A Case Study of Rules of Engagement in

Joint Operations:

**The Air Force Shootdown of Army Helicopters in Operation PROVIDE
COMFORT**

[Major Dawn R. Eflein\*]{.smallcaps}

> *"Our operational flying missions in support of U.N. peacekeeping have
> not required special training programs . . . . Pre-mission briefings
> are sufficient."*[^1]

These words, written by Air Force Secretary Sheila Widnall in 1993,
proved fatally inaccurate on 14 April 1994. On that date, two United
States Air Force F-15 fighters shot down two United States Army UH-60
Blackhawk helicopters in the skies over northern Iraq.[^2] The fighters
were on a defensive counterair mission as part of Operation PROVIDE
COMFORT. Their mission was to ensure that no Iraqi aircraft were flying
inside a coalition-imposed no-fly zone, which barred Iraqi military
aircraft north of the thirty-sixth parallel. The helicopters were
ferrying military personnel and United Nations officials to villages
inside of the no-fly zone in support of Operation PROVIDE COMFORT. All
twenty-six people on board the two helicopters were killed.[^3] The
accident ultimately was attributed to a variety of factors.[^4] However,
the justifications put forth do not answer the basic, underlying
question of how this tragedy could have happened. The military
leadership believed that Operation PROVIDE COMFORT had rules of
engagement (ROE) in effect that would prevent precisely this type of
scenario. Unfortunately, "\[Operation PROVIDE COMFORT\] personnel did
not receive consistent, comprehensive training to ensure they had a
thorough understanding of the ROE,"[^5] resulting in a fatal
"mission-ROE disconnect."[^6]

> The "mission-ROE disconnect" was avoidable. Ironically, Secretary
> Widnall's perception prior to the shootdown that no special training
> was required contrasted sharply with that expressed by Defense
> Secretary William Perry after the shootdown: "\[w\]hat we have
> disclosed is deficiencies in the training . . . primarily relative to
> joint training, joint operations, and operations between fixed-wing
> and helicopters."[^7]

# I. INTRODUCTION

Joint and combined operations are the wave of the future. Regional
conflicts are increasingly the focus of the United States military,
which will likely deploy an integrated, joint force when called on to
respond to an international disturbance.[^8] Additionally, armed forces
are likely to be part of a coalition when engaged in a future war or
operation other than war (OOTW).[^9] Therefore, success in future
operations depends on effective joint and combined training,
communications, and interoperability.

This article will focus on ROE in joint operations, using Operation
PROVIDE COMFORT as an example.[^10] Specifically, it will focus on the
devastating consequences of command failure in promulgating ROE,
communication, and training in joint operations. It will identify and
examine the breakdowns in the ROE that contributed to the Blackhawk
shootdown. In the wake of the investigation into the accident, the Air
Force asserted that the pilots who fired the two missiles were acting in
accordance with the ROE.[^11] If true, then the ROE may have been
seriously deficient.

To lay the groundwork for the analysis, this article will first outline
the purposes for ROE in OOTW, identify three types of ROE, and highlight
the differences between them. Next, it will describe the mission,
mandates, and command structure of Operation PROVIDE COMFORT, from its
inception to its status on 14 April 1994. Within that framework, it will
analyze the events leading up to the shootdown, examine the ROE then in
effect, and explain how these ROE were understood and implemented at the
crew level.[^12] Finally, it will identify areas of contention
surrounding two critical issues: whether the pilots followed the ROE,
and whether the ROE in effect were appropriate.

# II. Rules of Engagement in 

# Operations Other than War

The United States is engaged in increasing numbers of OOTW. Since the
end of Operation DESERT STORM, our Armed Forces have not been engaged in
any international armed conflicts, but have actively participated in
over forty OOTW.[^13] Little settled guidance exists to govern OOTW,
partially because OOTW encompass so many different types of operations,
and partially because the authority by which the military engages in
OOTW varies from one operation to the next. Additionally, each operation
can change over time, and the rules by which the military operates must
be flexible enough to adapt to these changes. The policies and
regulations that apply in OOTW must be responsive to the changing
mission requirements of a particular operation.

One of the primary tools that the National Command Authority (NCA) uses
to promulgate guidance to commanders and troops in the field is Rules of
Engagement. Practically, "\[ROE\] are the commander's rules for the use
of force,"[^14] "specify\[ing\] the circumstances and limitations in
which forces may engage the enemy. Many factors influence an operation's
\[ROE\], including national command policy, mission, operational
environment, commander's intent, and international law."[^15]

Thus, ROE have political, military, and legal purposes.[^16] These
considerations influence the planning of an operation and guide its
development. The ROE place limits on what methods the military can use
to accomplish the mission. "Leaders must make important decisions before
the operation begins. It is extremely important to determine whether
deadly force can be used to protect weapons and equipment and to
consider what nondeadly means of force may be appropriate for the
situation."[^17]

For political reasons, troops may be limited in the amount and type of
force that they are permitted to use. The ROE must reflect the national
policy as determined by civilian and military leaders. The United States
follows courses of action designed to further political goals, and the
ROE must be tailored to prevent unnecessary escalation.[^18] Generally,
decisions that impact national policy (like the use of nuclear or
chemical weapons) are reserved to the NCA.[^19]

Militarily, ROE may actually restrict the manner in which a commander
can carry out his mission.[^20] They form the outer boundaries that the
commander, and his troops, must stay within while trying to accomplish
the mission. The ROE guide the troops in the field by delineating the
circumstances in which they can use force either to respond to a threat
or to accomplish a military objective.[^21] The military rationale for
limitations on the use of force is to prevent a situation where the
United States is unnecessarily seen as the aggressor. In that situation,
the opponent may believe that the use of force is essential for its own
self-defense, and the conflict can escalate rapidly.[^22] "The
aggressiveness that is important in wartime operations must be tempered
with restraint in the ambiguous environment of peace time
operations."[^23]

Further, the ROE reflect legal limitations on the use of force. These
limitations help to ensure that an operation is accomplished legally in
both the domestic and international arenas. An explanation of the lawful
use of force, including the parameters of the right to use force in
self-defense, eliminates uncertainty, thereby helping the troops to
focus on their mission. This frees up the commander to concentrate on
achieving his military objective.[^24]

An OOTW is fluid and dynamic. Logic dictates that if the political
objectives and the military mission change, as they likely will over
time, then the ROE should change as well.[^25] The longer an operation
continues, the more likely it is to change focus, or to become a
different OOTW altogether. An OOTW is usually conducted in an
environment that is neither strictly peace nor strictly war, but rather
in between the two on a continuum. The law that applies in an OOTW is
likewise neither the law of peace nor the law of war. However, the law
is the foundation for the ROE; when the ROE are overlaid onto the
operational continuum, they must necessarily correlate with the
operation's position on the continuum.[^26] Over time, the operation can
shift from almost a peacetime operation to nearly a wartime operation,
or vice versa. As the threat changes, the mission may change, and so
should the ROE.[^27] "Mission creep" can make the initial ROE
obsolete.[^28] Further, because of the differences between war and OOTW,
"\[s\]pecialized training is essential for OOTW operations."[^29] Given
that mission creep will likely change the mission and therefore the ROE,
what types of rules should be considered for use in an operation?

# III. Types of Rules of Engagement

Prior to 1994, peacetime rules of engagement (PROE) governed peace
operations and wartime ROE governed combat operations. The standing
rules of engagement (SROE) were promulgated by the Joint Chiefs of Staff
in 1994. They are designed to reach across the spectrum from peace to
war.[^30]

# A. Peacetime Rules of Engagement

Some operations are intended to remain within the ambit of "peace":
humanitarian assistance and disaster relief, for example. Other
operations, although not war, have the potential to escalate into
violence. Peacekeeping, antiterrorism, and security assistance are
examples of operations in which deployed United States forces may be
thrust into a situation in which they will be forced to respond
violently.[^31] The planners of these types of operations must consider
the threat of violence to United States forces. They also must consider
whether it is permissible for the troops to use force to accomplish
their mission.[^32] Generally, PROE[^33] limit the use of force by
military personnel to defensive reactions. A military member can only
use force in response to a hostile act or to a particular demonstration
of hostile intent.[^34] Peacetime rules of engagement are premised on
the right of self-defense.[^35] Operational guidance on how to exercise
the right of self-defense is not always spelled out in the PROE, but
that right is never limited.[^36] Rather, PROE "provide guidance" as to
when troops can use force to defend foreign nationals, property, and
"larger national interests, such as the territory of the United States,
or to defend against attacks on other United States forces \[under
another\] command."[^37]

Prerequisites to the legitimate use of force in self-defense are
necessity and proportionality.[^38] "Necessity is the requirement that
force be used in response to a hostile act or in situations in which the
hostile intent is evident."[^39] Additionally, "necessity also must
relate to the requirement to use force because other measures are
unavailable"[^40] or obviously would be futile. "Proportionality" means
that the amount of force used in response to a threat must be of
reasonable intensity, duration, and magnitude to counter the
threat.[^41] On the soldier level, this means that "soldiers will use
only the amount of firepower necessary" to respond against the
threat.[^42] The use of force must be "scaled to the threat" confronting
the soldier.[^43]

# B. Wartime Rules of Engagement

The use of force for offensive purposes, such as to achieve an objective
for mission accomplishment, is the subject matter of wartime rules of
engagement (WROE).[^44] Wartime rules of engagement are governed by the
laws of war (or the laws of armed conflict).[^45] The primary issues in
WROE are targeting and use of weapons.[^46]

Wartime rules of engagement can place certain targets off limits and the
commander charged with carrying out an operation may not be given the
reasons why certain targets are excluded.[^47] Often, "target denial" is
influenced by political sensitivities.[^48] When selecting targets,
planners consider the principles of military necessity, unnecessary
suffering, proportionality, and discrimination between combatants and
noncombatants.[^49] Attacks on civilian noncombatants are never
permitted, and care should be taken when choosing targets to minimize
collateral civilian casualties and destruction of property that is not
essential to the enemy's military efforts.[^50] Valid military targets
are generally those that "make an effective contribution to the enemy's
military effort, and \[whose\] destruction offers a definite military
advantage."[^51] Numerous treaties prohibit or limit the use of certain
weapons, even in war. For example, the Geneva Protocol of 1925 prohibits
the use of "asphyxiating, poisonous, or other gasses" during war.[^52]
If conventional international law does not proscribe the use of certain
weapons, the WROE may still limit the commander's use of the weapons
because of "political sensitivities."[^53]

# The Joint Chiefs of Staff Standing Rules of Engagement

For United States forces, the concepts of PROE and WROE have been merged
doctrinally into the standing rules of engagement (SROE):[^54] "\[t\]he
purpose of the SROE is to provide implementation guidance on the
inherent right of self-defense and the application of force for mission
accomplishment" within the bounds of the United Nations Charter and
international law.[^55] The SROE is how the NCA delivers its guidance to
the soldiers in the field. It is a compilation of "standing rules and
policies which apply, unless superseded, in 'peacetime, transition to
war, and wartime.'"[^56] The SROE "can be easily and quickly amended or
clarified by mission-specific \[ROE\]."[^57]

The SROE is a good example of how ROE can be envisioned along an
operational continuum, with peace at one end of the continuum and war at
the other.[^58] The SROE provides a variable mechanism that changes as
the operation's position on the continuum changes. For operations that
are inherently peaceful, the SROE allows the use of force for defensive
purposes and only in reaction to a hostile act or clear indication of
hostile intent.[^59] For hostile operations approaching war, on the
other end of the continuum, the SROE still provides for the use of force
defensively, but also delineates when offensive force may be used. The
supplemental rules give targeting and weaponry restrictions, consistent
with the principles of domestic and international law, political
objectives, and the mission. The numbered supplemental measures and
enclosures allow tailoring of the ROE to a particular operation; the
commanders can pick and choose from an array of measures to find the
provisions that should apply to their particular operation, or phase of
an operation.[^60]

The SROE defines many of the key terms that are related to ROE,
including "hostile act" and "hostile intent," as discussed above. It
explains that the defensive use of force in response to a hostile act or
clear evidence of a hostile intent is permitted, within the bounds of
necessity and proportionality. The SROE, however, goes further, defining
"hostile force" as "\[a\]ny force or terrorist unit (civilian,
paramilitary, or military), with or without national designation, that
has committed a hostile act, demonstrated hostile intent, or has been
declared hostile."[^61] The SROE explains that "\[o\]nce a force has
been declared hostile by appropriate authority, U.S. units *need not*
observe a hostile act or a demonstration of hostile intent before
engaging that force."[^62] Thus, once a force has been declared hostile,
it is "the enemy," and the basis for engagement is status alone.[^63] A
status-based ROE is one "in which pre-declared enemy forces may be shot
on sight."[^64] For policy reasons, the NCA limits a commander's
authority to declare forces hostile to circumstances akin to war.

The basic SROE is written to govern all military operations.[^65]
Depending on the nature and mission of an operation, some or all of the
supplemental measures may be implemented, allowing the commander to pick
and choose from predetermined lists of available options. The farther an
operation moves on the operational continuum from peace toward war, the
more likely it is for commanders to add some of the specific enabling
measures from the lists in the enclosures. The converse is also true.
Once a war (or hostile operation) is over, if United States forces are
withdrawing from the region, the ROE should shift to incorporate more
restrictive supplemental measures. The shift should be designed to
approach the generic SROE. Ideally, by the time United States forces
conclude an operation, they will do so under the "basic" SROE.

As an operation changes, the ROE should be reviewed periodically to see
if they still make sense. Otherwise, the ROE will not be properly
tailored to the mission.[^66] In an inherently hostile operation such as
a military strike or raid, the offensive use of force may be
justified.[^67] The offensive use of force may be limited by concerns
for safety of friendly forces,[^68] or curtailed by commanders concerned
about subjecting United States troops to the risk of capture,[^69] but
it is still permitted. However, the offensive use of force should be
restricted as the operation shifts toward peace. For example, after the
Gulf War ended, the United States and its coalition partners still had
troops in Kuwait and Iraq which could have been attacked by Iraqi
Republican Guards. At some point, the focus on using offensive force had
to be modified, because the military and the political missions had been
accomplished. The use of force parameters changed because the United
States was trying to get out of the war and not escalate its
involvement.

# IV. Mission and Mandates of 

# Operation PROVIDE COMFORT

Operation PROVIDE COMFORT was no exception to the general rule that the
mission and objectives of OOTW change over time. Following the coalition
victory in Operation DESERT STORM, Kurdish factions in northern Iraq and
Shiite factions in southern Iraq rebelled against the Iraqi
government.[^70] The Iraqi army rapidly and violently quelled this
insurgency. As a result, more than five hundred thousand Kurds were
forced to become refugees; they had no property left, and feared for
their lives.[^71] They fled into Turkey, Iran, and the mountains of
Iraq.[^72]

# A. The Beginning of Operation PROVIDE COMFORT

On 5 April 1991, the United Nations Security Council condemned Iraqi
repression of the Kurds and Shiites. This was followed by the Security
Council's adoption of Resolution 688, which demanded that Iraq cease
this repression.[^73] President Bush began Operation PROVIDE COMFORT in
April by tasking the United States military to provide emergency
humanitarian aid to the Kurds.[^74] The United States and some of its
coalition partners[^75] established a "security zone" in northern Iraq.
To ensure the safety of the security zone, the United States implemented
a no-fly policy for all Iraqi aircraft north of the 36th parallel.[^76]
The purpose of the no-fly zone was to prevent Iraqi aircraft from
getting close enough to threaten or harm the Kurds located within the
security zone, and also to protect the coalition aircraft that was
delivering humanitarian assistance. As the humanitarian relief effort
progressed, the mission changed to protection of the Kurds within the
security zone.[^77] The military's focus thus became deterrence of Iraqi
encroachment into the security zone.

# B. History of Operation PROVIDE COMFORT from 1991 to 1994

In the three years of PROVIDE COMFORT operations before the shootdown,
coalition aircraft flew daily missions in the tactical area of
responsibility (TAOR).[^78] During that period:

> Iraqi forces would test coalition resolve by probing the no-fly zone
> with Iraqi aircraft, illuminating coalition aircraft with 'fire
> control' radars, and firing on friendly forces. Coalition forces have
> responded by shooting down an Iraqi MiG-23 and bombing of Iraqi
> anti-aircraft artillery and surface-to-air missile sites. Kurdish
> refugees within the security zone have been harassed and UN relief
> trucks have been sabotaged by Iraqis. On 21 Dec 93, a small contingent
> of coalition personnel were fired upon as they left their support base
> in Zakhu, Iraq. In March 1994, Saddam Hussein publicly stated that he
> would be "forced to take other means" in response to renewed United
> Nations sanctions. Non-government organization personnel have had
> bounties placed on their heads. On 3 Apr 94, a female civilian
> journalist employed by a French news agency was murdered in northern
> Iraq by unknown assailants. Iraqi forces have maintained a capability
> to attack coalition personnel and the local Kurdish population.
> Tensions have remained strong in the area and coalition aircrews have
> operated at a high state of readiness.[^79]

# C. Command and Control Structure

After the NCA authorized Operation PROVIDE COMFORT, the
commander-in-chief of Europe (CINCEUR) "directed the creation of a
combined task force (CTF) to conduct operations in northern Iraq" with
Operation Order (OPORD) 003.[^80] In response to OPORD 003, the CTF
commanding general (CTF CG) developed Operational Plan (OPLAN)
91-7,[^81] which delineated the command structure and organizational
responsibilities within the CTF.[^82]

The CTF was commanded by an Air Force Brigadier General and
headquartered at Incirlik Air Base, Turkey. Operational Plan 91-7 put
United States Army assets under the operational control of the CTF
CG.[^83] This operational plan governed the task force from 20 July 1991
until 14 September 1991.[^84] On that date, CINCEUR issued a new
operations order, OPORD 004. The new order "directed the withdrawal of
the \[Operation PROVIDE COMFORT\] Battalion Task Force," the
deactivation of the Combined Forces Ground Component headquarters, and
"an increase in the size of the CTF air forces."[^85] The withdrawal of
the Battalion Task Force significantly decreased the United States Army
assets in Operation PROVIDE COMFORT. The helicopter assets that remained
were based with the Military Coordination Center (MCC) at Diyarbakir,
Turkey.[^86] They were still under the operational control of the CTF
CG. The CTF CG was also responsible "for all cross-border operations,
both air and ground, into Iraq."[^87]

The Combined Forces Air Component Commander (CFACC) was in charge of air
operations. He was tasked with tactical control (TACON) over all
Operation PROVIDE COMFORT flying missions operating within the
TAOR.[^88] "This included tactical control of the Blackhawk, AWACS, and
the F-15 aircraft involved in the accident."[^89]

# V. 14 April 1994: The Shootdown

At 0436 hours on 14 April 1994, an E-3B Airborne Weapons and Control
System (AWACS) departed Incirlik Air Base, Turkey, enroute to the area
of responsibility. The first of all the coalition missions to take off,
it was required to establish a computer data link with the ground,
ensure all systems were operational with radar surveillance capability,
and fly to its predetermined orbit before any other coalition aircraft
could depart.[^90] This specific AWACS crew was on its first mission in
theater, having arrived in country just three days before.[^91]

At 0522 hours, two UH-60 Blackhawk helicopters (call signs "Eagle 01"
and "Eagle 02") departed Diyarbakir, Turkey, enroute to the MCC
headquarters, located in Zakhu, Iraq. At 0612, the helicopter pilots
radioed the AWACS that they were crossing the border into Iraq; they
landed at Zakhu six minutes later. Zakhu is in the "no-fly" zone, and
well within the security zone established by the coalition. The
helicopters were picking up passengers for an administrative flight
outside of the security zone and were going deeper into the no-fly area
than usual to introduce the new MCC commander to United Nations and
Kurdish representatives in the towns of Salah Ad Din and Irbil.[^92]

At 0635 hours, two Air Force F-15C fighters (call signs "Tiger 01" and
"Tiger 02") took off from Incirlik, after being informed that the E-3B
AWACS was in its surveillance orbit. Their mission was defensive
counterair; they "were tasked to perform an initial fighter sweep of the
no-fly zone to clear the area of any hostile aircraft prior to the entry
of coalition forces."[^93] According to their directives, when they
performed this "sanitizing sweep," they were supposed to be the first
coalition aircraft into the TAOR. After the fighters had ensured that
the area was safe, the rest of the coalition "package" from Incirlik
would follow them in to begin their missions inside of the no-fly
area.[^94]

At 0654 hours, the two Blackhawk helicopters took off from Zakhu. They
radioed the AWACS, and gave their destinations on the enroute radio
frequency.[^95] Although directives stated that all aircraft inside the
TAOR should be on the area of responsibility (AOR) radio frequency, they
did not switch frequencies.[^96] Despite the contrary directive,
helicopters typically stayed on the enroute frequency, and no one on
board the AWACS directed them to change.[^97] Because the helicopters
remained on the enroute frequency, they were not able to hear subsequent
transmissions on the AOR frequency between the F-15 fighters and the
AWACS.

Additionally, the Blackhawks did not reset their IFF[^98] Mode I
transmission on takeoff from Zakhu.[^99] Helicopters had a specified
Mode I for operations in Turkey but all coalition aircraft were supposed
to change to a single, designated Mode I while flying in the TAOR.[^100]
Again, the helicopters did not know to change their Mode I squawk,
because they customarily remained on the Mode I for Turkey,[^101] and no
one on the AWACS directed the helicopters to change.[^102]

Further, there is no evidence that anyone on the AWACS interrogated the
Blackhawks' IFF Mode IV. The Airborne Weapons and Control System was
supposed to check the Mode IV of all aircraft as they entered Iraq, but
many AWACS crewmembers did not believe that requirement applied to
helicopters.[^103] The F-15s would ultimately interrogate the
Blackhawks' IFF Modes I and IV, and because they were not set properly,
the fighters got no electronic friendly response.

At 0720 hours, the F-15 flight lead reported entering Iraq to the TAOR
controller on the TAOR radio frequency.[^104] The two F-15s began their
sweep of the no-fly zone. No one on the AWACS told the fighters about
the helicopters[^105] and the helicopters were not on the Air Tasking
Order (ATO) nor were they on the fighters' flow sheet.[^106] Neither of
the F-15 pilots knew that any Army helicopters were operating in the
TAOR.[^107]

At 0722 hours, the flight lead reported a radar contact of a low, slow
moving aircraft.[^108] He gave the AWACS TAOR controller the coordinates
of the contact. The TAOR controller, unaware of the Blackhawks' earlier
transmissions on the enroute frequency, responded with "clean there,"
meaning that he had nothing on his radarscope at those
coordinates.[^109] Both F-15 pilots attempted to electronically identify
the two helicopters; each was unsuccessful.[^110] The flight lead
"initiated an intercept to investigate."[^111]

Closer now, the flight lead again indicated the position of the unknown
aircraft to the AWACS TAOR controller. The controller responded with
"hits there,"[^112] which meant that the controller had a radar contact
at that location. However, evidence indicates that he may actually have
had IFF returns at that spot on his scope, and the appropriate response
would have been "paints there."[^113] The proper call should have
indicated to the F-15s that the AWACS was getting a friendly IFF return
from the unknown aircraft.[^114]

After receiving the impression that the AWACS also had unknown aircraft
on its radar, the flight lead continued with the visual identification
as indicated in the Aircraft Accident Board Report:

> As the flight lead approached within 5 nautical miles of the
> unidentified aircraft, he saw a single helicopter flying at a very low
> altitude. The flight lead began his \[visual identification\] pass at
> approximately 450 knots indicated airspeed. The helicopter was flying
> . . . approximately 120 to 200 feet above the ground \[in a valley
> that had hills on either side that were between 1,500 and 3,000 feet
> elevation\]. In an attempt to make a visual identification, the flight
> lead descended below the tops of the hills and flew to a \[reported\]
> position of 1000 feet left and 500 feet above the helicopter's flight
> path. . . . \[As he started to climb and turn right\] he saw a second
> helicopter in trail . . . .[^115]

The lead F-15 pilot visually misidentified the lead Blackhawk as an
Iraqi Hind helicopter.[^116]

As the flight lead pulled up to get back into formation, he noticed the
second helicopter.[^117] Because of his distance and speed, he did not
get a good look at this second helicopter.[^118] He reported to his
wingman that he had seen two Iraqi Hind helicopters and requested
confirmation. Although he requested confirmation, he was positive that
he saw Iraqi Hinds. This identification was based on their location
within the TAOR, lack of electronic response despite repeated queries,
their camouflage paint scheme, and their silhouettes.[^119] He never
thought that they might be Blackhawks, even though he had had prior
experience with Army helicopters and with Blackhawks in
particular.[^120]

The lead pilot's costly misidentification occurred in spite of critical
differences between Iraqi Hind and United States Blackhawk helicopters.
United States Blackhawks were painted in a dark green camouflage scheme,
while Iraqi Hinds camouflage is desert tan.[^121] Blackhawks are a
multi-purpose helicopter while the Hind is primarily an attack platform.
The silhouettes, however, were misleading as the Blackhawks were
equipped that day with external fuel tanks to give them longer range.
The flight lead mistook those external tanks, which were mounted on
sponsons, for the ordnance sponsons characteristic of the Hind.[^122]
Finally, the lead pilot properly queried the IFF Mode I for the squawk
designating A/C used inside the TAOR, but the Blackhawks were still
transmitting the IFF Mode I for Turkey. Therefore, the F-15 lead
received no response.[^123]

The wingman then "conducted a \[visual identification\] pass
(approximately 2000 feet right) of the trailing helicopter."[^124] He
saw two helicopters, but did not see them closely enough to positively
identify them himself.[^125] He also believed that they were Iraqi
Hinds; he saw nothing to make him doubt the flight lead's visual
identification.[^126] He reported "tally two," to indicate that he had
seen two helicopters. At about the same time, the AWACS TAOR controller
radioed "copy Hinds," to indicate that he had heard flight lead's
transmission.[^127] The flight lead took the wingman's response as
confirmation, not only of the number, but also of the type of
helicopters.[^128]

At about 0729 hours, having "positively identified" the "unknown"
aircraft as Iraqi military aircraft flying in the no-fly zone, the
flight lead maneuvered into position to engage. He radioed the AWACS and
notified them that the fighters were "engaged."[^129] At the time, the
AWACS crew did not know whether the pilots were offensively or
defensively engaged. The pilots were not required to obtain clearance
from AWACS before engaging, nor were they required to warn the
target.[^130] The flight lead simultaneously armed his missile in
preparation for launch.[^131] At 0730, the flight lead attempted one
final electronic interrogation of the trail helicopter, and got no
response.[^132] He then fired an AIM-120 radar-guided missile at the
trail helicopter from approximately four nautical miles away. The trail
helicopter was destroyed seven seconds later.[^133]

The wingman, acting on his lead's direction, maneuvered to two nautical
miles behind the lead helicopter. He locked on, and fired an AIM-9
heat-seeking missile from a distance of about 9000 feet.[^134] The
missile struck the target and destroyed it.[^135]

# VI. Command Deficiencies that Contributed 

# to the Shootdown

The Accident Board found that the shootdown "was caused by a chain of
events which began with the breakdown of clear guidance from the
Combined Task Force to its component organizations \[which\] resulted in
the lack of a clear understanding among the components of their
respective responsibilities."[^136] To ascertain exactly where and how
the breakdown occurred requires an examination of the Combined Task
Force's (CTF) guidance.

# A. Outdated Guidance from the Combined Task Force

The guidance that the CTF furnished to the squadrons and the helicopter
detachment was outdated. The large majority of the coalition forces, and
all United States Air Force assets, were based at the CTF headquarters,
Incirlik, Turkey.[^137] Although CINCEUR had requested a support plan to
implement OPORD 004 in September of 1991,

> no evidence could be found to indicate that OPLAN 91-7 was actually
> updated to reflect the change in command and control relationships and
> responsibilities that resulted from the departure of the previously
> designated CTF Ground Component Commander and his forces. OPLAN 91-7
> remained in effect at the time of the accident.[^138]

It is significant that command and control was based on three-year-old
guidance; no one was responsible for integrating the helicopters into
the PROVIDE COMFORT mission. No viable communication system was operable
between the Military Coordination Center and the F-15 squadrons.[^139]

# B. Inadequate Communication from the CTF to its Components

*1. The air tasking order was deficient*

The Combined Forces Air Component Commander's deputy (CFAC DO) was
required to publish a daily ATO that listed all Operation PROVIDE
COMFORT flights for that day.[^140] The ATO contained the order of
flying activity within the TAOR, detailing radio frequencies and IFF
data for each aircraft.[^141] The fighter squadrons used the ATO as the
definitive guide for activity within the TAOR.

The Army helicopters were not adequately reflected on the ATO.
Operational Plan 91-7 directed the combined forces ground component
commander to coordinate rotary wing sorties in Iraq within the flying
window.[^142] When the ground component commander departed in accordance
with OPORD 004, no "individual was assigned to coordinate rotary wing
sorties."[^143] Consequently, routine helicopter flights were listed on
the daily ATO as flying "as required"; no specific information was
provided. No take off time, route or destination was provided and,
critically, no information on radio frequencies or IFF data was
listed.[^144] When the ATO information was transferred to the flow sheet
that the fighter pilots keep on their knee board while flying, no
reference to helicopters appeared; even the "as required" line was
deleted, since it provided no useful information.[^145] Therefore,
although the Army Blackhawk pilots had filed a proper flight plan, the
F-15 pilots had no way of knowing from the ATO that helicopters were
flying in the TAOR on 14 April 1994.[^146]

*2. The flow sheet* *did not list the Army Blackhawks' IFF codes*

The flow sheet was derived from the ATO. It listed "all the fixed wing
aircraft, . . . exact times that they took off and entered Iraq, exact
times that they refueled, call signs, squawks, everything that we needed
to know to do the mission."[^147] Each aircraft had a unique Mode II,
and each aircraft's Mode II code was listed in the ATO and on the flow
sheet−except for helicopters. Because the ATO was incomplete with
respect to helicopters, the flow sheet did not even list them. Thus, the
F-15 pilots could not interrogate the Blackhawks' Mode II despite the
ATO stating that Modes II and IV were to be the primary means of
identification.[^148]

*3. The ATO directed the use of certain IFF codes,*

*but the Army did not use them*

Specific IFF codes were listed in the ATO. The ATO directed different
Mode I codes for rotary wing and fixed wing aircraft while flying in
Turkey,[^149] but required all coalition aircraft to be on the same Mode
I while operating in Iraq.[^150] The Army did not follow this
requirement.[^151] Testimony established that Army helicopters
customarily did not change their Mode I squawk while inside the
TAOR.[^152] The helicopters' failure to comply with the ATO was not a
one-time occurrence, but a custom. The command structure should have
remedied this situation some time in the three years before 14 April
1994.[^153]

*4. The Airspace Control Order was outdated*

The CFAC DO was also responsible for publishing the Airspace Control
Order (ACO).[^154] This classified document provided guidance on the
conduct of Operation PROVIDE COMFORT missions. The ACO contained the ROE
and the special instructions, and it was required reading for all
aircrew members. The ACO was dated 12 December 1993, and was "largely
based on OPLAN 91-7."[^155] It was, therefore, also outdated.

*5. The ACO specified that fighters would enter the TAOR first*

No aircraft were to enter the TAOR until fighters with defensive air
capability had entered and performed a sanitizing sweep to ensure that
no Iraqi aircraft were flying in the no-fly zone.[^156] Neither the Army
helicopter pilots[^157] nor the AWACS crew[^158] knew that this
requirement applied to helicopters. In fact, helicopter operations were
not considered by many of the players to be part of Operation PROVIDE
COMFORT.[^159]

*6. The Army did not know that helicopters were supposed*

*to fly only with fighter coverage*

The ACO stated that the fighters would not depart Incirlik enroute to
the AOR until the AWACS was in its orbit, was operational, and had
established a computer data link with the ground.[^160] Other coalition
aircraft could not fly unless and until the fighters had performed their
sweep and were in their defensive counterair combat patrol. The Army
knew that the AWACS had to be operational for them to fly, but did not
know that the requirement for fighter coverage applied to
helicopters.[^161] In the past, they had been permitted to fly from
Diyarbakir, Turkey, to Zakhu, Iraq, on days that no fighter aircraft
were flying.[^162]

*7. The ACO was not written to include Army Blackhawks*

The ACO only mentioned Army helicopters in terms of altitude
deconfliction.[^163] It contained one brief paragraph that mentioned
United Nations helicopter activity in Iraq[^164] and apparently no one
saw the need to use this section as guidance for Army helicopter
activity. The colonel in charge of the Joint Operations Center was also
the CTF operations officer. He did not know that this latter position
was responsible "for coordinating Army rotary wing flying with available
fighter assets."[^165]

*8. The ACO specified a common TAOR radio frequency, but command*

*never ensured that the Army followed the directive*

The ACO further required that all aircraft operating in the TAOR would
be on the TAOR radio frequency.[^166] This requirement existed so that
all the "players" could talk to each other if necessary. However, over
time, observation of this requirement had lapsed.[^167] On 14 April
1994, the helicopters and the fighters were on different frequencies so
they could not hear each others' transmissions. The helicopters had
talked to the enroute weapons director on the enroute frequency, and
they remained on this frequency,[^168] while the fighters were talking
to the TAOR weapons director on the TAOR frequency.[^169] The TAOR
weapons director is primarily responsible for monitoring the TAOR
frequency, so he did not hear any of the helicopters' transmissions. The
enroute weapons director was primarily monitoring the enroute frequency,
so he did not hear the fighters' transmissions. The command had done
nothing to ensure that the component organizations were aware of and
complying with its guidance.

*9. Generally, helicopter operations were not considered part of*

###  Operation PROVIDE COMFORT

Military Coordination Center aircraft were given a high degree of
autonomy in scheduling their operations. Their unique mission and their
ability to control their own scheduling led to the misperception by many
individuals that the Army helicopters were not part of Operation PROVIDE
COMFORT.[^170] Accordingly, if they were not part of Operation PROVIDE
COMFORT, then the policies and procedures that applied to other PROVIDE
COMFORT aircraft did not apply to them. Significantly, it was the
command structure that began to exempt the Army from the rules. The Army
tried to follow the guidance that it was given but that guidance was
faulty at either the CFAC level or the CTF level.[^171] The tactical
control of Army Blackhawk helicopters was not exercised by any component
part of the CTF staff.

# 

# VII. Rules of Engagement in 

# Operation PROVIDE COMFORT

> *"The OPC \[Operation PROVIDE COMFORT\] ROE \[were\] the peacetime ROE
> for the United States European Command, with modifications approved by
> the National Command Authority for OPC."*[^172]

The ROE governing Operation PROVIDE COMFORT were promulgated in OPLAN
91-7. For the next three years, the mission continued to evolve as the
political situation continued to change. Command and control guidance
should have changed as coalition force composition changed, and as crews
cycled through rotations. Some of the important command and control
issues dealt with operational control and tactical control of rotary
wing assets. Unfortunately, neither the ROE nor the OPLAN were updated
again until after−and because of−the fatal events of 14 April
1994.[^173]

A. Rules of Engagement in the Tactical Area of Responsibility

on 14 April 1994

Rules of Engagement guidance for the TAOR were as follows:

> a\. Any unidentified airborne object in or approaching airspace within
> a U.S. air defense area of responsibility will be identified by any
> means available, including visual recognition, flight plan
> correlation, electronic interrogation, and track analysis.
>
> b\. When feasible, airborne objects in or approaching the airspace
> within a U.S. area of responsibility that have not been satisfactorily
> identified by communications, electronics, or any other means will be
> intercepted for visual identification purposes.[^174]

Any aircraft identified as Iraqi military found north of the
thirty-sixth parallel could be destroyed. In this instance, "\[t\]he ID
had said they were Hinds, so it was an enemy aircraft, in our mind
flying north of the thirty-six line and the ROE was pretty
straightforward that we were cleared to go in, engage that helicopter,
and destroy it."[^175]

The above statement, made by the wingman who followed his flight
leader's direction, is chilling. It clearly demonstrates that the ROE
were status-based; in other words, Iraqi aircraft, whether rotary or
fixed wing, could be destroyed based on hostile identification alone.
Other aircrew members' perceptions were the same, as the following
colloquy from the Accident Investigation Board and crewmembers
illustrates:

> Q: Based on your understanding of the ROE, what aircraft could or
> should be engaged?
>
> A: *Any Iraqi military aircraft* north of the 36th line can be
> engaged, with the exception of those with hospital or medical type
> markings.[^176]
>
> . . . .
>
> Q: Before exercising the right to use force, according to your
> understanding, is there any requirement to give any consideration to
> identification difficulties?
>
> A: There aren't any provisions in the Rules of Engagement on that.
> \[The\] *Rules of Engagement were pretty clear that if it's a
> hostile*, then you know, *they were clear* on it.[^177]

Based upon this testimony, no doubt exists that the perceptions of
crewmembers were accurate: the ROE were status-based.[^178] All Iraqi
military aircraft north of the thirty-sixth parallel were considered
"fair game"[^179] and no distinction was made between rotary wing and
fixed wing targets.[^180] The disconnect between the mission and the ROE
began at this point. Was a status-based ROE truly necessary to carry out
the mission? Could the mission have been accomplished equally well if
the ROE had been conduct-based? To answer these questions requires a
review of the ROE training and implementation.

# B. Rules of Engagement Training was Inadequate

One of the weakest links in the chain of events leading to the shootdown
was poor ROE training. The Accident Investigation Board president
addressed this issue in the report as follows: "OPC personnel did not
receive consistent, comprehensive training to ensure they had a thorough
understanding of the \[United States European Command\]-directed ROE. As
a result, some aircrews' understanding of how the approved ROE should be
applied became oversimplified."[^181] Although the Board does not
clarify what portions of the training it found lacking, it apparently
believes that aircrews were taking shortcuts in training which led to
improper application of the ROE.

# C. Implementation of the ROE

Before using deadly force, the pilots would have required some authority
to do so. That authority could have come from the traditional principles
of self-defense, or it could have come from the ROE.

Self-defense was not necessary as the helicopters had committed no
hostile act. They were flying southeasterly at about 130 knots away from
the security zone. Furthermore, they were not approaching the
thirty-sixth parallel from the south; they were heading from the north
deeper into Iraq. There was nothing to imply hostile intent and the
flight lead testified that he did not feel that the helicopters were a
threat.[^182] The wingman also testified that Iraqi Hinds would not be a
threat to an F-15.[^183] Thus, neither of them fired in self-defense or
in defense of the other.

Absent the necessity to use force in self-defense, the pilots had to
comply with the ROE to use force offensively. The pilots testified that
before they could use offensive force, they first had to identify
whether a target was friendly or hostile.[^184] The wingman testified
that under the ROE, four indicators could be used for unidentified
aircraft to "come up friendly;"[^185] three of these methods were
electronic identification, AWACS confirmation, and visual
identification. The flight lead testified that: "in order to shoot by
the ROE, we have to confirm that they're definitely not friendlies, and
they're positively hostile . . . . In this case, we . . . . had to go in
for a visual identification to prove that they were hostile."[^186]

The requirement for a positive identification was the last link in a
long chain designed to prevent shootdown of friendly aircraft. The
pilots had to distinguish between friendly and hostile aircraft before
engaging. They were cleared to shoot *only* after a positive
identification that the helicopters were Iraqi military aircraft. If
they failed to make positive identification, visual or otherwise, then
they were not acting in accordance with the ROE. The pilots' rationale
for calling the Blackhawks hostile was based, in large part, on an
incorrect visual identification. The Accident Investigation Board found
that the visual identification passes were conducted improperly.[^187]
If true, the pilots were arguably not acting within the ROE.

# VIII. Deficiencies in the Rules of Engagement

Assuming, arguendo, that the F-15 pilots were acting in accordance with
the ROE, the rules may have been improperly broad. Narrowly tailored,
more discriminating ROE could have prevented this accident. Even more
unsettling is that under the ROE in place, this tragedy was foreseeable.
It may have been foreseen by some individuals in the command structure.
At least four major areas in the ROE were questionable and may have been
flawed.

# A. Status-Based ROE May Have Been Inappropriate

The most serious deficiency was that the rules in place were the
equivalent of wartime ROE.[^188] Status-based ROE in a joint and
combined operation are inherently dangerous given the limitations and
difficulties in interoperability and communication. To compound that
risk by not routinely listing all of the friendly aircraft on the ATO is
indefensible.

The mission should drive the ROE. If the mission was to protect the
Kurds from hostile acts, a more conservative ROE would have required a
hostile act or evidence of hostile intent prior to authorizing the use
of deadly force.

*1. The ROE were not appropriately safety-conscious*

The Gulf War experience should have been carefully considered in
formulating the ROE. During the air campaign in DESERT STORM, "CENTAF
imposed rigid rules of engagement to avoid accidental fighter-on-fighter
combat; it was always afraid that a United States airplane would shoot
down a coalition fighter of a type also used by Iraq."[^189] In DESERT
STORM, "American military commanders insisted that allied planes
identify unknown aircraft by two separate means before firing on
them."[^190] If the leadership was worried about this in a combat
environment, this concern should have been even more prevalent when the
United States' mission was not combat, but one of security enforcement.
"Safety is a legitimate rationale for an ROE restriction, particularly
when it provides a means to prevent 'blue-on-blue' engagements‑that is,
shooting at friendly forces."[^191]

*2. Even if status-based ROE had initially been appropriate,*

*they were not reviewed*

To reduce the risk of killing our own forces or those of our allies,
status-based ROE should be used only when absolutely necessary, and even
then, only for a limited time. At the very least, status-based ROE
should be automatically reviewed at certain intervals to determine
continued necessity and appropriateness.

The Operation PROVIDE COMFORT mission of protecting the Kurds changed
considerably in the three years between 1991 and 1994.[^192] Despite
changes in political objectives and military involvement, the ROE
remained essentially unchanged.[^193] This would not be as troublesome
if they had not been status-based. However, the broad authority to shoot
on sight when a force is declared hostile is reason enough for a
periodic review and update. The threat devolved over that three-year
period, but the ROE did not.[^194] No evidence shows that the ROE were
reviewed, much less updated, until after the shootdown.

Because of the reduced air activity north of the 36th parallel, much of
the justification for a status-based ROE had disappeared by 14 April
1994. "No Iraqi helicopters \[had\] ventured into the northern zone
since a flight ban was established there . . . ."[^195] Further, "the
last incursion above the 36th parallel" was by an Iraqi jet, fifteen
months earlier, in January 1993.[^196]

*3. Status-based ROE contributed to the "mindset" of the F-15 pilots*

The ROE could have contributed to the misidentification.[^197] When the
fighters entered the TAOR on 14 April 1994, they did not expect to see
*any* aircraft. Their defensive counterair mission was to sweep the area
to ensure no Iraqi aircraft were flying, and they did not expect
friendly helicopters inside of the TAOR. When they saw the helicopters,
they were surprised. "The F-15C pilots may have begun the visual
intercept with a mindset that the unknown aircraft were probably not
friendly."[^198] The helicopters appeared to be Hinds. They had external
fuel tanks, which the pilots had never seen on Army helicopters. From a
distance, the pilots mistook these "wings" to be characteristic of Iraqi
Hinds' sponsons.[^199] They saw that the helicopters were camouflaged,
thus they correctly interpreted the paint scheme to be that of a
military aircraft. They did not know−because they had not been properly
trained−that Army helicopters were dark green and black camouflage and
Iraqi Hinds were desert tan.[^200] From the distance that the
identification passes were made, the pilots were unable to discern any
visible markings on the helicopters and no response was received to
repeated electronic queries. They expected the aircraft to be hostile,
and "pilots who think they have spotted enemy aircraft are likely to try
to confirm that theory rather than disprove it."[^201] The pilots "saw"
exactly what they expected to see: hostile aircraft.[^202] Since they
were operating under a status-based ROE, and their visual identification
training of friendly aircraft was lacking,[^203] their mistake may have
been reasonable. Using WROE may have made the pilots think like
"combatants." Because combatants usually see exactly what they expect to
see, this sort of an accident was foreseeable.[^204]

# B. No Discrimination in the ROE Between 

# Fighter versus Rotary-Wing Threat

The ROE in Operation PROVIDE COMFORT applied across the board, to fixed
wing and rotary wing aircraft alike.[^205] When queried by the Accident
Investigation Board as to his understanding of the ROE, the F-15 wingman
stated that his perception of the ROE after the shootdown was that it
was not discriminating enough. "\[T\]here probably ought to be something
different to differentiate between \[fixed wing fighters and rotary
winged aircraft\]."[^206] Status-based ROE should consider the threat
and be narrowly written to address the threat. When the ROE are written
too broadly, the result may be either an unintentional escalation of the
conflict or the possibility of friendly fire.[^207] The difference
between "any Iraqi military aircraft north of the 36^th^ parallel may be
targeted" and "any Iraqi military fixed-wing aircraft north of the 36th
parallel may be targeted" is substantial.

The threat assessment should drive the ROE.[^208] What was the threat on
14 April 1994? At that time, the United States mission was to protect
the Kurds within the security zone by enforcing the no-fly zone. The
Blackhawk helicopters were flying away from the security zone, toward
the 36th parallel. Their point of origin may have been doubtful, but
they were not an immediate threat to any Kurds within the security zone.
Further, their speed of 130 knots per hour was so slow that there was no
reason to destroy first and ask questions later. Discrimination in the
permissible use of force between types of aircraft is critical.

Iraqi helicopters were no longer a significant feature in the threat
picture. Although helicopters had been harassing the Kurds on the ground
immediately after the Gulf War, that activity had ceased long before
1994. Prior to April 14th, the CTF intelligence section had no
indication that Hinds were operating in northern Iraq, nor "any
indication of hostile intent to do so."[^209] The flight lead testified
that he considered the helicopter's intent:

> He's flying over villages in the security zone, which are Kurdish.
> Hinds carry ordnance, so that did come through my mind. I did not see
> any ordnance dropped though. I didn't see any hostile acts, but we
> don't need any of that. Again, the only thing \[that I based my
> decision to fire on\] was that I positively identified him as
> Iraqi.[^210]

However, the Blackhawks were not flying over villages in the security
zone; they were flying away from the security zone. Given the
helicopters' southeasterly heading, the threat posed to the Kurds in the
security zone was minimal.

In contrast, a status-based ROE with respect to Iraqi fighters was
justifiable. Tensions were high, and intelligence indicated that a
threat was present.[^211] A fast moving Iraqi fighter, however, would be
more of a threat to a coalition aircraft than to Kurds in the security
zone. Because no Iraqi military aircraft were allowed in the "no-fly"
zone, declaring their fighters "hostile" to allow destruction on sight
would at least have a valid military purpose. An enemy fighter is always
a potential threat to our aircraft.[^212] Further, an enemy fighter's
crossing the 36^th^ parallel, heading in the direction of the security
zone, could be deemed evidence of hostile intent towards the Kurds.
There may not be time to ask questions first and shoot later; by then, a
fighter could have destroyed its target.

A ROE distinction between fighters and helicopters was nothing new in
1994. Shortly after the Blackhawk shootdown, Secretary Perry assured the
public that "allied pilots enforcing \[the\] no-fly zone over Bosnia
already are operating under rules that make the helicopter-fighter jet
distinction."[^213] Thus, some planners had already seen the need to
differentiate between types of aircraft. If the ROE for Operation
PROVIDE COMFORT had been reviewed between 1991 and 1994, perhaps this
distinction could have been made there as well.

Further, the ROE could have required the pilots either to seek
confirmation of enemy status from AWACS, or attempt to warn the
helicopters prior to engaging. In Operation Southern Watch, for example,
the ROE required fighters to obtain clearance from AWACS prior to
engaging fixed-wing aircraft.[^214] In Operation Deny Flight, "\[t\]he
ROE governing NATO's enforcement of the Bosnian no-fly zone
permit\[ted\] firing upon military aircraft violators only after
repeated warnings \[were\] ignored."[^215] Neither of these safeguards
was in place in northern Iraq on 14 April 1994.[^216]

Perhaps the most compelling reason to distinguish between fixed-wing and
rotary-wing targets was best articulated by Secretary Perry. When the
ROE were changed immediately after the accident, he explained, "\[y\]ou
have more time to contemplate action against a suspected Iraqi
helicopter, because it flies much slower than a jet fighter. Therefore,
the rules were changed this week to require greater care, greater checks
and balances in identifying helicopter threats."[^217] If this was
recognized immediately after the shootdown, before the facts were even
known, why was it not recognized prior to the shootdown?

C. The Preference to Seek Higher Authority Before Using Force was Not
Adequately Reflected in the Rules of Engagement

United States operations have shown a preference for seeking specific
approval to use deadly force when time permits. Requiring pilots to
coordinate with the commander on the ground before engaging aircraft in
no-fly zones has risen almost to the level of "policy." For example,
Operation DENY FLIGHT's ROE contained a provision that "pilots on patrol
. . . \[had to\] obtain radio permission from air operations
headquarters in Italy before firing on hostile aircraft."[^218] Because
no immediate threat from the helicopters existed, the extra time that it
would have taken for the fighters to "phone home" for approval prior to
engaging would have been an extra measure of safety that could possibly
have prevented the shootdown.

The national preference for seeking higher authority before using force
in peacetime is reflected in the standing rules of engagement (SROE).
The SROE, by their emphasis on self-defense and general requirement for
specific authorization to use force in support of mission
accomplishment, are, in part, "designed to limit the scope and intensity
of the conflict; \[and designed to\] discourage escalation."[^219]
Further,

> the responsibility for exercising the right and obligation of national
> self-defense and declaring a force hostile is a matter of the utmost
> importance, demanding considerable judgment of command. *All available
> intelligence, the status of international relationships, the
> requirements of international law, the possible need for a political
> decision, and the potential consequences for the United States must be
> carefully weighed.*[^220]

The preference to seek approval before using deadly force was not
adequately explained at the crew level. When the flight lead was asked
why he needed to engage so quickly, and why he did not spend more time
gathering information, his response was simple and straightforward:
"\[O\]nce I had no doubt that they were Hinds, I had met all the ROE and
the next step was to shoot them down."[^221] This response may have been
partially the basis for the Accident Board's findings that "some
aircrews' understanding of the ROE had become oversimplified."[^222]
This statement can be construed to reflect the pilot's belief that he
had no other options. In fact, ROE are always permissive, and they
mandate destruction only in a limited set of circumstances.[^223] They
tell an individual when he *may* use force, but they do not dictate an
obligation that he *must* use force. The preference to seek approval
before using force, and then using incremental escalation before
destructive force is employed, is not abdicated in peacetime or in an
OOTW.

Rules of engagement are supposed to be clear and concise. "Vagueness and
imprecision in the ROE can only compound the danger of uncontrolled
escalation."[^224] However, there appears to be a delicate balance
between ROE that are too long and detailed, and those that are too brief
and imprecise. The former will be too much for the operator to
understand and internalize. The latter, if the policy or security
rationale is omitted, will be too superficial to be of any use.[^225]

**D. The Combined Task Force had Notice of Potential Danger to
Helicopters: No Remedial Action Taken**

Evidence from the Aircraft Accident Investigation Board and the Article
32 hearing demonstrates that some of individuals operating within the
Operation PROVIDE COMFORT theater were aware that helicopters may be in
danger. Despite this knowledge, no remedial action was taken.

Testimony from the Military Coordination Center commander indicated that
periodically the Blackhawks' radar warning equipment would indicate that
the helicopters were being illuminated.[^226] In his words,

> \[Eagle flight would be flying along\] and have the attack warnings
> system in the helicopter indicate that we were being painted by an
> aircraft tracking system and \[we would\] respond to that by popping
> chaff flares and going for defilade. In fact, the \[Combined Task
> Force Operations Officer\] was with us on one occasion when that
> occurred.[^227]

Additionally, the F-16 squadrons had some incidents with helicopters
that resulted in a routine briefing to those squadrons of Operation
PROVIDE COMFORT helicopter activity. Their difficulties and concerns
were never relayed to the F-15 squadrons. According to the flight lead's
testimony,

> The F-16s were briefed, but the F-15s were not. I heard about that
> after the accident. I believe the reason it happened was two-fold; one
> is the F-16s, from what I heard, had a fear of having a close pass
> with a friendly helicopter because they did low-altitude training,
> something we don't do. They put a request in to get the specific
> flight plans for the helicopters. I also know from talking to the
> intelligence officer that he made several requests to get flight plans
> on any unknown aircraft that were friendly and never got any type of
> response. His request included helicopters.[^228]

Further, the same F-15 squadron involved in the shootdown had a previous
problem with a Russian aircraft that was not on their flow sheet. In
that case, a visual identification was properly made and tragedy
averted, but "\[i\]t was found out that the people at CTF staff knew
about the flight plan for that and didn't pass it down to us below.
There was a lot of screaming and yelling again at \[various\] meetings
about‑'We should know about this stuff before we shoot someone
down.'"[^229]

Therefore, evidence exists that the CTF staff knew that some vital
information was not being passed to the F-15 fighter squadrons. In fact,
the commander of the helicopter detachment testified that the CTF CG
briefed "whoever he was flying with" that there "was never a need to
shoot at a helicopter because there is no threat."[^230]

This assertion is curious indeed. As a subordinate commander to the
Commander-in-Chief of Europe, the CTF CG had the authority to make the
ROE more restrictive than those that were promulgated.[^231] He would
have been in the best position to require that pilots "phone home"
before using deadly force if the circumstances permitted time for
deliberation. At the very least, if he did not want to restrict the
rules himself, he may have had an obligation to make known his concerns
to his superiors. Obviously, if the CTF CG did recognize a significant
threat to United States and allied lives, he would take action to
eliminate the threat.

# IX. LESSONS LEARNED

Due to the myriad of contributing factors involved in the shootdown, it
is difficult to identify areas where judge advocates (JAG) input may
have helped. In fact, it is doubtful any JAG action or inaction
contributed to the event. Likewise, it is doubtful any type of JAG
intervention could have prevented the incident.[^232] Nonetheless,
perhaps in future operations JAGs can use the benefit of hindsight to
assist commanders in ensuring that this combination of problems never
recurs. With that thought in mind, a brief analysis of the JAG's role in
ROE matters may be appropriate.[^233]

When a JAG initially becomes involved in an operation, she must review
all materials that pertain to it. This includes all of the OPORDS,
OPLANS, Warning Orders, Deployment Orders, and Executive Orders about
the operation that are available.[^234] Certainly this includes the most
recent ones, but it also includes all of the past material, because the
history and development of an operation are relevant. A broad knowledge
base is imperative in understanding the current status of an operation,
and it is also helpful in ascertaining the direction that an operation
is likely to be headed in the future.

When the JAG focuses on the ROE, he must read the mission directives and
the statement of the commander's intent. Then he must analyze whether
the supplemental measures that have been approved by the National
Command Authority are consistent with the commander's intent, and
whether they are sufficient for mission accomplishment. Although ROE are
technically the province of the operators rather than the JAG, the JAG
must have the ability to ensure the ROE are appropriate for the mission,
are in compliance with international law and the laws of armed conflict,
and are in accordance with the national policy of the United States.

Next, the JAG can assist the commander in his responsibility to teach
and train the ROE. The JAG can develop examples and situational training
exercises to ensure the operators thoroughly understand the permutations
of permissible actions for both self-defense and mission accomplishment.
The operators should be able to answer questions designed to test their
knowledge of the concepts of "necessity" and "proportionality," and
should be able to correctly articulate what conduct would be appropriate
under a given set of circumstances.

Training on ROE necessarily involves review and discussion of other
aspects of the operators' responsibilities, such as visual
identification of aircraft, in which their knowledge and application of
the ROE may be tested. In this vein, the JAG can teach the concepts in
the commander's guidance by using flashcards that simulate what a pilot
is likely to see. The pilot is asked to discriminate between types of
aircraft and asked to say what he would do under a variety of
circumstances in which that aircraft was a potential target. For
example, the pilots could be shown pictures of Iraqi Hinds and given
information that indicates that the pilot of one of the Hinds is trying
to defect. Finally, it should be emphasized that ROEs generally specify
what *may* be done, rather than what *must* be done. The preference for
gradual escalation, time and circumstances permitting, can be explained
and reinforced using real world examples.

[^1]: *\*Major Eflein (B.S.N., University of Texas at Austin; J.D.,
    University of California at Davis; LL.M., The Judge Advocate
    General's School, U.S. Army) is the Chief, Foreign Litigation, HQ
    United States Air Forces in Europe, Ramstein AFB, Germany.*

    ^?^ Bruce B. Auster, *The Perils of Peacekeeping*, [U.S. News &
    World Rep.,]{.smallcaps} Apr. 25, 1994, at 28, 30 (quoting a
    memorandum written by Air Force Secretary Sheila Widnall in the Fall
    of 1993).

[^2]: *See, e.g., Id*. at 28; John F. Harris & John Lancaster, *Jets
    over Iraq Mistakenly Down American Helicopters, Killing 26,* [Wash.
    Post]{.smallcaps}*,* Apr. 15, 1994, at A1; Michael R. Gordon, *26
    Killed as U.S. Warplanes Down Two U.S. Helicopters over Kurdish Area
    of Iraq,* [N.Y. Times,]{.smallcaps} Apr. 15, 1994, at A1.

[^3]: *See, e.g.,* Gordon, *supra* note 2. The dead included fifteen
    Americans, five Kurds, three Turkish officers, two British officers,
    and a French officer.

[^4]: Several different factors were found by the Aircraft Accident
    Investigation Board to have influenced crew members' actions that
    day, including a "breakdown of clear guidance from the Combined Task
    Force to its component organizations"; a "lack of clear
    understanding among the components of their respective
    responsibilities"; a lack of "consistent and comprehensive \[ROE\]
    training"; poor communication; an unqualified AWACS mission crew
    commander; equipment mistakes or failure; improperly conducted
    visual recognition passes; and inadequate visual identification
    training. U.S. [Air Force]{.smallcaps}, [Aircraft Accident
    Investigation Board Report]{.smallcaps}: [U.S. Army UH-60 Blackhawk
    Helicopters]{.smallcaps}, 87-26000 & 88-26020, vol[. 2]{.smallcaps}
    at 46-48 (27 May 1994) \[hereinafter [Aircraft Accident Board
    Report]{.smallcaps}\].

[^5]: *Id. at* 47 (quoting the Statement of Opinion of Major General
    James Andrus, Aircraft Accident Investigation Board President,
    discussing the multiple reasons behind the shootdown).

[^6]: "Mission-ROE disconnect" refers to circumstances in which the
    Rules of Engagement, either as promulgated or executed, fail to
    adequately reflect and consider the military mission at issue or its
    underlying political policies and goals.

[^7]: John D. Morocco, *Fratricide Investigation Spurs U.S. Training
    Review,* [Aviation Week & Space Tech.,]{.smallcaps} July 18, 1994,
    at 25, 26 (quoting Secretary Perry's discussion of the results of
    the Accident Investigation).

[^8]: In discussing the purpose behind the development of Army doctrine
    on joint operations, the Army\'s Field Manual on Operations states
    that "\[t\]his doctrine recognizes that the Cold War has ended and
    the nature of the threat, hence the strategy of the United States as
    well, has changed. This doctrine reflects the shift to stronger
    joint operations, prompted by the *Goldwater-Nichols Act of 1986.*"
    U.S. [Dep't of Army, Field Manual]{.smallcaps} 100-5,
    [Operations]{.smallcaps} vi (June 1993) \[hereinafter [FM
    100-5]{.smallcaps}\].

[^9]: "Any future crisis in which force is used likely will be fought by
    coalition troops rather than on a unilateral basis." Lieutenant
    Commander Guy Phillips, *Rules of Engagement: A Primer*, [Army
    Law.,]{.smallcaps} July 1993, at 4 (citing Waldo Freeman, *The
    Challenges of Combined Operations,* [Military Rev]{.smallcaps}.,
    Nov. 1992, at 2). For a good discussion of OOTW, see [U.S. Army
    International & Operational L. Dep't, The Judge Advocate General's
    School Pub. JA-422, Operational Law Handbook]{.smallcaps} ¶ 13-1 n.3
    [(1996) \[]{.smallcaps}hereinafter [Ops Law Handbook]{.smallcaps}\].

[^10]: Operation PROVIDE COMFORT was a joint and combined operation.
    According to the [Aircraft Accident Board Report]{.smallcaps},
    *supra* note 4, vol. 2 at 5, the United States Commander in Chief,
    Europe, directed the creation of a Combined Task Force (CTF) to
    conduct operations in northern Iraq. CTFs are joint task forces
    incorporating forces of other nations. Under OPLAN 91-7, CTF PROVIDE
    COMFORT was organized using a modified joint task force (JTF)
    structure. *Id.*

[^11]: *Id.* at 48 (quoting the Statement of Opinion of Major General
    James Andrus, Board President: "The flight lead, acting within the
    specified ROE, fired a single missile and shot down the trail
    Blackhawk helicopter. At flight lead's direction, the F-15 wingman
    also fired a single missile and shot down the lead Blackhawk
    helicopter."). Following the accident, the Secretary of Defense
    ordered an investigation into the causes of the accident. The
    product of that investigation was a 22-volume report, *supra* note
    4. The investigation was conducted in accordance with Air Force
    Regulation 110-14, Aircraft Accident Investigation (replaced by Air
    Force Instruction 51-503, Aircraft, Missle, Nuclear and Space
    Accident Investigations (1 July 1995)). This means that testimony
    was taken under oath and was available for use against service
    personnel. No safety investigation was done. *See* David A. Fulghum
    & Jeffrey M. Lenorovitz, *Iraq Shootdown May Trigger Legal Action,*
    [Aviation Week & Space Tech.,]{.smallcaps} May 2, 1994, at 18. The
    Secretary of Defense also ordered an investigation into the ROE;
    *see* Richard Lacayo, *Deadly Mistaken Identity,*
    [Time]{.smallcaps}, Apr. 25, 1994, at 50, 51 ("\[Secretary of
    Defense\] Perry ordered one investigation into the event and another
    into the rules of engagement that govern the two no-fly zones in
    Iraq, as well as the one over Bosnia.").

[^12]: It is not the author's intention to cast blame or fault upon the
    individuals whose acts or omissions contributed somehow to the long
    chain of events that led to the shootdown. Enough of that has been
    done. *See, e.g*., *Six Officers Charged in Connection with
    Blackhawk Shootdown*, [Sheppard Senator,]{.smallcaps} Sept. 15,
    1994, at 11; Steven Watkins, *Charges Mount in Shootdown,* [Air
    Force times,]{.smallcaps} Sept. 19, 1994, at 3; Robert Burns,
    *Career-Ending Reprimands Sent Seven Officers in Iraq Shootdown,*
    [San Antonio Express-News,]{.smallcaps} Aug. 14, 1995, at A1; Robert
    Burns, *Air Force Grounds Five Officers Involved in Friendly Fire
    Shootdown,* [San Antonio Express-News,]{.smallcaps} Aug. 15, 1995,
    at A1. At this juncture, the military is better served by
    identifying and correcting problems rather than pointing accusing
    fingers. For this reason, this article will not identify individual
    crew members by name. It will refer to their crew positions or
    military ranks when an identifier is necessary.

[^13]: Major Richard M. Whitaker, *Civilian Protection Law in Military
    Operations: An Essay,* [Army Law.]{.smallcaps}, Nov. 1996, at 3.

[^14]: [Ops Law Handbook]{.smallcaps} *supra* note 9, ¶ 8-1. *See also*
    [The Joint Chiefs of Staff, Joint Pub. 1-02:]{.smallcaps} [Dep't of
    Defense Dictionary of Military and Associated Terms
    (1989).]{.smallcaps}

[^15]: [FM 100-5,]{.smallcaps} *supra* note Error: Reference source not
    found, at ¶ 2-4.

[^16]: Captain J. Ashley Roach, *Rules of Engagement,* [Naval War C.
    Rev.,]{.smallcaps} Jan.-Feb. 1983, at 46 (stating that "ROE also
    reflect the influence of operational, political, and diplomatic
    factors.").

[^17]: Jonathan T. Dworken, *Rules of Engagement: Lessons from Restore
    Hope*, [Military Rev.,]{.smallcaps} Sept. 1994, at 26, 33.

[^18]: Roach, *supra* note Error: Reference source not found, at 47.

[^19]: *Id. at* 47-48.

[^20]: *See, e.g.*, Commander Mark E. Newcomb, Professor of
    International and Operational Law, Rules of Engagement, Lecture at
    The Army Judge Advocate General's School, United States Army (Fall
    1996) (outline on file with the International and Operational Law
    Department, The Judge Advocate General's School, United States Army,
    Charlottesville, Virginia) \[hereinafter Newcomb Lecture\].

[^21]: [The Joint Chiefs of Staff,]{.smallcaps} [Joint Pub.
    5-00.2]{.smallcaps}, [Joint Task Force Planning Guidance and
    Procedures]{.smallcaps}, iv-7 \[hereinafter [JTF Planning
    Guide]{.smallcaps}\] (forthcoming publication on file with the U.S.
    Army, Center for Law and Military Operations (CLAMO), The Judge
    Advocate General's School, Charlottesville, Virginia).

[^22]: Roach, *supra* note Error: Reference source not found, at 49.

[^23]: [Joint Warfighting Center]{.smallcaps}, [Joint Task Force
    Commander's Handbook for Peace Operations 76 (1995)]{.smallcaps}
    \[hereinafter [JTF Commander's Handbook]{.smallcaps}\].

[^24]: Roach, *supra* note Error: Reference source not found, at 49.

[^25]: As one commentator has noted in discussing ROE in OOTW: "In the
    OOTW environment, the development and promulgation of ROE are much
    more challenging than in wartime, due to the ambiguous and changing
    threat conditions." F.M. Lorenz, *Rules of Engagement in Somalia:
    Were They Effective?,* 42 [Naval L. Rev]{.smallcaps}. 62, 71 (1995).

[^26]: The idea for using a "continuum model" to describe OOTW came from
    Major Richard M. Whitaker, United States Army, Professor of
    International and Operational Law at The Army Judge Advocate
    General's School. He has used this model to describe the law that
    applies to civilians during OOTW. *See* Whitaker, *supra* note
    Error: Reference source not found, at 3.

[^27]: "Changing threat \[conditions require\] a formal change to the
    ROE." Lorenz, *supra* note Error: Reference source not found, at 74.
    *See also* [JTF Commander's Handbook]{.smallcaps}, *supra* note
    Error: Reference source not found, at 76 ("\[C\]hanges in the threat
    situation or political situation may dictate a formal change to the
    ROE and require immediate distribution.").

[^28]: "Mission creep" is the phenomenon that inevitably happens in a
    lengthy operation. The initial purpose for intervention is met, (or
    is not met, and must be modified), while the objective for remaining
    in the operation changes.

[^29]: "Operations Other Than War are characterized by restraint in the
    use of firepower and violence. This stands in contrast to the
    wartime environment, which places a premium on aggressiveness once
    the enemy has been identified." Lorenz, *supra* note Error:
    Reference source not found, at 75.

[^30]: [Chairman, Joint Chiefs of Staff Instr. 3121.01, Standing Rules
    of Engagement for U.S. Forces]{.smallcaps} (1 Oct. 1994)
    \[hereinafter SROE\].

[^31]: Other examples of operations that may or may not be peaceful
    include noncombatant evacuation operations, nation assistance, civil
    disturbance operations, counterdrug operations, shows of force,
    strikes, raids, and support for insurgencies or counterinsurgencies.
    *See* [FM]{.smallcaps} 100-5, *supra* note Error: Reference source
    not found, at 13-4 to 13-8.

[^32]: If the offensive use of force is contemplated for mission
    accomplishment, then using wartime ROE, or at the very least,
    modified peacetime ROE, should be considered. *See* [JTF Planning
    Guide]{.smallcaps}*, supra* note Error: Reference source not found,
    at iv-7; *see also* Phillips, *supra* note Error: Reference source
    not found, at 22.

[^33]: For the purposes of this paper, PROE refers to peacetime rules of
    engagement generally. It is not meant to refer to the old JCS
    Peacetime Rules of Engagement, JCS SM-846-88 PROE (Oct. 28, 1988),
    which is commonly referred to as "the PROE."

[^34]: Roach, *supra* note Error: Reference source not found, at 49.

[^35]: Phillips explains that PROE are based on the "inherent right of
    self-defense as codified in the U.N. Charter." Phillips, *supra*
    note Error: Reference source not found, at 7. The United Nations
    Charter recognizes a nation's inherent right to use force to defend
    itself, as long as the use of force is necessary, and the type of
    force used is proportional to the threat. That right extends not
    only to defensive reactions to a first use of force, but also to
    collective and anticipatory self-defense. Thus, a state can assist
    another state to defend itself, and a threatened state is not
    required to "take the first hit" before it may protect itself. The
    basic requisites of necessity and proportionality still apply. *See*
    O[ps Law Handbook,]{.smallcaps} *supra* note 9, at 4-2 (explaining
    that the United Nations Charter proscribes the aggressive use of
    force), 4-3 (explaining the genesis and parameters of the
    permissible use of force in self-defense), and 4-6 (discussing
    self-defense against an imminent attack).

[^36]: A soldier always has the right to protect himself, and members of
    his unit, against a hostile act or hostile intent. "\[M\]ost every
    \[PROE\] contains a warning to the effect that 'nothing in these
    rules is intended to limit the commander's right of self-defense.'"
    Roach, *supra* note Error: Reference source not found, at 49. *See
    also* [JTF Commander's Handbook,]{.smallcaps} *supra* note Error:
    Reference source not found, at 74 ("ROE cannot interfere with your
    right and responsibility to protect your force against an actual or
    imminent threat of attack."). The SROE, *supra* note Error:
    Reference source not found, define the following terms: inherent
    right of self-defense, national self-defense, collective
    self-defense, and unit self-defense. *See also* [Ops Law
    Handbook,]{.smallcaps} *supra* note 9, at 8-15.

[^37]: Roach, *supra* note Error: Reference source not found, at 49.
    *See also* [JTF Commander's Handbook,]{.smallcaps} *supra* note
    Error: Reference source not found (describing national
    self-defense).

[^38]: Phillips, *supra* note Error: Reference source not found, at 12
    (citing U.S. [Dep't of Navy, Commander's Handbook of the Law of
    Naval Operations, Naval Warfare Publication 9]{.smallcaps} § 4.3.2
    (1987) \[hereinafter NWP 9\]. *See also* Phillips, *supra* note
    Error: Reference source not found, at 13, 27 n.118 (observing that
    some commentators also believe "immediacy" is a prerequisite to the
    use of force in collective self-defense, citing [Dinstein, War,
    Aggression, and Self-Defence 2000, 250]{.smallcaps} (1988)).

[^39]: Phillips, *supra* note Error: Reference source not found, at 12.
    *See also* Major Mark S. Martins[,]{.smallcaps} *Rules of Engagement
    for Land Forces: A Matter of Training, Not Lawyering,* [143 Mil. L.
    Rev. 1, 29-30 (1994).]{.smallcaps}

[^40]: Phillips, *supra* note Error: Reference source not found, at 12
    (citing [NWP 9,]{.smallcaps} *supra* note 38[).]{.smallcaps}

[^41]: [Ops Law Handbook,]{.smallcaps} *supra* note 9, ¶ 8-19. *See
    also* Roach, *supra* note Error: Reference source not found, at 50
    (explaining that the use of force must be limited to that reasonably
    required to counter the attack or threat of attack. Further, "\[i\]n
    peacetime, force may never be used with a view to inflicting
    punishment for acts already committed.").

[^42]: Martins, *supra* note Error: Reference source not found, at 30.

[^43]: *Id.*

[^44]: Phillips, *supra* note Error: Reference source not found, at 14,
    22 (distinguishing between WROE, which have an offensive mindset,
    and PROE, which have a defensive mindset). *See also* Roach, *supra*
    note Error: Reference source not found, at 54.

[^45]: Phillips, *supra* note Error: Reference source not found, at 22.
    *See also* Roach, *supra* note Error: Reference source not found, at
    54.

[^46]: *See, e.g.,* Phillips, *supra* note Error: Reference source not
    found, at 14 ("Two issues predominate ROE formulation. The primary
    issue will be the laws that deal with targeting. The second area of
    concern involves permissible weapons."). *See also* Newcomb Lecture,
    *supra* note Error: Reference source not found.

[^47]: W. Hays Parks, Righting the Rules of Engagement 83, 90, Address
    at U.[S. Naval Institute Proceedings (]{.smallcaps} May 1989) (on
    file with author).

[^48]: *Id.* (discussing tactics used in Vietnam whereby American
    Prisoners of War would be moved into likely military target areas to
    preclude United States airstrikes on valuable parts of Hanoi's
    infrastructure).

[^49]: [Ops Law Handbook,]{.smallcaps} *supra* note 9, ¶ 18-1, 18-2
    (discussing generally what is prohibited under the law of war. The
    selection of proper targets must also involve an understanding of
    exactly what constitutes a "valid military objective.").

[^50]: *Id.* ¶ 18-2 (explaining the concept of proportionality as
    "\[t\]he loss of life and damage to property incidental to military
    action must not be excessive in relation to the concrete and direct
    military advantage expected to be gained.").

[^51]: *Id.*

[^52]: *Id.* ¶ 18-3. The United States has been a party to the Protocol
    since 1975.

[^53]: Parks, *supra* note Error: Reference source not found, at 93.
    *See also* [International & Operational L. Dep't, The Judge Advocate
    General's School , U.S. Army, Operational Law Deskbook,]{.smallcaps}
    at 9-28 ([1996) \[]{.smallcaps}hereinafter [Ops Law
    Deskbook\].]{.smallcaps} An example of this type of limitation in a
    WROE is the domestic prohibition on the use of riot control agents
    and herbicides. *See, e.g.,* [Ops Law Handbook,]{.smallcaps} *supra*
    note 9, ¶ 18-3, 18-4 (discussing Executive Order 11,850 and its
    interplay with the new Chemical Weapons Convention that the United
    States signed in 1993, but which has not been ratified. Executive
    Order 11,850 requires Presidential approval of riot control agents
    and herbicides before first use in armed conflict.).

[^54]: SROE, *supra* note Error: Reference source not found. Although
    the Joint Chiefs of Staff promulgated the SROE in October, 1994,
    after the shootdown that is the focus of this article, the SROE
    still provide an important conceptual model that can be used to
    understand the shootdown.

[^55]: [Ops Law Handbook,]{.smallcaps} *supra* note 9, ¶ 8-4*.*

[^56]: *Id.*

[^57]: [JTF Planning Guide]{.smallcaps}, *supra* note Error: Reference
    source not found, at iv-8.

[^58]: *See supra* note Error: Reference source not found and
    accompanying text.

[^59]: SROE, *supra* note Error: Reference source not found. Enclosure A
    of the SROE, which is unclassified, defines national, unit, and
    individual self-defense.

[^60]: [JTF Planning Guide,]{.smallcaps} *supra* note Error: Reference
    source not found, at iv-8.

[^61]: SROE, *supra* note Error: Reference source not found.

[^62]: *Id. at* encl. A, ¶ 6 (emphasis added). Paragraph 6 goes on to
    state:

    > The responsibility for executing the right and obligation of
    > national self-defense and declaring a force hostile is a matter of
    > the utmost importance demanding considerable judgment of command.
    > All available intelligence, the status of international
    > relationships, the requirements of international law, the possible
    > need for a political decision, and the potential consequences for
    > the United States must be carefully weighed.

    *Id. See* Martins, *supra* note Error: Reference source not found,
    at 27 (discussing the idea that once a force has been declared
    hostile, the PROE are effectively changed into WROE).

[^63]: *See, e.g.,* Martins, *supra* note Error: Reference source not
    found, at 27; Newcomb Lecture, *supra* note Error: Reference source
    not found.

[^64]: [U.S. Army, CLAMO, The Judge Advocate general's School, Law and
    Military Operations in Haiti]{.smallcaps}, 1994-1995: [Lessons
    Learned for Judge Advocates,]{.smallcaps} 35 (1995).

[^65]: The SROE is divided into three enclosures. Each enclosure gives
    guidance on when and how force may be used. *See* [Ops Law
    Handbook,]{.smallcaps} *supra* note 9, ¶ 8-4. Enclosure A is the
    SROE itself and it is unclassified. It explains the procedures and
    policies for the defensive use of force. It is supplemented by two
    enclosures, labeled "B" and "C." Enclosure B describes how to
    supplement Enclosure A when more specific guidance is needed. It
    also contains specific supplemental rules that can be adopted for
    use in contingencies. These supplemental rules govern when force can
    be used offensively; that is, for mission accomplishment. It is
    classified "secret." Enclosure C, also classified "secret," contains
    ROE for specific areas of responsibility. These latter rules are
    promulgated by the combatant commanders in charge of the different
    regions of the world, and are approved by the JCS. In addition to
    the three enclosures, a number of appendices contain specific
    details about air, land, and sea operations, and some of the
    specific types of OOTW. *See id*, at 8-5 (stating that guidance in
    the appendices and annexes also cover counterdrug support
    operations, noncombatant evacuation operations, and peace
    operations). This allows commanders of particular types of forces to
    include material applicable to their particular operation into their
    rules of engagement.

[^66]: Harry L. Heintzelman, IV, & Edmund S. Bloom, *A Planning Primer:
    How to Provide Effective Legal Input into the War Planning and
    Combat Execution Process*, 37 [A.F. L. Rev. 5, 18 (1994)
    (]{.smallcaps}discussing tailoring the ROE: ["\[]{.smallcaps}r\]ules
    of engagement must be tailored to take into account the military
    posture of the forces utilizing them and the various contingencies
    they might face.").

[^67]: Martins, *supra* note Error: Reference source not found, at 29
    n.84 (referring to U.S. [Dep't of Army, Field Manual 27-10, The Law
    of Land Warfare 4 (]{.smallcaps}July [1956),]{.smallcaps} which
    states that during war, "military necessity" is the principle that
    "justifies those measures not forbidden by international law which
    are indispensable for securing the complete surrender of the enemy
    as soon as possible.").

[^68]: Phillips, *supra* note Error: Reference source not found, at 23.

    > During the Gulf War, the air forces were controlled strictly for
    > safety reasons. \[T\]wo independent electronic identifications had
    > to be obtained before an engagement was authorized. \[T\]he ROE
    > had to take into account the technical disparities between
    > platforms. \[T\]he concerns for downing a friendly or neutral
    > aircraft restrict\[ed\] the employment of firepower where two
    > electronic identifications or a visual confirmation had not been
    > made.

    *Id*.

[^69]: Parks, *supra* note Error: Reference source not found, at 90.

[^70]: Timothy P. McIlmail, *No-Fly Zones: The Imposition and
    Enforcement of Air Exclusion Regimes over Bosnia and Iraq,* 17 [Loy.
    L.A. Int'l & Comp. L.J. 35, 48 (1994).]{.smallcaps} *See also*
    Commander Mark E. Newcomb, Professor of International and
    Operational Law, Seminar: United Nations and the Use of Force, The
    Judge Advocate General's School, United States Army,
    Charlottesville, Virginia (Fall 1996) (on file with the
    International & Operational Law Department, The Judge Advocate
    General's School, United States Army, Charlottesville, Virginia)
    \[hereinafter Newcomb Seminar\].

[^71]: *See* Office of Assistant Secretary of Defense for Public
    Affairs, Fact Sheet: Operation PROVIDE COMFORT−Background
    Information (July 13, 1994), in connection with the twenty-two
    volume Accident Investigation Report, *supra* note 4 (on file with
    the Center for Law and Military Operations, The Judge Advocate
    General's School, Charlottesville, Virginia) \[hereinafter Fact
    Sheet[\]]{.smallcaps}.

[^72]: *Id.*

[^73]: S.C. Res. 688, U.N. SCOR, 46th Sess., 2982d mtg. at 1, U.N. Doc.
    S/RES/688 (1991). states in relevant part:

    > The Security Council . . .
    >
    > 1\. *Condemns* the repression of the Iraqi civilian population in
    > many parts of Iraq, including most recently in Kurdish populated
    > areas, the consequences of which threaten international peace and
    > security in the region;
    >
    > 2\. *Demands* that Iraq, as a contribution to removing the threat
    > to international peace and security in the region, immediately end
    > this repression . . . ;
    >
    > 3\. *Insists* that Iraq allow immediate access by international
    > humanitarian organizations to all those in need of assistance in
    > all parts of Iraq and to make available all necessary facilities
    > for their operation . . . ;
    >
    > . . .
    >
    > 5\. *Requests further* the Secretary-General to use all the
    > resources at his disposal, including those of the relevant United
    > Nations agencies, to address urgently the critical needs of the
    > refugees and displaced Iraqi population;
    >
    > 6\. *Appeals* to all Member States and to all humanitarian
    > organizations to contribute to these humanitarian relief efforts .
    > . . .

[^74]: *Id. See also* McIlmail, *supra* note Error: Reference source not
    found, at 48; Fact Sheet, *supra* note Error: Reference source not
    found.

[^75]: The coalition was composed of the United States, Britain, France
    and Turkey. Fact Sheet[,]{.smallcaps} *supra* note Error: Reference
    source not found.

[^76]: *See* McIlmail, *supra* note Error: Reference source not found,
    at 48-50:

    > On April 10, 1991, the United States announced that France and the
    > United Kingdom would join in the imposition of a no-fly zone over
    > Iraqi territory north of the 36th parallel . . . . The coalition
    > claimed that Resolution 688 authorized the imposition of a no-fly
    > zone over northern Iraq in order to force compliance with the
    > Security Council demand that Iraq stop repressing its civilian
    > population. Resolution 688, however, did not itself establish any
    > flight ban. Nor did the Resolution authorize Member States to
    > enforce the demand that Iraq cease its repression of civilians.

    *Id.*

[^77]: *See, e.g., id.; see also* Colonel Philip A. Meek, *Operation
    PROVIDE COMFORT: A Case Study in Humanitarian Relief and Foreign
    Assistance*, [37 A.F. L. Rev. 225, 236 (1994);]{.smallcaps}
    Christopher M. Tiso, *Safe Haven Refugee Programs: A Method of
    Combating International Refugee Crisis,* [8 Geo. Immigr. L.J. 575,
    579 (1994).]{.smallcaps}

[^78]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 2 at 2.

[^79]: *Id.*

[^80]: *Id. at* 3, 4. *See also* [Ops Law Handbook]{.smallcaps} *supra*
    note 9, at 6-1 for an explanation of OPORDs. Basically, an OPORD
    directs how to conduct a contingency plan.

[^81]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 4. As Heintzelman & Bloom explain, "an OPLAN details the
    strategy and methods of operation developed by a combatant command
    to accomplish its assigned objectives. It also identifies the forces
    and logistics necessary to successfully execute the plan and it
    includes a strategic movement plan to project those resources into
    the theater of operations." Heintzelman & Bloom, *supra* note Error:
    Reference source not found, at 9.

[^82]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 5 ("\[u\]nder OPLAN 91-7, CTF PROVIDE COMFORT was
    organized using a modified joint task force (JTF) structure."). *See
    also* Fact Sheet, *supra* note Error: Reference source not found
    ("\[T\]he task force staff consist\[ed\] of members from all
    participating nations, and parallel\[ed\] a joint command
    structure.").

[^83]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 5 (explaining that operational control (OPCON) is the
    authority to command subordinate forces, assign tasks, designate
    objectives, and give authoritative direction necessary to accomplish
    the mission).

[^84]: *Id.*

[^85]: *Id.*

[^86]: *Id.*

[^87]: *Id.*

[^88]: *Id. at* 6. *See also* FM 100-5, *supra* note Error: Reference
    source not found, at 4-2 (defining TACON as "the detailed, and
    usually local, direction and control of movements and maneuvers
    necessary to accomplish missions and tasks."); Fact Sheet, *supra*
    note Error: Reference source not found (stating that "TACON also
    provides the authority to direct military operations and control
    designated forces.").

[^89]: Fact Sheet, *supra* note Error: Reference source not found. AWACS
    is the acronym for Airborne Weapons and Control System.

[^90]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 2 at 14.

[^91]: *Id. at* 42. *See also* [A]{.smallcaps}rticle 32, UCMJ,
    Report[,]{.smallcaps} Investigating Officer Exhibit 52 (copy on file
    with author) \[hereinafter [Art. 32 Report]{.smallcaps}\] (testimony
    of the tactical area of responsibility weapons director to Aircraft
    Accident Board). The Article 32 investigation was conducted at
    Tinker Air Force Base, Oklahoma, from 11 Oct. 1994 to 10 Nov. 1994,
    at the direction of Lieutenant General Stephen Croker, Commander,
    8th Air Force. This joint hearing was convened to investigate the
    criminal charges preferred against the four AWACS crew members and
    the Airborne Command Element. The investigation was conducted by
    Colonel William S. Colwell. The TAOR weapons director, a second
    lieutenant, was on his first mission ever in an operational theater
    or a combat support area. He had completed his training in February
    1994.

[^92]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 2 at 14. The no-fly area was all of Iraq that extended north of
    the 36^th^ parallel. The security zone was a small subset of the
    no-fly area. Geographically, it encompassed Zakhu and the small
    Kurdish villages located near Zakhu.

[^93]: *Id*. vol. 1 at 3.

[^94]: *Id.* vol. 2 at 7 (stating "OPC \[Operation PROVIDE COMFORT\]
    daily flight operations are scheduled as mission packages. A typical
    package consists of a wide variety of aircraft with specific mission
    capabilities."). On 14 April 1994, the coalition package was to
    consist "of 52 OPC aircraft, of which 28 were to be airborne by
    0800Z." *Id. at* 10.

[^95]: *Id. at* 16.

[^96]: "\[T\]he \[Airspace Control Order\] directed the helicopters to
    monitor the area of responsibility frequency." [Art. 32
    Report]{.smallcaps}, *supra* note Error: Reference source not found,
    vol. 1 at 34.

[^97]: "Four Eagle Detachment helicopter pilots testified that their
    standard procedure was to stay on the enroute frequency. These
    pilots included a commander, standardization instructor pilot, and
    another flight instructor." *Id.* The majority of their operations
    only went as far east as Zakhu, and then they would turn around and
    go back into Turkey. Therefore, they were accustomed to operating
    only in accordance with the rules applicable outside the TAOR. *Id.
    See also* [Aircraft Accident Board Report]{.smallcaps}, *supra* note
    4, vol. 2 at 16 ("Neither the enroute controller nor the senior
    director instructed the Blackhawk helicopters to change from the
    enroute frequency to the TAOR clear frequency that was being
    monitored by the TAOR controller.").

[^98]: "IFF" is an acronym for Identification Friend or Foe system. Its
    complexities are beyond the scope of this article. It has four modes
    that can be set with different codes so that one friendly aircraft
    can identify another friendly aircraft electronically via air-to-air
    interrogation. Mode I is used for identification; coalition fixed
    wing and rotary wing aircraft had separate Mode I codes they were
    supposed to "squawk" in Turkey. Once they got inside of Iraq, all
    coalition aircraft were supposed to change their Mode I to the same
    squawk. Mode II is a unique signature; it differs for every
    aircraft. When an individual believes that he has identified a
    friendly aircraft, he can dial in that aircraft's specific Mode II
    and interrogate it to confirm his identification. (It is primarily
    used so aircraft can find the proper tanker for air-to-air
    refueling.). Mode III was not to be used inside Iraq, so it is not
    relevant here. Mode IV was encrypted, classified, and loaded during
    preflight. It should have been the same for all coalition aircraft
    whether they were in Turkey or Iraq. *See generally* [Art. 32
    Report]{.smallcaps}, *supra* note Error: Reference source not found,
    Investigating Officer Exhibit 143a at 5, 6 (testimony of the F-15
    flight lead).

[^99]: "The helicopters' transponders were operational and transmitting
    Mode I, code 42 after departing Zakhu, inside the TAOR." [Aircraft
    Accident Board Report]{.smallcaps}, *supra* note 4, vol. 2 at 26.

[^100]: "Mode I, code 52 was specified in the \[Air Tasking Order\] for
    all aircraft operating inside the TAOR." *Id.*

[^101]: "Helicopter pilots assigned to the Blackhawk unit were not aware
    that the ATO specified separate transponder Mode I codes for
    operating inside and outside of the \[TAOR\]. The unit had routinely
    flown in the TAOR using the Mode I code designated for use outside
    the TAOR." *Id. at* 25. *See also supra* note Error: Reference
    source not found and accompanying text.

[^102]: "The senior director did not know if the helicopters' Mode I was
    supposed to change upon entering the area of responsibility . . .
    Numerous other AWACS members did not know of a duty to direct the
    helicopters to change Mode I squawk." [Art. 32 Report]{.smallcaps},
    *supra* note Error: Reference source not found, vol. 1 at 33. The
    AWACS used Mode I for identification purposes. When the Blackhawks
    departed Zakhu, AWACS already had identified them and they had no
    reason to check the Blackhawks' Mode I.

[^103]: "By standard practice and procedure, there was no duty to
    provide IFF checks to helicopters . . . . \[H\]elicopters were not
    considered as 'aircraft' under the \[OPC\] package." *Id. at* 58

[^104]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 2 at 17. Note that the helicopters remained on the enroute
    frequency. *See also* *supra* note Error: Reference source not found
    and accompanying text.

[^105]: Due to the mountainous terrain, "at this time, the AWACS mission
    crew did not have radar or IFF contact with the Blackhawk
    helicopters." [Aircraft Accident Board Report,]{.smallcaps} *supra*
    note 4, vol. 2 at 17.

[^106]: The "flow sheet" was the aircrews' "principal planning tool." It
    is on a kneeboard that the pilots refer to inflight for an
    abbreviated ATO. It is supposed to contain all relevant mission
    information along with specific information on all aircraft that are
    authorized to operate inside the AOR. *Id. at* 11.

[^107]: *Id. at* 47.

[^108]: *Id. at* 21.

[^109]: *Id.* At that time, the scopes of the AWACS mission crew did not
    indicate any radar or IFF contact. The helicopters would frequently
    take advantage of the mountainous terrain to mask them from
    detection on Iraqi radar.

[^110]: *Id.*

    > Using his \[Air to Air Interrogator system\], with his radar in
    > the search mode, the flight lead again interrogated the radar
    > contact for IFF Mode I and Mode IV codes. No response was
    > received. Simultaneously, the wingman lowered his radar search
    > pattern \[onto the radar contact and locked on\]. He then
    > interrogated the radar contact for IFF Mode I and Mode IV codes,
    > with no response.

    *Id.*

[^111]: *Id.* vol. 1 at 3. *But see Id.* at 21 (stating that flight
    lead's initial Mode IV interrogation received a "momentary Mode IV
    response." Because the response was so brief, instantly changed to
    "no response," and was not repeated in either of his two subsequent
    interrogations, the flight lead thought that the positive response
    was due to an anomaly in his aircraft's Air-to-Air Interrogation
    system.).

[^112]: *Id.* vol. 2 at 22.

[^113]: *Id. at* 18.

[^114]: *Id*. *See also* [Art. 32 Report]{.smallcaps}, *supra* note
    Error: Reference source not found, Investigating Officer Exhibit
    143a.21 & 143.32, flight lead's testimony that, "Paints . . . means
    Friendly IFF response . . . . A Paint is a code word for a friendly
    interrogation."

[^115]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 22.

[^116]: *See generally id.* vol. 1 at 3.

[^117]: *Id.* vol. 2 at 22.

[^118]: [Art. 32 Report]{.smallcaps}, *supra* note 91, Investigating
    Officer Exhibit 143.22 (testimony of flight lead to Accident Board).

[^119]: *Id. at* 143.21.

[^120]: *Id. at* 143.43; *see also id.* Investigating Officer Exhibit
    143.28. The flight lead had served a tour as a forward air
    controller, in which he served as a battalion liaison officer for
    the Army. He had seen numerous Blackhawks, never with sponsons
    (which are gun turrets or platforms projecting on either side of an
    aircraft). He had also jumped out of Blackhawk helicopters.
    Additionally, he had also intercepted a United Nations helicopter in
    Bosnia, which he had not shot down. *Id. at* 143.54.

[^121]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 40.

[^122]: "Neither pilot had received recent, adequate visual recognition
    training. The pilots did not recognize the differences between the
    US Blackhawk helicopters with wing-mounted fuel tanks and Hind
    helicopters with wing-mounted weapons." *Id. at* 47.

[^123]: *Id.* Interrogation of IFF Mode 1 is a single-read test. The
    F-15 pilot dials in the code that friendly aircraft are supposed to
    be squawking, and electronically interrogates the unknown contact. A
    friendly aircraft that is squawking the proper Mode 1 "answers" the
    interrogation with an electronic signal. An aircraft that does not
    respond is an "unknown" or "hostile." In this case, the F-15 lead
    pilot interrogated for the code used inside the TAOR, but got no
    response because the Blackhawks' Mode 1 was still set for outside
    the TAOR.

[^124]: *Id. at* 22.

[^125]: *Id.*

[^126]: F-15 wingman's testimony to the Aircraft Accident Investigation
    Board: "I never came out and \[positively identified them as
    Hinds\]. I came in on that ID pass\--I saw the high engines, the
    sloping wings, the camouflaged body, no fin flashes or markings, I
    pulled off left, I called 'Tally Two.' I did not identify them as
    hostile\--I did not identify them as friendly. I expected to see
    Hinds based on the call my flight leader had made. I didn't see
    anything that disputed that." [Art. 32 Report,]{.smallcaps} *supra*
    note Error: Reference source not found, Investigating Officer
    Exhibit 57.25.

[^127]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 1 at 4; vol. 2 at 18, 22-23.

[^128]: Flight lead's testimony to the Aircraft Accident Investigation
    Board: "Then soon after that, there's this call that says
    'affirmative.' I don't know if it was, 'affirmative Hind,'
    'affirmative VID'−but the gist of it, yes, they're Hinds. That was
    from Tiger 2." [Art. 32 Report]{.smallcaps}, *supra* note Error:
    Reference source not found, Investigating Officer Exhibit 143.22.

[^129]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 22-23.

[^130]: The AWACS crew could not hear the conversation from the flight
    lead to his wingman over the pilots' auxiliary radio, in which the
    flight lead gave instructions to "arm hot," told his wingman that he
    would shoot the trail helicopter, and directed his wingman to shoot
    the lead helicopter. *See, e.g., id.* vol. 2 at 18, 22. *See also
    infra* note 212 and accompanying text. AWACS clearance was not
    required. The pilot's comment was not a request for permission; it
    was an indication of his intent to fire. *See* [Aircraft Accident
    Board Report,]{.smallcaps} *supra* note 4, vol. 2 at 22.

[^131]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4, at
    22-23.

[^132]: *Id. at* 23.

[^133]: *Id.*

[^134]: *Id.*

[^135]: *Id.*

[^136]: *Id. at* 46 (statement of Opinion of Major General James G.
    Andrus, Board President).

[^137]: Fact Sheet[,]{.smallcaps} *supra* note Error: Reference source
    not found.

[^138]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 2 at 5.

[^139]: *Id. But see* [Art. 32 Report,]{.smallcaps} *supra* note Error:
    Reference source not found, vol. 1 at 31. The flight lead "testified
    that the F-16 squadron was briefed about helicopter flight
    information\--but the F-15s were not. He also stated that \[the
    F-15's\] intelligence section asked several times of C-2,
    Intelligence at CTF, for flight information about unknowns,
    including helicopters, but never got a response." *Id.,*
    Investigating Officer Exhibit 143a.8.

[^140]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 6. *See also id.* vol. 1 at 2 (directing that "All
    helicopter and fixed-wing aircraft are required to comply with this
    tasking order.").

[^141]: *Id.* vol. 2 at 7.

[^142]: *Id.*

[^143]: *Id.*

[^144]: "Information concerning takeoff time and entry time into the
    TAOR was listed as 'A/R' \[as required\]." *Id. at* 12.

[^145]: "Specific helicopter flight information was not included in the
    daily ATO, and no helicopter data was provided to OPC aircrews on
    the scheduling flow sheet." *Id. at* 11.

[^146]: *Id.* at 23 (stating that a flight plan for the two UH-60
    Blackhawk helicopters was completed using all the appropriate forms,
    and filed in a timely manner at the appropriate place. The
    "departure and return times from Zakhu and the route of flight and
    destinations within the TAOR were not listed." The flight plan was
    properly filed.). *Id.* *See also id*. at 12 (generally stating
    that, although the Joint Operations and Intelligence Center received
    the MCC information, it received it "too late to be briefed during
    \[routine C3 and CTF CG\] staff meetings. None of the information
    was passed to the CFAC scheduling shop, the ground-based mission
    director, or the \[Airborne Command Element\] on board the AWACS.").

[^147]: [Art. 32 Report,]{.smallcaps} *supra* note Error: Reference
    source not found, Investigating Officer Exhibit 143.a2 (testimony of
    flight lead at Article 32 investigation). *See supra* note 105 and
    accompanying text.

[^148]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 11 ("Specific helicopter flight information was not
    included in the daily ATO, and no helicopter data was provided to
    OPC aircrews on the scheduling flow sheet, their principle planning
    tool."). *See also* ROE B[riefing Slide]{.smallcaps} (on file with
    U.S. Army, CLAMO, The Judge Advocate General's School,
    Charlottesville, Virginia) (stating that Mode II and Mode IV were
    the primary identifiers in the TAOR.). The ROE briefing slide was
    included in a briefing given to the flight crew before the mission.
    *See also* [Safety Message]{.smallcaps}, DTG 012001Z Aug 94, (on
    file with U.S. Army, CLAMO, The Judge Advocate General's School,
    Charlottesville, Virginia.) \[hereinafter [Safety
    Message]{.smallcaps}\] which states that "Mode III was turned off in
    the TAOR to prevent acquisition by Iraqi air defense radar. Mode I
    and IV were the primary friend/foe discriminators."

[^149]: S[afety Message]{.smallcaps}, *supra* note Error: Reference
    source not found, at 2. *See supra* note Error: Reference source not
    found and accompanying text.

[^150]: [Safety Message]{.smallcaps}, *supra* note Error: Reference
    source not found, at 2. All coalition aircraft were supposed to be
    squawking the same Mode I inside the TAOR. On the day of the
    accident, both F-15 pilots repeatedly attempted to interrogate the
    helicopters' Mode I, but their equipment was set to interrogate only
    the Mode I specified for use inside the TAOR. Neither pilot received
    a response. *See* [Aircraft Accident Board Report,]{.smallcaps}
    *supra* note 4, vol. 2 at 47.

[^151]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 2 at 25*.* "Helicopter pilots assigned to the Blackhawk unit
    were not aware that the ATO specified separate transponder Mode I
    codes for operating inside and outside the TAOR. The unit had
    routinely flown in the TAOR using the code designated for use
    outside the TAOR . . . ." *See supra* note Error: Reference source
    not found and accompanying text. The helicopters routinely flew from
    Diyarbakir to Zakhu, which is just inside the Iraqi border. Although
    Zakhu is within the TAOR, the helicopters remained on the Mode I for
    Turkey on those flights. When their mission called for flights
    beyond Zakhu, they did not change their Mode I.

[^152]: *Id. See also* [Art. 32 Report]{.smallcaps}, *supra* note Error:
    Reference source not found, vol. 1 at 33.

[^153]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 2 at 47.

[^154]: *Id.* at 6.

[^155]: [Safety Message]{.smallcaps}, *supra* note Error: Reference
    source not found, at 7.2.1.

[^156]: A[rt. 32 Report]{.smallcaps}, *supra* note Error: Reference
    source not found, vol. 1 at 16 (citing the Airspace Control Order,
    vol. II, paragraph 16C: "No aircraft will enter the TAOR until
    fighters with Air Intercept radars have sanitized the AOR.").

[^157]: [Art. 32 Report]{.smallcaps}, *supra* note Error: Reference
    source not found, vol. 1 at 36 (describing the testimony of a CW4
    from Eagle Flight who believed the helicopters could conduct
    operations inside the AOR without AWACS coverage as long as the
    helicopters did not leave the security zone. He did not know about
    the requirement for a fighter sweep before helicopters entered the
    TAOR. Further, the testimony of the Eagle Flight Operations Officer,
    a CW3, was that he was not aware of a requirement to have fighter
    coverage before the helicopters could operate in or outside the
    security zone.).

[^158]: *Id*. (discussing the senior director, enroute weapons
    controller, and airborne command element's interpretations).

[^159]: *Id. at* 35-37 (describing the testimony of different
    individuals who did not believe that a requirement to stay out of
    the TAOR until after the fighter sweep applied to helicopters).

[^160]: *Id. at* 15-16 (listing the directives stating that fighters
    needed AWACS coverage to cross the political border and that no
    other aircraft could fly in the TAOR until the fighters did). Thus,
    helicopters needed fighters, and fighters needed AWACS.

[^161]: *See*, *e.g*., [Art. 32 Report]{.smallcaps}, *supra* note Error:
    Reference source not found, Investigating Officer Exhibit 60.33
    (citing the Aircraft Accident Board Report testimony of the CTF CG).
    In response to the question of whether the Army helicopter pilots
    knew they were not supposed to operate in the AOR without fighter
    coverage, the CTF CG replied as follows:

    > Not necessarily. The fighter coverage was there primarily to
    > defend the AWACS and the tankers . . . up until about September,
    > based on the threat that was out there, I think that . . . as I
    > remember, helicopters used to fly, apparently, around the TAOR on
    > no-fly days, when no one else here was flying, which would
    > indicate to me that they did fly . . . in the past without AWACS
    > or fighter coverage.

    The CTF CG stated further that in September, he told the helicopters
    that they could not fly outside the security zone without AWACS
    coverage and in November he told them that they could not fly at all
    without AWACS coverage. However, the CTF CG stated, "No, I never−I
    didn't address fighter coverage." *See also* [Aircraft Accident
    Board Report,]{.smallcaps} *supra* note 4, vol. 2 at 11 ("Helicopter
    flights had routinely been flown within the TAOR security zone
    without AWACS or fighter coverage and CTF personnel at various
    levels were aware of this.").

[^162]: [Art. 32 Report]{.smallcaps}, *supra* note Error: Reference
    source not found, Investigating Officer Exhibit 60.33.

[^163]: "\[T\]he F-15 lead pilot testified that the . . . Airspace
    Control Order gave information about altitude deconfliction.").
    *Id.* vol. I at 30.

[^164]: The Airspace Control Order stated that the United Nations
    helicopter information would be published "in the ATO on the last
    page in plain language" and that if the "flight information was
    passed too late in the day to be included on the ATO," it would be
    passed verbally through the C-3/Joint Operations Center to the
    mission director, to the AWACS, and to the fighters. *Id. at* 29.

[^165]: *Id.* The Colonel also

    > acknowledged that if a helicopter flight was scheduled to fly
    > outside of the security zone (as the 14 April 1994 flight did), he
    > was not aware of any method to pass such information to the CFAC
    > or the frag shop. *Even though the \[Joint Operations Center\]
    > would get information* from \[the Army helicopter detachment\],
    > and then pass the changes in gate times to the Turkish CTF staff,
    > *\[the Joint Operations Center\] would not notify CFAC or AWACS.*

    *Id.* (emphasis added). Furthermore, the CFACC testified that "there
    was 'no formal requirement for the helicopters to tell CFAC or the
    CFAC DO or the scheduling shop . . . when they were flying.'" *Id.*
    (citing testimony from Investigating Officer Exhibit 162).

[^166]: *Id. at* 16 (citing the Airspace Control Order, Investigating
    Officer Exhibit 12: "Non Have Quick II radio capable aircraft will
    use Air Tasking Order frequencies in the TAOR."). *See also* vol. 1
    at 34 ("Helicopters did not have \[Have Quick II\] radios."). Thus,
    helicopters should have been on the radio frequencies inside the
    TAOR that were specified in the Air Tasking Order. *See also*
    [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4, vol. 2
    at 24 (explaining that one of the Blackhawks was equipped with a
    Have Quick II radio and the other was not. The helicopter that was
    equipped would not have used the Have Quick II radio on this mission
    because doing so would have made it very difficult for him to
    communicate with the other helicopter. Thus, both helicopters should
    have been on the TAOR radio frequencies specified in the ATO for use
    in the TAOR.

[^167]: *See supra* note Error: Reference source not found and
    accompanying text. Because the helicopters usually just flew to
    Zakhu, they typically stayed on the enroute frequency, and only
    talked to the AWACS enroute weapons director. Neither the Army
    helicopter detachment nor the AWACS crew knew of the requirement for
    helicopters to change from the enroute frequency to the TAOR
    frequency when operating in the TAOR. *See, e.g.,* [Aircraft
    Accident Board Report,]{.smallcaps} *supra* note 4, vol. 2 at 16-17.

[^168]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 16.

[^169]: *Id. at* 17.

[^170]: "Although written guidance showed the helicopters were supposed
    to fly under OPC guidelines and control, other written guidance and
    standard practice created the impression that helicopter operations
    were autonomous and not part of OPC." [Art. 32 Report,]{.smallcaps}
    *supra* note Error: Reference source not found, vol. 1 at 26.

[^171]: *Id.* (noting that the CFACC/DO did not think he had "any
    responsibility for the helicopters when they were flying in the
    \[TAOR\]."). *See* [Aircraft Accident Board Report,]{.smallcaps}
    *supra* note 4, vol. 2 at 11 ("The CFACC, through the CFAC DO, did
    not, in fact, exercise TACON of MCC helicopter operations with
    respect to planning and scheduling."). *See also supra* note 88, for
    an explanation of TACON.

[^172]: [Safety Message]{.smallcaps}, *supra* note Error: Reference
    source not found, at 6.

[^173]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 5 (explaining that "OPLAN 91-7 provided comprehensive
    guidance for the Operation PROVIDE COMFORT mission as it existed in
    July 1991."). The original CTF ground force changed considerably
    beginning in September 1991. Operation Order 004 (issued by
    USCINCEUR on 14 September 1991) directed several changes and
    requested the CTF provide a supporting plan to implement the
    provisions of OPORD 004. This update was not accomplished before the
    accident. *See supra* text accompanying note Error: Reference source
    not found.

[^174]: [Art. 32 Report]{.smallcaps}, *supra* note Error: Reference
    source not found, Investigating Officer Exhibit 12 (unclassified
    guidance on the ROE as found in the Aircrew Read File).

[^175]: *Id*. Investigating Officer Exhibit 057.34 (testimony of wingman
    to the Accident Investigation Board).

[^176]: *Id.* Investigating Officer Exhibit 054.4 (testimony of AWACS
    tanker controller to the Accident Investigation Board) (emphasis
    added).

[^177]: *Id.* Investigating Officer Exhibit 049.14 (testimony of AWACS
    senior weapons director to the Accident Investigation Board)
    (emphasis added).

[^178]: The actual ROE are classified.

[^179]: Testimony of the CFACC to the Accident Investigation Board
    illustrates this: "\[Helicopters are\] treated the same as others .
    . . . If there is a helicopter, it's a slow mover, and it's Iraqi,
    and we can prove it's Iraqi, then it's also fair game if it's north
    of 36 in the No-Fly Zone." [Art. 32 Report]{.smallcaps}, *supra*
    note Error: Reference source not found, Investigating Officer
    Exhibit 062.21.

[^180]: *Id.*

[^181]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 46.

[^182]: Flight lead testimony at the Article 32 investigation on whether
    he felt an imminent threat from the Hind helicopter: "No, but I felt
    an immediate ground threat from hostile fire from the ground." [Art.
    32 Report,]{.smallcaps} *supra* note Error: Reference source not
    found, Investigating Officer Exhibit 143a.67.

[^183]: Wingman's testimony to Accident Investigation Board on the
    estimation of the air-to-air capabilities of Iraqi Hind helicopters:
    "\[a\]gainst the F-15, very limited. The only thing that they could
    do is possibly shoot the small arms or some type of machine gun
    coming out the \[doors\]. But in terms of turning and firing on \[an
    F-15\], I think that it would be a Golden BB if they were going to .
    . . try to turn and shoot you." *Id.* Investigating Officer Exhibit
    57.50.

[^184]: *See, e.g., id*. Investigating Officer Exhibit 57.4.

[^185]: *Id.*

[^186]: *Id*. Investigating Officer Exhibit 143.36 (flight lead
    testimony to Accident Investigation Board).

[^187]: Statement of Opinion of Accident Board President: "\[T\]he
    identification passes were accomplished at speeds, altitudes and
    distances where it was unlikely that the pilots would have been able
    to detect the Blackhawk's markings." [Aircraft Accident Board
    Report,]{.smallcaps} *supra* note 4, vol. 2 at 47.

[^188]: "WROE permit United States forces to fire on all identified
    enemy targets, regardless of whether those targets represent actual,
    immediate threats." Martins, *supra* note Error: Reference source
    not found, at 27.

[^189]: Phillips, *supra* note Error: Reference source not found, at 17.

[^190]: *See*, *e.g.*, Gordon, *supra* note 2.

[^191]: Phillips, *supra* note Error: Reference source not found, at 17.

[^192]: The political aspects and the military reorganization that
    affected Operation PROVIDE COMPORT are beyond the scope of this
    article. Given the volatility of the mideast region, it is
    reasonable, however, to assume that there were changes in politics
    and directives as a whole from 1991 to 1994. Further, the military
    drawdown which began in the mid-1980's undoubtedly had some negative
    impact.

[^193]: "The ROE planning process does not end when the OPLAN or OPORD
    are approved. The ROE Cell should track and review the ROE and
    respond according to threat or mission changes." [JTF Planning
    Guide,]{.smallcaps} *supra* note Error: Reference source not found,
    at vii-7.

[^194]: Lorenz, *supra* note Error: Reference source not found, at 74
    (stating that a "\[c\]hanging threat requires a formal change to the
    ROE.").

[^195]: *See, e.g.,* Eric Schmitt, *Copter Deaths: Pentagon Finds Human
    Failures*, [N.Y. Times,]{.smallcaps} June 30, 1994, at A1.

[^196]: *See, e.g*., Auster, *supra* note 1, at 29; Harris, *supra* note
    2.

[^197]: In a question to and answer from the flight lead during
    testimony at the Article 32 hearing:

    > Q: Could you tell me a little bit about your mindset as far as
    > when you entered the AOR since you were conducting the sweep as
    > far as what your expectations were to be in the area?
    >
    > A: You shouldn't see any friendlies because it's, specifically,
    > written in the ACO that we'll be the first ones in. I didn't
    > expect to see any enemy aircraft either because there was no
    > picture call \[from the AWACS\].

    [Art. 32 Report,]{.smallcaps} *supra* note Error: Reference source
    not found, Investigating Officer Exhibit 143a.54.

[^198]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 43.

[^199]: Flight lead's testimony to the Accident Investigation Board in
    response to a question regarading the misidentification:

    > There's a lot of factors. I think the main one is, the sponsons
    > coming out the side was a dead giveaway for me that they were
    > Hinds. We don't carry−In our pilot aid, there's nothing−no
    > silhouettes of Blackhawks. The training that I've done in the past
    > has been very little, with silhouettes of Blackhawks, but the
    > silhouettes we do have do not include sponsons or ordnance or
    > anything of that sort . . . . My previous assignment with working
    > with the Army, I've been on a Blackhawk on numerous occasions.
    > Never have I seen the wings on it.

    [Art. 32 Report,]{.smallcaps} *supra* note Error: Reference source
    not found, Investigating Officer Exhibit 143.43.

[^200]: Wingman's testimony to Accident Investigation Board regarding
    whether he was ever briefed on the camouflage scheme of the Iraqi
    helicopters:

    > No sir. I expected to see some type of camouflage scheme. If it
    > was not an Iraqi helicopter, I expected it to either be configured
    > in a red cross, as I described earlier, or I expected it to be
    > painted white as a U.N. helicopter. Those were the two options
    > briefed to me. That's what I expected to see for a friendly.

    *Id.* Investigating Officer Exhibit 57.38.

[^201]: Julie Bird, *Friendly Fire,* [Air Force Times]{.smallcaps}, May
    2, 1994, at 2 (quoting Colonel Thomas J. Lyon, director of joint
    matters for Air Combat Command).

[^202]: In discussing "scenario fulfillment," Professor Parks explains
    that "\[t\]he problem is psychological as well as technical.
    Combatants frequently experience a self-fulfilling prophecy in that
    they come to see what they are expecting to see." Parks, *supra*
    note Error: Reference source not found, at 87.

[^203]: [Aircraft Accident Board Report]{.smallcaps}, *supra* note 4,
    vol. 2 at 43 ("both pilots had received only limited visual
    recognition training in the previous four months").

[^204]: "Precisely for reasons such as \[the phenomenon of scenario
    fulfillment\], ROE at the operational level commonly include safety
    and doctrinal characteristics not anticipated by higher authority."
    Parks, *supra* note Error: Reference source not found, at 87.

[^205]: *See, e.g*., testimony of CFACC, *supra* note Error: Reference
    source not found and accompanying text.

[^206]: [Art. 32 Report]{.smallcaps}, *supra* note Error: Reference
    source not found, Investigating Officer Exhibit 57.37.

[^207]: Lieutenant Commander Phillips, discussing the fear of friendly
    fire behind the requirement to positively identify aerial targets in
    the Gulf War, explains that "the legitimate concern for firing on a
    neutral could be catastrophic even for the successful conduct of the
    war. The prevention of 'blue-on-white' engagements can be considered
    as either a safety, or an international law, limitation."). Philips,
    *supra* note Error: Reference source not found, at 18.

[^208]: As explained by Professor Parks, threat assessment consists of
    the question: "*What is the threat?* In ROE preparation, one must
    ask this question in a larger context than the usual numbers and
    capabilities of any potential threat. The answer may depend largely
    on the track record of the threat." W. Hays Parks, Righting the
    Rules of Engagement 94, Address at U.[S. Naval Institute Proceedings
    ( Sept]{.smallcaps} 1989) (on file with author).

[^209]: [Art. 32 Report]{.smallcaps}, *supra* note Error: Reference
    source not found, Investigating Officer Exhibit 65.10 (testimony of
    C-2, Intelligence, to the Aircraft Accident Investigation Board).

[^210]: *Id.* Investigating Officer Exhibit 143.43 (flight lead's
    testimony to the Aircraft Accident Investigation Board).

[^211]: *See, e.g., supra* note Error: Reference source not found and
    accompanying text.

[^212]: *See, e.g.,* McIlmail, *supra* note Error: Reference source not
    found, at 74 ("\[D\]uring armed conflict, military aircraft are
    always legitimate targets for attack.").

[^213]: Robert Burns, *Pilots Ordered to Take Greater Care in Targeting
    Suspect Helos,* [San Antonio Express-News,]{.smallcaps} Apr. 18,
    1994, at A1.

[^214]: *Id. See also* McIlmail, *supra* note Error: Reference source
    not found, at 48 (discussing the origins of Operation SOUTHERN
    WATCH, which began in southern Iraq in August of 1992. United States
    and British aircraft began enforcing a no-fly zone south of the 32nd
    parallel. In that operation, the largest threat was from helicopters
    harassing the Shiites on the ground.).

[^215]: McIlmail, *supra* note 70, at 81. *See also id*. at 80
    (discussing the origins of Operation DENY FLIGHT, which began in
    Bosnia in April 1993. Aircraft from the United States, France, and
    the Netherlands were enforcing a United Nations resolution which
    prohibited fixed-wing and rotary-wing aircraft from flying in an
    established no-fly zone.).

[^216]: *See, e.g.,* [Art. 32 Report,]{.smallcaps} *supra* note Error:
    Reference source not found, Investigating Officer Exhibit 58.6 and
    58.10-11 (testimony of an F-15 pilot answering questions about what
    the ROE requires 58.6).

[^217]: "U.S. officials have said that the fighter pilots who shot down
    the helicopters with missiles made no attempt to warn them or
    contact them by voice radio. Nor were they required to, under the
    rules in place at that time, Perry has said." Burns, *supra* note
    Error: Reference source not found. *See also id.*

[^218]: Lacayo, *supra* note Error: Reference source not found, at 51.
    *See also* Michael R. Gordon, *Engagement Rules also Part of Probe*,
    N.[Y. Times,]{.smallcaps} Apr. 16, 1994, at A1 ("Under the rules of
    engagement for Bosnia, planes that intrude into the airspace are
    routinely warned to land or leave the area."). *See also supra* note
    Error: Reference source not found and accompanying text.

[^219]: SROE, *supra* note Error: Reference source not found, encl. A ¶
    2(b).

[^220]: *Id*. ¶ 6 (emphasis added).

[^221]: [Art. 32 Report,]{.smallcaps} *supra* note Error: Reference
    source not found, Investigating Officer Exhibit 143a.13.

[^222]: [Aircraft Accident Board Report,]{.smallcaps} *supra* note 4,
    vol. 2 at 46.

[^223]: Newcomb Lecture, *supra* note Error: Reference source not found.

[^224]: Roach, *supra* note Error: Reference source not found, at n.18
    (citing [D. P. O'Connell,]{.smallcaps} [The Influence of Law on Sea
    Power 170]{.smallcaps} (1975)).

[^225]: For an example of oversimplification, *see* Phillips, *supra*
    note Error: Reference source not found, at 26 (revealing that during
    the Gulf War, "the complete ROE package was too comprehensive for
    the individual fighter pilots. They appreciated the legal officer
    who distilled the ROE to *two small pages* for their cockpit
    reference notebooks.") (emphasis added).

[^226]: "Illuminated" means that the helicopters were being
    electronically interrogated, presumably by coalition aircraft.
    However, there was a strict prohibition against interrogating known
    friendly aircraft. *See, e.g.,* [ROE Briefing Slide,]{.smallcaps}
    *supra* note Error: Reference source not found.

[^227]: [Art. 32 Report,]{.smallcaps} *supra* note 91, Investigating
    Officer Exhibit 64.21.

[^228]: *Id.* Investigating Officer Exhibit 143a.9 (flight lead's
    testimony at Article 32 Investigation).

[^229]: *Id.* Investigating Officer Exhibit 143a.82.

[^230]: *Id*. Investigating Officer Exhibit 104a.26.

[^231]: [SROE,]{.smallcaps} *supra* note Error: Reference source not
    found, encl. A ¶ 4 (detailing circumstances in which Combatant
    Commanders may augment the SROE "as necessary to reflect changing
    political and military policies, threats, and missions specific to
    their AOR," and how to upchannel such changes for review.). *Id.*

[^232]: My purpose in writing this article was, in part, to demonstrate
    that "accountability" begins at the top of the chain of command, and
    not at the bottom (e.g., with the lower ranking officers that were
    charged with violating the Uniform Code of Military Justice). Legal
    input or advice as occurred here cannot rectify a systemic failure
    such as occurred here.

[^233]: The ideas incorporated in this section came directly from
    Colonel Richard Sorenson, Chief of Operational Law, Headquarters,
    USAFE, and Major Nancy Richards, Chief of Operations, Plans and
    Exercises, Headquarters USAFE. The author acknowledges with
    appreciation the input and expertise of these judge advocates.

[^234]: For a good overview of operational law requirements for Air
    Force JAGS, *see, e.g.*, *The Master Operations Lawyer's Edition*[,
    42]{.smallcaps} A.F. L. [Rev]{.smallcaps}. (1997).