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Tukhachevskii
09-14-2010, 05:06 PM
Moderator's Note

The author of this post suggested the thread's title be changed from 'Achilles Heel: getting our arses kicked by kids?' and so with consummate legal skill jmm99 has suggested:
'Specially Protected Persons in Combat Situations'

So far a number of those "special protectees" have been mentioned:

1. child soldiers
2. children in general
3. civilians in general
4. persons held under a belligerent's power (de hors rule #1)
5. persons wounded (de hors rule #2)
6. persons surrendering (de hors rule #3)
7. medical rescuers (military & civilian)

We might subtitle it:

"How honest, law-abiding regular forces are getting their arses shot off because a cloud-cuckoo-wunderland morass has been imposed on them to create criminal sanctions against dishonest, law-shirking regular and irregular forces who could care less because the Hague is too remote".

With credits to Tukhii and NZ O'Neill.

Original Post below


I have been thinking about ways our enemies could continue to gut us morally (in terms of atatcking the legitimacy of our governments at home) and of how Muslim combatants could pursue their goals by using our own culture against us. So, what would our strategy, or more importantly, our rules of engagement be, if, say during a "humantarian" intervention into Darfur or Ethiopia we were confronted with hordes of child soldiers (http://www.brookings.edu/views/Articles/fellows/singer20050115.pdf)?

jmm99
09-14-2010, 06:18 PM
with US troops in either Darfur or Ethiopia (perhaps, funding of efforts by Lagrange et al, but no military intervention).

That being said, you have two very different military responses.

One is from The Horse Soldiers (http://en.wikipedia.org/wiki/The_Horse_Soldiers), where Wayne and his troopers are confronted by the cadets from a local military school (Jefferson Military Academy). The scene in the movie is known appropriately as "The Great Skedaddle".

The other is from Dr. Zhivago (http://en.wikipedia.org/wiki/Doctor_Zhivago_(film)), where his Red partisan unit is confronted by the cadets from a local military school (St. Michael's Military Academy). That scene should be called "Well-aimed MG and rifle fires are always effective against soldiers of all ages".

Regards

Mike

WW
09-15-2010, 01:55 AM
... if we were confronted with hordes of child soldiers[/url]?

Mexico just celebrated the anniversary remembrance of their young cadets glorious 'death before surrender' at the hands of the US expeditionary force approaching (and occupying) Mexico City.

On the level of unintended consequences, our rapid successes during the invasion of Mexico led to the reinstatement to command of liberation general Santa Ana, hated by Texans as the 'butcher of Goliad'. Vigorously opposing Polk's war nearly ended the political career (and did unseat) freshman Congressman Abe Lincoln.

M-A Lagrange
09-15-2010, 03:40 AM
Once, the French COS were interviewed about the same question: what to do in front of child soldier. The answer was interesting: we have to remember that we have children in front of us but we have to not forget that they are soldiers too.
The IHL gives a clear line: children are not to be soldiers and are protected both as legitimate target and troops.
In the case of being confronted to child soldiers (Mike will clarify this much better than me), norm is that you try to restrain a maximum. Anyways, the one who is really guilty is the one who recruits children to be soldiers, not the one being confronted and has to defend.
A lot of interesting stuff on the Save The Children and ICRC web sites.

jmm99
09-15-2010, 04:26 AM
One is the rule based on self-defense. That rule is always in play and permits killing a hostile threat - an armed, hostile threat from a child is the same legally as an armed hostile threat from an adult.

In both of the movie scenes, the child soldiers were in attack mode against the Union cavalry in one case and the Red Guards in the other (a less aggressive attack in the latter case, but an advance none the less). So, the always in effect self-defense rule applied in both cases.

Both movies are set in civil wars. Since both groups of child soldiers involved uniformed military forces, the cadets could be regarded as designated hostile forces as to which kill or capture would apply regardless of an armed, hostile threat or not.

I seriously cited the two movies as examples.

Regards

Mike

Adam L
09-15-2010, 05:00 AM
Mike - Great examples.

So, what would our strategy, or more importantly, our rules of engagement be, if, say during a "humantarian" intervention into Darfur or Ethiopia we were confronted with hordes of child soldiers (http://www.brookings.edu/views/Articles/fellows/singer20050115.pdf)?

Let's hope that the child soldiers find CS gas terrifying and incapacitating. If not, the operation will end as soon as the photos of a dozen dead child soldiers killed by the peacekeeping forces hits the media. As interesting and important of an issue this is, what our rules of engagement will be is less critical than what our information campaign will be domestically. It is inevitable that despite our best preparations we will end up killing child soldiers at some point. It doesn't matter whether it's 15 or 100, it will be a nightmare.

Adam L

M-A Lagrange
09-15-2010, 09:06 AM
Mike - Great examples.
Let's hope that the child soldiers find CS gas terrifying and incapacitating. If not, the operation will end as soon as the photos of a dozen dead child soldiers killed by the peacekeeping forces hits the media. As interesting and important of an issue this is, what our rules of engagement will be is less critical than what our information campaign will be domestically. It is inevitable that despite our best preparations we will end up killing child soldiers at some point. It doesn't matter whether it's 15 or 100, it will be a nightmare.

Adam L
The problematic of child soldiers acceptance by the masses is interesting at several levels.
Few years ago, Save The Children made a survey on DDR programs for children; What came out is:
- no one is ready to accept the idea that under 15 children could be warriors. This despite reallity. It seems that for most of the military cultures under 15 boys are too young to be "soldiers/killers".
- Even less people are ready to accept the idea that under 15 girls could be child soldiers and not just sexual slaves. The idea that a 7 years old boy carrying a weapon is more acceptable than a 10 years old girl fighting.
- Most, if not all, communities around the world banished the use of child soldiers as a rule of stump. (Which does not mean that no one is using them.)
- All professional soldiers were shocked by having to conduct demobilisation activities with under 15 years old children (boys and girls). But demobilizing under 15 years old girls is considered as even more traumatising that demobilizing young boys.

The main exception to this, as far as I know during the seccond half of 20st century, has been the use of children by Iran during the Irak/Iran war. But even then, it was not that popular inside the Iran’s population.
My point is that using only children would be a strong challenge even inside the supporting population.

And finally, it is interesting to define what a child soldier is? A 17 years old boy or girl (A cadet even less) taking side is finally very much acceptable. It's illegal but the moral question is not really there.
But what to do when you face a group of 10 boys between 8 and 13 years old? With a 10 years old girl as commander...

NB: there is an interesting point on the definition of child soldier. Under 7 years old, children are considered as useless for war. This limit of childhood in war is very ancient as you find notes on this in the Bible (Deuteronom) and even more ancient law texts on war (Manu code…). Nowadays, it is considered that a below 7 child is not strong enough to carry a gun or shoot with.

JMA
09-15-2010, 01:12 PM
I have been thinking about ways our enemies could continue to gut us morally (in terms of atatcking the legitimacy of our governments at home) and of how Muslim combatants could pursue their goals by using our own culture against us. So, what would our strategy, or more importantly, our rules of engagement be, if, say during a "humantarian" intervention into Darfur or Ethiopia we were confronted with hordes of child soldiers (http://www.brookings.edu/views/Articles/fellows/singer20050115.pdf)?

In the examples you use (Darfur and Ethiopia) and to which you can add Congo, Somalia and others the best route is to use proxy forces from the AU (like Uganda in Somalia) and let them deal with it to the best of their ability.

This way western countries will be able to avoid the angst and hand-wringing that goes with engaging children in combat.

Adam L
09-15-2010, 08:06 PM
In the examples you use (Darfur and Ethiopia) and to which you can add Congo, Somalia and others the best route is to use proxy forces from the AU (like Uganda in Somalia) and let them deal with it to the best of their ability.

This way western countries will be able to avoid the angst and hand-wringing that goes with engaging children in combat.

I agree completely. I just logged on to make the same comment.

Adam L

Tukhachevskii
09-16-2010, 11:37 AM
In the examples you use (Darfur and Ethiopia) and to which you can add Congo, Somalia and others the best route is to use proxy forces from the AU (like Uganda in Somalia) and let them deal with it to the best of their ability.

This way western countries will be able to avoid the angst and hand-wringing that goes with engaging children in combat.

Agreed,

But that's assuming they'll fight as cleanly and legaly as we would have..after all, being branded child killers by proxy is the same as doing ourselves, in fact possibly worse. Anyone remember the ECOMOG/Nigerian intervention into Sierra Leone? (http://www.c-r.org/resources/occasional-papers/nigerian-intervention-in-sierra-leone.php).

And here (http://www.theperspective.org/dirtier.html)...
ECOMOG soldiers always disgraced themselves first before they would begin to disgrace those they were deployed to help. How long did Lieutenant-General Arnold Quainoo remain in his post as ECOMOG commander in Liberia before he surrendered his headquarters to Prince Johnson, a known warlord, to slaughter the Samuel Doe presidential party he was hosting? He had been in Liberia fewer than three weeks. He arrived in Liberia in mid-August 1990. On September 10, 1990, General Quainoo was holed up at the fortified ECOMOG base in the Port of Monrovia, waiting for his ship to come in to take him home to his native Ghana. He probably had no plans for keeping warring factions apart, and perhaps felt he might lose his life to another mistake of similar magnitude.

Gen. Quainoo's departure was followed by a half dozen fire-breathing Nigerian commanders in successive order. But each was compromised by either bribes or the structural ineptitude that was evident before he arrived. All this never prompted any soul searching in ECOWAS.


I met Gen. Quainoo and asked him what went to wrong, he shrugged his soldiers and said "It's Africa, what do you expect" and downed his whisky (we met at a Conflict Resolution workshop to boot:rolleyes:!)

IIRC it took UK forces to actually get the job done. Sure, proxy forces are OK so long as they know what they're doing and won't cause even more trouble for their "sponsors" to deal with.

wm
09-16-2010, 01:01 PM
I have been thinking about ways our enemies could continue to gut us morally (in terms of atatcking the legitimacy of our governments at home) and of how Muslim combatants could pursue their goals by using our own culture against us. So, what would our strategy, or more importantly, our rules of engagement be, if, say during a "humantarian" intervention into Darfur or Ethiopia we were confronted with hordes of child soldiers (http://www.brookings.edu/views/Articles/fellows/singer20050115.pdf)?

During a humanitarian intervention, the only appropriate use of deadly force would be for self-protection. Given that other means are available to preclude the use of deadly force, the ROE ought to be to use such means whenever possible.
I'd suggest that those involved in a humanitarian intervention be primarily (perhaps exclusively) equipped with incapaciting agents/devices. Chemical examples can be found here (http://en.wikipedia.org/wiki/Incapacitating_agent). Other items that are capable of causing incapitation are available. Some examples include electromuscular incapacitating devices (EMD), AKA stun guns or Tasers®, and high intensity noise generators.

As others have noted, a vigorous information operations (IO) campaign, one that pre-empts the opponent's PR strategy is also required. Such a media campaign must alert the world to the possibility of engagement by "child soldiers" and and explain the intended responses to be used should such engagements arise. The IO campaign needs to be initiated prior to deployment and continued at least until the intervention force redeploys, if not longer.

JMA
09-16-2010, 04:44 PM
During a humanitarian intervention, the only appropriate use of deadly force would be for self-protection. Given that other means are available to preclude the use of deadly force, the ROE ought to be to use such means whenever possible.
I'd suggest that those involved in a humanitarian intervention be primarily (perhaps exclusively) equipped with incapaciting agents/devices. Chemical examples can be found here (http://en.wikipedia.org/wiki/Incapacitating_agent). Other items that are capable of causing incapitation are available. Some examples include electromuscular incapacitating devices (EMD), AKA stun guns or Tasers®, and high intensity noise generators.

As others have noted, a vigorous information operations (IO) campaign, one that pre-empts the opponent's PR strategy is also required. Such a media campaign must alert the world to the possibility of engagement by "child soldiers" and and explain the intended responses to be used should such engagements arise. The IO campaign needs to be initiated prior to deployment and continued at least until the intervention force redeploys, if not longer.

Hang on a minute. Humanitarian intervention is mere the basis/reason for the intervention. Those whose actions have led to the intervention need to be engaged in no uncertain military terms.

Humanitarian intervention (http://en.wikipedia.org/wiki/Humanitarian_intervention) refers to armed interference in one state by another state(s) with the objective of ending or reducing the suffering of the population within the first state. That suffering may be the result of civil war, humanitarian crisis, or crimes committed by the occupied nation (such as genocide). The goal of humanitarian intervention is neither annexation nor interference with territorial integrity, but minimization of the suffering of civilians in that state.

Engage and kill the perpetrators and thereby protect the people.

jmm99
09-16-2010, 05:13 PM
I also have to disagree to some extent.

Choice of ROEs is situational (and also depends on the Laws of War, Laws of Armed Conflict, International Humanitarian Law, adopted by the intervening force or forces). If an "armed conflict" exists (under Geneva), then it is possible that a "status" ROE (in addition to the always in effect "self defense" ROE) will apply.

However, even if only "self-defense" ROEs were in force, one cannot remove the use of deadly force from the intervenor's table. By doing so, one could easily get into this situation from Sierra Leone, which I cited (http://council.smallwarsjournal.com/showpost.php?p=103071&postcount=4) in this thread, U.S. troops face Afghan enemy too young to kill (http://council.smallwarsjournal.com/showthread.php?p=103071) (3 pages):

On Friday, 25 August 2000, British Major Alan Marshall, stationed at Benguema Training Camp decided to make a visit to one of UNAMSIL’s battalions near the town of Masiaka, about 65-kilometers east of Freetown. Marshall and his men were part of the stay-behind British training contingent. Accompanying him on this visit was an SLA liaison officer and 11 soldiers from the Royal Irish Regiment. After visiting with Colonel Jehad al-Widyan, commander of the UNAMSIL battalion, he decided to take his patrol to the WSB base in nearby Magbeni. Marshall received an intelligence report that only a few rebels were present at the base and he wanted to check out the situation. His three Land Rovers were armed with .50-caliber heavy machine guns and the soldiers with SA80 rifles. As the patrol approached Magbeni, located 50 miles east of the capital in Freetown, the WSB blocked the road and denied them movement. Major Marshall tried to reason with them, but they insisted that he wait until their leader, 24-year old “Brigadier” Foday Kallay arrived.

As they waited, Major Marshall carried on a conversation with the boys and offered them cigarettes. Communication with the base at Benguema Training Camp was established via radio and the base camp was informed that the patrol was being detained. Once Kallay arrived, the situation turned tense. Kallay began issuing orders to his armed soldiers, became angry with Marshall for entering an unauthorized area without coordination, and surrounded the patrol with soldiers and a captured SLA truck mounted with a 14.5-mm heavy machine gun. As Marshall made attempts to reason with the WSB, he was physically beaten. Within 5 minutes, the rest of the Royal Irish soldiers were overwhelmed, disarmed, stripped, and taken by canoes upstream, across Rokel River, to Gberi Bana, Kallay’s headquarters.

From Larry J. Woods and Colonel Timothy R. Reese, Military Interventions in Sierra Leone: Lessons From a Failed State (http://www.cgsc.edu/carl/download/csipubs/OP28.pdf) (The Long War Series, Occasional Paper 28, CSI Press 2008) pp. 77-78 pdf.

Not a good use of my Mick cousins; and the rescue (p.83) probably led to much more loss of life than if the challenge had been met head on to begin with.

I recognize the need for restraint (that is, to use the methods you suggest); but too much emphasis there can lead to bad situations. The Beirut Marine barracks bombing was another example of overly cautious application of the ROEs (which were not the model of clarity down at the sentry level).

Regards

Mike

M-A Lagrange
09-16-2010, 07:02 PM
Well, I have to disagree also and support Mike approach and understanding of humanitarian interventiuon.
The guy in front is not a nice guy and even if it's a child, he is using deadly force in some occasions.
ROE and TOE must be looked at with a practical point of view. Being deterent is often the best first step, even in "humanitarian operations".

The main question being how much weight 10 dead US soldiers against 10 kids of 12 to 15 years old.

JMA
09-16-2010, 07:36 PM
Well, I have to disagree also and support Mike approach and understanding of humanitarian interventiuon.
The guy in front is not a nice guy and even if it's a child, he is using deadly force in some occasions.
ROE and TOE must be looked at with a practical point of view. Being deterent is often the best first step, even in "humanitarian operations".

The main question being how much weight 10 dead US soldiers against 10 kids of 12 to 15 years old.

Lets try this... if the bad guys providing the justification for the humanitarian intervention are all 20-30 year olds I suppose a shoot on sight / shoot to kill policy would be fine?

Now what changes if they, knowing the great concern among western countries (but probably not among most their combat soldiers) about ensuring they don't get drawn into combat with child-soldiers, push some kids into the front line?

Why only on a humanitarian intervention? Why not in Afghanistan also?

jmm99
09-16-2010, 08:15 PM
not quite this as stated:

from JMA
... if the bad guys supplying the reason the humanitarian intervention are all 20-30 year olds I suppose a shoot on sight / shoot to kill policy would be fine?

although one might end up with something like that policy in practice.

To get to a "shoot anyplace, anytime" rule (a "status" ROE), one has to have:

1. A designated hostile force. Not that hard to pass that step if the hostiles are at least semi-organized (LRA, WSB, etc.)

2. The person whacked must be positively identified (PID in US ROE jargon) as a member of (part of) that hostile force. Passing that step is more difficult with irregular forces, especially under the Geneva Additional Protocols requiring the "whackee" to be "directly participating" in the armed conflict when whacked.

So, in many irregular warfare situations, PID comes about only because the person presents a hostile, armed threat - and the rule becomes just about the same whether one is under the Laws of War or the Rule of Law.

That is the theory - repeat, theory.

I can't see anything more strict than probablilities playing a role in reality - unless the soldier has a strong death wish. Is it more probable than not that the person in your sights is the enemy ?

What is the real "standard" for employing less definite tactics (than a person in your sights); such as, recon by fire. A probability (possibility ?) that enemy might be in that patch of thorn bush ? Or, for that matter, H & I arty, which is even less definite ?

Combat does not seem a good place to employ complicated legalisms.

Regards

Mike

Kiwigrunt
09-16-2010, 08:56 PM
Lets try this... if the bad guys providing the justification for the humanitarian intervention are all 20-30 year olds I suppose a shoot on sight / shoot to kill policy would be fine?

Now what changes if they, knowing the great concern among western countries (but probably not among most their combat soldiers) about ensuring they don't get drawn into combat with child-soldiers, push some kids into the front line?

Why only on a humanitarian intervention? Why not in Afghanistan also?

A ‘shoot on sight’ policy is not necessarily the same as a ‘shoot to kill’ policy. In low intensity operations it is not about killing or wounding but about neutralising the treat. To paraphrase our shoot on sight policy in Timor 10 years ago (and we never needed to use it….once we had it):
• You must positively identify the target as being militia,
• He must be armed with his weapon ready for immediate use,
• He must be moving in a tactical manner,
• The situation must be such that giving a warning is likely to cause undue danger to yourself or to those you are there to protect,
• It must be a chance encounter,
• You (or his target???) must be within the maximum range of his weapon.

In anything beyond low intensity this kinda goes out the window. I suppose the trick for the policy makers is to determine this tipping point and to communicate that clearly to the troops. Kinda like the blind leading the experts?

Now where kids come into this, well, I think I’d have to agree with some above in saying that it ‘should’ be irrelevant. Technically and legally anyway. How we deal with it morally is less clear cut.

I should think that putting age limits in place is silly and counter productive. M-A Lagrange mentioned up-thread that a 7 year old is not supposed to be able to carry a gun. What if you encounter a 6 year old who is? Be forced to allow him to shoot you because he’s only 6? The moral issue remains. But taking it beyond that through ROE etc. may have an adverse effect in that it gives the enemy something to play with, as JMA point out.

JMA
09-17-2010, 10:20 AM
A ‘shoot on sight’ policy is not necessarily the same as a ‘shoot to kill’ policy. In low intensity operations it is not about killing or wounding but about neutralising the treat. To paraphrase our shoot on sight policy in Timor 10 years ago (and we never needed to use it….once we had it):
• You must positively identify the target as being militia,
• He must be armed with his weapon ready for immediate use,
• He must be moving in a tactical manner,
• The situation must be such that giving a warning is likely to cause undue danger to yourself or to those you are there to protect,
• It must be a chance encounter,
• You (or his target???) must be within the maximum range of his weapon.

In anything beyond low intensity this kinda goes out the window. I suppose the trick for the policy makers is to determine this tipping point and to communicate that clearly to the troops. Kinda like the blind leading the experts?

Now where kids come into this, well, I think I’d have to agree with some above in saying that it ‘should’ be irrelevant. Technically and legally anyway. How we deal with it morally is less clear cut.

I should think that putting age limits in place is silly and counter productive. M-A Lagrange mentioned up-thread that a 7 year old is not supposed to be able to carry a gun. What if you encounter a 6 year old who is? Be forced to allow him to shoot you because he’s only 6? The moral issue remains. But taking it beyond that through ROE etc. may have an adverse effect in that it gives the enemy something to play with, as JMA point out.

Lets keep this in the context of a shooting war which is a more likely scenario to provoke a humanitarian intervention.

These RoE seem to be designed to make the soldier's work more difficult than it already is.

If he is armed... you shoot him. Those 6 points are the stuff that gets soldiers killed and teaches them to be passive. Can't believe any self respecting general would inflict that upon his soldiers. We spoke about this before. This kind of work is for police, military police and paramilitaries not soldiers.

One minute we were talking about 12-15 year olds and now we are down to 6-7 year olds. How do they get these kids to stay and fight? Drugs? So it would be difficult to walk up to these kids and give them a smack behind the ear and take their weapons away.

But what of women and girls? Bumped into a few of them in my time. So I guess it is all about age then we accept that women can be combatants (why we now have them ourselves).

Again there is a difference between returning fire or firing into likely areas and later finding you killed some kids and actually lining a kid up in your sights and pulling the trigger.

I hate it when people are unable to provide anything but some vague wishy washy answer so I will give it a try to do beter...

1. It makes a difference whether you come up against a unit which has a few kids mixed in or one totally made up of kids.

2. If battle has already been joined and it appears that the kids are also firing their weapons.

3. If you have some knowledge and understanding of what these kids have done or are capable/likely to do makes a difference. (Here I will differentiate between the German kid and his grandfather trying to defend Berlin against the Russian advance and some stoned kid in Sierra Leone wearing a necklace made from human ears - the Russians didn't care but we do - you go figure).

4. And unofficially you put the word out that if your forces come across a unit which includes kids it will be "unlikely" that any of the older soldiers and leaders will be taken prisoner. (let them figure that out).

Now to implement (broadly) what I state above you clearly can't use forces from most western nations. That is why I suggest that if progress is to be made use of proxy AU troops must be made. The UN agrees to the intervention and appoints the commander etc. No western angst and hand-wringing... you can just blame the UN for any excesses (like there certainly were under the Nigeria led ECOMOG intervention in Sierra Leone).

Sri Lanka understood this in their preparation for the final push. They got economic support from China (who doesn't give a rats a... about human rights anyway) as insulation from western criticism. They also know that when dealing with the West give it a year or so and then every thing will be forgiven and forgotten.

M-A Lagrange
09-17-2010, 11:11 AM
Now where kids come into this, well, I think I’d have to agree with some above in saying that it ‘should’ be irrelevant. Technically and legally anyway. How we deal with it morally is less clear cut.

I should think that putting age limits in place is silly and counter productive. M-A Lagrange mentioned up-thread that a 7 year old is not supposed to be able to carry a gun. What if you encounter a 6 year old who is? Be forced to allow him to shoot you because he’s only 6? The moral issue remains. But taking it beyond that through ROE etc. may have an adverse effect in that it gives the enemy something to play with, as JMA point out.

Kiwi,

The point in age limit is for the criminal who recruites children, not for the one confronted to them. A child soldier is a child but and ALSO a soldier.

The age limitis first a "natural thought": a 3 years old kid cannot be used as child soldier. Even, he is extremely vulnerable.
Secondly it is a legal tool: recruiting child soldiers is an offence. Recruiting below 7 years old kid is a graver offense.
Finally, it's biological: it's a question of muscles being developed enough to resist to the backfire from shooting gun.
No one said that you have to get killed or wounded first. If he is 6 and strong enough to shoot with an AK... Then he is a combattant.

As JMM noted, child soldiers are combattants by GV and ICRC criterias, same rules for them.
Setting TOE and ROE just for child soldiers is a nonsense. (Prisonners prefered could be the best input.)

jmm99
09-17-2010, 03:21 PM
with this:

from JMA
If he is armed... you shoot him.

Lots of folks run around armed in many areas of the world; e.g., Pashtunistan, Dayuhan's Mountain Province and even Michigan. So, some indicia of hostility must be present.

Now, if where you are people are not armed (unless they are good guys or bad guys), being armed is itself an indicia of hostility. Also, if the person is PID'd as a member of a designated hostile force, whether he is armed or unarmed, hostile or not hostile himself, are not material to the shoot.

As to dealing with war criminals in the field, I'd much prefer on-site military tribunals over not taking prisoners. Once upon a time (through WWI per our Articles), the field commander could convene a board (usually 3 or 5 members) and try war criminals on the spot.

Regards

Mike

jmm99
09-17-2010, 06:08 PM
We find some interesting history here.

In olden days (say, the 18th century), the Laws of War recognized the right of a field commander (on land or at sea), in his sole discretion, to summarily execute a pirate, spy or other war criminal.

While recognizing that ultimate power, two rather well-known US commanders appointed "military tribunals" to at least confirm the guilt of war criminals - George Washington (trials of Maj. John Andre and Joshua Hett Smith) and Andrew Jackson (trials of Arbuthnot and Ambrister).

See, Marmon et al., Military Commissions (http://www.loc.gov/rr/frd/Military_Law/pdf/mil_commissions.pdf) (THE JUDGE ADVOCATE GENERAL'S SCHOOL, Charlottesville, Virginia, April 1953), pp.6-7 (still the definitive history of US military commissions).

Marmon posits a commander's personal rationale for using tribunals as follows (id., p.10 pdf):

It is probable that military cammissions and tribunals of a similar nature came into being because commanders no longer wished to bear the sole responsibility when the liquidation of a pirate, a spy, or an otherwise unlawful belligerent appeared necessary or expedient.

A case originating in the Natal (id., pp. 10-11 pdf, n.26), provides the larger rationale for some formalization of the on-site process:

26. In Tilinko v. Attorney General for Natal (95 Law Times Report, N.S., 1854 (1907), the Earl of Halsbury expressed this opinion: "If there is war, there is the right to repel force by force; but it is found convenient and decorous, from time to time, to authorize what are called 'courts' to administer punishment, and to restrain by acts of repression the violence that is committed in time of war; instead of leaving such punishment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved.

So, by WWI, summary execution was out; but the door was left open for military commissions in the granddaddy of FM 27-10, The Rules of Land Warfare (1914) (the same in the 1934, 1940 & 1944 revisions, under which my dad fought his war):

40. Duty of oflcers as to status of troops.- The determination of the status of captured troops is to be left to courts organized for the purpose. Summary executions are no longer contemplated under the laws of war. The officers' duty is to hold the persons of those captured, and leave the question of their being regulars, irregulars, deserters, etc., to the determination of competent authority. Land Warfare, Opp , par. 37.

Military tribunals (other than courts-martial, including military commissions) are still available under Article 21 (10 USC 821):

§ 821. Art. 21. Jurisdiction of courts-martial not exclusive

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.

Held constitutional (then Article 15), Ex Parte Quirin, 317 U.S. 1 (1942).

Regards

Mike

wm
09-17-2010, 08:28 PM
Hang on a minute. Humanitarian intervention is mere the basis/reason for the intervention. Those whose actions have led to the intervention need to be engaged in no uncertain military terms.

I also have to disagree to some extent. Choice of ROEs is situational (and also depends on the Laws of War, Laws of Armed Conflict, International Humanitarian Law, adopted by the intervening force or forces). If an "armed conflict" exists (under Geneva), then it is possible that a "status" ROE (in addition to the always in effect "self defense" ROE) will apply.

Guys,

Thanks for the rehearsal of the jus ad bellum point about humanitarian interventions (i.e., it can be a just cause for engaging in war). However, I took the fact that the original post put humanitarian in quotation marks as implying that the intervention was being conducted in a humanitarian way. On that understanding, the claim is about jus in bello, which is, to some degree, analogous to Mike's claim that ROE choice is situational. I am sure we all realize that jus in bello and jus ad bellum are logically dictinct.

I believe the scenario as originally described is more concerned with an appeal to emotion rather than an appeal to reason. Although the letter of the law and morality of war both would allow one to kill the evil doers and their proxies regardlkess of age and gender, the fact that CNN and others will broadcast the war around the globe in near real time would suggest that an alternative option be undertaken. That was why I suggested that deadly force was not an option in an interventiuon being conducted in a humanitarian fashion, that is, humanely.

One other point in response to the following:
If he is armed... you shoot him. Those 6 points are the stuff that gets soldiers killed and teaches them to be passive. Can't believe any self respecting general would inflict that upon his soldiers. We spoke about this before. This kind of work is for police, military police and paramilitaries not soldiers.
A hard truth is that, morally, soldiers must endure more risks because they get a significant exception to the rules of everyday living--the approval to kill for reasons other than self-defense. In exchange, soldiers must accept the fact that they are also more likely to be killed. I equate that higher likelihood of being killed to a requirement upon soldiers to take more risks to ensure non-combatants are not harmed. Being empowered to kill others that may not be a direct threat to themselves means that soldiers must take more risks to ensure that only appropriate targets are engaged. By the way, the 3 other categories of personnel in the above quotation who could be doing the work have the same restrictions placed on them.

JMA
09-18-2010, 09:17 AM
with this:
Lots of folks run around armed in many areas of the world; e.g., Pashtunistan, Dayuhan's Mountain Province and even Michigan. So, some indicia of hostility must be present.

Now, if where you are people are not armed (unless they are good guys or bad guys), being armed is itself an indicia of hostility. Also, if the person is PID'd as a member of a designated hostile force, whether he is armed or unarmed, hostile or not hostile himself, are not material to the shoot.

As to dealing with war criminals in the field, I'd much prefer on-site military tribunals over not taking prisoners. Once upon a time (through WWI per our Articles), the field commander could convene a board (usually 3 or 5 members) and try war criminals on the spot.

Regards

Mike

Yes Mike, there are always exceptions.

I would suggest under circumstances where the situation requiring humanitarian intervention bring troops from many countries all across the world the word needs to be spread to any Crockett, Bowie. Boone or Carson types running around in the woods armed that the carrying of weapons for the duration will be problematic as the soldiers will not wait to be shot at but rather enforce the peace and reduce the number of weapons carried by the citizenry which could potentially confuse matters.

What I'm saying is that one needs to hit the ground running and deal with the reason for the humanitarian intervention in the first place. No time to pussy foot around. Clearly the troops need a good briefing on the situation on the ground prior to deployment. This will be problematic as the State department is just about as inept as the Brit's Foreign and Commonwealth Office. Once again it will be the poor 18/9 year old grunt who will have to make life and death judgement calls with little support from the top then get the carpet yanked from under their feet like in the First Battle of Fallujah - April 2004. These politicians and civilian bureaucrats just can't help themselves (neither increasingly and sadly can general officers commanding).

As to prisoners and tribunals. This is a difficult subject to discuss in the public domain. I would say however that the tribunals where they result in the death penalty would never be accepted by the western world (Europe) under any circumstances and with difficulty in the US (my guess) as the army of military lawyers (let alone the civilian types) would have a field day.

I tend to go with and thorough prep-fire of the objective followed up with prodigious levels of prophylactic fire while sweeping through and clearing the objective. Not likely to find a living thing there when you arrive.

M-A Lagrange
09-18-2010, 09:25 AM
Guys,

I believe the scenario as originally described is more concerned with an appeal to emotion rather than an appeal to reason. Although the letter of the law and morality of war both would allow one to kill the evil doers and their proxies regardlkess of age and gender, the fact that CNN and others will broadcast the war around the globe in near real time would suggest that an alternative option be undertaken. That was why I suggested that deadly force was not an option in an interventiuon being conducted in a humanitarian fashion, that is, humanely.

First I would like to ask why should you assume that CNN will advertise the fact that you killed child soldiers and not respond to unfriendly opponents using deadly force?

Many of the wars I have been in are/were conducted mainly by child soldiers and this has never been the angle used by media. In Sierra Leone, when the british interviened, they had to face forces composed for some up to 60% of child soldiers. And the media coverage was all about stabilising the place and freeing some UN peace keepers... ;)

The second point is that it is also a "media" tool for your own propaganda. If you fight warlords using child soldiers and "only child soldiers" then you are the good guy per definition. Look at Khony and the LRA. Nobody is following them now. Yes, it has more to see with their political utility than the use of child soldiers but still... In the end the use of child soldiers is an aggraving fact against you.

In that case, the moral dimension of "child soldier" will bring media easily on your side. Do you really think that home opinion will be supporting an opponent that would send children to be killed by "peace keepers forces"?

ROE must remain situationnal and the use of non deadly force remains situationnal. But I tend to agree with the idea of take prisonners rather than kill every children is a best practice.
It also helps you in your counter propaganda. The UPDF is using that argument against the LRA: if you surrender and you are an abducted child forced to becaume combattant. Then you are covered by the child act and amnesty law.

Finally, to support somehow JMA point. In DRC, the Pakistany forces used to act as you describe: shoot first; ask how are you and shoot again if someone answers. Then go to the spot. Nobody did really react. The point was clearly, even in the "civilian f#&@% humanitarian" community that there were more benefits in saying nothing than screaming and have nothing done.
But still, this is a desperate solution. An effective one but better options can be found.

Mike,

I am quite interrested by the question of military tribunal.
First, I would say (As you know me, I start as the devil advocate) that there is room for on "the spot justice of the winner". Which is not a problem when the "winner" is a force respecting Law and acting according to it. But in other cases...

Seccondly, I am interrested because of the Thomas Lubanga case at The Haye. Thomas Lubanga was charged with crimes against humanity, war crimes and child soldiers recruitment. He has been released because of procedures. There was good chances he would have been found guilty and sentenced immediatly if this had been done during Operation Arthemis by the EU forces.

JMA
09-18-2010, 04:55 PM
Finally, to support somehow JMA point. In DRC, the Pakistany forces used to act as you describe: shoot first; ask how are you and shoot again if someone answers. Then go to the spot. Nobody did really react. The point was clearly, even in the "civilian f#&@% humanitarian" community that there were more benefits in saying nothing than screaming and have nothing done.
But still, this is a desperate solution. An effective one but better options can be found.

Its only a major problem if you keep pushing raw 18-19 year olds into high stress (combat) situations and then tie their hands with hugely restrictive RoE.

There is an easy solution. Conscription.

Target universities where the commentators and analysts (who come up with the crazy ideas) reside and conscript them. Then watch and learn.

JMA
09-18-2010, 05:00 PM
A hard truth is that, morally, soldiers must endure more risks because they get a significant exception to the rules of everyday living--the approval to kill for reasons other than self-defense. In exchange, soldiers must accept the fact that they are also more likely to be killed. I equate that higher likelihood of being killed to a requirement upon soldiers to take more risks to ensure non-combatants are not harmed. Being empowered to kill others that may not be a direct threat to themselves means that soldiers must take more risks to ensure that only appropriate targets are engaged.

Morally? What on earth are you talking about?

Thankfully you are not a soldier otherwise there would be great concern that soldiers somewhere may be at risk of having their lives played with like a game of chance. Thank heavens for small mercies.

Adam L
09-18-2010, 05:01 PM
Conscription isn't a bad idea!

Adam L

jmm99
09-18-2010, 09:16 PM
JMA:

Given a compliant indigenous folk with an underwhelming ability to resist, your suggestions and your multi-national force would probably be quite effective as you say:

I would suggest under circumstances where the situation requiring humanitarian intervention bring troops from many countries all across the world the word needs to be spread to any Crockett, Bowie. Boone or Carson types running around in the woods armed that the carrying of weapons for the duration will be problematic as the soldiers will not wait to be shot at but rather enforce the peace and reduce the number of weapons carried by the citizenry which could potentially confuse matters.
....
I tend to go with and thorough prep-fire of the objective followed up with prodigious levels of prophylactic fire while sweeping through and clearing the objective. Not likely to find a living thing there when you arrive.

Solitudinem facient et pacem appellant. (Tac.)

I fear I am a better Celt than a Roman.

--------------------------
MAL (mon "jumeau mal" ! :))

A large recent literature exists on military commisions; but that is mostly in the context of the Gitmo MCs, which are very close to formal courts-martial. Besides the 1953 JAG School article I cited above, I've found , e.g., recent articles on the use of US field MCs in the Mexican War and Civil War.

Myers, Conquering Peace: Military Commissions as a Lawfare Strategy in the Mexican War (http://www.pegc.us/archive/Journals/Myers_35_Am_J_Crim_L_202.pdf) (2008)

Vagts, Military Commissions: The Forgotten Reconstruction Chapter (http://www.auilr.org/pdf/23/23-2-1.pdf) (2008)

The use of field-expedient military tribunals goes well back in time. You might be especially interested in this example, since it involved the "Colonial Troops", 1684: Indian murderers punished by Du Luth (http://content.wisconsinhistory.org/cdm4/document.php?CISOROOT=/whc&CISOPTR=13127&REC=1&CISOSHOW=12710) (starting at p.114 - 12 pages; you can check out the original when you are next in Paris). This is a translation of his 1684 report, which illustrates the use of diplomacy and smarts over brute force (which "Du Luth" didn't have anyway).

"Du Luth" was really Daniel Greysolon-Delhut, who was a talented officer and above average in Canada (bios in French (http://www.biographi.ca/009004-119.01-f.php?&id_nbr=824&interval=25&&PHPSESSID=thgtsputuagcfrndtihktpkqj4&PHPSESSID=thgtsputuagcfrndtihktpkqj4) and English (http://www.biographi.ca/009004-119.01-e.php?&id_nbr=824&interval=25&&PHPSESSID=thgtsputuagcfrndtihktpkqj4)). He could have treated the murders of the French-Canadian fur traders as a native uprising or as a law enforcement matter. He selected the latter approach and did not simply execute the murderers.

From the English bio, a brief summary of this case:

He commandeered the services of licensed traders to help fortify Michilimackinac, reprimanded the Potawatomis for their lukewarm attitude toward the French, and renewed his peace-making efforts among the Foxes, Sioux, and Chippewas. The last of these nations was especially difficult to manage as was demonstrated in 1684 when four of its warriors murdered two French traders. When one of the culprits appeared at the Jesuit mission of Sault Ste Marie the staff of 12 on duty there did not dare to arrest him, fearing the reprisals of his tribe. Dulhut, as soon as he learned of the incident, hurried to the mission [JMM: with 6 troopers], rounded up the suspects, including the chief Achinaga and his two sons, and put them on trial. Achinaga was acquitted and his younger son pardoned, but the two others who had been found guilty were executed before 400 Indians. By coldly meting out this punishment, Dulhut taught the natives that the French were a people to be respected and feared.

This is a good case study in how to handle situations when your force is underwhelming.

I can see the murder scene from this room when the leaves have fallen. One of the six troopers with Greysolon-Delhut, when the principal murderer was arrested at Sault Ste. Marie (about 250 miles from here) (see p. 115), was one "Le Mire" (prenom: Joseph - one of my many TdMs in Canada).

The suggested use of military commissions in the field may well find few advocates. That despite the fact that it could provide prompt justice as an alternative to either "justice" delayed (as at the Hague; and hence, in reality, often denied) - or to shooting prisoners, which even if effective leaves no honor as recompense for the shooters.

Regards

Mike

JMA
09-19-2010, 02:10 PM
JMA:

Given a compliant indigenous folk with an underwhelming ability to resist, your suggestions and your multi-national force would probably be quite effective as you say:



I suggest that the force level required and the type of forces be selected on the dynamics on the ground. What type/quality of combatants are you likely to come up against and what is the expected reaction of the population under threat.

If you have a small group of perpetrators inflicting misery on a largely passive population then a reasonably competent paramilitary force followed up by police action should do the business. (A bit like Timor)

The suggested use of military commissions in the field may well find few advocates. That despite the fact that it could provide prompt justice as an alternative to either "justice" delayed (as at the Hague; and hence, in reality, often denied) - or to shooting prisoners, which even if effective leaves no honor as recompense for the shooters.

I am not against tribunals at all but I do see claims of "jungle justice" and "kangaroo courts" being raised and even to a more shrill level if the death sentence is dished out. You are talking about a form of martial law right?

I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes. As I said before a difficult subject to deal with in the public domain.

JMA
09-19-2010, 02:17 PM
Conscription isn't a bad idea!

Adam L

Especially when you are looking for people in a non-soldier type role. Somewhere between the Military Police and the Peace Corps. People who can be taught a different approach to such matters (as advocated university based think-tanks and assorted analysts). Then when you have to evacuate them from the country Dunkirk style you ask them "OK, so what went wrong smart guys?"

jmm99
09-19-2010, 07:14 PM
are a "form of martial law" - governed by the Laws of War (or more quaintly, the "laws of honest warfare").

And, yes, I do "know what you mean"; but fail to see why it's a difficult topic to discuss in the public domain. No one is asking anyone to lay bare what they have actually done. The issues hinge on who should be killed in armed conflicts and under what circumstances - not an unknown public discussion topic by any means.

The basic question is what alternatives one can present (if one so believes) to the conduct exemplified by and to Anne de Batarnay de Joyeuse (http://en.wikipedia.org/wiki/Anne,_Duke_of_Joyeuse), Baron d'Arques, Vicomte then Duke of Joyeuse (d. 20 Oct 1587), who massacred 800 Huguenots at Saint-Eloi, Poitou, 21 June 1587; but who lived by that sword, died by that sword, at Coutras (http://en.wikipedia.org/wiki/Battle_of_Coutras):

The Catholic line was shattered into fragments and rolled up from the flank; Joyeuse took to his heels and was cornered by a group of Huguenot cavalry. He threw down his sword and called: "My ransom is a hundred thousand francs!" His reward was a shot in the head: for the commander who had ordered Huguenot wounded to be killed on the field and who had butchered garrisons that had surrendered relying on the laws of honest warfare, there could be no quarter.

Those particular and other incidents in the "Wars of Religion" started folks thinking about the "laws of honest warfare" (that is, warfare with honor). The irregularities of the next subsequent Thirty Years' War further exemplified the need for what are in effect "honor codes".

Like other "honor codes", they can be bypassed by winks and nods, as illustrated by this example of convoluted logic:

from JMA
I am not against tribunals at all but I do see claims of "jungle justice" and "kangaroo courts" being raised and even to a more shrill level if the death sentence is dished out. You are talking about a form of martial law right?

I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes.

Like giving only limited quarter is not a form of "jungle justice". :(

Those "laws of honest warfare" also do not operate so well where "insiders" and "outsiders" are involved, and where reciprocity does not exist.

M-A Lagrange
09-20-2010, 08:27 AM
I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes. As I said before a difficult subject to deal with in the public domain.

Actually, it's not really a question of choice and feelings.
The Law of War (The Hage convention) in its article 23 is pretty clear:
Art 23
- c: It is forbidden to kill those who are disarmed
- d: It is forbidden to declare no quarter.

The Geneva Convention is even clearer on that matter.

Taking prisonner is an objective (for intelligence) AND an OBLIGATION at the momment an opponent is surrending.

JMA
09-20-2010, 03:01 PM
Actually, it's not really a question of choice and feelings.
The Law of War (The Hage convention) in its article 23 is pretty clear:
Art 23
- c: It is forbidden to kill those who are disarmed
- d: It is forbidden to declare no quarter.

The Geneva Convention is even clearer on that matter.

Taking prisonner is an objective (for intelligence) AND an OBLIGATION at the momment an opponent is surrending.

OK clearly we don't shoot or allow prisoners to be shot - that includes "mercy-style killings" like that of that Canadian Captain.

OK so where do you draw the line as to how much preparatory bombardment and supporting fire is needed on a given objective?

Are you suggesting that a soldier is obligated to attempt to take prisoners under all circumstances or do you accept that it is enough to honour bona fide attempts to surrender where and when they occur?

JMA
09-20-2010, 03:12 PM
are a "form of martial law" - governed by the Laws of War (or more quaintly, the "laws of honest warfare").

I would like to hear what if anything the Hague or Geneva Conventions say about such tribunals. Can you help?

Like giving only limited quarter is not a form of "jungle justice". :(

OK so where do you draw the line as to how much preparatory bombardment and supporting fire is needed on a given objective?

What constitutes "no quarter given"? I understand that to mean that no prisoners are taken. That would include in shooting the wounded and any you try to surrender. I don't advocate that.

But can you accept that if you have given a said objective a solid stonking the issue of prisoners, wounded or otherwise, is less likely to arise.

And as I asked M-A L: "Are you suggesting that a soldier is obligated to attempt to take prisoners under all circumstances or do you accept that it is enough to honour bona fide attempts to surrender where and when they occur?"

Those "laws of honest warfare" also do not operate so well where "insiders" and "outsiders" are involved, and where reciprocity does not exist.

Can you rephrase that for me please?

jmm99
09-20-2010, 05:57 PM
You should look this up yourself because the rules will differ depending upon what laws your particular country has adopted. Here's a brief outline (US law-based and the most simple since the US has not adopted the Additional Protocols to Geneva).

If we (US) are dealing with a nation-state vs nation-state armed conflict with conventional armies, look to GC III dealing with EPWs. Basically, EPWs (from regular forces) must be adjudicated by a court akin to the courts-martial of the detaining forces.

If we (US) are dealing with an armed conflict not of an international character (most "Small Wars"), adjudications of members of irregular forces are governed by Common Article 3 (http://www.icrc.org/ihl.nsf/WebART/375-590006) (in all four GCs), which requires that sentences, including executions, must be pursuant to:

.... previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

No precise definition of a "regularly constituted court" is given. Since military commissions had been very much used before the GCs were drafted in the late 1940s, normal rules of construction would require that they be considered "regulaly constituted courts" unless expressly stated not to be so.

There's lots of room for argument with the GCs, especially with the Additional Protocols added or taken away. Whatever rules a nation finally adopts, it best be very clear about what they are and issue no apologies for their application.

-----------------------
"Insiders", people who march to the beat of the same virtual drummer. In this discussion's context, they would be enemies who have roughly the same standards, with reciprocity in rights and obligations vice each other. E.g., Wehrmacht vice Western Allies in ETO WWII.

An "outsider" does not really hear the virtual drummer. He may know the code (but will use only those parts favorable to him; hence, there is no reciprocity and the code is perverted), or have a totally different code.

Regards

Mike

jmm99
09-20-2010, 09:38 PM
Nothing that follows should be considered a legal opinion on anything discussed. It also is not what I would do, since I can't say what I would do. Let's call it it what is within my moral and ethical bounds.

----------------
I said "limited quarter", not "no quarter"; and you first said:

from JMA
I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes.

So, some people become "prisoners" because they have intel value, but the others (not "useful" for lack of intel value) never make to the status of "prisoners".

and said earlier:

from JMA
4. And unofficially you put the word out that if your forces come across a unit which includes kids it will be "unlikely" that any of the older soldiers and leaders will be taken prisoner. (let them figure that out).

So, another group (defined by you; and probably guilty of war crimes) that will never make it to the status of "prisoners".

That adds up to "limited quarter" in my book; but it is not "no quarter".

-----------------------------
I see the answer to the following:

from JMA
OK so where do you draw the line as to how much preparatory bombardment and supporting fire is needed on a given objective?
...
But can you accept that if you have given a said objective a solid stonking the issue of prisoners, wounded or otherwise, is less likely to arise.

to be the military advantage or not as perceived by the field commander dependent on the assets at hand.

Given that I would go with the Hague rules, the legal (and as far as I am concerned the moral and ethical) burden is on the defender to separate civilians from combatants - not on the attacker. The Additional Protocols to Geneva turn that concept on its head and the attacker is made responsible for civilians caught in the attacked position (so also the current US ROEs I've seen). Which is why this post should not be read as a legal opinion (strictly a personal moral and ethical opinion).

But, if the field commander is confronted with a village occupied by combatants and civilians - combatants being spread throughout with multiple observation and firing points, I'd say the field commander would be within bounds to flatten the village and (at least) degrade its military capacity, rather than conducting a house by house infantry clearance operation.

Of course, well dug-in combatants (e.g., Monte Cassino) may survive a "solid stonking"; and if so, the bombardment might make a subsequent infantry assualt more difficult. The field commander would also have looked at bypassing or cordoning as well as the attack options.

What I've just described (as such) did not involve any reasoning to apply a "solid stonking" to avoid the issue of prisoners, wounded or otherwise. One could probably posit sets of circumstances (especially in the special ops arena) where prisoners are not in the cards. In that case, "solid stonkings" could avoid the issue of shooting them after the fact.

At what point does the field commander and his "solid stonkings" leave the "laws of honest warfare" and become an Anne de Joyeuse ?

--------------------------------
"Limited quarter" and "no quarter"

from JMA
What constitutes "no quarter given"? I understand that to mean that no prisoners are taken. That would include in shooting the wounded and any you try to surrender. I don't advocate that.
...
And as I asked M-A L: "Are you suggesting that a soldier is obligated to attempt to take prisoners under all circumstances or do you accept that it is enough to honour bona fide attempts to surrender where and when they occur?"

Agreed as to "no quarter given" meaning no prisoners are taken.

But even Subotai used the wagon wheel height as a test of whether prisoners would survive or not. So, mostly we deal with "limited quarter" issues, whether that is expressly admitted or not.

Given an infantry assault where opposition is continuing, two cases come up: a combatant who attempts to surrender; and a combatant who is downed (could appear dead or appear wounded). If the attacking soldier cannot safely take the surrender, or care for wounded, his military need could call for him to shoot both types of combatants. If he bypasses, either might shoot him in the back. On the other hand, where the dynamic situation has become static - complete end of firefight, the military reason (making sure you leave no enemy combatant alive behind you) disappears. Again, this is not the "school solution" and doesn't claim to be "legal".

Regards

Mike

JMA
09-21-2010, 08:43 AM
Nothing that follows should be considered a legal opinion on anything discussed. It also is not what I would do, since I can't say what I would do. Let's call it it what is within my moral and ethical bounds.

[snip]

Regards

Mike

Mike, both your posts have been very helpful. Thanks for taking the time to respond. I will revert once I've been able to digest it all.

M-A Lagrange
09-21-2010, 09:28 AM
JMA,

As said previously by Mike, preparatory bombing is regulated. There are obligations for the attaking party: not target purposely civilian installations and individuals if there are no military threat or clear objective.
Example: you do not bomb the church where all population is gathered while the defense points are 400 m far away. No military value, no military objective and targets only civilians.
Then if populations do not flee: see Mike. It's the responsability of the defnder to protect them during the assault.

Having people (you know what I mean) that do not make it to the status of prisonner... Well, that happens even if I do tend to think that it should not happen.
After it depends on your objective and mandate. If it is to conduct peace imposition mission and install pacified environment: those peole are probably in your list of targets who have to be arrested. This because you prepare the stabilisation/recovery phase.

JMA
09-24-2010, 08:39 PM
JMA,

As said previously by Mike, preparatory bombing is regulated. There are obligations for the attaking party: not target purposely civilian installations and individuals if there are no military threat or clear objective.
Example: you do not bomb the church where all population is gathered while the defense points are 400 m far away. No military value, no military objective and targets only civilians.

Yes, I am completely happy with that. My conversation here relates to a combat environment where there are few civilians and civilian installations. The preparatory bombardment would comprise little more than airstrikes.

Using this example of where a say a battalion is in a prepared position say between 500-800 soldiers. My point was that one would surely attempt through "fire support" to inflict so many casualties that the final infantry assault would be merely mopping up.

Subject to weapon availability I would select the most devastating in terms of KIA. Working on the rule of thumb of WIA:KIA as 3:1 with other survivors either surrendering or running one really needs to maximize the KIA and increase the severity of the WIA to ensure they cannot return to battle at some later stage.

This led to my question as to the amount of preparatory bombardment after reading the comment about "showing no quarter". I appreciate that to attempt to regulate warfare or the conduct of warfare is a difficult matter and other than where civilians are deliberately targeted in the absence of the presence of the enemy, or WIA enemy deliberately shot/executed/murdered or enemy who are attempting to surrender or have surrendered being deliberately shot/executed/murdered where the line can be drawn.

Following on to this I have an interest in the Capt. Robert Semrau case where he decided to administer the coup de grâce to a "98%" dead Taliban.

Then if populations do not flee: see Mike. It's the responsability of the defnder to protect them during the assault.

We are talking civilians here, right. We often came across comfort women, cooks, cleaners and whatever in small numbers. Some how they figured out by sitting still out in the open was the way to survive... and it generally was.

Having people (you know what I mean) that do not make it to the status of prisonner... Well, that happens even if I do tend to think that it should not happen.

There is a line somewhere there. Let us assume that at some point for some reason they decide that for them the war is over. This could be seconds before an air strike is about to arrive on their position. Nothing one can do about that. Or it could be that the white flags are raised and clearly unarmed men with hands in the air leave their positions. In this case they have made it to POW status. If not there is a problem there.

jmm99
09-25-2010, 01:18 AM
even in the conventional situation posited by you:

from JMA

My conversation here relates to a combat environment where there are few civilians and civilian installations. The preparatory bombardment would comprise little more than airstrikes.

Using this example of where a say a battalion is in a prepared position say between 500-800 soldiers. My point was that one would surely attempt through "fire support" to inflict so many casualties that the final infantry assault would be merely mopping up.

Subject to weapon availability I would select the most devastating in terms of KIA. Working on the rule of thumb of WIA:KIA as 3:1 with other survivors either surrendering or running one really needs to maximize the KIA and increase the severity of the WIA to ensure they cannot return to battle at some later stage.

Bombardment (air & arty, pre- and during assaults) may well only degrade the ability of good soldiers to resist in prepared positions.

Examples abound from WWI, WWII, Korea and Vietnam (also the pounding taken by the Finns on the Karelian Isthmus at the ends of both the Winter and Continuation Wars) where troops took a licking and kept on ticking. E.g., Hill 937, Ap Bia Mountain aka Hamburger Hill - Wiki History (http://en.wikipedia.org/wiki/Battle_of_Hamburger_Hill) & Wiki Movie (http://en.wikipedia.org/wiki/Hamburger_Hill). From the History (emphasis added):

Casualties

U.S. losses during the ten-day battle reportedly totaled 72 dead and 372 wounded. To take the position, the 101st Airborne Division eventually committed five infantry battalions, about 1,800 men, and ten batteries of artillery. In addition, the U.S. Air Force flew 272 support sorties and expended more than 450 tons of bombs and 69 tons of napalm.

U.S. claimed the 7th and 8th Battalions of the 29th PAVN Regiment suffered 630 dead discovered on and around the battlefield, including many found in makeshift mortuaries within the tunnel complex, and an unknown number of wounded that likely totaled most of the remainder of the two units.

Since this engagement took place in a sparsely populated area of the A Shau, the presence of civilians was not an issue as to the tactics employed. Harry Summers wrote a more in-depth article, Battle for Hamburger Hill During the Vietnam War (http://www.historynet.com/battle-for-hamburger-hill-during-the-vietnam-war.htm/1), in 1999 (30 years post). The media view at the time is illustrated by "The Battle for Hamburger Hill (http://www.time.com/time/magazine/article/0,9171,840113,00.html)" (Time. 1969-05-30).

As I've read the posts here from folks who've done Iraq and Astan, the combat environments are much more complicated than more conventional environments where civilians are not a large issue. My conclusion (legal) is that the tactical issues of civilians, enemy wounded and enemy surrenders will be with us no matter how much technology and longer-distance fires we throw at the problem.

jmm99
09-26-2010, 03:29 AM
This post is largely based on the ICRC publication, Customary International Humanitarian Law (http://www.icrc.org/web/eng/siteeng0.nsf/html/section_ihl_customary_humanitarian_law) (CIHL), in two parts covering 161 rules:

Customary International Humanitarian Law, Volume I: Rules, Jean-Marie Henckaerts and Louise Doswald-Beck, with contributions by Carolin Alvermann, Knut Dörmann and Baptiste Rolle (ICRC, 2005) (689 pages) (2.5 mb)

Customary International Humanitarian Law, Volume II: Practice, Parts 1 & 2; edited by Jean-Marie Henckaerts and Louise Doswald-Beck, with contributions by Carolin Alvermann, Knut Dörmann and Baptiste Rolle (ICRC, 2005) (4448 pages) (13.5 mb)

These gigantic volumes are not "The Law", or doctrine as such; but rather they are a compilation of sources to allow one to determine which legal concepts are generally accepted, and which are not. Setting out the full sources in a post or posts would be overkill. Therefore, I've attached a .pdf file with the complete CIHL annotations and sources for the portions of the one rule discussed here.

From CIHL, v. I, p. 225 pdf:

Rule 47. Attacking persons who are recognised as hors de combat is prohibited. A person hors de combat is:

(a) anyone who is in the power of an adverse party;

(b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or

(c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape.

So far as CIHL is concerned, that rule and its three sub-catagories apply to both international armed conflicts (governed by GCs I-IV) and non-international armed conflicts (governed by Common Article 3 of the GCs) - see CIHL, v.I, pp. 225-227 pdf.

------------------------------------------------
The first sub-category ("anyone who is in the power of an adverse party") has presented no substantial definitional problems. The primary US field manual is a leading reference - FM 27-10, The Law of Land Warfare (1956, rev. 1976) (currently in effect):

84. Duration of Protection

a. Treaty Provision.

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation * * *. (GPW, art.5; see par. 71 herein.)

b. Power of the Enemy Defined. A person is considered to have fallen into the power of the enemy when he has been captured by, or surrendered to members of the military forces, the civilian police, or local civilian defense organizations or enemy civilians who have taken him into custody.

The key languiage is "who have taken him into custody." - police officers will be familiar with that language. Summary executions at this stage (post-firefight) would be considered a UCMJ offense.

------------------------------------------------
The second sub-category ("anyone who is defenceless ....") has presented some issues.

One rather obvious factual question is how does a soldier in a firefight determine whether the enemy soldier X feet away is "defenceless", when he is being shot at by enemy soldiers from other positions. The CIHL sources recognize that and other issues, but do not try to provide "bright-line" guidance.

E.g., we have CIHL v. II, p. 996 pdf:

342. The Report on the Practice of Israel comments that:

It should nevertheless be understood that during combat operations, it is often impossible to ascertain exactly at which point an opposing soldier becomes incapacitated, as opposed to merely taking cover, hiding, or “playing dead” in order to open fire at a later stage. Therefore, the practical implementation of this rule requires the commanders in the field to make best-judgment decisions as to whether or not that person continues to pose a threat to friendly forces.[393]

Given the dispersed nature of modern warfare, "best-judgment decisions" will often have to be made by private soldiers as they advance in an assault.

The following two comments from CIHL, v II, apply to both the "defenceless" enemy and the "surrendering" enemy.

From pp. 968-969 pdf:

158. Sweden’s IHL Manual .... adds that:

Persons hors de combat may not be attacked, but shall enjoy the protection of international humanitarian law provided they abstain from any hostile act and do not attempt to escape. In practice it can often be very hard to determine when this situation has arisen. If it is established that a person is hors de combat, he may not be subjected to attack, but he is not protected against the secondary effects of an attack on nearby objectives. It should also be noted that the mere presence of persons hors de combat does not imply that the place/object where they happen to be shall receive immunity.[171]

and from p. 983 pdf:

253. Israel’s Manual on the Laws of War provides that:

The laws of war do set clear bars to the possibility of harming combatants when the combatant is found “outside the frame of hostilities”, as when he asks to surrender, or when he is wounded in a way that does not allow him to take an active part in the fighting. In such situations, it is absolutely prohibited to harm the combatant.
. . .
When is a combatant regarded as leaving the sphere of hostilities? While storming at zero distance, must a combatant hold his fire against a combatant raising his hands, but still holding his weapon? This is a difficult question to answer, especially under combat conditions. At any rate, there are several criteria that can guide us: Does the combatant show clear intent to surrender using universally accepted signs, such as raising his hands? Is the soldier seeking to surrender liable to jeopardize our forces or is the range considered not dangerous? Did the surrenderer lay down his arms?[281]

The soldier's perception of what happened in the assault seems the only test that reflects reality. That perception should be accepted unless that perception was faulty beyond a reasonable doubt.

(cont.)

jmm99
09-26-2010, 03:38 AM
The third sub-category ("anyone who clearly expresses an intention to surrender ...") has generated a number of issues - several are commented above in part 1.

CIHL, v. I, p. 989 pdf, refers to a very important limitation on surrenders reflected in US doctrine; The Commander's Handbook on the Law of Naval Operations (NWP1-14M, MCWP 5-2.1, COMDTPUB P5800.7) (1995) (rev. in 2007 without substantial revision to this part):

11.7 PRISONERS OF WAR

Combatants cease to be subject to attack when they have individually laid down their arms to surrender, when they are no longer capable of resistance, or when the unit in which they are serving or embarked has surrendered or been captured. However, the law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon-an attempt to surrender in the midst of a hard-fought battle is neither easily communicated nor received. The issue is one of reasonableness.

This manual applies directly to Marines (and not directly to Soldiers); but the "reasonableness" test is well attested in UK and US doctrine - e.g., pp. 229-230 pdf:

Specific categories of persons hors de combat (cont.)

The ability to accept surrender under the particular circumstances of combat was discussed by the United Kingdom and the United States in the light of the war in the South Atlantic and the Gulf War respectively.[52]

The United Kingdom pointed out that it may not be possible to accept surrender from a unit while under fire from another position. Hence, a party which “takes” surrender is not required to go out to receive surrender; instead, the party offering surrender has to come forward and submit to the control of the enemy forces.

The United States took the position that an offer of surrender has to be made at a time when it can be received and properly acted upon and that a last-minute surrender to an onrushing force may be difficult to accept. The question remains, however, as to how to surrender when physical distance may make it difficult to indicate an intention to surrender or may subject one to charges of desertion.

The United States also took the position that retreating combatants, if they do not communicate an offer of surrender, whether armed or not, are still subject to attack and that there is no obligation to offer an opportunity to surrender before an attack.

More specifically, the DoD position is at CIHL, v. II, pp. 997-998 pdf:

349. In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated that:

The law of war obligates a party to a conflict to accept the surrender of enemy personnel and thereafter treat them in accordance with the provisions of the 1949 Geneva Conventions for the Protection of War Victims . . .

However, there is a gap in the law of war in defining precisely when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or an individual soldier) and an ability to accept on the part of his opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon - an attempt at surrender in the midst of a hard-fought battle is neither easily communicated nor received. The issue is one of reasonableness.

A combatant force involved in an armed conflict is not obliged to offer its opponent an opportunity to surrender before carrying out an attack . . . In the process [of military operations], Coalition forces continued to accept legitimate Iraqi offers of surrender in a manner consistent with the law of war. The large number of Iraqi prisoners of war is evidence of Coalition compliance with its law of war obligations with regard to surrendering forces.[401]

The report also referred to two incidents during the Gulf War in which there had been allegations that quarter had been denied. The first incident involved an armoured assault on an entrenched position where tanks equipped with earthmoving plough blades were used to breach the trench line and then turned to fill in the trenches and the bunkers. The Department of Defense defended this tactic as consistent with the law of war. It noted that:

In the course of the breaching operations, the Iraqi defenders were given the opportunity to surrender, as indicated by the large number of EPWs [enemy prisoners of war] taken by the division. However, soldiers must make their intent to surrender clear and unequivocal, and do so rapidly. Fighting from fortified emplacements is not a manifestation of an intent to surrender, and a soldier who fights until the very last possible moment assumes certain risks. His opponent either may not see his surrender, may not recognize his actions as an attempt to surrender in the heat and confusion of battle, or may find it difficult (if not impossible) to halt an onrushing assault to accept a soldier’s last-minute effort at surrender.[402]

The second incident concerned the attack on Iraqi forces while they were retreating from Kuwait City. The Department of Defense again defended the attack as consistent with the law of war. It noted that:

The law of war permits the attack of enemy combatants and enemy equipment at any time, wherever located, whether advancing, retreating or standing still. Retreat does not prevent further attack . . . In the case at hand, neither the composition, degree of unit cohesiveness, nor intent of the Iraqi military forces engaged was known at the time of the attack. At no time did any element within the formation offer to surrender. CENTCOM [Central Command] was under no law of war obligation to offer the Iraqi forces an opportunity to surrender before the attack.[403]

350. The Report on US Practice states that:

The opinio juris of the United States is that quarter must not be refused to an enemy who communicates an offer to surrender under circumstances permitting that offer to be understood and acted upon by U.S. forces. A combatant who appears merely incapable or unwilling to fight, e.g., because he has lost his weapon or is retreating from the battle, but who has not communicated an offer to surrender, is still subject to attack. (Persons hors de combat due to wounds, sickness or shipwreck must of course be respected in all circumstances, in accordance with the First and Second Geneva Conventions of 1949).[404]

Again, the thrust goes more to the soldier's perception - and very little to legalistic, hard-line litmus tests.

(cont.)

jmm99
09-26-2010, 04:09 AM
Finally, two exceptions to "Rule 47" have been claimed to allow killing prisoners.

One is fairly obvious and generally permitted - CIHL, v. I, pp. 230-231 pdf:

Loss of protection

According to Additional Protocol I, immunity from attack is conditional on refraining from any hostile act or attempt to escape.[59] This is also set forth in several military manuals.[60] The commission of these acts signifies that the person in question is in fact no longer hors de combat and does not qualify for protection under this rule. The Third Geneva Convention specifies that “the use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances”.[61] The Convention contains other specific rules applicable to the escape of prisoners of war.[62] Hostile acts have not been defined, but the Commentary on the Additional Protocols gives examples such as resuming combat if the opportunity arises, attempting to communicate with one’s own party and destroying installations of the enemy or one’s own military equipment.[63]

The other (that special circumstances allow prisoners to be killed) is more controversial. In the CIHL view, and in US doctrine (upon which that CIHL view is heavily based), that COA is banned. E.g., p. 230 pdf:

Quarter under unusual circumstances of combat

The prohibition on attacking a person recognised as hors de combat applies in all circumstances, even when it is difficult to keep or evacuate prisoners, for example, when a small patrol operating in isolation captures a combatant. Such practical difficulties must be overcome by disarming and releasing the persons concerned, according to Additional Protocol I.[53] This is restated in several military manuals.[54]

Here, CIHL cites and quotes FM 27-10, The Law of Land Warfare (1956, rev. 1976) (currently in effect):

85. Killing of Prisoners

A commander may not put his prisoners to death because their presence retards his movements or diminishes his power of resistance by necessitating a large guard, or by reason of their consuming supplies, or because it appears certain that they will regain their liberty through the impending success of their forces. It is likewise unlawful for a commander to kill his prisoners on grounds of self-preservation, even in the case of airborne or commando operations, although the circumstances of the operation may make necessary rigorous supervision of and restraint upon the movement of prisoners of war.

FM 27-10, The Law of Land Warfare, applies to US Soldiers and Marines.

That ban on "special circumstances shootings" goes back a long way in US doctrine - e.g., the 1914 US Rules of Land Warfare:

68. Execution of. - Prisouers of war may be fired upon and may be shot down while attempting to escape, or if they resist their guard, or attempt to assist their own army in anyway.[1] They may be executed by sentence of a proper court for any offense; punishable with death under the laws of the captor, after due trial nnd conviction. It may well be doubted whether such extreme necessity can ever arise that will compel or warrant a commander to kill his prisoners on the ground of self-preservation.[2]

1. They should be summoned to halt or surrender before firing. (Hague Con. 1899 Pt I, pp. 86, 87).

2. G.O. 100, 1863, art 60, in referring to giving of quarter says: "But a commander is permitted to direct his troops to give no quarter in great straits, when his own salvation makes it impossible to cumber himself with prisoners." The German Kriegsbrauch of 1902 says: "Prisoners can be killed * * * in case of extreme necessity, when other means of security are not available and the presence of the prisoners is a danger to one's own existence. * * * Exigencies of war and the safety of the state come first and not the consideration that prisoners of war must at any cost remain unmolested." No instance of resort to such executions have occured since 1799, when Napoleon bayonetted the Arabs at Jaffa.

The last sentence may or may not be accurate.

Such is the current state of the law according to the best sources I've found.

Regards

Mike

JMA
09-26-2010, 01:41 PM
As I've read the posts here from folks who've done Iraq and Astan, the combat environments are much more complicated than more conventional environments where civilians are not a large issue. My conclusion (legal) is that the tactical issues of civilians, enemy wounded and enemy surrenders will be with us no matter how much technology and longer-distance fires we throw at the problem.

Good post Mike... and yes I agree.

JMA
09-26-2010, 02:07 PM
From CIHL, v. I, p. 225 pdf:

Rule 47. Attacking persons who are recognised as hors de combat is prohibited. A person hors de combat is:

(a) anyone who is in the power of an adverse party;

(b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or

(c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape.

I hear this and that seems to be what I have understood.

This is why I can't understand the Capt. Robert Semrau case and the concept of "mercy killing". From the description of the wounds the man would not have made it and was in such a poor condition that he was unable to continue with any aggressive action. So why shoot him? He might get five years for it.

The soldier's perception of what happened in the assault seems the only test that reflects reality. That perception should be accepted unless that perception was faulty beyond a reasonable doubt.(cont.)

This is the difficult area. One needs to have a clear SOP on the conduct of the assault. We did. But there is always the potential for elements operating away from the eyes of others that they may go rogue. There have been a couple of such cases out of Iraq and Afghanistan which have been prosecuted.

JMA
09-26-2010, 02:26 PM
This manual applies directly to Marines (and not directly to Soldiers); but the "reasonableness" test is well attested in UK and US doctrine - e.g., pp. 229-230 pdf:

The United Kingdom pointed out that it may not be possible to accept surrender from a unit while under fire from another position. Hence, a party which “takes” surrender is not required to go out to receive surrender; instead, the party offering surrender has to come forward and submit to the control of the enemy forces.

The United States took the position that an offer of surrender has to be made at a time when it can be received and properly acted upon and that a last-minute surrender to an onrushing force may be difficult to accept. The question remains, however, as to how to surrender when physical distance may make it difficult to indicate an intention to surrender or may subject one to charges of desertion.

The United States also took the position that retreating combatants, if they do not communicate an offer of surrender, whether armed or not, are still subject to attack and that there is no obligation to offer an opportunity to surrender before an attack.

Yes, this is good and reasonable because the problem comes when with a sudden movement at a distance of a matter of meters someone tries to surrender. It is very difficult 1) for all those in the assault and able to shoot him to understand then and there what his intentions are and 2) how a commander would have to break the impetus of the assault to secure the prisoner.

Lets take a hypothetical scenario where a person was parachuting in and coming into land was fired upon. This firing continued while he attempted to free himself from his harness. When free the person now able to use his weapon realised the firing had stopped and he heard the words "surrender comrade". The man didn't make it and on inspection of his weapon it was found he had run out of ammo. There were other actions going on all around but this little one-on-one was a separate action. Where would this fall within the law?

Again, the thrust goes more to the soldier's perception - and very little to legalistic, hard-line litmus tests. (cont.)

And difficult to prove and prosecute as with the Semrau case.

JMA
09-26-2010, 02:37 PM
Finally, two exceptions to "Rule 47" have been claimed to allow killing prisoners.

Loss of protection

According to Additional Protocol I, immunity from attack is conditional on refraining from any hostile act or attempt to escape.[59]

Yes that's as I understand it.

"No instance of resort to such executions have occured since 1799, when Napoleon bayonetted the Arabs at Jaffa."

The last sentence may or may not be accurate.

Such is the current state of the law according to the best sources I've found.

Regards

Mike

Certainly that would not be accurate given the number of conflicts since 1799.

Mike, thank you for your effort on this. I have learned a lot and am sure others have too.

jmm99
09-26-2010, 07:53 PM
and now to your hypothetical of the para and his single ground opponent:

from JMA
Lets take a hypothetical scenario where a person was parachuting in and coming into land was fired upon. This firing continued while he attempted to free himself from his harness. When free the person now able to use his weapon realised the firing had stopped and he heard the words "surrender comrade". The man didn't make it and on inspection of his weapon it was found he had run out of ammo. There were other actions going on all around but this little one-on-one was a separate action. Where would this fall within the law?

First off, the one on one "duel" cannot really be divorced from the "other actions going on all around." So, the para is probably in a situation where he cannot safely accept a surrender (as in the UK and US interpretations). But, for purposes of discussion, I'll accept the facts as given.

The facts as given are ambiguous. First off, nothing is said about the leg's actions and body posture. Did he drop his empty weapon and raise his hands ? Second, the statement "surrender comrade" is also ambiguous. Is the leg surrendering, or is he asking the para to surrender ? Third, the fact that the leg stopped firing could mean, besides out of ammo, a jam or a mag change.

I'd say probably a good shoot, if the para knows what the right words are and utters them - and if a video cam isn't filming the whole thing from a different angle (and attitude) :(.

Next up - CPT Semrau

Regards

Mike

jmm99
09-26-2010, 08:29 PM
No video existed for the Semrau incident, he did not testify and the testimony was contradictory. Even where a video exists (as in the Apache Baghdad shootout, 2007 Apache Engagement on Video: Appears Incriminating (http://council.smallwarsjournal.com/showthread.php?t=10113)), perceptions will differ.

The Semrau case (next post) has multiple, possible aspects. The more common charge ("you shot an unarmed, wounded man") comes from an assault unit moving through an objective - where that location is at least arguably hot.

Here is an example from 2004 Fallujah, where the CBS reporter (in his headline (http://www.cbsnews.com/stories/2005/05/04/iraq/main693025.shtml)) condemned the Marine, despite the Corps exoneration of him (emphasis added):

SAN DIEGO, May 4, 2005
No Charges In Fallujah Shooting
A Marine Who Shot An Unarmed, Wounded Iraqi Won't Face Charges
By David Hancock

(AP) A Marine corporal who was videotaped shooting an apparently injured and unarmed Iraqi in a Fallujah mosque last year will not face court-martial, the Marine Corps announced Wednesday.

Maj. Gen. Richard F. Natonski, commanding general of the I Marine Expeditionary Force, said that a review of the evidence showed the Marine's actions in the shooting were "consistent with the established rules of engagement and the law of armed conflict."

The corporal was not identified in a two-page statement issued by Camp Pendleton, the headquarters of the expeditionary force north of San Diego.

The Nov. 13 incident was videotaped by Kevin Sites, a freelance journalist on assignment for NBC.

The shooting occurred when a Marine unit entered the mosque and found five men wounded in fighting at the site the day before, when another Marine unit clashed with gunmen apparently using the mosque to fire from, according to Sites' broadcast.

In the video, as the cameraman moved into the mosque, a Marine in the background can be heard shouting obscenities and yelling that one of the men was only pretending to be dead. The Marine then raises his rifle toward an Iraqi lying on the floor of the mosque and shoots the man.

Before the opening of the Nov. 8 assault on rebel-held Fallujah, Marine commanders told infantrymen that the rules of engagement allowed for use of deadly force against men of military age deemed holding hostile intent, even if the enemy didn't fire on the Marines first.

snip from video:

1267

Comment from a retired E-7 who watched that video with me: "Damned if I'd walk through that room without making sure that all the bad guys were dead." My dad had very similar sentiments re: WWII ETO; although my dad was very much in favor of taking prisoners whenever possible (also the E-7's attitude).

The Marine in the mosque knew what words to use - "playing dead" is an exception to the "de hors" rule. It is a matter of perception - and also one's attitude toward war and the particular war.

Regards

Mike

jmm99
09-26-2010, 09:11 PM
Since CPT Semlau did not testify last I heard (the sentencing had been set for 21 Sep), his motive for doing whatever he did (the testimony was contradictory) was not clear at the trial.

If "mercy killing" is the real motive, saying that might be the honest thing to do; but it probably will not result in a not guilty - unless the jury is given something (no matter how bizarre) upon which to hang that "not guilty hat".

We Michiganders had a lot of "mercy killing" legal experience with Jack Kevorkian (http://en.wikipedia.org/wiki/Jack_Kevorkian) ("Dr. Death") in the 1990s. Kevorkian was represented by Geoffrey Fieger (http://en.wikipedia.org/wiki/Geoffrey_Fieger) from 1994, in the first of several doctor-assisted suicide trials. Kevorkian was acquitted in that trial and all subsequent trials where Fieger represented him. Reduced to its simplest point, Geoff argued that Kavorkian had injected a drug cocktail for the purpose of relieving pain. Of course, a collateral effect of the powerful combo was also to end life.

While that argument got Kavorkian off, it was a subtrafuge not to Kavorkian's liking and his goal of legalizing assisted suicide. He fired Fieger for the next trial, represented himself on a pure assisted suicide platform, and was duly convicted.

A pretty good article on the Semrau case was posted by John Thompson ("John Thompson is president of the Mackenzie Institute. He has studied warfare all of his life, but his own years of military service were entirely peaceful.") in the National Post (http://network.nationalpost.com/NP/blogs/fullcomment/archive/2010/05/17/john-thompson-judging-robert-semrau.aspx):

John Thompson: Judging Robert Semrau
Posted: May 17, 2010

In October 2008, Captain Robert Semrau of the Royal Canadian Regiment was commanding a "mentoring team" of four Canadian soldiers operating with a company of Afghan National Army troops engaged in fighting Taliban insurgents in Helmand Province. Taliban insurgents opened fire on this force and were engaged by a supporting U.S. Apache gunship. The Taliban promptly withdrew, leaving one of their gunmen dead and one severely wounded.

The Afghan Army troops did not treat the wounded Talib, who had one leg shredded off and a foot severed, and may have also been wounded in the torso. Instead they apparently kicked and insulted him and then moved on. This created a dilemma for the Canadians. .... (much more in article).

While I agree with much of Thompson's sentiments in the rest of the article, I have to disgree with his characterization of the dilemma as being a legal one:

The textbook on modern ethical warfare would advise immediately halting the Afghan troops; treating the badly wounded prisoner (who was apparently dying in great pain); calling for a medical evacuation; then, and only then, continuing with the mission. But textbook solutions are one thing; reality on the ground is something else.

What textbook I don't know; but, if it exists, it should be amended.

Even the ICRC publication, Customary International Humanitarian Law (CIHL), clearly states that operations do not have to be suspended because of wounded.

CIHL, v. I, p. 457:

Rule 109. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.

Practice

Volume II, Chapter 34, Section A.

This rule applies to both international and non-international armed conflicts (CIHL, v. I, pp. 457-459)

The primary sources from CIHL, v. II, pp. 2627-2628 (note there is some ambiguity in language):

2. Article 16 of the 1907 Hague Convention (X) provides that “after every engagement, the two belligerents, so far as military interests permit, shall take steps to look for the shipwrecked”.

3. Common Article 3 of the 1949 Geneva Conventions provides that “the wounded and sick shall be collected”. (Article 3 GC II adds the shipwrecked)
.....
5. Article 15, first paragraph, GC I provides that “at all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick”.
.....
7. Article 18, first paragraph, GC II states that “after each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick”.
.........
10. Article 16, second paragraph, GC IV provides that “as far as military considerations allow, each Party to the conflict shall facilitate the steps taken to search for the . . . wounded”.
.....
13. Article 8 AP II provides that “whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked”. Article 8 AP II was adopted by consensus.

And with respect to Canada itself, from CIHL, v. II, p. 2630:

30. Canada’s LOAC Manual states that “following an engagement, parties to a conflict are obliged to take all possible measures to search for and collect the wounded and sick and shipwrecked”.16 It adds that “appeals may be made to local inhabitants and relief societies to collect . . . the wounded and sick. Such inhabitants and relief societies, even in occupied or invaded territory, shall be permitted spontaneously to collect . . . such personnel.”17 In the case of non-international armed conflicts, the manual states that “after an engagement and whenever circumstances permit, all possible steps must be taken without delay to search for and collect the wounded, sick and shipwrecked”.18

31. Canada’s Code of Conduct instructs soldiers “to take all possible measures to search for and collect the wounded and sick from all sides, opposing forces or not, as well as civilians”.19 It also provides that “military authorities may ask the inhabitants in the area of conflict to voluntarily collect . . . the wounded under their direction”.20

16 Canada, LOAC Manual (1999), p. 9-1, § 8.
17 Canada, LOAC Manual (1999), p. 9-2, § 12.
18 Canada, LOAC Manual (1999), p. 17-4, § 32.
19 Canada, Code of Conduct (2001), Rule 7, § 3.
20 Canada, Code of Conduct (2001), Rule 10, § 8.

It is possible that Canada has elected to take a very broad view of its obligations to wounded - regardless of impact on military operations. If so, CPT Semrau was faced with a dilemma, not really of his own making.

Without having the transcripts themselves (of the pre-trial and trial), going very far with this case would be speculative.

Regards

Mike

M-A Lagrange
09-28-2010, 10:18 AM
Mike,

In a very stricto sensus interpretation of the GC, that canadian capt is right: you have to act with no delay to provide aid to the wounded.

Your point is more on the problematic of law versus necessity during military operations.
There is a difference between the Fallujah case and that one as the engagement duration has to be taken in account.
There is a difference between what fall under military necessity during an long open engagement, a battle of several days or month, and an engagement of several hours in which all military objectives have been reached. As during a patrol or a ratissage operation.

Military necessity is taken in account under circonstances and context. Not necessarely at charge, as in the case of Fallujah.

JMA
09-28-2010, 10:41 AM
Since CPT Semlau did not testify last I heard (the sentencing had been set for 21 Sep), his motive for doing whatever he did (the testimony was contradictory) was not clear at the trial.

If "mercy killing" is the real motive, saying that might be the honest thing to do; but it probably will not result in a not guilty - unless the jury is given something (no matter how bizarre) upon which to hang that "not guilty hat".

[snip]



Semrau can't have it both ways.

If he says that the person was 98% dead then he obviously presented no threat to him or the Afghan soldiers he was with. Therefore there was no justifiable reason to shoot him.

I have a personal example of such a scenario where we came across an insurgent with a massive chest wound. Both lungs exposed with a big bleed. The odd twitch and the odd attempt to breathe. There was no chance, already 99% dead and unconscious. If it had been one of ours the same, no chance of survival.

I got the offer to do the "mercy" thing. Said no. He died in under 5 minutes. Put him in a body bag and that was it.

Just what would have been the point of shooting him? Seems more like it was something the shooter wanted rather than what the wounded guy needed.

JMA
09-28-2010, 10:45 AM
Here is a story to follow:

Soldiers more likely to be in court: expert (http://www.abc.net.au/news/stories/2010/09/28/3024135.htm?section=justin)

Yesterday charges were laid against three Australian soldiers following a deadly raid in Afghanistan last year.

Six people, including five children, were killed in the February 2009 Special Operations Task Group raid on a compound in Uruzgan province.

jmm99
09-28-2010, 09:27 PM
JMA-Australia

From the article, it appears that the soldiers are charged under Australian domestic civil law - it is not clear whether the court is civilian or military.

Professor Donald Rothwell, deputy director of the Australian Centre for Military Law and Justice, says only the worst abuses were prosecuted during the Vietnam War.

But he says that is changing significantly, especially since Australia became a party to the International Criminal Court.

"Australia prosecutes defence members who may have breached the laws of armed conflict and if not, those personnel should be handed over to the ICC for prosecution," he said.

"As a result of that we've had a significant beefing up of Australian domestic law - domestic criminal law - which applies to military personnel in places like Afghanistan."

This is similar to the German system discussed re: the Afghan gas tanker incident. Basically, applying Rule of Law and not Laws of War.

-------------------
MAL and JMA

Agree that duty to assist wounded hinges on whether the engagement has ended or not - and what is happening in the engagement. The Semrau engagement seems to have been in the pursuit stage.

The Canadian guru John Thompson stated that pursuit should have come to a complete halt. That was my point in titling the post "mercy killing" or "mission saving".

I'd say bypass the wounded guy and continue the pursuit because those you are pursuing (if not caught) will come back to fight and kill another day. If you have additional assets allowing the wounded to be cared for then you do so.

As to the rule says:

Rule 109. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.

In both the Semrau case and JMA's example, the "circumstances did not permit" and it was not "after the engagement".

Regards

Mike

jmm99
09-28-2010, 09:47 PM
JMA-Australia

From the article, it appears that the soldiers are charged under Australian domestic civil law - it is not clear whether the court is civilian or military.

Professor Donald Rothwell, deputy director of the Australian Centre for Military Law and Justice, says only the worst abuses were prosecuted during the Vietnam War.

But he says that is changing significantly, especially since Australia became a party to the International Criminal Court.

"Australia prosecutes defence members who may have breached the laws of armed conflict and if not, those personnel should be handed over to the ICC for prosecution," he said.

"As a result of that we've had a significant beefing up of Australian domestic law - domestic criminal law - which applies to military personnel in places like Afghanistan."

This is similar to the German system discussed re: the Afghan gas tanker incident. Basically, applying Rule of Law and not Laws of War.

-------------------
MAL and JMA

Agree that duty to assist wounded hinges on whether the engagement has ended or not - and what is happening in the engagement. The Semrau engagement seems to have been in the pursuit stage.

The Canadian guru John Thompson stated that pursuit should have come to a complete halt. That was my point in titling the post "mercy killing" or "mission saving".

I'd say bypass the wounded guy and continue the pursuit because those you are pursuing (if not caught) will come back to fight and kill another day. If you have additional assets allowing the wounded to be cared for then you do so.

As to the rule says:

Rule 109. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.

In both the Semrau case and JMA's example, the "circumstances did not permit" and it was not "after the engagement".

Rule 109 in French (from this link (http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/pcustom?opendocument)):

Règle 109. – Chaque fois que les circonstances le permettent, et notamment après un engagement, chaque partie au conflit doit prendre sans tarder toutes les mesures possibles pour rechercher, recueillir et évacuer les blessés, les malades et les naufragés, sans distinction de caractère défavorable.

No substantial difference that I see - "chaque fois" meaning roughly "at such time", as I read this (the English translation uses "whenever").

Regards

Mike

M-A Lagrange
09-29-2010, 05:53 PM
Hi Mike,

Agree that duty to assist wounded hinges on whether the engagement has ended or not - and what is happening in the engagement. The Semrau engagement seems to have been in the pursuit stage.

The Canadian guru John Thompson stated that pursuit should have come to a complete halt. That was my point in titling the post "mercy killing" or "mission saving".

I'd say bypass the wounded guy and continue the pursuit because those you are pursuing (if not caught) will come back to fight and kill another day. If you have additional assets allowing the wounded to be cared for then you do so.

My point was just that from what I know of Canadian forces, I was not surprised about the capt dilemma. They are train pretty much very close to the spirit of GC.
And to clarify, I just wanted to point the problematic necessity/duty VS obligations. And remind that it is taken in account.


Rule 109. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.
In both the Semrau case and JMA's example, the "circumstances did not permit" and it was not "after the engagement".

Rule 109 in French (from this link):

Quote:
Règle 109. – Chaque fois que les circonstances le permettent, et notamment après un engagement, chaque partie au conflit doit prendre sans tarder toutes les mesures possibles pour rechercher, recueillir et évacuer les blessés, les malades et les naufragés, sans distinction de caractère défavorable.
No substantial difference that I see - "chaque fois" meaning roughly "at such time", as I read this (the English translation uses "whenever").

Actually there is a very light difference. chaque fois might be translated as any time, whenever or every time.
Common wisdom would interpret it as every time. Reality of the field shows that at the best it is whenever. But GC were written in French if I do not mistake just for the pleasure to have legal battles on how to understand one word that has several meanings and various translations.;)

jmm99
09-30-2010, 04:25 AM
Hi Marc

Going back to your post before your last:

from MAL
In a very stricto sensus interpretation of the GC, that canadian capt is right: you have to act with no delay to provide aid to the wounded.

I'd agree with what you said if Rule 109 did not include the introductory clauses. If they are left out, the rule would read:

Rule 109. Each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.

Règle 109. Chaque partie au conflit doit prendre sans tarder toutes les mesures possibles pour rechercher, recueillir et évacuer les blessés, les malades et les naufragés, sans distinction de caractère défavorable.

The rule (if written like so) would, in a strict sense, require all possible measures to be taken, without delay, regardless of the circumstances and regardless of the stage of engagement.

But, the rule does require reference to the circumstances; and the rule clearly raises the standard after an engagement. What other meaning, but that, can be given these words:

Whenever circumstances permit, and particularly after an engagement ...

Chaque fois que les circonstances le permettent, et notamment après un engagement ...

I suggest, first off, that the clause "Whenever circumstances permit ..." ("Chaque fois que les circonstances le permettent ...") most logically requires a probabilistic approach to the problem. I believe we can agree that the circumstances of combat will create a fuzzy pattern (fog, friction, whatever one would call it).

What "can be done", "might be done" and "cannot be done" are not likely to offer brightline choices. However, some choices will be clearer than others; and we probably can reach a consensus that some choices will be "white" (acceptable to most all), some "black" (unacceptable to most all) and some "gray" in varying shades.

What we do not want to see is "legal battles on how to understand one word that has several meanings and various translations." Nobody is going to be looking up variant legalisms in the middle of a firefight.

Unfortunately, those legalisms (as applied to the gray areas) become personally important to combatants if they find themselves being prosecuted before the ICC, before a domestic court (in lieu of the ICC, as the Australian spokesperson said), or before a military court, because they chose a different interpretation of a legalism, or did not know that legalism existed.

One could introduce both legalism and dogmatism into the scope of the clause "... particularly after an engagement ..." ("... notamment après un engagement ...") - that is, when does an engagement end ?

I doubt that anyone would contend that it ends when the objective is taken and firing dies down or stops, and contact is broken. At that point, the primary circumstances are what the enemy will do - e.g., some "maybes": (1) enemy counterattacks (requiring your prompt reorganization and consolidation); (2) enemy occupies a new fighting position (should the unit advance to attack this new objective); (3) enemy retreats (should the unit pursue). Those post-contact actions will interfere to a greater or lesser extent with care of the wounded.

Again we are dealing very much with probabilities. Take pursuit as an exemple. If (1) the probability is high that the unit can find, fix and destroy the enemy before it can do any more damage; and (2) the probability is also high that, if the enemy unit if not destroyed, it will cause great damage; then, given those high probabilities, pursuit with all assets required would seem an acceptable course of action, even if care for the wounded would have to be degraded.

An easy choice might be expressed like this: better that 1 innocent dies than 10 enemy escape, if those enemy would later kill 100 innocents. Of course, if the probabilities are opposite (low and low), pursuit would not be an acceptable choice. My bottom line is that a soldier should not prosecuted because his probabilistic choice (in the vast gray area) differs from the hindsight of someone who was not there.

The "circumstances" in irregular warfare are difficult, especially where the irregular force sets up a situation (e.g., involving wounded as one example) believing that the regular forces' probable application of its rules will be to the regulars' disadvantage.

Take a look at Ulzana's Raid - Wiki (http://en.wikipedia.org/wiki/Ulzana%27s_Raid) and a longer Ulzana's Raid - Synopsis (http://www.culturecourt.com/F/Westerns/Ulzana.htm). The film was apparently based on an incident in the mid-1880s when an Apache group (less than a dozen) jumped the rez, were pursued by the cavalry, killed just south of 40 people, and escaped into Mexico.

The question hinges on what to do after the cavalry reaches the Riordan ranch. Mrs. Riordan was left alive in the expectation that the patrol would take care of her.

Some non-movie script choices could have been:

1. Send Mrs Riordan back to the fort with one detachment, and continue the pursuit with another detachment. Problem: either detachment could be destoyed by the Apaches - worst case, defeat in detail.

2. Take Mrs Riordan back to the fort with the entire patrol. Problem: aborts mission.

3. Take Mrs Riordan with the patrol as it continues pursuit. Problem: pursuit has lower probability of success.

4. Leave Mrs Riordan at the ranch and continue pursuit with the full patrol.

I'd be inclined to #4 (given the prior actions and killing spree of the Apache group). Which way would you go ?

The movie script "solution" was to use Mrs Riordan and several of the patrol as bait - on their way back to the fort; the Apaches attack them; and the rest of the patrol attacks the Apaches. The Apaches are all killed and don't escape to Mexico (the actual result - see Ulzana's Raid - Amazon Customer Reviews (http://www.amazon.com/Ulzanas-Raid-Burt-Lancaster/product-reviews/B00000I1KD)).

In many of these situations, I don't think there is a "right", "legal" or "humane" answer.

Regards

Mike

SJPONeill
09-30-2010, 05:38 AM
This is a great thread and one of the most challenging, and relevant I have come across...

In regards to CPT Semrau, would his offence have been the same had he:

done nothing and just let him expire in his own time i.e. an act of omission?

rendered first aid, prolonging the Taliban's life and pain in the knowledge that he would die anyway?

rendered first aid but OD'd the PW on morphine, thus also wasting an asset he or his troops might need later? Ditto for caring for him and calling in a casevac in accordance with the letter of the 'law'?

double-tapped him on his way past as a potential threat?

In at least two of those options, one might argue that the pain and suffering of the wounded Taliban would not only have been greater but that the Canadian soldiers would have known that to be the case. Perhaps there lies the rub between a moral offence and a legal one?

JMA
09-30-2010, 10:30 AM
This is a great thread and one of the most challenging, and relevant I have come across...

In regards to CPT Semrau, would his offence have been the same had he:

done nothing and just let him expire in his own time i.e. an act of omission?

rendered first aid, prolonging the Taliban's life and pain in the knowledge that he would die anyway?

rendered first aid but OD'd the PW on morphine, thus also wasting an asset he or his troops might need later? Ditto for caring for him and calling in a casevac in accordance with the letter of the 'law'?

double-tapped him on his way past as a potential threat?

In at least two of those options, one might argue that the pain and suffering of the wounded Taliban would not only have been greater but that the Canadian soldiers would have known that to be the case. Perhaps there lies the rub between a moral offence and a legal one?

As a young man I faced these type of decisions too often. There must be hundreds of thousands if not millions since then who have been in the same position.

At the time I did not think much about it. I understand that there are many out there whose consciences worry them to a greater or lesser extent over the things they did or may have allowed to happen. Looking back it now seems bizarre that I was asked on occasion whether or not someone could be put out of his misery. As if I had that authority.

One thing for sure is that Semrau if he had his time over again would not do what he did. And I guess his prosecution is more to send a message to the rank and file of the Canadian army than to crucify Semrau.

The line is often blurred and the areas are often shades of grey.

How much things have changed over the past 30-40 years I don't know but I would suggest that each army should deal fairly and unequivocally with such matters to prevent the outside law fraternity getting involved and forcing the issue. Cover ups and white-washes are what keeps the door open for the prosecutors who want to make a name for themselves at the expense of the respective army.

1. make it clear to all what the "laws" are.
2. deal effectively with all and any infractions.

... doing this will keep the vultures at bay!

M-A Lagrange
09-30-2010, 11:18 AM
Hello Mike,

What we do not want to see is "legal battles on how to understand one word that has several meanings and various translations." Nobody is going to be looking up variant legalisms in the middle of a firefight.

Part from being the devils advocate (in a white suite of the stupid angel of humanitarian laws), I am also a practical man with boots on the field and I do agree with you on the fact that GC were not written to have legal battle on one word during operations.

Unfortunately, those legalisms (as applied to the gray areas) become personally important to combatants if they find themselves being prosecuted before the ICC, before a domestic court (in lieu of the ICC, as the Australian spokesperson said), or before a military court, because they chose a different interpretation of a legalism, or did not know that legalism existed.

That’s why, in my opinion, it is needed to have a clear understanding of GC and Hague Convention interpretation by your commandment and legal body before. And that’s also the challenge of everyone involve: take the right decision at a moment you have too many other things to think of. (And I support you 200% on that).

Pink and cheesy understanding would define the black area as: during combat and the white one any times everyone stopped firing… This also has to be put in regard with the type of engagement those rules were designed for: regular wars between 2 conventional armies battling in open ground involving a large number of combatants… The 1st and 2nd WW battle type.

We do agree that it does not apply to most of irregular engagements.
Now the question of pursuit is important as in a court, it will be difficult to put in balance a military objective against a one man life, especially in a civilian court. (Well, I know some military judge who can be harsher than civilian judges…)

One could introduce both legalism and dogmatism into the scope of the clause "... particularly after an engagement ..." ("... notamment après un engagement ...") - that is, when does an engagement end ?

I doubt that anyone would contend that it ends when the objective is taken and firing dies down or stops, and contact is broken. At that point, the primary circumstances are what the enemy will do - e.g., some "maybes": (1) enemy counterattacks (requiring your prompt reorganization and consolidation); (2) enemy occupies a new fighting position (should the unit advance to attack this new objective); (3) enemy retreats (should the unit pursue). Those post-contact actions will interfere to a greater or lesser extent with care of the wounded.

There has been some legal decision make by the TIPY on what a conflict is and what the “duration/life time” of a conflict is. Have to look for details. The Karadzic trial in particular if I do not mistake.

The "circumstances" in irregular warfare are difficult, especially where the irregular force sets up a situation (e.g., involving wounded as one example) believing that the regular forces' probable application of its rules will be to the regulars' disadvantage.

Also, the rules are made for to mitigate the sufferings and avoid excessive use of violence. If the military necessity is taken in account, it is not an argument to pass over the obligations to the wounded.
I also do believe that the interpretation of the necessity VS obligation will differ from country to country and from court to court.
As example, I will use the Nuremberg case used by Michael Walzer in just and injust wars (sorry I do not have the book with me so it is from the top of my mind). In his example, the Allies accused the German navy to have assassinated and not rescued sailors. It appears that the German navy started to rescue the Allies sailors but when the Allies forces arrived on the spot, they attacked the German. (to make the story short)
The court found that it was the Allies who were in fault (and the German not guilty by the way) for having attacked while opponent was conducting a rescue mission.

Does that mean that you have to put you self in danger under the « protection » of a rescue/humanitarian mission? Definitively not. (That’s the job of the stupid relief workers; my job to put you in danger because I did exactly that and now I am in deep #### and need armed rescue :D)

To come back to our context, the point is: you have an obligation to act accordingly to the rules.
- You cannot attack opponent when they do conduct a “rescue” mission (Many comments from French troops in Astan on the fact that we let the Taleb go with their dead while they do not let us take care of our wounded).
- You have to provide relief and aid to wounded opponent as soon as possible.
- Primary responsibility to assist wounded falls under each side: you take care of your wounded, I take care of mine. The GC bottom line is just: if I find one of yours wounded, I take him prisoner and I heal him.

Now, you have crushed the enemy and they are fleeing… What is left is wounded they did not take with them. Well… Hard to said. Will very much depends on you assets, your capacity to conduct your mission, the objective of your mission, your opponent capacities…
I do also believe that in such a case, you take orders from your commandment. They are the ones qualified to determine if you keep on your mission or you have to stop. SOP for such situations should be issued before as well as what to do with the wounded.

Will take time to look at your synopsis in details.

I do also agree with JMA and hope it is done for that reason:
One thing for sure is that Semrau if he had his time over again would not do what he did. And I guess his prosecution is more to send a message to the rank and file of the Canadian army than to crucify Semrau.

It is important for the regular forces to also show that they do play by the rules (for the public ad the enemy) and are not affraid of taking the black sheep out of their ranks (with all respect for Semrau that I do not know personnaly).

Tukhachevskii
09-30-2010, 12:00 PM
Perhaps the editors should rename this thread? Might be easier for people to find later on who may not get the gist of its contents from the title. IMO a lot of what has been dicussed, though sometime over my miniscule head, is of great import.

p.s. Keep it coming, I suspect there is much of great value here that lawyers as well as laymen could learn. Cheers

M-A Lagrange
09-30-2010, 01:25 PM
I was wrong. The correct jurice prudence is from the following trials:
ICTY, The Prosecutor v. Dusko Tadic, Judgment, IT-94-1-T, 7 May 1997, para. 561-568;
ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 84.
ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 135-170.

Plus the definition from GC.

JMA
09-30-2010, 03:10 PM
snip from video:

1267

Comment from a retired E-7 who watched that video with me: "Damned if I'd walk through that room without making sure that all the bad guys were dead." My dad had very similar sentiments re: WWII ETO; although my dad was very much in favor of taking prisoners whenever possible (also the E-7's attitude).

The Marine in the mosque knew what words to use - "playing dead" is an exception to the "de hors" rule. It is a matter of perception - and also one's attitude toward war and the particular war.

Regards

Mike

Just a quick one on this.

Based on the one photo a newsman or prosecutor might be excused for thinking it was an execution. There the bodies are covered and lined up like we would do with our own dead and wounded if we had recovered them after a battle.

That said I would almost certainly have got that room fragged before entering (unless because of doorways, windows and/or holes in the walls the resulting shrapnel would have been a danger to own forces) and then followed it in (ever mindful of ricochets).

Also we worked in pairs. So in theory if the one guy thought or actually saw movement he would cover the person (as how he is standing in the photo) and call his buddy to check him out.

If there were no civilians around then I assume its a fairly routine house clearing exercise and it should be generally accepted that anyone hiding in a room will be dealt with in the process.

The problem often came when insurgents were either caught in a village or ran into a village. The clearing of such a village was fraught with danger especially when it was well know that under such circumstances they may well pull on a dress and try to pass as a woman and thereby escape.

The civilians (old men, women and children) would either sit in a group in an open area in plain sight or hide in a hut.

The hut clearing was very difficult because you did not know who was inside. One would call out for anyone inside to come out. There were times when they came out and times when they didn't either on there own accord or at the insistence of insurgents who were with them.

Then a burst was fired into the thatched roof (because the insurgents would hide in the roof area to either avoid being found or fire on someone entering the hut. (We called this the raining gook phenomenon after a corporal who had cleared some roofs reported "Hey Sir, its raining gooks down here".)

Th structure of the individual hut dictated that it might be dangerous to those outside to fragg the hut before entry then the idea was to use a machine gunner (FN MAG) to rip it through the door (firing the 7.62x51mm NATO round it was no problem). No problem that is unless there were civvies inside. There was no joy in killing civvies under such circumstances.

If contact had not been made yet hut searches were done by sticking your head in the door and going inside (remembering to look up). Heart stopping stuff.

Such is the nature of insurgencies where civvies are intermingled with insurgents. It is fraught with the potential to throw up a curved ball which some 18-9 year old must make a judgement call on in a split second.

I would say that (as as been raised by others already) the key is to differentiate between the time during which the actual battle is taking place and the post battle reorg/consolidation phase. I have some sympathy for a kid suddenly coming across a situation and making a split second possibly life saving decision as opposed to the predator who scours the post contact area in an attempt to find someone to help on his way. (if you see what I mean).

To illustrate this further (not to get into a war story but to set the scene) we were tasked to lift a "contact man" in a village over the border. My sergeant insisted that to physically subdue and truss up such a person was an NCO job so it was agreed that he, a corporal and a senior troopie with a torch would go inside to do the dirty stuff. Of course all hell broke loose and the contact man and his wife let out a series blood curdling screams while I heard my sergeant shout things like "shine the f***ing torch over here you c***" and "tie that arm" etc.

Of course the whole village woke up. Soon people were running all over the show. My "buddy" (an 18-9 year old) was standing near me with his back to a tree with his rifle butt/stock in the shoulder. As people emerged I saw he would raise his weapon and then lower it again as he identified it as a civvy. This happened a number of times and I thought nothing of it at the time. Neither did any of the other troops surrounding the village open fire.

Later I was to think how fortunate it was that the youngster with me nor any of the others had freaked out or made a bad judgement call. It could have turned into a blood bath. Its tough to demand 18-9 year olds make these decisions and get it right all of the time.

jmm99
09-30-2010, 08:23 PM
MAL:

If you are looking for what defines the beginning and end of an armed conflict (the Yugoslav cases), you are on a wild goose chase so far as what defines the beginning and end of an engagement. An engagement (unless you have a one engagement armed conflict) is usually a very small part of an armed conflict.

Examples of engagements are assaults by a force on a fixed position held by a force, or ambushes by a force on a force. The limits (beginning, end and what stages between) of what constitutes an engagement are defined by the tactical doctrines of each combatant force and may differ. The basic stages that must be considered for inclusion within, or exclusion outside of, the limits of an engagement are: movement to contact, contact, breakoff of contact, withdrawal/exploitation.

CIHL Rule 109 is taken directly from AP II, Art. 8 (http://www.icrc.org/ihl.nsf/WebART/475-760013?OpenDocument) (emphasis added):

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

Part III : Wounded, sick and shipwrecked

Article 8 -- Search

Whenever circumstances permit, and particularly after an engagement, all possible measure shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being despoiled, and decently dispose of them.

Neither the rule, the article nor the commentary define "engagement".

The commentary makes it clear that the rule does not reflect new law; and is not substantially different from the 1949 basic GCs or prior Geneva and Hague Conventions, except to emphasize that it will apply during an engagement "whenever circumstances permit".

The Commentary (http://www.icrc.org/ihl.nsf/COM/475-760013?OpenDocument) in large part (emphasis added):

General remarks

4648 Article 8 develops and reaffirms the obligation to collect for the wounded and sick, which is already contained in common Article 3, paragraph 1, sub-paragraph 2 , and which reads as follows: "The wounded and sick shall be collected and cared [p.1414] for". There is no corresponding provision in Protocol I, as this question is already dealt with by the Conventions (Article 15 , first Convention; Article 18 , Second Convention; Article 16 , fourth Convention). The text reflects Article 15 of the first Convention with slight differences in the wording and with the addition of the shipwrecked.

4649 Following the example of the Conventions, the ICRC draft (1) provided for the possibility of concluding local arrangements for the removal of the wounded and sick, elderly persons and children from the combat zone and from besieged or encircled areas. This provision, which was retained by Committee II, (2) was eliminated in the final version of the Protocol as some considered it to be rather unrealistic in the context of a non-international armed conflict. Nevertheless, this does not detract from the fact that evacuation measures should be encouraged whenever they are feasible.

4650 To search for and collect the wounded, sick and shipwrecked constitutes the implementation of the fundamental principle of protection and care set out in Article 7 ' (Protection and care). ' There is a duty to do so. All possible measures must be taken to fulfil this duty, "whenever circumstances permit, and particularly after an engagement". It is particularly after an engagement that it is necessary to search for victims, but the obligation goes further: it applies whenever circumstances permit. Article 15 of the first Convention provides that the Parties to the conflict must take all possible measures "at all times, and particularly after an engagement"; Article 18 of the Second Convention contains the same obligation, though it is limited by the words "after each engagement".

4651 These words were already contained in the corresponding provision of Hague Convention X of 1907 and in the Geneva Convention of 1906. The 1949 Conference substituted them in the first Convention by the words "at all times", but left the original expression in the Second Convention unchanged, in accordance with the views expressed by the experts in 1947. They considered that the expression "after each engagement" corresponded more closely to the specific conditions at sea. (3)

4652 Article 8 of the Protocol covers search for the wounded and sick, as well as the shipwrecked and the formula "whenever circumstances permit", which was adopted, takes into account the above-mentioned provisions of the first and Second Conventions; (4) it reflects the concrete possibilities of taking action.

4653 In 1949 the first Convention therefore extended the obligation in time, as the 1929 Convention, of which the formula was retained in the Second Convention, only laid down the duty to search for the wounded and sick "after each engagement", and only for those on the battlefield. In modern armed conflicts hostilities are more flaring up in varying degrees and moving from place to place; it would often be difficult to determine where exactly the battlefield is in place and in time. Therefore the obligation to respect the [p.1415] wounded and sick has a general scope. It applies to civilians, taking into account Article 18 ' (Relief societies and relief actions), ' paragraph 1, of the Protocol. (5) The obligation includes search operations as far as the authorities are concerned, also for medical and religious personnel and for armed units present in the area of military operations after an engagement.

4654 Victims must be protected against pillage and ill-treatment and they must receive adequate care. Such protection measures are particularly important during the period before the victims are able to be evacuated, when they are especially vulnerable. They reinforce the prohibition on pillage and violence to the life, health and physical or mental well-being which is already contained in Article 4 ' (Fundamental guarantees), ' paragraph 2(g) and (a), respectively. (6)

4655 "Adequate care" is first aid given on the spot, which may be of the utmost importance to avoid wounded, sick or shipwrecked succumbing during evacuation, which must take place as quickly as possible. Obviously such care includes ensuring the transport of the wounded to a place where they can be adequately cared for.

Gray areas exist throughout (besides no definition of an "engagement"); e.g., evacuation must be done "whenever feasible" (4649) and "as quickly as possible" (4655) - which are two different standards to me - maybe not to others.

--------------------------------
What is this ! - you have to be rescued:

from MAL
That’s the job of the stupid relief workers; my job to put you in danger because I did exactly that and now I am in deep #### and need armed rescue.

The local bad guys do not respect CIHL Rule 33:

Personnel and Objects Involved in a Peacekeeping Mission

Rule 33. Directing an attack against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law, is prohibited.

I'm shocked - totally shocked. :D

-------------------------
The rules may differ between any two countries (e.g., some have ratified various of the post-1949 Conventions; others have not). Interpretations of the rules will definitely vary; as will specific military doctrines.

Screening posters by 100 or + posts, and at least one post this year, yielded (as of yesterday) about 20% non-USAians. That is great; but all posters have to remember the diversity in doctrines and laws - no one's "holy rulebook" is the Bible or Satan's Workbook.

Regards

Mike

jmm99
09-30-2010, 09:43 PM
Rule 109 refers to AP II, Art. 8 and its commentary, which in turn refers to the 1949 GCs and their commentaries. Here, from the commentary to GC I, Art. 15 (http://www.icrc.org/ihl.nsf/COM/365-570019?OpenDocument) (the most relevant snip I could find) (emphasis added):

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.

Commentary

Chapter II : Wounded and sick

[p.150] ARTICLE 15 -- SEARCH FOR CASUALTIES. EVACUATION

With Article 15 the Convention quits the terrain of general principles, and enters the new domain of practical realization. Having proclaimed the inviolability of the wounded and sick, having defined who they are and given them a legal status, the Convention now proceeds to lay down the actual steps to be taken for their benefit from the moment they fall on the battlefield.

In this connection Articles 15, 16 and 17 may be said to form a single unit, covering as they do the search for casualties and for the dead, their removal, and the recording and forwarding of information about them. The 1929 Convention had already attempted, for the sake of clarity, to draw a distinction between these different stages by dealing first with the operations taking place at the front, and then with those in the rear where it is possible to have recourse to installations of a more permanent character. The 1949 Convention maintained this distinction, and at the same time dealt more fully with the whole subject, adding a considerable number of useful details.

Article 15 applies exclusively to operations which take place at the front -- namely, the search for the wounded and dead and arrangements for their protection and evacuation and the possible exchange of the wounded.

PARAGRAPH 1 -- SEARCH, PROTECTION AND FIRST AID

The wounded and dead lying out on a field of battle or between the [p.151] lines must all be searched for, collected and protected, and the wounded must receive attention. That is a bounden duty, which must be fulfilled as soon as circumstances permit.

A. ' Extent of the obligation. ' -- The 1929 Convention made the obligation applicable only "after each engagement", and imposed it only on "the occupant of the field of battle", whereas henceforward both belligerents are required to comply, or to attempt to comply, with it ' at all times. ' The paragraph actually begins with the words: "At all times, and particularly after an engagement...". This wording is adapted to the conditions of modern war, in which hostilities are more continuous in character than they were in the past. The effect is to increase the obligations of the belligerents in respect of the wounded. Indirectly the task of the medical personnel may be rendered more arduous, and also more dangerous.

But there are times when military operations will make the obligation to search for the fallen impracticable. There will be cases which exceed the limits of what the medical personnel can be expected to do, however great their courage and devotion. It was not possible, therefore, to make the obligation absolute. It was accordingly provided that "Parties to the conflict shall, without delay, take all possible measures..." The obligation to act without delay is strict; but the action to be taken is limited to what is possible, and it is left to the military command to judge what is possible, and to decide to what extent it can commit its medical personnel.

B. ' Search. ' -- The search for the fallen combatants and their collection may present different aspects according to circumstances. The commonest and the most important case will be that of enemy troops retiring in the face of an attack. The occupant of the battlefield must then, without delay, make a thorough search of the captured ground so as to pick up all the victims.

The dead must also be looked for and brought back behind the lines with as much care as the wounded. It is not always certain that death has taken place. It is, moreover, essential that the dead bodies should be identified and given a decent burial. When a man has been hit with such violence that there is nothing left of him but scattered remains, these must be carefully collected.
In all these different operations it is the undoubted duty of the combatants [p.152] themselves to give the medical personnel all possible assistance.

When picking up the wounded and dead, care should be taken to collect all their belongings (which may be scattered about); for such objects may inter alia be of assistance in establishing their identity (1).

C. ' Protection. ' -- It will not always be possible to evacuate the wounded at once, and it will be necessary to protect them in the meantime against pillage and ill-treatment, and also to prevent despoiling of the dead.

The purpose of this paragraph was not to assert the principle of the respect and protection of the wounded. That had already been done by Article 12 . But provision had to be made for the effective application of the principle. Pillage of the dead had also to be prohibited (2). In other words, the wounded and the dead must be guarded and, if necessary, defended against all parties, whether military or civilian, who may seek to lay hands on them. Combatants, like medical personnel, are called upon to prevent this, going, if necessary, to the length of using their arms for the purpose (3).

The presence of hordes of pillagers, who used to be called the "hyena of the battlefield" may not seem likely today; but the possessions of the wounded and dead are still liable to excite the greed of soldiers or unscrupulous civilians. Such hateful spoliation must be prevented.

D. ' First aid. ' -- The general obligation to care for the wounded irrespective of their nationality arises out of Article 12 of the Convention. The reason for repeating this idea in the present paragraph of the 1949 [p.153] Convention was to emphasize the necessity of immediately giving first aid to the wounded on the battlefield.

Recent developments of medical science have clearly shown that first aid, if given by qualified personnel and with the least possible delay, may exercise a preponderating influence on the cure of the patient. New techniques of a quick and simple character have been perfected, which not only induce a physical condition on the part of the wounded enabling them to support evacuation, but above all increase their chances of survival and even of complete recovery to an extent which even at the beginning of the Second World War would never have been thought possible (4). The work of medical personnel in and near the front line thus assumes added importance. It will no longer be merely a case of moving the wounded to the rear in the condition in which they are picked up. They will have first to receive medical attention -- blood transfusions, injections, etc. Medical Services will consequently have to give medical orderlies working in the front, who hitherto have often been no more than stretcher-bearers, a more advanced professional training of a semi-medical character.

This commentary generally employs a standard of reasonableness and practicality - allowing judgment to be exercised by the millitary command ("... it is left to the military command to judge what is possible ..."); but then, at times, lays down standards that are not practical, if read literally (e.g., the bolded language in B. ' Search. ' above).

The Canadian "rule book" may be based on that bolded language - any Canucks aboot ?

One must then ask whether these conventions look more at the short-term, first order effects, rather than considering longer-term, higher order effects.

E.g., I can save 5 wounded (no distinction as to "whose wounded") at the locus of contact; but, by doing so, give up the ability to pursue the enemy who then will go on to kill 100 civilians - and Lagrange's UN CMO team to boot.

If the GCs, APs and CIHL can only be interpreted to require that result, they are extremely bad law and even worse from a humanitarian standpoint.

Regards

Mike

M-A Lagrange
09-30-2010, 10:35 PM
I was going to come with Art15.
Anyways, I still post my comments:
On engagement definition... (un dahu as we say, we froggies)
Actually it's the ICRC and the TPI who are chasing a wild goose. It appears that the definition of conflict has a variable geometrical dimension. From what I understood from the jurisprudence issued by the TPIY, an armed conflict qualifies a situation in a localized geographical area as much as what is happening in a “country” or large geographical area. What makes a conflict is the intensity and the duration. The term of armed conflict is used to qualify the situation in various municipalities during the Yougoslavia war. And prosecute some of the war criminals based on the fact that the situation was an armed conflict and therefore the IHL did apply.
An engagement being one event during a conflict. Even an engagement, in an area qualified as a conflict can be qualified as a sub sub armed conflict taking place in a larger armed conflict. (But such definition is not easy the life of anyone)

An important remark is to be made also.
Previously, an attempt to use the term armed conflict was made to qualify a terrorist attack to the US embassy in Peru (If I do not mistake). The same arguments were brought to the table: use of military armament, intensity of the violence... But what was rejected to qualify the situation as an armed conflict was the notion of duration (4 hours of exchange of fire). So the qualification of armed conflict was rejected. But we do have here a definition by default for an engagement. According it is taking place during an situation qualified as armed conflict.
(I definitively have to find back that trial statement references)

I do believe that Yugoslav war jurisprudence have interest for Astan as the main defense line was that it was “police operations” and therefore IHL did not apply (As in the Peru case). And therefore even while using military assets, the GC did not apply but solely national criminal laws. Also the similar nature of the opponent, a non state actor against a state actor/force.

Also, I would use JMA testimony, despite it is “anecdotes” (in the literal sense of the word: a short story). It appears clearly in his post that engagements have a beginning and an end mainly defined by the use and cessation of use of force.

But in the end you are right in the fact that engagement is never clearly defined.

So I will use and abuse of the 1954 The Hague Convention on Cultural properties:

a) Military necessity in respect of cultural property under general protection
1. Measures undertaken by a military commander to obtain, as quickly as possible, the complete surrender of the enemy must be lawful and in conformity with the generally recognized principles of international humanitarian law, both of treaty and customary nature, such as the distinction between combatants and non-combatants, proportionality and the prohibition of reprisals against protected categories of persons and objects.

2. Those actions must be limited as to the time, purpose and object of military operations.

3. No other feasible alternative was available at the moment of the operation.

4. The assessment of the situation by a commander was made from all sources reasonably available to him/her at the moment of the operation.

5. Imperative military necessity may be established only by the officer commanding a force the equivalent to a battalion unless the circumstances of the military engagement do not allow this.

6. If possible, a warning shall be communicated to the opposing party a reasonable time in advance.
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jq39?opendocument

Paragraph 1 is the best and closest definition I have found yet of what can qualify an engagement: Measures undertaken by a military commander to obtain, as quickly as possible, the complete surrender of the enemy.

Point nb 5 is interesting cause it defines who can make the decision of an imperative military necessity.
I believe that in the field, it's not always easy to contact your battalion commander to know what to do. And he probably does not give a dam about the guy dying at your feet. But still, it is important to know that he is the one who has to make the decision in last resort. But there is always an officer in command of the operation. He is the one who has to make the last resort decision to evacuate wounded or to proceed with the operation.
Also, it is interesting that military necessity is clearly defined only when it comes to cultural assets and not human beings.

About the comments, and that's where we can find real gray areas:
4650Article 15 of the first Convention provides that the Parties to the conflict must take all possible measures "at all times, and particularly after an engagement"; Article 18 of the Second Convention contains the same obligation, though it is limited by the words "after each engagement".

The first convention is the one closest to the spirit: must take all possible measure at all time.
Which differs from your “interpretation”. Obviously, the reduction to whenever it is feasible is also due to the need to have rules and laws which match with reality. But it is also driven by the concept of imperious military necessity. After all, we are talking about how to make war in the end.

And naturally, I will take the following comments to cover the gray areas:
4654 Victims must be protected against pillage and ill-treatment and they must receive adequate care. Such protection measures are particularly important during the period before the victims are able to be evacuated, when they are especially vulnerable.

I also chose to be nice, pink and cheesy and sacrifice my self as a martyr and have a almost dead opponent being rescued while I am under attack.;)

Despite this being a patch and glue from various treaties, laws and customary laws, there is a wide understanding that basically as long as someone is not dead, you try to save him. And when he is dead you do respect him. The idea/concept is to place human being before military necessity. The bottom line question is much closer to who takes the decision that what decision to take.

And finally some links about children and child soldiers. (to link up with the initial subject of the threat)
1) Captured child soldiers#
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jmea?opendocument
2) Involvement of children in conflicts#:
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jp4t?opendocument

SJPONeill
09-30-2010, 10:39 PM
Mike

Thanks for your all work laying out these sources. In terms of the contemporary environment, I think that this is a very important thread which certainly shows why we refer to it as the 'complex' environment.

When I was a young soldier in the early-mid 80s, some of our JNCOs and pretty much all of the SNCOs and WOs had Vietnam experience; and their JNCOs, SNCOs and WOs, had experience from Borneo, Malaya, Korea and WW2. we followed a fairly consistent Commonwealth doctrinal path in most matters. From memory it was mainly in the low-level TTPs for close country work in our part of SEA that we had specific national ways. Anyway, the teaching then followed that pragmatic 'when possible/feasible' path that 'the Geneva Convention kicks in on the re-org'. Everyone understand that was NOT a license to summarily deal with PW out of hand during the fight: it was the distilled experience of some 40+ years of combat from div to section level.

Cut forward 20-25 years, where even the mere mention of that teaching was enough to send legal staff officers into paroxysms of shock/horror. Somewhere along the way, we seem to have departed from a realistic sensible approach when we faced a relatively like adversary i.e. in WW2 the Cold War, the Falkland Islands War to a situation where our adversaries are far less 'like', do not follow the same 'understood' rules but where we expect our soldiers to be super-squeaky clean in all their conduct.

I'm wondering if the tipping point from pragmatism to the cloud-cuckoo-wunderland morass we have now was DESERT STORM where this myth of clean, precise surgical war that can have a 'G' rating for the News at 6 springs from. Throughout the 90s we tried to perpetuate this myth through Somalia, Bosnia and the rest of the screwed up Former Yugoslavia. When we, post-911, got back into brutal ground close combat again we found ourselves locked into a paradigm that we can't get out of - and the ones carrying the can for it are not the senior commanders but those young junior troops on the ground who have a split-second to make a decision that can screw up their lives forever.

All the contributions to this thread have really helped define the problem...my question, against the background of the current TRADOC Senior Leaders Conference which has as one of its theme the development of future soldiers, what can we, do we do about it?

Ken White
10-01-2010, 02:41 AM
on Kuwaiti Highway 80 from Kuwait City to Abdali and Basra shortly AFTER the end of Desert Storm, one of the better US Generals I knew said "Man we're in big trouble. We've just "won" (his 'quotes' gestures) a war in 100 hours with only 100 casualties and with 24 hour a day news coverage. That's an impossible standard, not once in a lifetime, once in an era. We are totally screwed..."

True dat. :wry:

jmm99
10-01-2010, 02:51 AM
I must yield to your individual spirit of martyrdom for another (greater love hath no man, etc. ...) - fully in the Jesuit spirit of New France (not BTW the TdM spirit of New France), as stated:

from MAL
I also chose to be nice, pink and cheesy and sacrifice my self as a martyr and have a almost dead opponent being rescued while I am under attack.

in response to my statement:

from JMM
E.g., I can save 5 wounded (no distinction as to "whose wounded") at the locus of contact; but, by doing so, give up the ability to pursue the enemy who then will go on to kill 100 civilians - and Lagrange's UN CMO team to boot.

Do you think that the 100 civilians who become dead because I elect to save an "almost dead opponent" would be equally as satisfied to be martyrs ?

---------------------------

I have to look more at the IHL re: "military necessity" (which is what my question is all about). Your link gives me a clue to the answer to the question by the NZ O'Neill (as opposed to the Aussie O'Neill - that darned Red Hand is everywhere ;)):

I'm wondering if the tipping point from pragmatism to the cloud-cuckoo-wunderland morass we have now was DESERT STORM where this myth of clean, precise surgical war that can have a 'G' rating for the News at 6 springs from.

which comes just before the actual Convention provisions in the 1954 Hague article you linked (http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jq39?opendocument):

Let us conclude with the words of an acknowledged expert of the law of war: today, “military necessity is widely regarded as something that must be overcome or ignored if international humanitarian law is to develop, and its original role as a limit on military action has been forgotten. As a result, the principle has not been applied in new situations where it could serve as a significant legal restraint until more specific treaty rules or customs are established”. [22]

22. B. M. Carnahan, “Lincoln, Lieber and the laws of war : The origins and limits of the principle of military necessity”, American Journal of International Law, Vol. 92, No. 2, April 1998, p. 231.

Too bad that wars are not fought completely within the confines of Ivory Towers - sorta akin to the idea to conscript all the experts.

Regards

Mike

davidbfpo
10-01-2010, 07:25 AM
Perhaps the editors should rename this thread? Might be easier for people to find later on who may not get the gist of its contents from the title.

Any suggestions for the title welcome! Children in conflict: legal and other points?

jmm99
10-01-2010, 05:04 PM
Hi David,

My suggestion would be along the lines of "Specially Protected Persons in Combat Situations" (as titled above).

So far a number of those "special protectees" have been mentioned:

1. child soldiers
2. children in general
3. civilians in general
4. persons held under a belligerent's power (de hors rule #1)
5. persons wounded (de hors rule #2)
6. persons surrendering (de hors rule #3)
7. medical rescuers (military & civilian)

We might subtitle it:

"How honest, law-abiding regular forces are getting their arses shot off because a cloud-cuckoo-wunderland morass has been imposed on them to create criminal sanctions against dishonest, law-shirking regular and irregular forces who could care less because the Hague is too remote."

with credits to Tukhii and NZ O'Neill.

The subtitle is too long, but I'll pick up the theme in my next post.

Cheers

Mike

jmm99
10-01-2010, 06:45 PM
The references cited below in this part are linked at ICRC, International Humanitarian Law - Treaties & Documents (http://www.icrc.org/ihl.nsf/INTRO?OpenView). The relevant documents re: Protection of Cultural Property are:

Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. ... [State parties - 123][State signatories - 4]

Protocol for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. .... [State parties - 100][State signatories - 1]

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 26 March 1999 ... [State parties - 56][State signatories - 18]

The Convention and Protocols are relevant to this thread only insofar as they represent a definite shift away from the doctrines surrounding military necessity between 1954 and 1999 (the Second Protocol, which became effective in 2004).

Please note that 127 states were parties to the 1954 Convention; and that only 74 states are parties to the 1999 Second Protocol. That latter document has not been accepted by such states as: Russia, China, India, US, France, UK, NZ, Australia, Israel.

The purpose of the 1999 Second Protocol was a radical revision of the original 1954 Convention and First Protocol, as its Introduction makes clear:

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 26 March 1999
Introduction
State parties (56) / State signatories (18)
Forum of adoption - Diplomatic Conference on the Draft Second Protocol to the 1954 Hague Convention
In force - yes
Entry into force - 9.3.2004

1. Basic protection: The 1954 Convention was adopted well before the 1977 Protocols. It was drafted against the background of the Second World War at a time when it was still considered inevitable that entire cities would be attacked. In the midst of such a war, the 1954 Convention sought to protect valuable cultural property. It provides that cultural property can only be attacked in case of "imperative military necessity" without defining this exception. In 1977, Protocol I did away with this approach. Henceforth, only military objectives - more clearly defined and more carefully selected - should be made the object of attack. It appeared self-evident that any improvement of the 1954 Convention should reflect this modern approach: cultural property is civilian property and it should not be attacked unless when it becomes a military objective. In addition, cultural property can only be attacked when there is no other feasible alternative. The updating of the 1954 Convention in light of Protocol I also led to the inclusion of rules concerning precautions in attack that found in Protocol I.

2. Enhanced protection: Given that the 1954 system of cultural property under special protection never worked, the Second Procotol establishes a new system. Cultural property of the greatest importance for humanity can be placed under enhanced protection provided it is adequately protected by domestic law and not used for military purposes or to shield military sites. Enhanced protection is granted from the moment of entry in the List of Cultural Property Under Enhanced Protection. This decision is taken by the Committee for the Protection of Cultural Property in the Event of Armed Conflict, an intergovernmental committee established under the new Protocol.

3. Enforcement: Another development reflected in the new Protocol is the increased effort to fight impunity through effective criminal prosecution of war criminals. The Protocol specifically defines five serious violations for which it establishes individual criminal responsibility. States undertake to adopt appropriate legislation to make these violations criminal offences under domestic law, to provide appropriate penalties and to establish jurisdiction over these offences, including universal jurisdiction for three of the five serious violations. The list of serious violations goes well beyond existing law.

4. Scope of application: The Second Protocol applies equally to international and non-international armed conflicts. The extension of the application of the Second Protocol to non-international armed conflicts is essential.

Note in para #3 the emphasis on war crimes prosecutions as a major (primary ?) enforcement tool. I'll get back to that later.

Now, I think it fair to say that Russia, China, India, US, France, UK, NZ, Australia and Israel did not reject the Second Protocol so that they could run wild destroying cultural property.

The problem with the Second Protocol is that it goes far to remove military necessity as a standard; but, if military necessity falls by the wayside in this limited area (of cultural property), the same logic permits its demise in other more critical areas - i.e., those of specially protected persons. Thus, the relevance to this thread.

The ICRC article cited by MAL (http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jq39?opendocument) deals with military necessity as it is defined in the 1999 Second Protocol - and rejected by many nations. The process by which military necessity was limited is described in the ICRC article:

In February 1994 a group of experts, invited in their personal capacities, put together the so-called Lauswolt document containing draft provisions aimed at improving the Convention. The Lauswolt document did not, however, deal with the problems raised by the notion of military necessity.

The second meeting of the High Contracting Parties to the 1954 Convention (Paris, 13 November 1995) invited all the States to submit to the Secretariat written comments on the substantive proposals for improving the Convention. Several replies commented on the military necessity issue. Some wished to remove completely the exception of military necessity (Croatia, the Czech Republic and Slovenia), others proposed modifications (Belgium, and an alternative proposal from the Czech Republic), still others suggested reconsidering the issue (Kuwait and Poland). [15]

The March 1997 meeting of governmental experts on the review of the Convention resulted in a redrafting of the Lauswolt document. The issue of military necessity was again barely mentioned in the revised text. It was, however, pointed out that “certain military legal advisers favoured including such a phrase in the new instrument because, according to their views, such a concept has been a part of international customary and treaty law of armed conflicts and the exclusion of this concept would not be accepted by their military. Those observers pointed out that there were close links between the ‘military necessity’ and the corresponding obligation not to use cultural property for military purposes” [16]. In particular, the Israeli observer suggested that the following provision be inserted in the new draft: “The provisions of this instrument shall not prejudice or derogate from accepted customary principles of the Laws of War, including, inter alia, the principles of proportionality, distinction and military necessity”. [17]

During the third meeting of the States party to the Convention (Paris, 13 November 1997), representatives of several countries (e.g. Argentina, Austria, France and Israel) defended the value of this notion, asserting that it expressed one of the basic rules of international humanitarian law. They agreed, however, to define it more precisely and narrowly.

Finally, during the May 1998 (Vienna) meeting of governmental experts on the revision of the Convention the majority of participants speaking on this point favoured retaining the notion in the proposed new instrument. However, in accordance with the views expressed, its definition should include elements which would indicate the circumstances in which this exception to the obligation to protect cultural property may be invoked.
.....
As during the 1954 Intergovernmental Conference, the notion of military necessity was one of the most hotly debated issues during the recent Diplomatic Conference which resulted in the adoption of the Second Protocol to the 1954 Convention (The Hague, 15-26 March 1999). Two opposing tendencies appeared, both during the plenary debates and in the working group on this matter: the attempt of military participants (both lawyers and operational staff) to broaden the scope of the definition of military necessity, and the attempt of cultural heritage protection experts to narrow the scope of this definition so as to limit potential abuses and loose interpretation.
....
Before concluding this note on the meaning of “military necessity” in the 1954 Convention, it should be recalled that the notion appears in a number of other treaties on different aspects of the law of armed conflicts, such as the four 1949 Geneva Conventions (e.g. Art. 8, 34 and 50 of the First Convention; Art.126 of the Third Geneva Convention; Art. 49, 55, 108 and 143 of the Fourth Convention) and Additional Protocol I of 1977 (Art.54, para 5, 62, 67 and 71).

As noted, the radical definitional shift caused Russia, China, India, US, France, UK, NZ, Australia and Israel to reject the Second Protocol.

(cont.)

jmm99
10-01-2010, 07:54 PM
Canada accepted the 1999 Second Protocol with substantial reservations:

Canada

Ratification / Accession - 29.11.2005
Reservation / Declaration - 29.11.2005

Reservation / Declaration text

The statement of understanding reproduced below was annexed to the instrument of accession :

"STATEMENT OF UNDERSTANDING

1. It is the understanding of the Government of Canada that the definition of a military objective in Article 2(f) is to be interpreted the same way as Article 52(2) of Additional Protocol I to the Geneva Conventions of 1949.

2. It is the understanding of the Government of Canada that in relation to Article 6(a)(ii), 6(b), 7(a), 7(b), 8, 13(2)(a) and 13(2)(b) the word "feasible" means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.

3. It is the understanding of the Government of Canada that in relation to Article 6(a)(ii), 6(b), 7(c) and 7(d)(ii) that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.

4. It is the understanding of the Government of Canada that any cultural property that becomes a military objective may be attacked in accordance with a waiver of imperative military necessity pursuant 10 Article 4(2) of the Convention.

5. It is the understanding of the Government of Canada that a decision to invoke imperative military necessity pursuant to Article 6(c) of this Protocol may be taken by an officer commanding a force smaller than the equivalent of a battalion in size in circumstances where the cultural property becomes a military objective and the circumstances ruling at the time relating to force protection are such that it is not feasible to require the decision to be made by an officer commanding a force the equivalent of a battalion in size or larger.

6. It is the understanding of the Government of Canada that under Article 6(a)(i), cultural property can be made into a military objective because of its nature, location, purpose or use."

With so many reservations, perhaps it would have been better to simply reject the protocol.

What is really going on here ?

To answer that question requires reference to some history. Fortunately, we have a very recent law review article that is on point, Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (www.vjil.org/wp-content/uploads/2010/05/VJIL-50.4-Schmitt-Essay.pdf) (VJIL, Vol. 50:4, 2010, p.795 et seq - 45 pages). The author's background is:

Chair of Public International Law, Durham University, United Kingdom; General Editor, Yearbook of International Humanitarian Law. The author, a retired U.S. Air Force judge advocate, was previously Dean, Marshall Center for Security Studies, Germany; 2007-08 Charles Stockton Visiting Professor of International Law, U.S. Naval War College; and 2006 Sir Ninian Stephen Visiting Scholar at Melbourne University Law School.

His BLUF (p. 796)

INTRODUCTION

No principle is more central to international humanitarian law (IHL), nor more misunderstood, than that of military necessity. It has been proffered both to justify horrendous abuses during armed conflicts and to impose impractical and dangerous restrictions on those who fight. Contemporary conflicts, as well as ongoing efforts to clarify IHL’s application therein, have further muddied the waters.

This Essay examines the principle of military necessity and its current trajectory. In IHL, the principle appears in two guises: justification for normative deviation, and as an element of the lex scripta. The first notion will be quickly dispatched, for the law surrounding military necessity as a justification for violating IHL is well-settled. With regard to the latter, military necessity appears as both a specific element and a general foundational principle. Although the catalogue of direct references to military necessity in IHL is slim, the principle pervades the entire body of law by undergirding individual rules. In this central role, military necessity exists in equipoise with the principle of humanity, which seeks to limit the suffering and destruction incident to warfare. This symbiotic relationship determines in which direction, and at what speed, IHL evolves. It also determines the manner of its application on the battlefield.

The orderly development of treaty law by states over time allows for equilibrium in the legal system, since states must be responsive to both military and humanitarian interests. Yet, as this Essay will demonstrate, various external pressures have fueled a gradual shift in emphasis toward humanitarian considerations. Although the trend may represent one form of “progress,” it equally risks destabilizing the delicate balance that preserves the viability of IHL in a state-centric normative architecture.

I'd suggest this article as textbook #1", which gives a flavor of the international politics involved - and they are involved with a vengence. The second "textbook" is also recent and is a longer thesis on the 1977 APs. Rex A. Childers, THE RATIONALITY OF NONCONFORMITY (http://etd.ohiolink.edu/send-pdf.cgi/Childers%20Rex%20A.pdf?acc_num=bgsu1214247432): THE UNITED STATES DECISION TO REFUSE RATIFICATION OF PROTOCOL I ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949 (2008, 123 pages).

(cont.)

jmm99
10-01-2010, 08:07 PM
Here is my theory on how we got where we are - my BLUF with only brief explanations - it's tossed out for discussion.

1. Up until and through WWII, the Laws of War were determined nation vice nation (where armed forces vice armed forces had a very large say in what the rules were). A huge amount of reciprocity was built into the nation vs nation, regular force vs regular force equation. What was sauce for the goose was sauce for the gander. Irregular forces and civilians were problem areas, which was illuatrated by the Hostage Case (List), discussed by Schmitt (pp.2-4, footnotes omitted below) (emphasis added):

The premise that military necessity can justify departure from the strict rules of international law finds its roots in the German nineteenth century doctrine of Kriegsraison geht vor Kriegsmanier (necessity in war overrules the manner of warfare). Prior to World War I, various German writers argued that extreme necessity could deprive the laws of war of their binding force.1 Specifically, this elevation of necessity over legal norms was justified when the sole means of avoiding severe danger was to violate the law or when compliance with the law might jeopardize the conflict’s ultimate objectives.

The concept of Kriegsraison never gained traction, however — its risks to the legal order being self-evident. For instance, writing in 1908, Percy Bordwell noted that “given a liberal interpretation it would soon usurp the place of the laws of war altogether.”2 Elihu Root, then President of the American Society of International Law, similarly remarked at the organization’s 1921 meeting that “[e]ither the doctrine of kriegsraison must be abandoned definitely and finally, or there is an end of international law, and in its place will be left a world without law.”3

War crimes trials occurring in the aftermath of the Second World War definitively put the argument to rest. In The Hostage Case, German generals argued that military necessity justified actions such as reprisal killings of civilians during occupation.4 The American Military Tribunal rejected the argument, noting that

[m]ilitary necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money. . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war . . . but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. . . . We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International law is prohibitive law.5

There is no basis whatsoever in contemporary international law or practice to suggest the contrary; Kriegsraison is plainly incompatible with the operation of IHL in the modern world.6 Nevertheless, the historical underpinnings of military necessity as a justification for divergence from the absolute protection of civilians and civilian objects during armed conflict are carried through and reflected in the entire body of IHL. Although carte blanche deviation from established legal norms based on military necessity is impermissible, the balancing of necessity and humanity pervades contemporary international law in both a general and a specific sense.

The US view was a minimal limitation on military necessity, as compared to what happened later.

2. After WWII and into the 1970s, the 1949 GCs and the Hostage Case were the generally accepted norm.

3. With the adoption of the "anti-colonial", "freedom fighter" provisions of the 1977 APs, a new era dawned for those nations who accepted them. A new era also dawned for those nations who did not accept them, but who were bound by entangling alliances to those that did accept. Rex Childers lays out all of the competing considerations in his excellent thesis.

4. While the end of the colonial empires and the Cold War should have put paid to the controversy, it really only enhanced it. The political purpose of the APs was to place regular armies at a disadvantage vs irregular armies (IMO). The latter (ITO) would argue that it simply made a better balance.

5. When many of the irregulars took control of their nations (e.g., Mugabe), one would think that they would switch to the regular side and become anti-APs. However, the APs were still useful to them if confronted by regular forces from "neo-colonialist" nations; and, WRT their own dissidents, the rules could be ignored since the Hague is far away.

6. While the foregoing describes some of the reasons for the apparent desire to limit military necessity, it does not describe the motivations of the ICRC, many NGOs and many in the UN and regional organizations, especially those on the humanitarian side of the ledger. Those folks have no stake in the military, so they have a narrow focus on the "humanitarian" - "specially protected persons". They also see more "bad guy" armed forces (including the regular armed forces of some nations) than "good guy" armed forces (honest, law-abiding soldiers). That is a fact - like Barsoom.

7. So, they tighten up the rules to take away (as a desired end) all discretion from the military forces (the "bad guys" will abuse discretion); and impose a blackletter, legalistic construct. The violation of that "stricto sensus" construct is then punished by war crimes prosecutions in the ICC and in domestic courts.

8. Since the "bad guys" don't give a rip for legal rules (except when they are favorable to them), Plan # 7 is most likely a FAIL ab initio (in stricto sensus, of course ;)).

Rergards

Mike

Pete
10-01-2010, 08:34 PM
The Avalon Project of the Yale Law school has a convenient online library of the Laws of War. It is available by clicking here (http://avalon.law.yale.edu/subject_menus/lawwar.asp).

Pete
10-02-2010, 01:40 AM
Some years back officers of the U.S. Army Judge-Advocate General Corps put themselves in a bad odor within DoD from having to serve as advisors within targetting cells on the legality of engaging certain targets. Wesley Clark complained that during the Kosovo affair JAG officers denied him the right to engage suspected sites of Serbian anti-aircraft artillery because the latest version of the Geneva Convention -- one the U.S. didn't ratify -- requires that ground reconnaissance be conducted to confirm the presence of the enemy before such fire missions are fired, contrary to U.S. Army artillery doctrine.

Yasser Arafat and the PLO made much hay about Irsael's use of "disproportionate force" during the Intifada, another change to the Geneva Convention that neither Israel nor the U.S. ratified. Donald Rumsfeld was also said to have gone ballistic when a JAG officer vetoed a strike against a target in Afghanistan in 2002 where Bin Laden supposedly was.

Some years back I read an article -- it may have been in Parameters, the War College publication -- that bemoaned the fact that DoD won't even send observers to these Geneva Convention conferences because it thinks they're frivilous, undertaken by European nations who think war is an artifact of the past.

The practice of having JAG officers give thumbs-up or thumbs-down on engaging targets may have lowered their credibility when they protested the new "enhanced interrogation" procedures after 9/11. Being the advisors on the legality of engaging targets may have given them the reputation within DoD circles of being nay-sayers who are squeamish old ladies.

M-A Lagrange
10-02-2010, 09:40 AM
6. While the foregoing describes some of the reasons for the apparent desire to limit military necessity, it does not describe the motivations of the ICRC, many NGOs and many in the UN and regional organizations, especially those on the humanitarian side of the ledger. Those folks have no stake in the military, so they have a narrow focus on the "humanitarian" - "specially protected persons". They also see more "bad guy" armed forces (including the regular armed forces of some nations) than "good guy" armed forces (honest, law-abiding soldiers). That is a fact - like Barsoom.

7. So, they tighten up the rules to take away (as a desired end) all discretion from the military forces (the "bad guys" will abuse discretion); and impose a blackletter, legalistic construct. The violation of that "stricto sensus" construct is then punished by war crimes prosecutions in the ICC and in domestic courts.

8. Since the "bad guys" don't give a rip for legal rules (except when they are favorable to them), Plan # 7 is most likely a FAIL ab initio (in stricto sensus, of course ;)).


Mike,

I find you a little harsh with Barsoon and the UN/NGO boddies. I would not say that you are wrong cause I do think quite the same.
The main problem is not so much the "regular" armies from developed countries. At contrary, it's easier to deal with most of them. The problematic comes rather from the fact that the UN and NGO had to deal with dirty wars between 1980 and 2000. Also, the GWOT but that's another issue.
The specificity of the small wars environment UN and NGO did work in was mainly conducted by regular and irregular forces who did not follow any of the Laws of war and had absolutely no clue of the military necessity. As exemples I will take the Liberia, the DRC and the Rwanda conflicts. During those conflicts, the lust of killing did prevail.

As I said previously, for the purpose of the debat, I did wear the white humanitarian angel devil advocate suite. But that is not satisfying, even for me, cause I do make a distinction between military necessity and barbarism. The main idea of barsoon folks (let call them like this) is that war/military imperious necessity has to be justified and regulated and could not be use to abuse GC and other treaties. On the other hand, there is a strong feeling among the military community that IHL are made to limit them. As Pete just pointed in the precedent post:
Some years back I read an article -- it may have been in Parameters, the War College publication -- that bemoaned the fact that DoD won't even send observers to these Geneva Convention conferences because it thinks they're frivilous, undertaken by European nations who think war is an artifact of the past.

Also, as you clearly shown, the point was to ban practices that were badly justified in the name of military imperious necessity as in the hostage case you developped.
[m]ilitary necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money. . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war . . . but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. . . . We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International law is prohibitive law.

The complexity of the biased perception of both sides about each others is based on those particular experiences.
On one side you have barsoon folks, UN and NGO, who had to deal with crazy wars conducted in low developed countries and mainlythrough barbarian acts. (the LRA is a good example of what they had to deal with for a long time). Or by powers that were qualified as the "empire of evil" as USSR in Afghanistan. The fight was basically ideological and the liberation wars did prove that there was a need to strength the GC through ew protocols and regulations. French did use the same arguments of military necessity to use torture and conduct other exactions just like the Germans previously. (There is a debate on this and the WW2 roots of "modern warfar" or counter revolutionary warfare but this is another debate and mainly a franco french one.)
Ideologically, the NGO and humanitarian folks did take the side of freedom fighters, almost who ever they were, until they did turn as the lightning path or the LRA. And unfortunatelly, the previous US administration did re enforce the feeling that military folks did not integrate the GC and other treaties in their SOP. Falklands or Desert Storm did prove the contrary, especially Falkland which is considered as the cleanest war of the 20th century by scholars from barsoon.

Also, the fact that such wars were exceptions has been strength by their short time dimension as Ken pointed:
We've just "won" (his 'quotes' gestures) a war in 100 hours with only 100 casualties and with 24 hour a day news coverage. That's an impossible standard, not once in a lifetime, once in an era. We are totally screwed..."

To resume, wars between regular armies are short, clean and exceptions. Irregular war are long, dirty, the new standart and everybody is ideologically guilty. (I will not even go to the pacifist path... Their stupidity upsets me).

Now, the 2 last main wars fought by regular armies from develop powers (Irak and Astan) have been mainly irregular. So logically they are long, dirty and everybody is guilty of war crime.
I disagree with that statement (that's a personnal opinion) but many barsoon folks disagree with my opinion. This not because of the conduct of war and the jus at bellun/jus in bello but for domestic political reasons.

So for good reasons on both sides there has been tremendous efforts to build a legal environment to regulate war and enforce it. There are disagreements in the process (like the ICC) but the intentions from both sides are/were the same.
Now, for reasons that have nothing to see with the conduct of war there is what I would call a misuse, you would rather qualify it as an abuse, of the legal tools developed to regulate the lawfull use of violence for domestic political reasons.
On the other side, the previous US administration did grave damages to the military among the barsoon folks through trying to impose back the "kriegraison".

And finally, I did not have time to respond before, about the following question:
Do you think that the 100 civilians who become dead because I elect to save an "almost dead opponent" would be equally as satisfied to be martyrs ?

No, this is not satisfying at all! My personnal opinion is let him die (may be with a shot of morphin to ease the end) and go on to rescue the civilians asap. Naturally. I am a practicle man and the weight of 1 almost dead opponent against 100 civilians is, at the best, neglictable. But I am no judge and what guys on the ground will face is not me but may be individuals who will take this as an opportunity to make a statement based on domestic political opinion and not an understanding of the war legal environment.

And by the way, I am not ready to be a martyr neither. ;)

And finally, Mike, thanks and felicitation to resume this debate in such a precise way. Had several course from IHL speciallist who could not even go to a scratch of what you brought.

jmm99
10-02-2010, 06:20 PM
Good to see that you are not totally pi$$ed at me. I'll get back to your post later today or tonite, but I have to go now to a funeral visitation for a 24 year old cousin.

If readers are not acquainted with Barsoom - Wiki (http://en.wikipedia.org/wiki/Barsoom), the Red Planet, Mars, the God of War, here is a snip:

The world of Barsoom is a romantic vision of a dying Mars, based on now outdated scientific ideas made popular by Astronomer Percival Lowell in the early 20th century. While depicting many outlandish inventions, and advanced technology, it is a savage, 'frontier' world, of honor, noble sacrifice and constant struggle, where martial prowess is paramount, and where many races fight over dwindling resources. It is filled with lost cities, heroic adventures and undiscovered ancient secrets.

While the novels are fiction, they are very relevant to the "small wars" of today. In those regions which are "Barsoomian", there are unfortunately more "bad guy" armed forces (including the regular armed forces of some nations) than "good guy" armed forces (honest, law-abiding soldiers). That is why I said that "Barsoom" is a fact.

And, no, I am not equating the UN-NGO folks to Barsoomians (nor to John Carter, for that matter). Barsoom and Barsoomians are a savage place and savage tribes. UN-NGO folks mostly seek to lessen the savagery. I posit that is the reason why you are "In Barsoom, for a fact".

Regards

Mike

JMA
10-02-2010, 08:20 PM
Some years back officers of the U.S. Army Judge-Advocate General Corps put themselves in a bad odor within DoD from having to serve as advisors within targetting cells on the legality of engaging certain targets. Wesley Clark complained that during the Kosovo affair JAG officers denied him the right to engage suspected sites of Serbian anti-aircraft artillery because the latest version of the Geneva Convention -- one the U.S. didn't ratify -- requires that ground reconnaissance be conducted to confirm the presence of the enemy before such fire missions are fired, contrary to U.S. Army artillery doctrine.

Ground recce before a fire mission? Little wonder the US did not ratify that version.

Yasser Arafat and the PLO made much hay about Irsael's use of "disproportionate force" during the Intifada, another change to the Geneva Convention that neither Israel nor the U.S. ratified. Donald Rumsfeld was also said to have gone ballistic when a JAG officer vetoed a strike against a target in Afghanistan in 2002 where Bin Laden supposedly was.

There is certainly a case building against JAG actions in Afghanistan where they were allegedly party to allowing certain top Taliban and/or Al Qaeda leaders to escape. I look forward to the day that the details of the courts marshal are released to learn the whole story.

In the meantime one must just wonder for how long the US will tolerate this own goal. http://www.military.com/opinion/0,15202,87045,00.html

]Some years back I read an article -- it may have been in Parameters, the War College publication -- that bemoaned the fact that DoD won't even send observers to these Geneva Convention conferences because it thinks they're frivilous, undertaken by European nations who think war is an artifact of the past.

Can't blame the US myself. The European countries have so little in terms of real problems they have lots of time to organise these ridiculous conferences to make them feel good. One hopes the economic crisis will lead them to trim this nonsense.

The practice of having JAG officers give thumbs-up or thumbs-down on engaging targets may have lowered their credibility when they protested the new "enhanced interrogation" procedures after 9/11. Being the advisors on the legality of engaging targets may have given them the reputation within DoD circles of being nay-sayers who are squeamish old ladies.

Well the law is the law. The problem is when some comparatively junior JAG types can run the show then it becomes quite ridiculous. Modern armies have a lot of time on their hands to school their soldiers in the laws of war to guide them. If you can't shake these JAG types off then at least insist that they experience some hot combat personally before they can start to dish out advice. No one make make these calls unless they have been there and done that.

JMA
10-02-2010, 08:25 PM
Responding to alleged War Crimes during 2003 invasion of Iraq Luis Moreno-Ocampo Chief Prosecutor at the International Criminal Court responded (in part) as follows:

Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[1] even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).

Find this in his response from the International Criminal Court (http://www2.icc-cpi.int/NR/rdonlyres/F596D08D-D810-43A2-99BB-B899B9C5BCD2/277422/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf)

In addition I found this piece to be of interest:

Sense and Nonsense about Disproportionate Force (http://www.project-syndicate.org/commentary/fletcher10/English)

The specific problem in Lebanon, particularly Israel’s bombing of southern Beirut, is deciding when the targets are protected civilians or part of a militant terrorist organization and thus subject to legitimate attack. We have too little information about many of these attacks to know one way or the other. This is an area where the concepts are clear but the facts remain murky. Journalists on the ground would do well to inquire about the relevant military objectives rather than pass judgment on the basis of the numbers of civilians killed, which may have minimal relevance to legal analysis.

Rex Brynen
10-02-2010, 09:02 PM
Some years back officers of the U.S. Army Judge-Advocate General Corps put themselves in a bad odor within DoD from having to serve as advisors within targetting cells on the legality of engaging certain targets. Wesley Clark complained that during the Kosovo affair JAG officers denied him the right to engage suspected sites of Serbian anti-aircraft artillery because the latest version of the Geneva Convention -- one the U.S. didn't ratify -- requires that ground reconnaissance be conducted to confirm the presence of the enemy before such fire missions are fired, contrary to U.S. Army artillery doctrine.

If so, some JAG doesn't know their Geneva Conventions (Additional Protocols I and II) very well, which at no point mention "ground reconnaissance" but simply prohibit indiscriminate attacks.

jmm99
10-03-2010, 03:43 AM
because there are often two or more variant "laws" on the same operational law topic. The forthcoming DoD Law of War Manual 2010 (is there an open-source link to this ?) may or may not clarify matters.

But that sentence from JMA, and his following comments, allow me to segué into what I hope will clarify some possible misconceptions and create some understanding of the variant positions:

from JMA
Well the law is the law. The problem is when some comparatively junior JAG types can run the show then it becomes quite ridiculous. Modern armies have a lot of time on their hands to school their soldiers in the laws of war to guide them. If you can't shake these JAG types off then at least insist that they experience some hot combat personally before they can start to dish out advice. No one make make these calls unless they have been there and done that.

Ideally, a staff JA in combat operational law would have had experience as a fire team leader, a squad leader, a platoon commander and a company commander - since that is where combat operational law finds its ultimate application. Under that criteria, the Corps should have detailed Jon Custis to law school a couple of tours ago, etc.

Now, the first reality is that US JAs are not line officers (except for the Marine Corps - and Marine staff JAs may or may not have had combat experience, as opposed to combat training).

The second reality is that most aspects of the usual JA's law practice do not involve combat operational law; it involves criminal law, personal law, contracts, finance, etc., etc.

The third reality is that even those JA's in combat operational law have not bored into the comparative study of variant law between the Laws of Land Warfare (FM 27-10), the Law of Naval Operations (MCWP 5-12.1) and International Humanitarian Law (IHL), and even more especially with the subset of Customary International Humanitarian Law (CIHL).

The fourth reality, addressed to Rex's comment:

... some JAG doesn't know their Geneva Conventions (Additional Protocols I and II) very well ...

is that Additional Protocols I and II were denied ratification and have not been acceded by the US. That does not excuse assignment of non-knowledgeable staff JAs to joint operations (e.g., NATO, where most members have adopted AP I and II) - if that, in fact, was the problem. I'll address that below.

I won't opine on whether S.L.A.M.'s comment below is generally valid for the armed forces:

“During war, it often times happens that one company, by trial and error, finds the true solution for some acute problem which concerns everyone. But when that happens to a company, I can assure you that it is the exceptional company officer who takes the initiative and passes his unique solution along to his superiors even after he has proved in battle that the idea works. A good company idea in tactics is likely to remain confined to one company indefinitely, even though it would be of benefit to the whole military establishment. Such omissions are not due usually to excess modesty or indifference on the part of the officer, but to his unawareness that others are having the same trouble as himself.” S.L.A. Marshall, Men Against Fire

but it may be valid for the transmission of combat operational law knowledge down to and up from the levels of the fire team leader, the squad leader, the platoon commander and the company commander. The quote is the lead-in quote for CLAMO's mission statement (see next post for CLAMO links).

Whether the armed forces have or have not "a lot of time on their hands to school their soldiers in the laws of war" (from JMA) will be decided by others than JMM.

What I can say is that legal training (ROEs, RUFs, EOFs and combat operational law) can't be a check the box lecture. For it to do any good, it has to be incorporated into the situational tactical training as an integral part. E.g., if tactical training involves variants of village clearing, the legal situations involving specially protected persons should be worked into that training (which is a lot more complicated that making shoot-no shoot decisions on targets in a fun house).

It would be useful to know how armed forces other than the US approach laws of war training and legal lessons learned re: combat operational law. Is everyone proficient or deficient or somewhere in between ?

The series of posts over the last 24 hours are very impressive from the quality of the issues raised.

(cont.)

jmm99
10-03-2010, 04:46 AM
Now, since Kosovo was expressly mentioned, The Center for Law and Military Operations (CLAMO (https://www.jagcnet.army.mil/8525751D00557EFF)) has a "lessons learned", open source Publications (https://www.jagcnet.army.mil/8525751D00557EFF/0/A86D78669E17E6F9852574DA005E3ADF?opendocument) page. Among the pubs is Law and Military Operations in Kosovo 1999-2001 (https://www.jagcnet.army.mil/8525751D0057F1B6/0/4BA2FE427759245A852576B1004D3294/$file/LL%20Kosovo.pdf) (16mb; 497 pages).

A number of the key "lessons learned" (so far as CLAMO was concerned) pertain to comments by Pete, JMA and Rex.

Re: Operation Allied Force [page numbers are to the actual document, not to the pdf]

2. USEUCOM Lessons Learned (p. 45)

a. Agreement Must Be Reached on the Applicability of the Law of Armed Conflict Prior to Commencement of Operations. (p. 46)

b. Targeting (p. 48)

1. The target review process developed during Noble Anvil should be considered for future operations. (p. 48)

2. Reemphasize that the infliction of collateral damage is not a per se violation of international law. (p. 50)

3. Understand the ongoing debate over targeting the will of the enemy. (p. 51)

Re: Task Force Hawk

2. Lessons Learned (p. 58)

a. Targeting (p. 58)

1. Judge advocates must be in the Deep Operations Coordination Cell. (p. 59)

2. Develop a target review methodology and document decisions. (p. 60)

b. Rules of Engagement (p. 62)

1. Confusion over the chain of command has a direct impact on ROE
development. (p. 62)

2. Expect disagreement over "templated" targets, counter-battery radar, and "observed fires" (p. 63)

Re: International Law

1. Judge Advocates and Commanders Must Understand the International Legal Framework for the Military Mission. (p. 97)

I'll briefly discuss below some (but not all) of these pages.

LL Kosovo also goes into ROEs, etc., and training. Someone who is knowledgeable about implementation or non-implementation of these LL Kosovo might want to discuss (of course, only to the extent that the SM is non-classified):

Re: C. Rules of Engagement (p. 127)

1. Expect Difficulties with ROE in Coalition Operations. (p. 128)

a. Modifications to the ROE Will Be Difficult to Obtain. (p. 128)

b. Requests for Modification to the ROE Should Be Submitted Through Both the Operational and National Chains of Command. (p. 128)

c. Actions in Self-Defense by U.S. Soldiers Are a U.S. Issue and Interpretations of Self-Defense Issues Should Remain in U.S. Legal and Operational Channels. (p. 129)

c1. Out-of-Sector Exercises and Operations (p. 129)

c2. Current Operations and Training (p. 130)

2. Individual and Leader ROE Training Must Be Done Before the Mission Rehearsal Exercise; Individual Training Should Focus on Self-Defense. (p. 132)

3. ROE Training Should Continue During the Mission and Should Incorporate Current Intelligence and Tactical Situations. (p. 133)

4. Soldiers and Marines Will Have to Understand Multiple ROE. (p. 133)

5. Be Prepared to Articulate Rationale for Use of Riot Control Means and Plan for Alternatives. (p. 135)

6. JAs Must Know the "Peace Operation" Variation to the Code of Conduct for Training. (p. 135)

Back to the earlier sections of LL Kosovo.

This one should be self-evident: "Agreement Must Be Reached on the Applicability of the Law of Armed Conflict Prior to Commencement of Operations. (p. 46; p. 63 pdf)". That LOAC applied was not self-evident to the lawyer-politicians at the highest and next highest NCA levels, nor to their media flaks. Answer (final): LOAC applied to Kosovo. PS: the JAGs knew that.

The target discussion is in several parts. To the present discussion, the most relevant portion is in Operation Allied Force (pp. 48-52; pp. 65-68 pdf; very long footnotes omitted):

[I]2. Reemphasize that the infliction of collateral damage is not a per se violation of international law.

JAs during Operation Allied Force were sensitive to the fact that some participants in the target review process might misunderstand the legal implications of collateral damage. In other words, the JAs wanted to ensure there was no misperception that the infliction of collateral damage was a per se violation of international law, and that the collateral damage analysis did not come at the expense of forgetting the military necessity analysis.[25]

The relevant concept of international law is the principle of proportionality. Proportionality is essentially a balancing test: the "loss of life and damage to property incidental to attacks [also known as collateral damage] must not be excessive in relation to the concrete and direct military advantage expected to be gained."[26] It follows that nothing stops a commander from placing a high premium on minimizing collateral damage.

However, as the USEUCOM JAs point out, a necessary step in the equation is articulating the military advantage to be gained.[27] Disapproving targets based solely on collateral damage assessments without a discussion of military necessity raises the suspicion that an overly restrictive legal standard is being applied. JAs can serve a critical role by emphasizing to staffs and commanders that the infliction of collateral damage is only one side of the proportionality balancing test.

3. Understand the ongoing debate over targeting the will of the enemy.[28]

The primary goal of Operation Allied Force was to compel Milosevic to capitulate to NATO's terms.[29] Accordingly, the air campaign was dual pronged: 1) destroy Serbia's military capability, and 2) break the will of Milosevic and the Serb population.[30] Many of the targets that had the effect of satisfying the latter prong highlight the current debate over the lawfulness of targeting the will of the enemy.

The latest — and most pertinent to this discussion — effort to codify and reflect the law of targeting is Article 52(2) of Protocol I to the Geneva Conventions (GP I).[31] The Article states:

Attacks shall be limited strictly to military objectives. In so far as objectives are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.[32]

The U.S. has not ratified GP I, but it does view Article 52(2) as an accurate statement of customary international law.[33] There is some disagreement, however — not only between states,[34] but within U.S. legal circles[35] — over what exactly Article 52(2) encompasses. The plain language meaning of the Article is not settled, the dispute centering on the interpretation of what constitutes "a contribution to military action" and what provides a "military advantage."

During Operation Allied Force, it is a matter of public record that, in addition to strictly military targets, NATO aircraft targeted "dual-purpose" objects—that is, targets whose destruction had the simultaneous effect of damaging the enemy's military capability and dampening the morale of the civilian leadership and population. Such dual-purpose targets included bridges, highways, electrical power installations, and railroads. Few would question the lawfulness of striking these targets under the Article 52(2) standard. [36]

The selection of other targets, however, has spawned debate in the U.S. and international legal community. For example, NATO aircraft targeted television stations.[37] They also dropped dispensers of specially treated wire over electrical power sources designed to cut off power to seventy percent of the Serbian population for a period of roughly twenty-four hours.[38] Striking these targets undoubtedly contributed to the NATO goal of breaking the enemy's will to fight. However, some argue that these targets may not have been sufficiently military in nature and, accordingly, may have run afoul of a restrictive interpretation of Article 52(2).[39] JAs should understand that varying interpretations of Article 52(2) exist, and familiarize themselves with the terms of this debate.[40]

The JAs mentioned knew comparative LOAC (incl. AP I & II) and were aware of US and international disagreement as to construction of AP I, Art. 52(2).

Regards

Mike

Pete
10-03-2010, 07:54 PM
Israel's use of white phosphorus 155mm artillery shells in densely-populated parts of Gaza in 2009 became the basis for war crimes allegations, as defined by Protocol III, Convention on Conventional Weapons, which Israel did not ratify. The shells Israel used were made in the U.S. The same thing about WP was said about the U.S. Marines when they retook Fallujah in 2004. I don't know whether the U.S. ratified the protocol. The Field Artillery School at Fort Sill may have to be more emphatic about defining when it can and cannot be used.

When I was in the Field Artillery we were taught to use WP for establishing hasty smoke screens, marking targets for air attack, and setting fire to supply dumps. It is a legal weapn of war, but many people in the human rights community regard it as some sort of WMD.

jmm99
10-03-2010, 08:18 PM
Here are the ICRC Indices:

Treaties & documents by date (http://www.icrc.org/ihl.nsf/INTRO?OpenView)

Treaties & documents by topic (http://www.icrc.org/ihl.nsf/TOPICS?OpenView)

Treaties by Country (http://www.icrc.org/ihl.nsf/Pays?ReadForm)

US Ratifications / Accessions (http://www.icrc.org/ihl.nsf/Pays?ReadForm&c=US)

Now you can answer your own question and report back. ;)

Cheers

Mike

Pete
10-03-2010, 08:25 PM
Darn, I didn't realize that my participation in this thread would lead to homework assignments! :eek:

SJPONeill
10-04-2010, 12:38 AM
The European countries have so little in terms of real problems they have lots of time to organise these ridiculous conferences to make them feel good. One hopes the economic crisis will lead them to trim this nonsense.

Probably not...'unproductive' military forces will be early targets in economic rationalisations - look at the UK which is technically still in a war in Afghanistan but which is already Freddy Kruegering its armed forces (again!), desperate to save money - and will probably have even more of these 'ridiculous' conferences so that they more all the more hastily legislate war away totally...as we know, war is a great respecter of law...

jmm99
10-04-2010, 12:48 AM
Go teachem fishy.

:eek::eek:

Mike

Pete
10-04-2010, 12:56 AM
"Last calling station, say again last transmission, you're coming in broken and enigmatic, over."

jmm99
10-04-2010, 01:15 AM
for fishee, go linkee (http://www.amatecon.com/fish.html).

So cheeree

Mikee

Pete
10-04-2010, 02:00 AM
When I was a kid I had a Zebco push-button reel and an L.L. Bean fiberglass rod with 12-pound test line, but what that has to do with the varying interpretations of the legality of using white phosphorous rounds in combat situations escapes the narrow confines of ny military mind.

Two or three years ago I believe I read that the U.S. had ratified the Convention on Conventional Weapons, but I could be wrong. When I attended officer courses at the Field Artillery School in '78 and '81-'82 we were taught WP is not to be used as an anti-personnel weapon, so the point may be moot.

One of the major problems with these different versions of the Law of War, and which nations have ratified the different versions and which have not, is when they lead to spurious claims of "war crimes" in the battle for hearts and minds in the media and public opinion. It spills over into Information Operations to paint one side or the other as being vile and wicked.

SJPONeill
10-04-2010, 02:30 AM
When I was a kid I had a Zebco push-button reel and an L.L. Bean fiberglass rod with 12-pound test line...

Never been much into fishing myself...but do have an old fly line mounted on the wall at home (was there when we bought the place)....

One of the major problems with these different versions of the Law of War, and which nations have ratified the different versions and which have not, is when they lead to spurious claims of "war crimes" in the battle for hearts and minds in the media and public opinion. It spills over into Information Operations to paint one side or the other as being vile and wicked.

What's changed is that we once aimed to paint the other guy as 'vile and wicked'; now we seem content to do that to ourselves while painting the other guy as merely misunderstood...

Pete
10-04-2010, 03:31 AM
The Law of War as we know it originated in Western Europe and North America, and is generally observed by the English-speaking British Commonwealth nations. In the rest of the world it is more honored in the breach rather than the observance. Few people in the Islamic world seem to get upset when terrorist groups blow up non-combatants, cut peoples' heads off and put videos of it on the net, execute people, use mosques, hospitals, or ambulances to store or transport munitions, and so on. On the other hand, when a Western nation does anything legally ambiguous the human rights crowd wants to put the U.S. Secretary of Defense on trial.

JMA
10-04-2010, 09:54 AM
Israel's use of white phosphorus 155mm artillery shells in densely-populated parts of Gaza in 2009 became the basis for war crimes allegations, as defined by Protocol III, Convention on Conventional Weapons, which Israel did not ratify. The shells Israel used were made in the U.S. The same thing about WP was said about the U.S. Marines when they retook Fallujah in 2004. I don't know whether the U.S. ratified the protocol. The Field Artillery School at Fort Sill may have to be more emphatic about defining when it can and cannot be used.

When I was in the Field Artillery we were taught to use WP for establishing hasty smoke screens, marking targets for air attack, and setting fire to supply dumps. It is a legal weapn of war, but many people in the human rights community regard it as some sort of WMD.

I believe the concern is when WP is fired into areas of civilian population and/or with the intention to start fires (burn them out).

Can the effect of this photo on the Vietnam war effort (and beyond) ever be truly assessed?

http://shahidul.files.wordpress.com/2009/02/nick-ut-associated-press-pulitzer-terror-napalm.jpg

The response to claims of war crimes should be met at a political PR level and not by soldiers on the ground who should bound only by the parameters for the use of such weapons passed down their chain of command.

We had similar problems (but on a small scale) where whatever we did was closely scrutinised and in many instances deliberately misreported. The US and Israel are no strangers to this phenomenon either.

The US and Israeli politicians should be demanding war crimes proceedings be initiated against those firing rockets into civilian settlements. Can't for one reason think why they have not... or maybe they accept that these Israeli settlements are legitimate targets?

JMA
10-04-2010, 10:04 AM
Two or three years ago I believe I read that the U.S. had ratified the Convention on Conventional Weapons, but I could be wrong. When I attended officer courses at the Field Artillery School in '78 and '81-'82 we were taught WP is not to be used as an anti-personnel weapon, so the point may be moot.

Help me understand something here please.

If you fire 155 WP air burst/or other at infantry in the open what percentage of enemy would (theoretically) be hit by WP under each burst.

(For example: Everyone within 15m of the burst, 30% out to 30 meters and 10% out to 50m.)

Tukhachevskii
10-04-2010, 10:10 AM
One of the major problems with these different versions of the Law of War, and which nations have ratified the different versions and which have not, is when they lead to spurious claims of "war crimes" in the battle for hearts and minds in the media and public opinion. It spills over into Information Operations to paint one side or the other as being vile and wicked.


Let's not forget that our media are very often our own worst enemy's. Given their inability to report the facts faithfully and without embellishment or without supporting our enemies in the process (i.e., doing their IO/Psyops work for them). The following paper really opened my eyes in that respect (and always thought it was Al-Jazeera and Al-Mattar that were the bad guys!:confused:)...

The Media as a Weapon in Asymetircal conflict (http://www.brookings.edu/~/media/Files/events/2007/0217islamic%20world/2007islamforum_israel%20hezb%20war.pdf)

M-A Lagrange
10-04-2010, 10:33 AM
How does a war without rules looks like? Well, it looks like what is described into the UN report on the 1993-2003 conflicts in DRC.

This is relevant to another threat also and has a lot of political implication but it is important for all to actually know how the dirtiest war since WW2 looks like.
Democratic Republic of the Congo, 1993-2003

Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003

June 2010

United Nations High Commissioner for Human Rightshttp://www.genocidewatch.org/drofcongo.html
A direct link to the report:
http://www.ohchr.org/Documents/Countries/ZR/DRC_MAPPING_REPORT_FINAL_FR.pdf

Hopefully, even at their worst moment, Irak and Astan never looked like that. (Welcome to Barsoon on hearth, nothing romantic in here:(:eek:).

Secondly, I may come with a more detail post but I would like to respond to the fault assumption that GC are coming from West.

The Law of War as we know it originated in Western Europe and North America, and is generally observed by the English-speaking British Commonwealth nations. In the rest of the world it is more honored in the breach rather than the observance. Few people in the Islamic world seem to get upset when terrorist groups blow up non-combatants, cut peoples' heads off and put videos of it on the net, execute people, use mosques, hospitals, or ambulances to store or transport munitions, and so on. On the other hand, when a Western nation does anything legally ambiguous the human rights crowd wants to put the U.S. Secretary of Defense on trial.

The oldest legal and religious text about regulation on conflict is a Hindu text: the Manu code.
The second oldest text is: the code of Hamurabi
We are talking about -1500 years BC.
And some of those rules are still in place in the GC especially the protection of wounded and disarmed combattants.

The first religious almost western text is the Deuteronom from the Bible (old testament).
Muslim also have a long history of several pre GC legal and religious text on conducting war.
The GC additional protocols were mainly initiated by the non aligned countries after the anti colonial/liberation wars. The Palestinian case was one of the motors of the negotiations (And Palestinian are manly Muslims and definitively non westerners).

It is a fake assumption that GC are a western product. The 1st GC is a 100% European product, targetting the super powers of that time, and the form (a binding treaty) of the GC are mainly based on European/Western international treaties form but such documents do exist in all cultures and all over the time in the past.

Here again, we are not in a legal discussion but fall under an ideological discussion.
How did that happen?
I would recommend reading the book a “bed for the night” which focuses on the turning point (during the 90) from GC to Human Rights as a norm in war and its promotion through NGO and UN.
http://books.simonandschuster.com/Bed-for-the-Night/David-Rieff/9780743252119

-------------------------------------------------------------------------
Mike,

Sorry for your losses. All my support.

Also, you did not pi$$$d me off, I wanted just to clarify the common idea about the opposition/frictions between NGO and military.

M-A

JMA
10-04-2010, 02:47 PM
Here is a story to follow:

Soldiers more likely to be in court: expert (http://www.abc.net.au/news/stories/2010/09/28/3024135.htm?section=justin)

Some background to this:

Army decisions under fire (http://www.theage.com.au/world/army-decisions-under-fire-20100326-r33j.html)

What galls the soldiers watching this process unfold is that unlike most of us, they have lived through the danger of these situations. Soldiers know that in the midst of a firefight, even battle-hardened veterans find it tough to work out how many people are shooting at them, and from where.

It seems it will all come down to the micro detail of who did what and when during that fire fight. There but for fortune go you or I.

I mentioned before in a little war story about the danger of a 18-9 year old or anyone pulling off a round that will start a train of events that can have tragic consequences... especially at night. And these were the top soldiers that Oz can provide.

The one thing is that if it gets to court the record will be public which allow close scrutiny... for better or worse.

jmm99
10-04-2010, 05:07 PM
If you follow the links and look at what the Convention is - and read it closely and do a little independent research, then that information will be impressed within the "confines" (narrow or broad) of your military (or non-military) mind and you will understand it.

Don't give the man fish, teach him how to fish.

The first modern, comprehensive code re: land warfare was the Lieber Code of 1863 ("Instructions for the Government of Armies of the United States in the Field") - the second entry in the ICRC:

Treaties & documents by date (http://www.icrc.org/ihl.nsf/INTRO?OpenView)

Some provisions pretty much hold up today:

Art. 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

Art. 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

Art. 16. Military necessity does not admit of cruelty -- that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

Others do not:

Art. 17. War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.

Art. 18. When a commander of a besieged place expels the noncombatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.

Cheers

Mike

SJPONeill
10-04-2010, 08:53 PM
Can the effect of this photo on the Vietnam war effort (and beyond) ever be truly assessed?

http://shahidul.files.wordpress.com/2009/02/nick-ut-associated-press-pulitzer-terror-napalm.jpg



A red herring perhaps in JMM's fishing analogy...? This photo was taken in June 1972 when Vietnamisation was well advanced and US forces had been withdrawn to only a fraction of their 1967-68 peak so arguably it's effect on the Vietnam war effort was negligible. As to its effect beyond, it is probably about the same as Eddie Adam's image from Tet 68 of a captured VC being executed (http://en.wikipedia.org/wiki/Nguy%E1%BB%85n_Ng%E1%BB%8Dc_Loan) by a South Vietnamese officer, something for the anti-war movement to wave on their placards. As to the effect of either on the conduct of military operations, I'd argue that this was also negligible as nothing really changed until, as previously covered in this thread, DESERT STORM when it all unravelled and we began the descent into the legal anarchy being discussed now...

JMA
10-05-2010, 01:21 AM
...(and always thought it was Al-Jazeera and Al-Mattar that were the bad guys!:confused:)...


Don't know about Al-Mattar but I watch a bit of Al Jazeera-English via satellite every day. As I do CNN, BBC and SKY TV (which has a late night our time slot where they broadcast Katie Couric from CBS) and RT (Russia Today) and the new for us NDTV (from India). Then there is CNBC-Africa and Bloomberg (got to get my daily Charlie Rose fix) and the Chinese CCTV. Finally there is EuroN which is too bland to contemplate.

If you don't get Al Jazeera via satellite then find it on the net.

Interesting to watch how the different broadcasters handle breaking news.

You would probably find the four part (online) video Afghanistan: How the East was lost (http://english.aljazeera.net/programmes/general/2009/08/2009814173838679599.html) interesting.

JMA
10-05-2010, 01:35 AM
How does a war without rules looks like? Well, it looks like what is described into the UN report on the 1993-2003 conflicts in DRC.

This is relevant to another threat also and has a lot of political implication but it is important for all to actually know how the dirtiest war since WW2 looks like.
http://www.genocidewatch.org/drofcongo.html
A direct link to the report:
http://www.ohchr.org/Documents/Countries/ZR/DRC_MAPPING_REPORT_FINAL_FR.pdf

Not sure about that. I suggest that there have been plenty of really dirty wars since 1945. As far as targeting civilians is concerned Korea must surely be right up there?

Pete
10-05-2010, 02:21 AM
The napalm in that photo was dropped by the South Vietnamese Air Force.

Pete
10-05-2010, 02:48 AM
The first modern, comprehensive code re: land warfare was the Lieber Code of 1863 ("Instructions for the Government of Armies of the United States in the Field") ...
Francis Lieber was at the battle of Waterloo when he was about 18 years old. Later he got himself in hot water in the German state where he lived because of his campaigning for government reform so he eventually emmigrated to the U.S. In around 1860 he had to give up his teaching job in Charleston, South Carolina and move North because of his anti-slavery views.

Backwards Observer
10-05-2010, 04:21 AM
Can the effect of this photo on the Vietnam war effort (and beyond) ever be truly assessed?

http://shahidul.files.wordpress.com/2009/02/nick-ut-associated-press-pulitzer-terror-napalm.jpg

Some links on Phan Thi Kim Phuc, the girl in the photo:

Phan Thi Kim Phuc - Wikipedia (http://en.wikipedia.org/wiki/Phan_Thị_Kim_Phúc)

Short Nick Ut Interview - BBC (http://news.bbc.co.uk/2/hi/4517597.stm)

1st Cav Medic perspective (http://www.1stcavmedic.com/napalm_girl.htm)

jmm99
10-05-2010, 06:31 AM
each instance where civilians were targeted:

from JMA
As far as targeting civilians is concerned Korea must surely be right up there?

as opposed to strategic sites being targeted with civilians being killed or wounded because of their proximity.

You could argue that WWII and Korea War targeting were determined using different constructs of military necessity and proportionality - as well as the factor of weapon systems inaccuracy (1940 ca. 20% within 5 miles of target; 1943 ca. 60% within 3 miles of target).

However, if there were instances of explicit civilian targeting, I'd like to see them because they would make good case studies for this thread.

Regards

Mike

JMA
10-05-2010, 07:48 AM
The napalm in that photo was dropped by the South Vietnamese Air Force.

Yes, I know. I was was trying to put forward what the visual effect of this photo had on the (world's) attitude towards the US in Vietnam and the use of napalm.

JMA
10-05-2010, 08:02 AM
each instance where civilians were targeted:



as opposed to strategic sites being targeted with civilians being killed or wounded because of their proximity.

You could argue that WWII and Korea War targeting were determined using different constructs of military necessity and proportionality - as well as the factor of weapon systems inaccuracy (1940 ca. 20% within 5 miles of target; 1943 ca. 60% within 3 miles of target).

However, if there were instances of explicit civilian targeting, I'd like to see them because they would make good case studies for this thread.

Regards

Mike

Mike, I thought this was common knowledge?

Korean War Panel Finds U.S. Attacks on Civilians (http://www.nytimes.com/2010/07/10/world/asia/10comission.html?_r=2&partner=rss&emc=rss&pagewanted=all)

then the air force

U.S. Bombers Hit Civilians In Korea War, Reports Say (http://www.nytimes.com/1999/12/29/world/us-bombers-hit-civilians-in-korea-war-reports-say.html)

A photo of the Rogers memo (http://upload.wikimedia.org/wikipedia/en/2/27/Shootingkoreancivilians.jpg):

and

No Gun Ri Massacre (http://en.wikipedia.org/wiki/No_Gun_Ri_Massacre)

Mike, not trying to open old wounds here just thought everyone knew and had moved on...

jmm99
10-05-2010, 08:27 PM
if wounds are reopened or scabs are ripped off. I'm good at doing both.

Secondly, my point, apparently lost in the shuffle, was the difference between (1) targeting civilians with no strategic (military) target involved; and (2) targeting strategic (military) targets where civilians are proximate and are hit (killed or wounded) by the strike. A legal distinction clearly exists between the two situations even though the same number of civilians are casualties.

The multiple Korean incidents you link did involve a real military problem: that of combatants mixed in or controlling civilians for purposes of infiltration - or, in the case of an attack, using them as classic "human shields. How big a problem you perceive that to be, and what measures you take, will depend on your resources available and your views on military necessity and proportionality.

Along the same lines, you have situations like blowing bridges where combatants are mixed with refugees. Or a village where combatants are spread throughout. All of these are variations on the basic theme of combatants and civilians mixed together.

COL Rogers of the memo was a bit confused as to terminology - "large groups of civilians, either composed of or controlled by North Korean soldiers, are infiltrating U.S. positions." If the infiltrators were North Korean soldiers or controlled by North Korean soldiers, they were not "civilians", but combatants or persons acting in aid of combatants (perhaps involuntarily).

A worthwhile topic for discussion because the problem has not gone away since Korea.

Regards

Mike

jmm99
10-06-2010, 04:38 AM
The Truth and Reconciliation Commission (South Korea) has concluded its work, as reported in the NYT article (linked by JMA), Korean War Panel Finds U.S. Attacks on Civilians (http://www.nytimes.com/2010/07/10/world/asia/10comission.html?_r=3&partner=rss&emc=rss&pagewanted=all):

By CHOE SANG-HUN
Published: July 9, 2010

SEOUL, South Korea — A commission charged with investigating wartime atrocities has found that American troops killed groups of South Korean civilians on 138 separate occasions during the Korean War.

But in a flurry of rulings made in the past few days, the commission decided not to seek compensation or criminal charges in about 130 of the cases either for lack of evidence or because it found that the killings were militarily justified.
....
The commission will recommend that South Korea start negotiations with Washington to seek compensation for the victims in the remaining eight cases, the president of the commission said Friday.

In the other 130 cases, the commission could not find evidence of illegality by the American military or it determined that the deaths resulted from “military necessity,” said Lee Young-jo, president of the government’s Truth and Reconciliation Commission.

“They were more like cases of negligence than of liability or war crimes,” said Mr. Lee, whose commission wrapped up its four-year-old investigation on June 30. “For such a low level of unlawfulness, I don’t think any government negotiations with the United States for compensation are necessary.”

See also, AP story on Commission (http://www.cleveland.com/world/index.ssf/2010/07/south_korea_shuts_down_korean-.html) - AP journalists wrote a book on No Gun Ri.

See Responding to the Bridge at No Gun Ri (http://rokdrop.com/2007/07/26/responding-to-the-bridge-at-no-gun-ri/) (By GI Korea on July 26th, 2007) for a different view of AP's journalism:

Some civilians were gunned down at No Gun Ri, which is proven by witness testimony from people who were there that saw a handful of dead people in the tunnel after soldiers fired in response to rifle fire from the refugee column. Korean forensics investigators later found Russian shell casings and bandoliers in exactly the same spot GI witness said they took rifle fire.[xli]

The initial warning shots the US soldiers fired over the heads of the refugees is what probably caused the gun men within the refugee column to open fire and the US soldiers then directed their fire into the refugees before being stopped by their officers. A tragic story no doubt, but this is not a scenario that supports the current body count mythology. A storyline of strafings, bombings, and four days of rifle fire despite all the evidence saying otherwise, has to be promoted to support the body count mythology.

[xli] No Gun Ri Review, (Department of the Army Inspector General, January 2001), Appendix B Analysis of Forensic Evidence, page B-8
.....
This is just some of the pertinent information about No Gun Ri that I have presented and in fact there is a lot more information I could put into this posting especially in regards to Korean and American witness testimony, forensics, aerial imagery analysis, and historical documents that further sheds doubt on the AP’s version of events. I could literally write a book about this topic if I presented the nitty gritty details instead of trying to provide a broad overview of what happened.

I have also written this posting in an academic format by having pertinent information supported by footnotes that can be traced back to the source material. I did this because in the AP book they offered no footnotes to support their version of events and often make totally unsubstantiated claims. I am making claims in my above response to the original AP article that is supported with footnotes that can be traced to verifiable sources.

The Truth and Reconciliation Commission and the incidents (e.g., esp. No Gun Ri (http://en.wikipedia.org/wiki/No_Gun_Ri_Massacre)) have generated a huge amount of spin by journalists and lawyers - pride and $$ at stake, or am I too cynical ?

If we want to salvage anything of value from those 138 investigated incidents, we should look to all three classes of incidents:

1. Cases with no evidence of illegality by the American military (possibly some degree of negligence).

2. Cases where the deaths resulted from “military necessity".

3. Cases where the deaths resulted from illegality by the American military.

The goal would be to determine how to handle the problem of migratory refugees in general; and how to handle the problem of enemy combatants using refugees for their ends, in particular.

The Korean War in July 1950 was an example of a fluid situation (US & ROK forces could not establish a continuous line), NK forces found it easy to infiltrate via unguarded flanks (US units were 2/3 strength; so, 2 up, 0 reserve), CAS often had to be used in lieu of arty (the 1st Cav Div, its 7th Cav Regt was involved at No Gun Ri, had 2 batteries when it first deployed), and no troops were available to handle refugees.

By 3 Aug 1950, 1st Cav had withdrawn from Taejon (No Gun Ri is roughly between Taejon and Taegu) across the Naktong River to near Taegu, except for its rear-guard Bn from the 8th Cav Regt. That unit was followed by a crowd of refugees. The NK advance units were near but had not yet closed. The rear guard Bn attempted to clear the bridge of refugees four times.

When the NK units reached the refugee coilumn and continued their advance, Hobart Gay (1st Cav Div CO) ordered the bridge blown with consequent deaths of hundreds. Reported in T.R. Fehrenbach, This Kind of War, (Dulles, Virgina, Brassey’s, 1963) Chapter 2 Battle: Retreating; and in Roy E. Appleman, South to the Naktong, North to the Yalu, (Washington, DC, U.S. Government Printing Office, 1961), Chapter 15 Establishing the Pusan Perimeter.

Arguing about one incident is of little value to those who will see refugee problems in the future. As stated above, we should be looking at the hundred plus incidents investigated across the full spectrum of legality to illegality.

Regards

Mike

JMA
10-06-2010, 08:26 PM
if wounds are reopened or scabs are ripped off. I'm good at doing both.

Secondly, my point, apparently lost in the shuffle, was the difference between (1) targeting civilians with no strategic (military) target involved; and (2) targeting strategic (military) targets where civilians are proximate and are hit (killed or wounded) by the strike. A legal distinction clearly exists between the two situations even though the same number of civilians are casualties.

The multiple Korean incidents you link did involve a real military problem: that of combatants mixed in or controlling civilians for purposes of infiltration - or, in the case of an attack, using them as classic "human shields. How big a problem you perceive that to be, and what measures you take, will depend on your resources available and your views on military necessity and proportionality.

Along the same lines, you have situations like blowing bridges where combatants are mixed with refugees. Or a village where combatants are spread throughout. All of these are variations on the basic theme of combatants and civilians mixed together.

COL Rogers of the memo was a bit confused as to terminology - "large groups of civilians, either composed of or controlled by North Korean soldiers, are infiltrating U.S. positions." If the infiltrators were North Korean soldiers or controlled by North Korean soldiers, they were not "civilians", but combatants or persons acting in aid of combatants (perhaps involuntarily).

A worthwhile topic for discussion because the problem has not gone away since Korea.

Regards

Mike

I suggest that we just accept that over the years since 1945 much has changed is what is perceived to be acceptable and what not when it comes to fighting a war any war... unless you are an insurgent that is (they can do anything).

This thread has traced the legal minefield that soldiers face when they enter the battlefield, in most cases from those supposedly on their own side.

Could we have prepared our soldiers better in this regard?

Did we deal with any and/or all reports/evidence of possible breaches?

What did we learn from these experiences that we carried forward to the next battle or the next war?

How do we train/select soldiers in the 18-19 year old bracket and beyond to prevent a spark which may lead to shooting frenzy which may lead to a bloodbath involving non-combatants?

My level was and my concern remains at the infantry combat interface. I am sad to say that the aerial bombing (http://en.wikipedia.org/wiki/Aerial_bombing_of_cities#Aerial_bombardment_and_in ternational_law) since 1911 to date continues to result in large numbers of civilian casualties.

Individual or small groups of soldiers are being prosecuted for the deaths of small numbers of civilians in what we used to call "caught in the crossfire" but how many planners of pilots have been so charged?

SJPONeill
10-06-2010, 11:24 PM
Could we have prepared our soldiers better in this regard?

Did we deal with any and/or all reports/evidence of possible breaches?

What did we learn from these experiences that we carried forward to the next battle or the next war?

How do we train/select soldiers in the 18-19 year old bracket and beyond to prevent a spark which may lead to shooting frenzy which may lead to a bloodbath involving non-combatants?

Maybe there isn't too much wrong with how we train our soldiers in this regard? It is how we train and develop our (military) lawyers and PIOs that is the greater issue...?

JMA
10-06-2010, 11:38 PM
Maybe there isn't too much wrong with how we train our soldiers in this regard? It is how we train and develop our (military) lawyers and PIOs that is the greater issue...?

Never can be enough in my opinion. With most modern armies with all the time on their hands I assume this aspect is much better covered than it was in my day but then again I was in a pre-ROE era as opposed to today as with the case of the Aussie soldiers.

I suggest the test is the balance between the need and hopefully the burning desire to close with and kill the enemy and to comply with latest rules of war.

Those particular Aussie soldiers seemed to still have the necessary aggression. Not sure where it all went wrong, if indeed it did.

The more and better you train your basic infantry soldiers in this regard the less you need these lawyer types IMHO.

Pete
10-07-2010, 03:35 AM
Incidentally Mike/jmm99, several memoirs of Union officers who fought against John S. Mosby's command during the Civil War state that in their opinion Mosby's men were not legitimate soldiers according to General Orders 100, the Lieber Code. I'm working off of memory here, from books I read about 15 years ago. If I recall correctly it had to do with the "farmers by day and insurgents at night" distinction made in General Orders 100. The implication was that Mosby's men were the Civil War equivalent of "unlawful combatants," and therefore summary execution of them would have been justifiable.

jmm99
10-07-2010, 04:18 AM
A good, short (19 pages) article is Jeffery Bateman, Bushwackers and Terrorists - Combatant Status Policy in the Civil War and Global War on Terror (2006) (abstract and link (http://oai.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA449745)) (pdf direct (http://handle.dtic.mil/100.2/ADA449745)).

A snip re: Mosby (footnotes omitted):

General Order 100 seems to have been largely ignored by Union commanders in the field. In fact, senior civilian and military leadership issued individual instructions to subordinates directly contradictory to the Lieber Code’s distinction between partisan rangers and other irregular combatants. Ironically, this disregard for national policy was most evident in the Eastern Theater in the pursuit of Mosby’s Rangers in the Shenandoah Valley.

John Singleton Mosby led a guerilla group that conformed more closely than any other to the partisan ranger units described by the Lieber code. Mosby’s men wore uniforms, they were led by commissioned officers, and they operated under Confederate orders. By 1864, Mosby’s unit was the only such unit that had not been officially absorbed by the Confederate Army.[23] Its unique status reflected its conduct (the poor conduct of many other Confederate guerillas had become a major embarrassment to Confederate leadership), as well as Mosby’s effectiveness frustrating Union Army commanders.

Lieutenant General Ulysses S. Grant’s actions in 1864 reflected the frustration he and Major General William Tecumseh Sherman were encountering trying to destroy Mosby. Grant authorized Sherman to deny combatant rights and encouraged summary execution without trial of any of Mosby’s men Sherman caught, as well as suggesting that the families of Mosby’s men could be held prisoner.[24] Secretary of War Edwin Stanton issued similar instructions to the Union commander at Martinsburg, Brigadier General William H. Seward, authorizing him to employ “any means that may within your power to accomplish” in order to defeat guerilla units.[25]

Union Cavalry officer Brigadier General George Armstrong Custer executed Mosby’s men on several occasions. He hanged five of them in 1864, while wearing Confederate uniforms, and executed six more later that same year, believing Grant’s and Sheridan’s directives authorized his actions.[26] Custer could certainly have argued , had his actions ever been challenged, that he was operating with confusing and contradictory guidance, as was every other field commander in the Civil War.

Phil Sheridan had his own anti-Mosby unit ("scouts" attached to his headquarters), who played something of the role of "pseudo-guerrillas". That from Bruce Catton, A Stillness at Appomattox (http://www.amazon.com/gp/product/0385044518/ref=pd_lpo_k2_dp_sr_1?pf_rd_p=486539851&pf_rd_s=lpo-top-stripe-1&pf_rd_t=201&pf_rd_i=1898800227&pf_rd_m=ATVPDKIKX0DER&pf_rd_r=1AZ7W3JT2NGFFR5FD4CM) (Army of the Potomac, Vol. 3).

Regards

Mike

Pete
10-07-2010, 04:40 AM
Bateman's article conflates and confuses William T. Sherman with Phil Sheridan, who were two different guys. Sherman was at First Manassas but after that he was in Kentucky, and later in Georgia, South and North Carolina on the "March to the Sea." Sheridan commanded the Union Valley Campaign in 1864, Sherman was hundreds of miles away.

I live in the area where Sheridan fought against Jubal Early in 1864, and where Mosby's command raided Sheridan's supply convoys on the Valley Pike, now U.S. Route 11. My bank has an office on the road, where formations under Jackson, Lee, Early, and Sheridan had marched. A guy with my mother's maiden name joined Mosby's command in 1865 right before the war ended.

jmm99
10-07-2010, 05:06 AM
Figured that theatre of operations might be near your backyard.

Sheridan's scouts have a large online bibliography - over 185K hits by Googling: sheridan scouts mosby.

Example article (7 pages), America's Civil War: Union General Phil Sheridan's Scouts (http://www.historynet.com/americas-civil-war-union-general-phil-sheridans-scouts.htm).

Snip:

They were loosely called 'Sheridan's Scouts,' a collection of more than 120 brave, versatile and intelligent Union soldiers who operated from August 1864 through war's end. Those risktakers helped their commander, Major General Philip H. Sheridan, lead his Army of the Shenandoah to victory in 1864 in the Shenandoah Valley and then in both the James River expedition and the Appomattox campaign in 1865. Many of the scouts wore Confederate uniforms and used forged passes and furloughs. Others passed back and forth in all manner of civilian attire.

Their activities included buying information, establishing networks of Union sympathizers, intercepting enemy dispatches, conveying friendly dispatches, hunting down notorious guerrillas and engaging in desperate combat. At least 20 of the volunteer scouts became casualties, and seven earned the Medal of Honor. The youngest was 18, the oldest 40. ...

These guys were less regular than Mosby's troopers (who if detained under modern rules would be EPW).

Regards

Mike

Pete
10-07-2010, 05:29 AM
Mosby's command wiped out one of the pseudo units wearing Confederate uniforms in 1864 or 1865. If I recall correctly they were called Blazer's Scouts and they were armed with Spencer rifles or carbines, the first magazine-fed repeaters in the history of the U.S. Army. When Mosby had a grudge his pay-back was the proverbial you-know-what. Years ago I read that Mosby is the only pre-World War II guy in the U.S. Army Ranger Hall of Fame.

It's ironic in a way because Mosby was a skinny short guy, he probably couldn't have passed a modern Army PT test. His own sense of personal vulnerability led him to use his brain rather than his brawn when he planned combat operations. He was the scout whose reconnaissance made J.E.B. Stuart's ride around McClellan's Army of the Potomac possible in 1862. Stuart's confidence in him is what enabled Mosby to have a command and start his unconventional operations outside of Washington in 1863.

M-A Lagrange
10-11-2010, 10:07 AM
For those who seek for details and definition of what may or may not be a war crime, here is the link with the crimes of war book web site.
You will find a dictionary of what is considered as a war crime and what are the conventions, treaties and other dispositions for protected persons.
http://www.crimesofwar.org/thebook/book.html

As example of articles you can find, I have attach the one on human shield. I personally think that this book is quite balanced and is also giving examples of what is considered as a crime of war despite being not an obvious situation.

Shields
By Robert Block

The world saw human shields on television when in the events preceding the Gulf War, the Iraqi government seized foreign nationals in both Iraq and Kuwait and held them at strategic and military installations. This is a most obvious case of using civilians as hostages or human shields to attempt to prevent an attack.

International humanitarian law (IHL) prohibits parties to conflict from using civilians to shield military objectives or military operations from attack. But armies and irregular forces use innocent civilians as human shields in conflicts all over the world. Often, they do it in a manner that, unlike Iraq’s blatant example, is not instantly recognizable.

Two such cases occurred in the aftermath of the Rwandan genocide in mid-1994, when more than 1 million people fled to Zaire and lived in the squalor of refugee camps. Some did not go back because of their role in the slaughter by an extreme nationalist Hutu regime of as many as 1 million ethnic Tutsis and moderate Hutus. Others feared that Rwanda’s new pro-Tutsi rulers would be unable to distinguish the guilty from the innocent who fled Rwanda in the final days of that country’s civil war. But many others wanted to take a chance and go home where they had families and fertile land. They were not allowed to. Although considered refugees by the international community, they saw themselves as prisoners of those who ran the camps.

Marie Akizanye was forty-three years old in 1996 at the time she fled the Rwandan refugee camps in Zaire but looked twice her age. Her face was like dried-out leather. What little remained of the hair beneath her scarf was almost white, while her eyes were yellowed and glassy.

“We wanted to come back to Rwanda, but in the camp there were people who stopped us. They had guns and machetes and they threatened us with death if tried to come back,” she said. “They told us that one day we would all go back together by force and they set up military bases among us to attack the enemy.”

Indeed, between August 1994 and November 1997, the remnants of the armed forces of Rwanda and the dreaded Interahamwe militias still loyal to the defeated extremist regime of President Juvenal Habyarimana used the refugee camps in Zaire as a staging ground and launchpad for attacks into Rwanda. The extremists would stage raids into Rwanda from the camps and then seek refuge back there, using the refugees as shields from counterattacks. When the camps were broken up by a combined force of Rwanda’s new Tutsi-dominated army and Zairean rebels, proof emerged of plans for a massive military invasion of Rwanda from the refugee camps.

Under international law, parties to a conflict must keep military assets as far as possible from concentrations of civilians. It is also a crime of war to use any civilians as a human shield. According to Article 51 of the 1977 Additional Protocol I to the 1949 Geneva Conventions: "The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objects from attacks or to shield, favor or impede military operations."

The second example occurred in 1997. Zairean rebels fighting to overthrow the government of dictator Mobutu Sese Seko often complained that when they approached groups of Rwandan refugees who were then fleeing Zaire’s civil war, they were often fired upon by armed elements hiding among the civilians. This fact was in turn used as an excuse by the rebels to indiscriminately attack refugee areas, often massacring hundreds of women, children, and elderly—clearly illegal under IHL.

Some cases are not so cut-and-dried.

One such incident took place in El Salvador in March 1984. Under attack for its appalling human rights record, and unable to convince the world that it was waging a righteous struggle against Communist insurgents, El Salvador's military was searching for an incident to bolster its case before upcoming elections.

The army's prayers appeared to have been answered one Monday evening outside the small town of San Antonio Grande when rebels of the Farabundo Marti National Liberation Front (FMLN) attacked a train traveling from the town of San Vicente in the west of the country to the capital, San Salvador.

The railway line cut though the heart of guerrilla territory. Trains plying this route were regularly fired upon or blown up. But these were always cargo trains, usually carrying supplies for the military or the businesses of the army's wealthy patrons—clear military objectives. This time, however, the train was full of civilian passengers.

Eight people, including women and children, were killed and dozens wounded. Here at last was the "proof" of what the Salvadoran Army had contended all along: that its enemies were war criminals with no regard for human life. An attack that does not distinguish between military objectives and civilians is a war crime.

The foreign press was summoned to the site the next morning by the Salvadoran military. Inside the train, the bodies of two men, four women, and a child were lying in a pool of congealed blood underneath wooden seats on the floor of a railway carriage. They had been left where they fell, untouched for fifteen hours so reporters could broadcast the guerrillas’ deed to more dramatic effect.

Outside, a young woman was on her knees, rooted to a spot where she had collapsed. She was bent over the body of a small boy, resting her head on the back of one hand, while the other clutched at her breast as if trying to tear her own heart out. She wailed, pleading to God for her little son's life while damning the guerrillas. Her cries went out over the airwaves as well.

This, an army spokesman announced with enthusiasm, was proof of the barbarity of the guerrillas. But upon talking to survivors another picture, different from what the Salvadoran Army wanted us to believe, began to emerge.

According to the engineer, the rebels had brought the train to a halt after two mines went off on the track. The rebels had then demanded the surrender of a detachment of soldiers and five thousand rounds of ammunition that were in the last car. The soldiers had refused and a firefight ensued. Surviving passengers said that when the FMLN attack intensified the soldiers had taken refuge in their carriage, shooting at the attackers while hiding behind the civilian passengers for protection. It was then that people were killed.

Not wanting the bodies of its troops to be seen lying alongside those of civilians in a passenger carriage, the army removed the soldiers' corpses long before journalists arrived.

Despite the survivors’ story it is unclear whether the soldiers had rushed to the passenger area to use civilians as shields—clearly a war crime—or fled that particular car because they thought it was the best place to take cover, thereby committing no violation of law.

Whatever the truth, in the television propaganda war for the hearts and minds of the world, it was the guerrillas of FMLN and not the Salvadoran Army who lost sympathy points that day.

jmm99
10-11-2010, 08:26 PM
has the Crimes of War web site - home page (http://www.crimesofwar.org/index.html)

I've found its Regions & Themes and Special Features sections to be quite useful, especially as to leads to original sources. Keep in mind that most of the direct crimes of war pieces are opinion pieces.

For example, its articles on detention of AQ-Taliban from the gitgo to the present present opinions that simply have not been accepted as law by the US courts that have been deciding those cases. The cases won by detainees have been won on the facts - not on the view of detainment law held by the crimes of war authors.

Of course, anyone may write anything they want about international law; but if you are a practictioner with a court case, what you write has to stay within the confines of the reservation boundaries - if you want to win, as opposed to blowing smoke.

As to the El Sal sitution, at least the soldiers were in uniform. The run of the mill irregulars that some in the world seem to glamorize are not in uniform and regularly mix with the civilian population - and, if we follow some ICRC ideas about "direct participation in hostilities", irregulars are allowed to hide as civilians among civilians so long as they are not engaged in active hostilities.

Regards

Mike