.
105. OTHER LEGAL CONSIDERATIONS APPLICABLE TO OPERATIONS
3. Strategic Guidance and Direction. The strategic-level guidance provided to the commander and any direction on the use of force (such as ROE) authorized for the operation must be based upon legal considerations and requirements. There also must be a clear and coherent link between the approved political objectives, military objectives, the legal basis for the operation, the commander’s concept of operations, and the ROE which are authorized for the operation. Therefore, legal staff shall be involved in the planning process at all levels.
CHAPTER 2: CONTROLLING THE USE OF FORCE
SECTION III – RULES OF ENGAGEMENT
1. ROE are an indispensable instrument of C2 for ordering and controlling the use of force or actions which might be construed as provocative during military operations. ROE are orders issued by military authority that define the circumstances, conditions, degree, manner, and limitations within which force, or actions which might be construed as provocative, may be applied to achieve military objectives in accordance with national policy and the law. …
2. The use of force, and in particular, the authority to use deadly force by Canadian forces to accomplish a mission receives detailed scrutiny and attention by the senior leadership of the CF. Every member of the CF who may be required to use force in self-defence or to accomplish a mission must have a reasonable level of knowledge and understanding of the ROE and supporting doctrine.
207. FACTORS INFLUENCING ROE
1. In order to control the use of military force, the Canadian government and military staffs will be guided by the following factors:
a. Legal Prescriptions. Any use of force must comply with Canadian domestic law and international law. International laws include:
(1) The Law of Armed Conflict
. The body of international law that governs the conduct of hostilities during an armed conflict.