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Thread: Specially Protected Persons in Combat Situations (new title)

  1. #21
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    Default War crime tribunals in the field

    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
    Last edited by jmm99; 09-17-2010 at 05:11 PM.

  2. #22
    Council Member wm's Avatar
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    Quote Originally Posted by JMA View Post
    Hang on a minute. Humanitarian intervention is mere the basis/reason for the intervention. Those whose actions have led to the intervention need to be engaged in no uncertain military terms.
    Quote Originally Posted by JMM
    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.
    Guys,

    Thanks for the rehearsal of the jus ad bellum point about humanitarian interventions (i.e., it can be a just cause for engaging in war). However, I took the fact that the original post put humanitarian in quotation marks as implying that the intervention was being conducted in a humanitarian way. On that understanding, the claim is about jus in bello, which is, to some degree, analogous to Mike's claim that ROE choice is situational. I am sure we all realize that jus in bello and jus ad bellum are logically dictinct.

    I believe the scenario as originally described is more concerned with an appeal to emotion rather than an appeal to reason. Although the letter of the law and morality of war both would allow one to kill the evil doers and their proxies regardlkess of age and gender, the fact that CNN and others will broadcast the war around the globe in near real time would suggest that an alternative option be undertaken. That was why I suggested that deadly force was not an option in an interventiuon being conducted in a humanitarian fashion, that is, humanely.

    One other point in response to the following:
    Quote Originally Posted by JMA
    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.
    A hard truth is that, morally, soldiers must endure more risks because they get a significant exception to the rules of everyday living--the approval to kill for reasons other than self-defense. In exchange, soldiers must accept the fact that they are also more likely to be killed. I equate that higher likelihood of being killed to a requirement upon soldiers to take more risks to ensure non-combatants are not harmed. Being empowered to kill others that may not be a direct threat to themselves means that soldiers must take more risks to ensure that only appropriate targets are engaged. By the way, the 3 other categories of personnel in the above quotation who could be doing the work have the same restrictions placed on them.
    Vir prudens non contra ventum mingit
    The greatest educational dogma is also its greatest fallacy: the belief that what must be learned can necessarily be taught. — Sydney J. Harris

  3. #23
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    Quote Originally Posted by jmm99 View Post
    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.

  4. #24
    Council Member M-A Lagrange's Avatar
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    Quote Originally Posted by wm View Post
    Guys,

    I believe the scenario as originally described is more concerned with an appeal to emotion rather than an appeal to reason. Although the letter of the law and morality of war both would allow one to kill the evil doers and their proxies regardlkess of age and gender, the fact that CNN and others will broadcast the war around the globe in near real time would suggest that an alternative option be undertaken. That was why I suggested that deadly force was not an option in an interventiuon being conducted in a humanitarian fashion, that is, humanely.
    First I would like to ask why should you assume that CNN will advertise the fact that you killed child soldiers and not respond to unfriendly opponents using deadly force?

    Many of the wars I have been in are/were conducted mainly by child soldiers and this has never been the angle used by media. In Sierra Leone, when the british interviened, they had to face forces composed for some up to 60% of child soldiers. And the media coverage was all about stabilising the place and freeing some UN peace keepers...

    The second point is that it is also a "media" tool for your own propaganda. If you fight warlords using child soldiers and "only child soldiers" then you are the good guy per definition. Look at Khony and the LRA. Nobody is following them now. Yes, it has more to see with their political utility than the use of child soldiers but still... In the end the use of child soldiers is an aggraving fact against you.

    In that case, the moral dimension of "child soldier" will bring media easily on your side. Do you really think that home opinion will be supporting an opponent that would send children to be killed by "peace keepers forces"?

    ROE must remain situationnal and the use of non deadly force remains situationnal. But I tend to agree with the idea of take prisonners rather than kill every children is a best practice.
    It also helps you in your counter propaganda. The UPDF is using that argument against the LRA: if you surrender and you are an abducted child forced to becaume combattant. Then you are covered by the child act and amnesty law.

    Finally, to support somehow JMA point. In DRC, the Pakistany forces used to act as you describe: shoot first; ask how are you and shoot again if someone answers. Then go to the spot. Nobody did really react. The point was clearly, even in the "civilian f#&@% humanitarian" community that there were more benefits in saying nothing than screaming and have nothing done.
    But still, this is a desperate solution. An effective one but better options can be found.

    Mike,

    I am quite interrested by the question of military tribunal.
    First, I would say (As you know me, I start as the devil advocate) that there is room for on "the spot justice of the winner". Which is not a problem when the "winner" is a force respecting Law and acting according to it. But in other cases...

    Seccondly, I am interrested because of the Thomas Lubanga case at The Haye. Thomas Lubanga was charged with crimes against humanity, war crimes and child soldiers recruitment. He has been released because of procedures. There was good chances he would have been found guilty and sentenced immediatly if this had been done during Operation Arthemis by the EU forces.
    Last edited by M-A Lagrange; 09-18-2010 at 08:33 AM.

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    Quote Originally Posted by M-A Lagrange View Post
    Finally, to support somehow JMA point. In DRC, the Pakistany forces used to act as you describe: shoot first; ask how are you and shoot again if someone answers. Then go to the spot. Nobody did really react. The point was clearly, even in the "civilian f#&@% humanitarian" community that there were more benefits in saying nothing than screaming and have nothing done.
    But still, this is a desperate solution. An effective one but better options can be found.
    Its only a major problem if you keep pushing raw 18-19 year olds into high stress (combat) situations and then tie their hands with hugely restrictive RoE.

    There is an easy solution. Conscription.

    Target universities where the commentators and analysts (who come up with the crazy ideas) reside and conscript them. Then watch and learn.

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    Quote Originally Posted by wm View Post
    A hard truth is that, morally, soldiers must endure more risks because they get a significant exception to the rules of everyday living--the approval to kill for reasons other than self-defense. In exchange, soldiers must accept the fact that they are also more likely to be killed. I equate that higher likelihood of being killed to a requirement upon soldiers to take more risks to ensure non-combatants are not harmed. Being empowered to kill others that may not be a direct threat to themselves means that soldiers must take more risks to ensure that only appropriate targets are engaged.
    Morally? What on earth are you talking about?

    Thankfully you are not a soldier otherwise there would be great concern that soldiers somewhere may be at risk of having their lives played with like a game of chance. Thank heavens for small mercies.

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    Conscription isn't a bad idea!

    Adam L

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    Default Two separate, but related comments

    JMA:

    Given a compliant indigenous folk with an underwhelming ability to resist, your suggestions and your multi-national force would probably be quite effective as you say:

    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.
    ....
    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.
    Solitudinem facient et pacem appellant. (Tac.)

    I fear I am a better Celt than a Roman.

    --------------------------
    MAL (mon "jumeau mal" ! )

    A large recent literature exists on military commisions; but that is mostly in the context of the Gitmo MCs, which are very close to formal courts-martial. Besides the 1953 JAG School article I cited above, I've found , e.g., recent articles on the use of US field MCs in the Mexican War and Civil War.

    Myers, Conquering Peace: Military Commissions as a Lawfare Strategy in the Mexican War (2008)

    Vagts, Military Commissions: The Forgotten Reconstruction Chapter (2008)

    The use of field-expedient military tribunals goes well back in time. You might be especially interested in this example, since it involved the "Colonial Troops", 1684: Indian murderers punished by Du Luth (starting at p.114 - 12 pages; you can check out the original when you are next in Paris). This is a translation of his 1684 report, which illustrates the use of diplomacy and smarts over brute force (which "Du Luth" didn't have anyway).

    "Du Luth" was really Daniel Greysolon-Delhut, who was a talented officer and above average in Canada (bios in French and English). He could have treated the murders of the French-Canadian fur traders as a native uprising or as a law enforcement matter. He selected the latter approach and did not simply execute the murderers.

    From the English bio, a brief summary of this case:

    He commandeered the services of licensed traders to help fortify Michilimackinac, reprimanded the Potawatomis for their lukewarm attitude toward the French, and renewed his peace-making efforts among the Foxes, Sioux, and Chippewas. The last of these nations was especially difficult to manage as was demonstrated in 1684 when four of its warriors murdered two French traders. When one of the culprits appeared at the Jesuit mission of Sault Ste Marie the staff of 12 on duty there did not dare to arrest him, fearing the reprisals of his tribe. Dulhut, as soon as he learned of the incident, hurried to the mission [JMM: with 6 troopers], rounded up the suspects, including the chief Achinaga and his two sons, and put them on trial. Achinaga was acquitted and his younger son pardoned, but the two others who had been found guilty were executed before 400 Indians. By coldly meting out this punishment, Dulhut taught the natives that the French were a people to be respected and feared.
    This is a good case study in how to handle situations when your force is underwhelming.

    I can see the murder scene from this room when the leaves have fallen. One of the six troopers with Greysolon-Delhut, when the principal murderer was arrested at Sault Ste. Marie (about 250 miles from here) (see p. 115), was one "Le Mire" (prenom: Joseph - one of my many TdMs in Canada).

    The suggested use of military commissions in the field may well find few advocates. That despite the fact that it could provide prompt justice as an alternative to either "justice" delayed (as at the Hague; and hence, in reality, often denied) - or to shooting prisoners, which even if effective leaves no honor as recompense for the shooters.

    Regards

    Mike

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    Quote Originally Posted by jmm99 View Post
    JMA:

    Given a compliant indigenous folk with an underwhelming ability to resist, your suggestions and your multi-national force would probably be quite effective as you say:
    I suggest that the force level required and the type of forces be selected on the dynamics on the ground. What type/quality of combatants are you likely to come up against and what is the expected reaction of the population under threat.

    If you have a small group of perpetrators inflicting misery on a largely passive population then a reasonably competent paramilitary force followed up by police action should do the business. (A bit like Timor)

    The suggested use of military commissions in the field may well find few advocates. That despite the fact that it could provide prompt justice as an alternative to either "justice" delayed (as at the Hague; and hence, in reality, often denied) - or to shooting prisoners, which even if effective leaves no honor as recompense for the shooters.
    I am not against tribunals at all but I do see claims of "jungle justice" and "kangaroo courts" being raised and even to a more shrill level if the death sentence is dished out. You are talking about a form of martial law right?

    I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes. As I said before a difficult subject to deal with in the public domain.

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    Quote Originally Posted by Adam L View Post
    Conscription isn't a bad idea!

    Adam L
    Especially when you are looking for people in a non-soldier type role. Somewhere between the Military Police and the Peace Corps. People who can be taught a different approach to such matters (as advocated university based think-tanks and assorted analysts). Then when you have to evacuate them from the country Dunkirk style you ask them "OK, so what went wrong smart guys?"

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    Default Yes, field military commissions

    are a "form of martial law" - governed by the Laws of War (or more quaintly, the "laws of honest warfare").

    And, yes, I do "know what you mean"; but fail to see why it's a difficult topic to discuss in the public domain. No one is asking anyone to lay bare what they have actually done. The issues hinge on who should be killed in armed conflicts and under what circumstances - not an unknown public discussion topic by any means.

    The basic question is what alternatives one can present (if one so believes) to the conduct exemplified by and to Anne de Batarnay de Joyeuse, Baron d'Arques, Vicomte then Duke of Joyeuse (d. 20 Oct 1587), who massacred 800 Huguenots at Saint-Eloi, Poitou, 21 June 1587; but who lived by that sword, died by that sword, at Coutras:

    The Catholic line was shattered into fragments and rolled up from the flank; Joyeuse took to his heels and was cornered by a group of Huguenot cavalry. He threw down his sword and called: "My ransom is a hundred thousand francs!" His reward was a shot in the head: for the commander who had ordered Huguenot wounded to be killed on the field and who had butchered garrisons that had surrendered relying on the laws of honest warfare, there could be no quarter.
    Those particular and other incidents in the "Wars of Religion" started folks thinking about the "laws of honest warfare" (that is, warfare with honor). The irregularities of the next subsequent Thirty Years' War further exemplified the need for what are in effect "honor codes".

    Like other "honor codes", they can be bypassed by winks and nods, as illustrated by this example of convoluted logic:

    from JMA
    I am not against tribunals at all but I do see claims of "jungle justice" and "kangaroo courts" being raised and even to a more shrill level if the death sentence is dished out. You are talking about a form of martial law right?

    I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes.
    Like giving only limited quarter is not a form of "jungle justice".

    Those "laws of honest warfare" also do not operate so well where "insiders" and "outsiders" are involved, and where reciprocity does not exist.
    Last edited by jmm99; 09-19-2010 at 06:20 PM.

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    Council Member M-A Lagrange's Avatar
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    Quote Originally Posted by JMA View Post
    I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes. As I said before a difficult subject to deal with in the public domain.
    Actually, it's not really a question of choice and feelings.
    The Law of War (The Hage convention) in its article 23 is pretty clear:
    Art 23
    - c: It is forbidden to kill those who are disarmed
    - d: It is forbidden to declare no quarter.

    The Geneva Convention is even clearer on that matter.

    Taking prisonner is an objective (for intelligence) AND an OBLIGATION at the momment an opponent is surrending.

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    Quote Originally Posted by M-A Lagrange View Post
    Actually, it's not really a question of choice and feelings.
    The Law of War (The Hage convention) in its article 23 is pretty clear:
    Art 23
    - c: It is forbidden to kill those who are disarmed
    - d: It is forbidden to declare no quarter.

    The Geneva Convention is even clearer on that matter.

    Taking prisonner is an objective (for intelligence) AND an OBLIGATION at the momment an opponent is surrending.
    OK clearly we don't shoot or allow prisoners to be shot - that includes "mercy-style killings" like that of that Canadian Captain.

    OK so where do you draw the line as to how much preparatory bombardment and supporting fire is needed on a given objective?

    Are you suggesting that a soldier is obligated to attempt to take prisoners under all circumstances or do you accept that it is enough to honour bona fide attempts to surrender where and when they occur?

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    Quote Originally Posted by jmm99 View Post
    are a "form of martial law" - governed by the Laws of War (or more quaintly, the "laws of honest warfare").
    I would like to hear what if anything the Hague or Geneva Conventions say about such tribunals. Can you help?

    Like giving only limited quarter is not a form of "jungle justice".
    OK so where do you draw the line as to how much preparatory bombardment and supporting fire is needed on a given objective?

    What constitutes "no quarter given"? I understand that to mean that no prisoners are taken. That would include in shooting the wounded and any you try to surrender. I don't advocate that.

    But can you accept that if you have given a said objective a solid stonking the issue of prisoners, wounded or otherwise, is less likely to arise.

    And as I asked M-A L: "Are you suggesting that a soldier is obligated to attempt to take prisoners under all circumstances or do you accept that it is enough to honour bona fide attempts to surrender where and when they occur?"

    Those "laws of honest warfare" also do not operate so well where "insiders" and "outsiders" are involved, and where reciprocity does not exist.
    Can you rephrase that for me please?
    Last edited by JMA; 09-20-2010 at 02:25 PM.

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    Default Legal stuff

    You should look this up yourself because the rules will differ depending upon what laws your particular country has adopted. Here's a brief outline (US law-based and the most simple since the US has not adopted the Additional Protocols to Geneva).

    If we (US) are dealing with a nation-state vs nation-state armed conflict with conventional armies, look to GC III dealing with EPWs. Basically, EPWs (from regular forces) must be adjudicated by a court akin to the courts-martial of the detaining forces.

    If we (US) are dealing with an armed conflict not of an international character (most "Small Wars"), adjudications of members of irregular forces are governed by Common Article 3 (in all four GCs), which requires that sentences, including executions, must be pursuant to:

    .... previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
    No precise definition of a "regularly constituted court" is given. Since military commissions had been very much used before the GCs were drafted in the late 1940s, normal rules of construction would require that they be considered "regulaly constituted courts" unless expressly stated not to be so.

    There's lots of room for argument with the GCs, especially with the Additional Protocols added or taken away. Whatever rules a nation finally adopts, it best be very clear about what they are and issue no apologies for their application.

    -----------------------
    "Insiders", people who march to the beat of the same virtual drummer. In this discussion's context, they would be enemies who have roughly the same standards, with reciprocity in rights and obligations vice each other. E.g., Wehrmacht vice Western Allies in ETO WWII.

    An "outsider" does not really hear the virtual drummer. He may know the code (but will use only those parts favorable to him; hence, there is no reciprocity and the code is perverted), or have a totally different code.

    Regards

    Mike

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    Default Non-legal stuff

    Nothing that follows should be considered a legal opinion on anything discussed. It also is not what I would do, since I can't say what I would do. Let's call it it what is within my moral and ethical bounds.

    ----------------
    I said "limited quarter", not "no quarter"; and you first said:

    from JMA
    I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes.
    So, some people become "prisoners" because they have intel value, but the others (not "useful" for lack of intel value) never make to the status of "prisoners".

    and said earlier:

    from JMA
    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).
    So, another group (defined by you; and probably guilty of war crimes) that will never make it to the status of "prisoners".

    That adds up to "limited quarter" in my book; but it is not "no quarter".

    -----------------------------
    I see the answer to the following:

    from JMA
    OK so where do you draw the line as to how much preparatory bombardment and supporting fire is needed on a given objective?
    ...
    But can you accept that if you have given a said objective a solid stonking the issue of prisoners, wounded or otherwise, is less likely to arise.
    to be the military advantage or not as perceived by the field commander dependent on the assets at hand.

    Given that I would go with the Hague rules, the legal (and as far as I am concerned the moral and ethical) burden is on the defender to separate civilians from combatants - not on the attacker. The Additional Protocols to Geneva turn that concept on its head and the attacker is made responsible for civilians caught in the attacked position (so also the current US ROEs I've seen). Which is why this post should not be read as a legal opinion (strictly a personal moral and ethical opinion).

    But, if the field commander is confronted with a village occupied by combatants and civilians - combatants being spread throughout with multiple observation and firing points, I'd say the field commander would be within bounds to flatten the village and (at least) degrade its military capacity, rather than conducting a house by house infantry clearance operation.

    Of course, well dug-in combatants (e.g., Monte Cassino) may survive a "solid stonking"; and if so, the bombardment might make a subsequent infantry assualt more difficult. The field commander would also have looked at bypassing or cordoning as well as the attack options.

    What I've just described (as such) did not involve any reasoning to apply a "solid stonking" to avoid the issue of prisoners, wounded or otherwise. One could probably posit sets of circumstances (especially in the special ops arena) where prisoners are not in the cards. In that case, "solid stonkings" could avoid the issue of shooting them after the fact.

    At what point does the field commander and his "solid stonkings" leave the "laws of honest warfare" and become an Anne de Joyeuse ?

    --------------------------------
    "Limited quarter" and "no quarter"

    from JMA
    What constitutes "no quarter given"? I understand that to mean that no prisoners are taken. That would include in shooting the wounded and any you try to surrender. I don't advocate that.
    ...
    And as I asked M-A L: "Are you suggesting that a soldier is obligated to attempt to take prisoners under all circumstances or do you accept that it is enough to honour bona fide attempts to surrender where and when they occur?"
    Agreed as to "no quarter given" meaning no prisoners are taken.

    But even Subotai used the wagon wheel height as a test of whether prisoners would survive or not. So, mostly we deal with "limited quarter" issues, whether that is expressly admitted or not.

    Given an infantry assault where opposition is continuing, two cases come up: a combatant who attempts to surrender; and a combatant who is downed (could appear dead or appear wounded). If the attacking soldier cannot safely take the surrender, or care for wounded, his military need could call for him to shoot both types of combatants. If he bypasses, either might shoot him in the back. On the other hand, where the dynamic situation has become static - complete end of firefight, the military reason (making sure you leave no enemy combatant alive behind you) disappears. Again, this is not the "school solution" and doesn't claim to be "legal".

    Regards

    Mike
    Last edited by jmm99; 09-20-2010 at 08:43 PM.

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    Quote Originally Posted by jmm99 View Post
    Nothing that follows should be considered a legal opinion on anything discussed. It also is not what I would do, since I can't say what I would do. Let's call it it what is within my moral and ethical bounds.

    [snip]

    Regards

    Mike
    Mike, both your posts have been very helpful. Thanks for taking the time to respond. I will revert once I've been able to digest it all.

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    JMA,

    As said previously by Mike, preparatory bombing is regulated. There are obligations for the attaking party: not target purposely civilian installations and individuals if there are no military threat or clear objective.
    Example: you do not bomb the church where all population is gathered while the defense points are 400 m far away. No military value, no military objective and targets only civilians.
    Then if populations do not flee: see Mike. It's the responsability of the defnder to protect them during the assault.

    Having people (you know what I mean) that do not make it to the status of prisonner... Well, that happens even if I do tend to think that it should not happen.
    After it depends on your objective and mandate. If it is to conduct peace imposition mission and install pacified environment: those peole are probably in your list of targets who have to be arrested. This because you prepare the stabilisation/recovery phase.

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    Quote Originally Posted by M-A Lagrange View Post
    JMA,

    As said previously by Mike, preparatory bombing is regulated. There are obligations for the attaking party: not target purposely civilian installations and individuals if there are no military threat or clear objective.
    Example: you do not bomb the church where all population is gathered while the defense points are 400 m far away. No military value, no military objective and targets only civilians.
    Yes, I am completely happy with that. My conversation here relates to a combat environment where there are few civilians and civilian installations. The preparatory bombardment would comprise little more than airstrikes.

    Using this example of where a say a battalion is in a prepared position say between 500-800 soldiers. My point was that one would surely attempt through "fire support" to inflict so many casualties that the final infantry assault would be merely mopping up.

    Subject to weapon availability I would select the most devastating in terms of KIA. Working on the rule of thumb of WIA:KIA as 3:1 with other survivors either surrendering or running one really needs to maximize the KIA and increase the severity of the WIA to ensure they cannot return to battle at some later stage.

    This led to my question as to the amount of preparatory bombardment after reading the comment about "showing no quarter". I appreciate that to attempt to regulate warfare or the conduct of warfare is a difficult matter and other than where civilians are deliberately targeted in the absence of the presence of the enemy, or WIA enemy deliberately shot/executed/murdered or enemy who are attempting to surrender or have surrendered being deliberately shot/executed/murdered where the line can be drawn.

    Following on to this I have an interest in the Capt. Robert Semrau case where he decided to administer the coup de grâce to a "98%" dead Taliban.

    Then if populations do not flee: see Mike. It's the responsability of the defnder to protect them during the assault.
    We are talking civilians here, right. We often came across comfort women, cooks, cleaners and whatever in small numbers. Some how they figured out by sitting still out in the open was the way to survive... and it generally was.

    Having people (you know what I mean) that do not make it to the status of prisonner... Well, that happens even if I do tend to think that it should not happen.
    There is a line somewhere there. Let us assume that at some point for some reason they decide that for them the war is over. This could be seconds before an air strike is about to arrive on their position. Nothing one can do about that. Or it could be that the white flags are raised and clearly unarmed men with hands in the air leave their positions. In this case they have made it to POW status. If not there is a problem there.

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    Default Indirect fires will often not do it, JMA,

    even in the conventional situation posited by you:

    from JMA

    My conversation here relates to a combat environment where there are few civilians and civilian installations. The preparatory bombardment would comprise little more than airstrikes.

    Using this example of where a say a battalion is in a prepared position say between 500-800 soldiers. My point was that one would surely attempt through "fire support" to inflict so many casualties that the final infantry assault would be merely mopping up.

    Subject to weapon availability I would select the most devastating in terms of KIA. Working on the rule of thumb of WIA:KIA as 3:1 with other survivors either surrendering or running one really needs to maximize the KIA and increase the severity of the WIA to ensure they cannot return to battle at some later stage.
    Bombardment (air & arty, pre- and during assaults) may well only degrade the ability of good soldiers to resist in prepared positions.

    Examples abound from WWI, WWII, Korea and Vietnam (also the pounding taken by the Finns on the Karelian Isthmus at the ends of both the Winter and Continuation Wars) where troops took a licking and kept on ticking. E.g., Hill 937, Ap Bia Mountain aka Hamburger Hill - Wiki History & Wiki Movie. From the History (emphasis added):

    Casualties

    U.S. losses during the ten-day battle reportedly totaled 72 dead and 372 wounded. To take the position, the 101st Airborne Division eventually committed five infantry battalions, about 1,800 men, and ten batteries of artillery. In addition, the U.S. Air Force flew 272 support sorties and expended more than 450 tons of bombs and 69 tons of napalm.

    U.S. claimed the 7th and 8th Battalions of the 29th PAVN Regiment suffered 630 dead discovered on and around the battlefield, including many found in makeshift mortuaries within the tunnel complex, and an unknown number of wounded that likely totaled most of the remainder of the two units.
    Since this engagement took place in a sparsely populated area of the A Shau, the presence of civilians was not an issue as to the tactics employed. Harry Summers wrote a more in-depth article, Battle for Hamburger Hill During the Vietnam War, in 1999 (30 years post). The media view at the time is illustrated by "The Battle for Hamburger Hill" (Time. 1969-05-30).

    As I've read the posts here from folks who've done Iraq and Astan, the combat environments are much more complicated than more conventional environments where civilians are not a large issue. My conclusion (legal) is that the tactical issues of civilians, enemy wounded and enemy surrenders will be with us no matter how much technology and longer-distance fires we throw at the problem.
    Last edited by jmm99; 09-25-2010 at 01:17 AM.

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