Unit Self-Defense - an Inherent Right and Obligation
1998 Stephens, "Rules of Engagement and the Concept of Unit Self Defense" (included in the Naval Law Review issue you linked), is critical of the US CJCS SROEs (then in effect) for allowing more expansive self-defense measures than Stephens found tolerable under his view of "customary international law".
I've attached three .pdfs (all snips from the 2011 Operational Law Handbook) re: unit self-defense based on 2005 Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01B, "Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces". (JMM emphasis added below)
00. The Handbook's introduction:
NB: The present SROEs contain the same "hostile act" and "hostile intent" definitions to which Stephens objected in 1998.2. Key Definitions/Issues. The 2005 SROE refined the Definitions section, combining the definitions of “unit” and “individual” self-defense into the more general definition of “Inherent right of self-defense” to make clear that individual self-defense is not absolute. Note, however, that if the ROE are made more restrictive, the SECDEF must be notified.
a. Self-Defense. The SROE do not limit a commander’s inherent authority and obligation to use all necessary means available and to take all appropriate action in self-defense of the commander’s unit and other U.S. forces in the vicinity.
(1) Inherent Right of Self-Defense. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual self-defense include defense of other U.S. military forces in the vicinity.
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(4) Mission Accomplishment v. Self-Defense. The SROE distinguish between the right and obligation of self-defense, and the use of force for the accomplishment of an assigned mission. Authority to use force in mission accomplishment may be limited in light of political, military, or legal concerns, but such limitations have NO impact on a commander’s right and obligation of self-defense.
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c. Hostile Act. An attack or other use of force against the United States, U.S. forces, or other designated persons or property. It also includes force used directly to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital U.S. government property.
d. Hostile Intent. The threat of imminent use of force against the United States, U.S. forces, or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital U.S. government property.
01. The CJCS introduction:
02. Enclosure A (Standing Rules of Engagement):b. Standing Rules of Engagement (SROE).
(1) Self-Defense. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual self-defense includes defense of other U.S. Military forces in the vicinity.
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c. Standing Rules for the Use of Force (SRUF).
(1) Self-Defense. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual self-defense includes defense of other U.S. Military forces in the vicinity.
f. U.S. Forces Operating With Multinational Forces.
(1) U.S. forces assigned to the operational control (OPCON) or tactical control (TACON) of a multinational force will follow the ROE of the multinational force for mission accomplishment, if authorized by SecDef order. U.S. forces retain the right of self-defense. Apparent inconsistencies between the right of self-defense contained in U.S. ROE and the ROE of the multinational force will be submitted through the U.S. chain of command for resolution. While a final resolution is pending, U.S. forces will continue to operate under U.S. ROE.
(2) When U.S. forces, under U.S. OPCON or TACON, operate in conjunction with a multinational force, reasonable efforts will be made to develop common ROE. If common ROE cannot be developed, U.S. forces will operate under U.S. ROE. The multinational forces will be informed prior to U.S. participation in the operation that U.S. forces intend to operate under U.S. ROE.
(3) U.S. forces remain bound by international agreements to which the U.S. is a party even though other coalition members may not be bound by them.
g. International agreements (e.g., status-of-forces agreements) may never be interpreted to limit U.S. forces’ right of self-defense.2. Policy.
a. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent.
b. Once a force is declared hostile by appropriate authority, U.S. forces need not observe a hostile act or demonstrated hostile intent before engaging the declared hostile force. Policy and procedures regarding the authority to declare forces hostile are provided in Appendix A to Enclosure A, paragraph 3.So, yes, the honcho polarbear has both a right and an obligation ("duty") to take defense measures for all his little polarbears against hostile acts and threats, etc.3. Definitions and Authorities.
a. Inherent Right of Self-Defense. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual selfdefense includes defense of other U.S. military forces in the vicinity.
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e. Hostile Act. An attack or other use of force against the United States, U.S. forces or other designated persons or property. It also includes force used directly to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital USG property.
f. Hostile Intent. The threat of imminent use of force against the United States, U.S. forces or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital USG property.
g. Imminent Use of Force. The determination of whether the use of force against U.S. forces is imminent will be based on an assessment of all facts and circumstances known to U.S. forces at the time and may be made at any level. Imminent does not necessarily mean immediate or instantaneous.
And, because "When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense", each of the little polarbears has both a right and obligation to protect all the other little polarbears (and himself or herself) - and even the honcho polarbear.
A point here is that this concept of mutual self-defense (as both right and obligation) does not generally apply in the civilian context. E.g., Big Bad Wolf is about to put out JMM's lights. Polarbear has a right (but no obligation) to put one between Big Bad Wolf's headlights.
The "accused acts at the accused’s peril when defending another" example in the Manual for Courts-Martial is not a good example in the military context. In civil law, the rule came from the Yukon when Pierre of the North went to the aid of the "Evil" Polarbear in a 1898 polarbear bar brawl. Pierre couldn't win in any event since Pierre is always screwed whenever he interacts with "Zem Polarbears".
Regards
Mike
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