Never argue over shiny objects with the bear!
Hey JMM…I once heard a story or fable about catching a monkey… you first cut a small hole in a coconut shell…just big enough to allow the monkey to slip his hand into the shell. Then stake out or tie down the shell and put something shiny and bright into the shell. When the monkey reaches in and grabs the shiny object he makes a fist that prevents him from getting his hand out of the shell …because the monkey refuses to let go of the bright shiny object, he gets caught.
Hello LawVol, first, thanks for your comments and keeping the discussion going on this tread. Despite the discussion being a bit ignored, I think it is of vital importance and the fact we have gotten an US Air Force Kabul person involved makes my day. At this point, I know JMM is waiting for me to drop the other shoe…
LawVol, I am a little surprised by your arguments and comments…most are sophomoric at best. For that reason, I am not going to address them all but just some of the gems. You seem to be talking in sound bits not based on doctrine but dogma. The only “feel good” dogma argument you seemed to have missed is “justice is blind”. You can read about the difference between doctrine and dogma here: http://warchronicle.com/DefendOurMar...ls_PartSix.htm
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The law of war (or law of armed conflict as it is sometimes called) doesn't tell you how to address a land dispute issue between two farmers.
I agree, however, neither can a judge, a mayor, a lawyer or a policeman who is not there. Remember, within this thread, these are law arguments within the context of an insurgence war. A squad leader, a platoon leader, a company commander or a battalion commander can resolve the issue when it occurs in his assigned AOR when the Rule of Law does not exist because the Taliban has literally killed it off. In that situation all you got is the Laws of War or (and you use the politically incorrect word) marshal law. To assume our military leaders at all levels cannot resolve these types of issues in war zone smacks of distrust.
Yes, commanders need lawyers on their staff and as I mentioned, General Martin’s example of opening the Syrian border is a good positive example. Remember in the Syrian border example, a judge is not making the decisions, it is the military commander operating and exercising his military authority; the lawyers are in support.
I am arguing you must start with the Laws of War and transition to the Rule of Law and both cannot exist together. When US Soldiers and Marines are collecting evident for judges you are mixing them. When you turn insurgents over to civil judges for insurgent activities, you are mixing them. When you mix them, you undermine your own counter insurgent strategy to your determent and to the benefit of the enemy. There must be a transition, and the question then becomes what is the transition point. I do argue that the transition point is when the troops are no longer needed because the local Rule of Law system can stand on its own. Until the troops are withdraw, you operate under marshal war.
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This is being done here, to some extent. There is a national security court system here that prosecutes those captured on the battlefield. These Afghans are tried in an Afghan court, on Afghan soil, by an Afghan prosecutor, while represented by an Afghan defense attorney, in a trial presided by a panel of Afghan judges. American attorneys do play an advisory role, but have no active role in the proceedings.
If this is working so well let me ask this question: 1) how many Afghans, Taliban, and/or insurgents have been brought to trial for killing US service men and women? 2) Another question, if this is working so well why have Afghan casualties gone up significantly each year since and inclusive of 2008?
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While there are indeed differences of opinion among legal folks, an insurgent is invariably seen as a combatant (legal or otherwise). A spy is in a quite different category. The Geneva Conventions recognize only two categories of persons on the battlefield: combatants and non-combatants. A combatant is one who takes up arms; a non-combatant does not do so. A combatant that violates the laws of war, as do insurgents that use the tactic of terrorism, remains a combatant. Sure, Bush lawyers invented the term "illegal combatant," but this isn't found in the Geneva Conventions. A combatant that violates the laws of war loses his criminal immunity and can be tried for war crimes.
Again, I agree. However see questions 1 and 2 above. DOD orders and directives are clear that any war crime committed by or against US military personal must be investigated and resolved. To bow those orders and directives to the Afghan rule of law while the troops are still fighting is unpardonable in my silly legal 101 opinion. (BTW thanks for the law 101 lecture but I got it a very long time ago.) By not applying the laws of war to the insurgents you are undermining your own strategy and efforts. Another question: How many spies have been prosecuted or are there none in Afghanistan?
LawVol, you are offering up the bright shiny objects of a bad strategy that is short on merit. Recommend, like before, that you go back and read the MCSWM and then ask the question why it provides a guide for marshal law and ends with a chapter on “withdraw”. Your correct simplification is not easy but it is not an excuse not to try.
Whoa, Dobbins (that's more than one horse)..
before you agree on this:
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The Geneva Conventions recognize only two categories of persons on the battlefield: combatants and non-combatants.
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, covers combatants and non-combatants (the latter being members of the armed forces who should not bear arms - ties in with GCs I and II).
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, covers civilians on the battlefield and in occupied territory.
To them, you can add the participants, combatant and non-combatant, who engage in armed conflicts not of an international nature under Common Article 3 of all four GCs.
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And, yup, I heard that monkey story ... in which one of my great-gg....ggrandfathers played the main role - and suffered a horrible fate. But then he was a Marine officer and a French-Canadian. :)
Regards
Mike
If I say too much, I'd give away the answer(s) ...
;)
Something of a law school exam question; but it also includes tactical issues since choice of tactics will affect choice of law (and vice versa). And, also, includes choice of strategy and policy since those factors enter into ROEs and RUFs.
The "what would you do if you were there" part of the question is left wide open because I'm not about to write military hypotheticals. The basic situation has been described and addressed in a number of SWC threads - some involving situations which were handled by Os and EMs who posted here.
The hypo is simple, but add the alternatives and you end up covering both Laws of War and Rule of Law (not necessarily applicable at the same time). In short, a complete answer requires the whole ball of wax.
Regards
Mike
I love scenario based questions! They remind me of “WHAT NOW LT” films.
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Hey John (and anyone else interested),
You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.
What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.
Regards
Mike
__________________
JMM
Interesting question, I am going to take a different approach here looking at different techniques (or tactics) required (probably too strong of a word here…hmmm… how about taught vs required) in both the Laws of War and the Rule of Law. If you are operating under the Laws of War, the squad leader should immediately order his grenadiers to start pumping 40mm 203 rounds through the windows while his AR men put a steady stream of suppressive fire into the exterior doors. As suppressive fires are executed, the squad leader leads a 4 to 5 man stack to the best entry point and proceeds to clear the house with grenades and small arms fire. After the house is cleared, he sorts the bodies, secures POWs, treats the wounded, and hopefully, at least one AQ is captured and/or wounded and available for intelligence interrogation and gathering. As a Law of War scenario everything I just described is legal and they stay legal even if you add the collateral damage of a dead mother and child to the causality list. BTW because of the mother and child’s presence, the AQ survivor should also be charge with the war crime of using civilians as shields.
In the Rule of Law approach the Afghan national police surround the house. The police Lt or sgt pulls out the bullhorn and announces the house is surrounded and states the AQ should come out with their hands in the air to allow their arrest. If the AQ members refuse and announce they have a mother and child as hostage, the Afghan police begin captive hostage negotiations. (Hopefully, there is not another AQ unit in the area that can attack and wipe out the police while negotiations are ongoing.) When they surrender (big assumption here considering AQ is an organization full of suicide bombers and everyone of them believes that martyrs go to heaven) the chief policeman starts to collect evidence to support his case against the members of the AQ for charges of….hmmm…charges??? What do we charge these AQ folks with?? What have they done that is illegal…what laws have they broken…? (Maybe illegal immigration?? How many cases have been prosecuted in Afghan for illegal immigration?) And Oh!...the Afghan policeman has 96 hours to build this case before all detainees must be released. Oops sorry, that is our NATO rule not the Afghan police rule.
Now according to LawVol, the correct answer is c. Rule of Law and Laws of War:
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Thus, both the law of war and rule of law must be simultaneously applied.
after all, that’s the doctrine (remember you said it brother, and I am not putting words in your mouth this time). I am very excited about reading LawVol's solution to this JMM scenario.
Carl in many ways you have the correct approach and answer. However the risk is very high, (I know, no guts no glory!) and I think your assumption is that in this scenario your gut (or that feeling for situations warriors can and do develop in war) is telling you that you can pull this off. But what if your feelings are telling you these AQ guys will go down taking as many Americans as they can with them. The scenario says these are confirmed AQ, not Taliban, not pilgrims, and not visiting relatives. Remember, no one knocked on Zarqawi’s door in Iraq. We dropped two 500 lb bombs on the house he was in and caused multiple collateral deaths (including a woman) and guess what…under the Laws of War it was legal.
One more step: Let’s assume the Carl approach, but when the chief policeman knocks on the door mister AQ guy answers the door, seizes the initiative, and puts a pistol to the knocker’s forehead and blows out his brains. Will the remaining Afghan policemen apply their Rule of Law techniques or will they turn to the squad leader and say; “Clear that house”? At that point the squad leader needs to make a decision of which applies, the Rule of Law or the Laws of War. It is a decision of either or…not both.
Inter arma silent leges: in time of war the law is silent.
Is pugil practice nearly over ....
or should I plan on sitting back and waiting for a while ? :)
We all know this (html & pdf):
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Modern crisis responses are exceedingly complex endeavors. In Bosnia, Haiti, and Somalia the unique challenges of military operations other-than-war (MOOTW) were combined with the disparate challenges of mid-intensity conflict. The Corps has described such amorphous conflicts as -- the three block war -- contingencies in which Marines may be confronted by the entire spectrum of tactical challenges in the span of a few hours and within the space of three contiguous city blocks.
So, following this construct and positing a separate mission in each block, we could have mission 1 governed by RoL, mission 2 governed by LoW; but can we have mission 3 governed by both RoL and LoW at the same time ?
Obviously, if we look at mission 1 and mission 2 as a whole, RoL and LoW are governing at the same time, but as to separate missions.
I can't think of an example where mission 3 (let's posit it has a single legal issue) could be governed by both RoL and LoW at the same time, unless RoL and LoW are exactly the same. In that limiting case, one has a distinction without a difference.
If RoL and LoW are different and conflicting, mission 3 would become a contradiction in terms.
Yeh, you can have a country with RoL in parts and LoW in other parts (USA during the Civil War as an example); but, both cannot contradict on the same issue.
Regards
Mike
PS: Not really -
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Inter arma silent leges: in time of war the law is silent.
In time of war, the law allows military discretion - e.g., can a surrender be accepted reasonably and safely in the combatant's judgment. The law (at least to the US Naval Services) (is) (was) quite explicit on that one. There is a lot of difference between being silent and cutting a lot of slack.
I am beginning to like you lawyer guys!
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Originally Posted by
jmm99
Is pugil practice nearly over ....
or should I plan on sitting back and waiting for a while ? :)
OK …I just felt my choke chain jerk (kindly)…the good news is no one yelled the word “heal” at me.
In the augments above both General Martins and LawVol state and lament (the lament word is not intended for LawVol) the complexity of establishing the Rule of Law in an insurgency. I agree. It is very complex. In fact, that complexity is costing us time we can ill afford. No matter where you are in establishing the Rule of Law at some point in the near future someone is going to declare victory and everyone goes home. I am not saying that we should not move Afghanistan to the Rule of Law…that is a good strategic requirement for a Counter Insurgence War, however, it will not win the war for you (at least in the amount of time we have left). Implementing the Rule of Law is a noble and honorable cause. I understand Afghanistan is unique and a third world Tribal County …but your running out of time…we are going to have to do something different if we are going to be successful.
I am saying, if it is complex; then simplify. In my mind, the Laws of War are as simply as you can get (yes, I am not a lawyer and personally ;), I think I deserve a medal for coming into this discussion with all you lawyers). In my opinion, the LOW and ROL cannot exist together on the battlefield because not only are they based on different principles but also different decisions makers play their roles very differently.
The ROL requires an extensive system…here in the states we have volumes of law books and history, policeman, detectives, lawyers, prosecutors, judges, CSI’s, experts, the list is all most endless. As you build that system in Afghanistan, (whatever it will look like, as long as it works) take the complexity of the firefights and war out of the building phase. You cannot have first term enlisted Soldiers or Marines trying to do the job expected of seasoned police detectives. You are scheduling the Soldiers and Marines to fail. In combat, (and I mean eye ball to eye ball combat) the only legal apparatus in effect that protects our Soldiers and Marines is the Laws of War. I have never seen an OPORD spell out the ROL in war or peace time for that matter. The ROL is not your main effort, elimination of the insurgents is. The best way to eliminate the insurgents is to let the Soldiers and Marines fight the war under the LOW, like they always have.
LawVol argues that both the LOW and the ROL apply in the Afghan counter insurgency war. That statement works fine at the “bright shiny” strategic level but it adds a complexity at the tactical level that, in my opinion, undermines the counter insurgence strategy. General Martins, in his speech, gives us another example of this complexity:
” Fourth observation: having competent and deployable legal support, much of it trained in halls such as these, is not enough. I grow concerned when I hear of an Italian prosecutor filing charges against a U.S. soldier who followed his rules of engagement and tragically shot and killed an Italian agent during the agent’s rescue of an Italian journalist. Investigation established that the agent had failed to communicate his plan to coalition forces or comply with the soldier’s instructions; wisely, the Italian court dismissed the case. I grow concerned by suggestions that soldiers during armed conflict should be held to the same standards of collecting evidence, establishing chains of custody, and giving rights warnings to which policemen are held in American cities and towns.”
I would submit that this is why the doctrine that both the LOW and the ROL existing together is flawed. If they operate together, after it was determined that the soldier followed his ROE (again ROEs are based on the LOW), then the Italian prosecutor would be correct in charging the soldier with murder under the ROL. And why not, if the charge was murder (and that is an assumption on my part) the Italian prosecutor had the two basic ROL elements of proof for murder; intent and a body. Someone had to make a call here. I am hoping it was a commander who stated that the ROE (LOW) were followed and therefore, we will not proceed with a ROL murder trial (and bless the lawyer that sorted that one out with the Italians).
If you look at the transition of the LOW to the ROL, and assume it is a time line. You can start anywhere on the line based on the situation in a village, a province, and or a city. If there are no insurgents in a village, Great!...establish control with the troops under the LOW (do not tie their hands with the complexity of the ROL) , establish the mayor, the judge and the police and when they are ready, declare they are now operating under the ROL and withdraw the troops to the next village. Personally, I feel that is a tremendous incentive for the village to cooperate with the troops and their leaders to move to the ROL and that supports the counter insurgence strategy.
At the beginning of the Civil War President Lincoln suspended habeas corpus. He immediately recognized that something else was needed in order to successful prosecute the war. He ordered the creation of the Lieber code formally titled: “General Order 100: Instructions for the Government of Armies of the United States in the Field.” The Lieber Code is considered the first written Law of War. As the Union fought the war and occupied the southern states, the Lieber Code, the LOW at the time, was the law that controlled the war and the occupation. As insurgencies started to flared up, after the war in occupied territory, the military commanders effectively eliminated those insurgencies and then transition the occupied territory to the ROL. The Lieber Code would later be the basis of the Geneva Conventions LOW. General Order 100 was in effect for the Civil War, the American Indian Wars, the Spanish American War and the Philippine America War (an insurgence).
LawVol stated: “A shoot first, ask questions later mentality can lead to war crimes and/or political circumstances not desired by the command authority”
Disagree and agree. In all the combat cases that have embarrassed the US Military publically and politically in both Iraq and Afghanistan, none have anything to do with “shoot first and ask questions later”. I will make the argument that is because the LOW (military necessity, distinction, self-defense) authorizes the US Military to engage the enemy where and when we find them. In the Haditha case, a Marine rifle squad cleared two houses causing collateral damages (much like our “what now” scenario above). The first investigation found that the Marine squad followed their ROEs (WOL) and like our Italian example above, the same Marines were charged with the ROL charge of murder. Not because of any loyalty to the ROL but because the service chief did not like the political circumstances.
In times of war, the “rule of law” is silent - just one last poke!