Specially Protected Persons in Combat Situations (new title)

[jmm99]

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 in this thread, U.S. troops face Afghan enemy too young to kill (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 (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]

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]

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]

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]

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]

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]

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]

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.