Gurkha beheads Taliban...
...and gets sent home. :confused:
This is a few months old but I missed it before now.
Quote:
A Gurkha soldier has been flown back to the UK after hacking the head off a dead Taliban commander with his ceremonial knife to prove the dead man’s identity.
The private, from 1st Battalion, Royal Gurkha Rifles, was involved in a fierce firefight with insurgents in the Babaji area of central Helmand Province when the incident took place earlier this month.
His unit had been told that they were seeking a ‘high value target,’ a Taliban commander, and that they must prove they had killed the right man.
Complete article here: http://www.dailymail.co.uk/news/arti...n-fighter.html
Never got to meet any of these little fellers. I think I'd like to. :)
Not to jump on Rifleman, for using "war crime",
since he is far from the only person to overuse the term (I inhabit a whole thread devoted to its use and overuse :D);
but why do we too often directly jump to this question:
Quote:
from Rifleman
Did the Gurkha commit a war crime? I understand he displayed cultural insensitivity and he may have violated his commander's policy. But did he commit a war crime? I don't know, but if he did I won't condone it.
Not every breach of the various conventions is a "war crime" - most breaches are not.
Our understanding is not helped by 1975 (rev.) FM 27-10, which is otherwise usually accurate for its vintage, which lays down this "blackletter":
Quote:
499. War Crimes
The term "war crime" is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.
That "blackletter" is simply too simplistic and can lead people legally astray.
The 2010 Operational Law Handbook provides us with a 5-COAs approach:
Quote:
XVI. REMEDIES FOR VIOLATIONS OF THE LAW OF WAR
A. U.S. Military and Civilian Criminal Jurisdiction
1. The historic practice of the military services is to charge members of the U.S. military who commit offenses regarded as a “war crime” under existing, enumerated articles of the UCMJ.[165]
2. In the case of other persons subject to trial by general courts-martial for violating the laws of war[166] the charge shall be “Violation of the Laws of War” rather than a specific UCMJ article.
3. The War Crimes Act of 1997[167] provides federal courts with jurisdiction to prosecute any person inside or outside the U.S. for war crimes where a U.S. national or member of the armed forces is involved as an accused or as a victim.
4. “War Crimes” are defined in the War Crimes Act as: (1) grave breaches as defined in the Geneva Conventions of 1949 and any Protocol thereto to which the U.S. is a party; (2) violations of Articles 23, 25, 27, 28 of the Annex to the Hague Convention IV; (3) violations of Common Article 3 of the Geneva Conventions of 1949 and any Protocol thereto to which the U.S. is a party and deals with a non-international armed conflict; (4) violations of provisions of Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps & Other devices (Protocol II as amended May, 1996) when the U.S. is a party to such Protocol and the violator willfully kills or causes serious injury to civilians.
5. U.S. policy on application of the LOW is stated in DoD Directive 2311.01E (9 May 2006): “It is DoD policy that … [m]embers of the DoD Components [including U.S. civilians and contractors assigned to or accompanying the armed forces] comply with the LOW during all armed conflicts, however such conflicts are characterized, and in all other military operations.”
165 FM 27-10, para. 507.
166 UCMJ, art. 18.
167 18 U.S.C. § 2441. [JMM Note: "war crimes" violations of Common Article 3 are more carefully defined in the statute and by court decisions than 2010 OLH states - again, not all CA3 violations are "war crimes"]
A less legalistic approach appears in a posting at Free Republic from another denizen of our SWC zoo (Polarbear1605), Laws of War to Rules of Law or the Old Switch-A-Roo!, where The Great Furry One first notes:
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The UCMJ is a uniquely military judicial system because when you look at the UCMJ Articles, you find not only civilian or Rules of Law (common law) charges like Murder, Robbery and Larceny but also military charges like Desertion, Absent without Leave and Disrespect to a Superior Commissioned Officer. There are some 60 punitive articles in the UCMJ and one of the puzzling features of the UCMJ is that there are no specific articles for war crimes.
Da Bear gets into the guts of the "war crimes" problem with this:
Quote:
These ROEs are clearly based on the three principles of the Laws of War; military necessity, proportionality and distinction. These Law of War principles are exactly what Soldiers and Marines in combat are trained not only to base their tactical decisions on but also they are ordered and continually reminded to follow.
Now here is the issue, if our servicemen are operating in combat in a foreign country under the Laws of War ROE, why are they being charged with murder instead of violating one or more of the principles of the Laws of War. Another way to say this is why are we charging our warriors with murder on the battle field instead of violating the combat ROE rules and regulations established for combat operations?
Each service has its own War Crimes directives. As an example, let’s look at Marine Corps MCRP (Marine Corps Reference Publication) 4-11.8B, War Crimes. This publication’s interesting part is that it maps war crimes to UCMJ articles. For example; “The willful killing, torture or inhuman treatment of individuals protected by the Geneva Conventions” which is a violation of military necessity, maps to the UCMJ Articles of: Article 93 Cruelty and Maltreatment Article 118 Murder Article 119 Manslaughter Article 120 Rape and Carnal Knowledge Article 122 Robbery Article 124 Maiming Article 128 Assault Article 134 General Article (indecent assault, negligent homicide)
The Manual for Courts-Martial (MCM) list the “elements of proof” for each of these punitive Articles. The elements of proof “are the specifics of the offense. In order to support a finding of "guilty," the government must prove each and every element of the offense, beyond a reasonable doubt”. Murder, for example, has the following elements of proof (according to the MCM):
“ Premeditated murder. (a) That a certain named or described person is dead; (b) That the death resulted from the act or omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had a premeditated design to kill.”
Another way to state these elements of proof in layman terms: (a) You need to prove you have a dead body; (b) You need to prove who pulled the trigger; (c) It was not self defense (only rules of law I know to justify a dead body); and (d) You need to prove beyond a reasonable doubt the accused intended to kill the victim.
Notice that the MCM elements of proof make no mention of the Laws of War principles of military necessity, proportionality or distinction.
Great post by the White Bear, including his suggested script for a TV “Law and Order“ series.
Besides the unique concepts of military necessity, proportionality or distinction, the Laws of War also are based on reciprocity. True, they can chug along on autopilot for a while; but if reciprocity is lacking, they eventually develop disconnects.
Lack of reciprocity comes from various causes - e.g., different cultures, different legal systems. Or, it can come about because of what PB1605 terms “Strategic Legalism”:
Quote:
The definition of Strategic Legalism is “the use of law or legal arguments to further larger policy objectives, irrespective of facts or laws”. .....
Strategic Legalism is a political maneuver that has existed for a long while. Peter Maguire, who defined the term, credits the maneuver to Secretary of War Elihu Root (1845 – 1937) one of the first US Government lawyer-politician bureaucrats. The interesting story that Peter Maguire tells as one of the first examples of Strategic Legalism, centers on USMC Major Littleton Tazewell Waller and his court martial that took place during the Philippine American War (1899-1902).
Major Waller successfully defended himself using the existing Laws of War despite the widespread sensational press accusations of murder. The Major’s successful defense kept his career intact. He would later be considered as one of two candidates for the Marine Commandant; however, the other candidate would be selected.
How should one class the beheading videos (having watched a few) in terms of reciprocity and the reasons for them ? I expect that is very much in the eyes of the beholder. In my own eyes, comparing them to what the Gurk did (based on our limited facts) suggests that he was guilty of a breach of etiquette.
Regards
Mike
First, the facts, as stated
from article:
Quote:
His unit had been told that they were seeking a ‘high value target,’ a Taliban commander, and that they must prove they had killed the right man
The Gurkhas had intended to remove the Taliban leader’s body from the battlefield for identification purposes.
But they came under heavy fire as their tried to do so. Military sources said that in the heat of battle, the Gurkha took out his curved kukri knife and beheaded the dead insurgent.
He is understood to have removed the man’s head from the area, leaving the rest of his body on the battlefield.
Second, looking at these first facts from a Laws of War standpoint, the more appropriate COA (removal of the entire body from the field) was foreclosed by enemy fires. The Gurk, utilizing judgment in terms of the military necessity to ID the HVT, took an alterrnative COA to achieve that goal and complete his mission.
Thirdly, looking to another set of facts from the article:
Quote:
The incident, which is being investigated by senior commanders, is hugely embarrassing to the British Army, which is trying to build bridges with local Afghan communities who have spent decades under #Taliban rule.
....
If the Gurkha being investigated by the Army is found guilty of beheading the dead enemy soldier, he will have contravened the Geneva Conventions which dictate the rules of war. Soldiers are banned from demeaning their enemies.
The Gurkha now faces disciplinary action and a possible court martial. If found guilty, he could be jailed.
He is now confined to barracks at the Shorncliffe garrison, near Folkestone, Kent.
The overall UK policy looks more akin to Strategic Legalism (the use of law or legal arguments to further larger policy objectives, irrespective of facts or laws to the contrary) than anything else.
The bottom line, therefore, has nothing much to do with law (especially military law); but is overwhelmingly a question of "proper policy". What is "proper" - I lean to MAJ Thomas:
Quote:
Now, when the rules and customs of war are departed from by one side, one must expect the same sort of behaviour from the other. Accordingly, officers of the Carbineers should be, and up until now have been, given the widest possible discretion in their treatment of the enemy. Now, I don't ask for proclamations condoning distasteful methods of war, but I do say that we must take for granted that it does happen. Let's not give our officers hazy, vague instructions about what they may or may not do. Let's not reprimand them, on the one hand for hampering the column with prisoners, and at another time and another place, hold them up as murderers for obeying orders. [...] The fact of the matter is that war changes men's natures. The barbarities of war are seldom committed by abnormal men. The tragedy of war is that these horrors are committed by normal men in abnormal situations, situations in which the ebb and flow of everyday life have departed and have been replaced by a constant round of fear, and anger, blood, and death. Soldiers at war are not to be judged by civilian rules, as the prosecution is attempting to do, even though they commit acts which, calmly viewed afterwards, could only be seen as unchristian and brutal. And if, in every war, particularly guerilla war, all the men who committed reprisals were to be charged and tried as murderers, court martials like this one would be in permanent session. Would they not? I say that we cannot hope to judge such matters unless we ourselves have been submitted to the same pressures, the same provocations as these men, whose actions are on trial.
That being said, the more likely result is "Shoot straight, you ba$tards".
Regards
Mike
Note Bene: This and my prior post are personal opinion pieces and not statements about what the "law" is.
Watch out for those “mission orders”, they can scare the hell out of ya!
“Mission tactics (orders) are just as the name implies: the tactic of assigning a subordinate mission without specifying how the mission must be accomplished. We leave the manner of accomplishing the mission to the subordinate, thereby allowing him the freedom and establishing the duty to take whatever steps he deems necessary based on the situation. The senior prescribes the method of execution only to the degree that is essential for coordination. It is the freedom for initiative that permits the high tempo of operations that we desire. Uninhibited by restrictions from above, the subordinate can adopt his actions to the changing situation.” FMFM 1 p.70-71
Sounds to me like the soldier stayed within the bounds of “military necessity” and followed his mission orders. If the commander cannot handle the results…he probably should not be a commander. If the Gurkha soldier was flown back to the UK as reported….it should be to give him a medal vs investigation.
Strategic Legalism…Oh Ya! Breaker Morant, Littleton Tazewell Waller, and now Jeffery Chessani (Haditha Battalion Commander).
Read When Doctrine becomes Dogma here:
http://warchronicle.com/DefendOurMar...ls_PartSix.htm
