Specially Protected Persons in Combat Situations (new title)

[jmm99]

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]

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 (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

[JMA]

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.