Yes, getting the salient point
Quote:
from motorfirebox
*Headdesk* Too focused on remembering where the actual wording was, forgot to verify the list of ratifiers. I'm really batting a thousand on the GC.
The point remains: there is a difference between unlawfully targeting those protected by whatever laws are applicable, and making a bad judgment call that results in the death of those protected.
It's very easy (too easy) to have incidents of cranial gas passage when considering "international humanitarian law" in general and the GCs (+APs) in particular. ;)
Moving away from that to your salient point (para 2 quoted above). The video and transcript proved to me that the Apache people's perception (consistent throughout) was that they were engaging a hostile armed force (groiund unit had been in contact; and not everyone in an armed force has to be carrying a weapon openly). Their perception was correct (weapons were found), although they mistook the cameras for weapons ("bad judgment call" or simply "war fog"). Criminal intent is clearly lacking (as opposed to intent to kill hostiles, which is clearly present - it's supposed to be).
Another key factor was the investigation report, which found no wrongdoing. As a worst case scenario, I envisioned that report being ashcanned and a flag officer pushing for a prosecution (which has happened). But then, issues of undue command influence aside, I envisioned "MAJ Investigator" being called by the defense. What a wetdream scenario for defense counsel - a built in reasonable doubt.
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Hey WM: "I dispute the entire notion of "customary law." As it is often presented, I too. But full discussion of that would move us far off the mark. What is important is this:
Quote:
I have noticed a large number of people believing that the notion of "customary law" should make the U.S. subject to API and APII.
That number includes some JAs, as well as operational soldiers who have been wrongly indoctrinated. Your post and its long quote, here in another thread, sets out the correct picture under US law. Good material.
I think your link was clobbered by a filter. Could you post the author, name, publication and year of the article, so it can be Googled to get its url.
Regards
Mike
AK-47s, RPG, SOPs, and misinformation
Since when is it against the rules to have an AK-47 in Iraq? This is not a justified ground to attack an Iraqi as it is their legal right as Iraqis to own one AK-47 per household. Granted, if the AK-47s where directed at an incoming host nation or other MNC-I combat troops the Apaches would be justified in their attacks.
As far as the camera, the telephoto lens of the cameraman is amazingly huge and at first caught my eye. Then I saw an image of the photographer with a massive telephoto lens. Regardless, the object in the video is smaller than an RPG.
With all of this identified, US Army CID will have one massive job. Also, certain SOPs will possibly be created such as what proper chatter to be used for conversations over the radio. Professionalism can go a long way, even when possible wrongs occur. Second, this may already have been established put proper Rules of Engagement. To my knowledge every combat zone I have been in has issued ROEs prior to boots on the ground. This will most likely be part of the CID investigation.
With regards to the children and the location where they were to go. No one is aware of the nearest hospital, the time it will take for a Blackhawk to arrive versus the IPs medical teams. There are too many unknown variables that resulted in the decision made by the chain of command for the appropriate action for the children.
There is more to the situation than all the self-professed experts identify. I'm in no way an expert and will eagerly wait for the CID report findings. All I am able to do is put my 2 cents in based of my experience in Iraq during the surge.
Judge, jury and executioner
Quote:
from mendel
After a few days thought about this, I was reminded of Judge Dredd, an old Science Fiction "street cop empowered to act as judge, jury, and executioner". I see the four Apache crew in exactly that role.
The problem with this word picture (to this apparently Neanderthalian USAian, JMM) is not that it refers to a sci-fi character, but that it attempts to import the concepts from a civilian due process legal trial and sentencing into a combat situation.
In a combat situation (whether regular or irregular), the soldier operates under the same basic rules: definition of the enemy, distinguishing combatants from civilians, military need for the action taken and proportionality (which does not mean that civilians have to be absent in order to fire on the target). The decision to shoot or not rests on the shoulders of that soldier, who is indeed "judge, jury, and executioner".
Those rules are more difficult to apply in an irregular warfare situtation where irregular combatants are "transitory guerrillas" - they meld into the general population which becomes in effect their camo and cover. It is in this situation that the divergence occurs between parties who have adopted Hague, 1949 GCs, 1977 API&II and the ICRC requirements of "direct participation" in "hostilities" (e.g., Germany) - and those parties who accept only Hague and the 1949 GCs (e.tg., USA).
Now, it is quite possible that, in Germany (I don't know their ROEs), the rules of engagement take away that decision from the soldier at the tip of the spear - and require multi-party review and agreement before a shot can be taken. All that should come out in the charging documents and subsequent events in the German Astan tanker bombing case.
The decision can also be taken from the individual soldier at the tip if the military in question has micro-management in practice (even if not required by the ROEs). In a micro-management environment, legalistic analysis may outweigh operational analysis; but political considerations are more likely to outweigh both legalisms and operations.
The comments from Fuchs, Mendel and others possibly reflect the influence of "international humanitarian law" as it is accepted in their countries; and as it apparently is being applied in Germany in the Astan tanker bombing case.
The problem for many here (including myself) is that their conclusions about this Apache incident are phrased in terms of what would be - if German law applied here. Thus, the Apache crew are "indicted" as "war criminals".
The broader picture, as I see it, is that there are serious chasms within the "Coalition" as to the basic issues of enemy definition, civilian distinction, military need and proportionality.
Regards
Mike
PS - PeaceOutE. Has this case been re-opened for investigation ? Not that I'm aware. It was investigated and the report can be found here, AR 15-6 Legal Review - first linked by pjmunson in this thread at post #8. No criminal liability was found.
It it has been re-opened, please provide a reference so we can explore the logic of that.