Specially Protected Persons in Combat Situations (new title)

[Rex Brynen]

Some years back officers of the U.S. Army Judge-Advocate General Corps put themselves in a bad odor within DoD from having to serve as advisors within targetting cells on the legality of engaging certain targets. Wesley Clark complained that during the Kosovo affair JAG officers denied him the right to engage suspected sites of Serbian anti-aircraft artillery because the latest version of the Geneva Convention -- one the U.S. didn't ratify -- requires that ground reconnaissance be conducted to confirm the presence of the enemy before such fire missions are fired, contrary to U.S. Army artillery doctrine.

If so, some JAG doesn't know their Geneva Conventions (Additional Protocols I and II) very well, which at no point mention "ground reconnaissance" but simply prohibit indiscriminate attacks.

[jmm99]

because there are often two or more variant "laws" on the same operational law topic. The forthcoming DoD Law of War Manual 2010 (is there an open-source link to this ?) may or may not clarify matters.

But that sentence from JMA, and his following comments, allow me to segué into what I hope will clarify some possible misconceptions and create some understanding of the variant positions:

from JMA
Well the law is the law. The problem is when some comparatively junior JAG types can run the show then it becomes quite ridiculous. Modern armies have a lot of time on their hands to school their soldiers in the laws of war to guide them. If you can't shake these JAG types off then at least insist that they experience some hot combat personally before they can start to dish out advice. No one make make these calls unless they have been there and done that.

Ideally, a staff JA in combat operational law would have had experience as a fire team leader, a squad leader, a platoon commander and a company commander - since that is where combat operational law finds its ultimate application. Under that criteria, the Corps should have detailed Jon Custis to law school a couple of tours ago, etc.

Now, the first reality is that US JAs are not line officers (except for the Marine Corps - and Marine staff JAs may or may not have had combat experience, as opposed to combat training).

The second reality is that most aspects of the usual JA's law practice do not involve combat operational law; it involves criminal law, personal law, contracts, finance, etc., etc.

The third reality is that even those JA's in combat operational law have not bored into the comparative study of variant law between the Laws of Land Warfare (FM 27-10), the Law of Naval Operations (MCWP 5-12.1) and International Humanitarian Law (IHL), and even more especially with the subset of Customary International Humanitarian Law (CIHL).

The fourth reality, addressed to Rex's comment:

... some JAG doesn't know their Geneva Conventions (Additional Protocols I and II) very well ...

is that Additional Protocols I and II were denied ratification and have not been acceded by the US. That does not excuse assignment of non-knowledgeable staff JAs to joint operations (e.g., NATO, where most members have adopted AP I and II) - if that, in fact, was the problem. I'll address that below.

I won't opine on whether S.L.A.M.'s comment below is generally valid for the armed forces:

“During war, it often times happens that one company, by trial and error, finds the true solution for some acute problem which concerns everyone. But when that happens to a company, I can assure you that it is the exceptional company officer who takes the initiative and passes his unique solution along to his superiors even after he has proved in battle that the idea works. A good company idea in tactics is likely to remain confined to one company indefinitely, even though it would be of benefit to the whole military establishment. Such omissions are not due usually to excess modesty or indifference on the part of the officer, but to his unawareness that others are having the same trouble as himself.” S.L.A. Marshall, Men Against Fire

but it may be valid for the transmission of combat operational law knowledge down to and up from the levels of the fire team leader, the squad leader, the platoon commander and the company commander. The quote is the lead-in quote for CLAMO's mission statement (see next post for CLAMO links).

Whether the armed forces have or have not "a lot of time on their hands to school their soldiers in the laws of war" (from JMA) will be decided by others than JMM.

What I can say is that legal training (ROEs, RUFs, EOFs and combat operational law) can't be a check the box lecture. For it to do any good, it has to be incorporated into the situational tactical training as an integral part. E.g., if tactical training involves variants of village clearing, the legal situations involving specially protected persons should be worked into that training (which is a lot more complicated that making shoot-no shoot decisions on targets in a fun house).

It would be useful to know how armed forces other than the US approach laws of war training and legal lessons learned re: combat operational law. Is everyone proficient or deficient or somewhere in between ?

The series of posts over the last 24 hours are very impressive from the quality of the issues raised.

(cont.)

[jmm99]

Now, since Kosovo was expressly mentioned, The Center for Law and Military Operations (CLAMO) [ignore MS Internet Explorer bad certificate message interruptions] has a "lessons learned", open source Publications page. Among the pubs is Law and Military Operations in Kosovo 1999-2001 (16mb; 497 pages).

A number of the key "lessons learned" (so far as CLAMO was concerned) pertain to comments by Pete, JMA and Rex.

Re: Operation Allied Force [page numbers are to the actual document, not to the pdf]

2. USEUCOM Lessons Learned (p. 45)

a. Agreement Must Be Reached on the Applicability of the Law of Armed Conflict Prior to Commencement of Operations. (p. 46)

b. Targeting (p. 48)

1. The target review process developed during Noble Anvil should be considered for future operations. (p. 48)

2. Reemphasize that the infliction of collateral damage is not a per se violation of international law. (p. 50)

3. Understand the ongoing debate over targeting the will of the enemy. (p. 51)

Re: Task Force Hawk

2. Lessons Learned (p. 58)

a. Targeting (p. 58)

1. Judge advocates must be in the Deep Operations Coordination Cell. (p. 59)

2. Develop a target review methodology and document decisions. (p. 60)

b. Rules of Engagement (p. 62)

1. Confusion over the chain of command has a direct impact on ROE
development. (p. 62)

2. Expect disagreement over "templated" targets, counter-battery radar, and "observed fires" (p. 63)

Re: International Law

1. Judge Advocates and Commanders Must Understand the International Legal Framework for the Military Mission. (p. 97)

I'll briefly discuss below some (but not all) of these pages.

LL Kosovo also goes into ROEs, etc., and training. Someone who is knowledgeable about implementation or non-implementation of these LL Kosovo might want to discuss (of course, only to the extent that the SM is non-classified):

Re: C. Rules of Engagement (p. 127)

1. Expect Difficulties with ROE in Coalition Operations. (p. 128)

a. Modifications to the ROE Will Be Difficult to Obtain. (p. 128)

b. Requests for Modification to the ROE Should Be Submitted Through Both the Operational and National Chains of Command. (p. 128)

c. Actions in Self-Defense by U.S. Soldiers Are a U.S. Issue and Interpretations of Self-Defense Issues Should Remain in U.S. Legal and Operational Channels. (p. 129)

c1. Out-of-Sector Exercises and Operations (p. 129)

c2. Current Operations and Training (p. 130)

2. Individual and Leader ROE Training Must Be Done Before the Mission Rehearsal Exercise; Individual Training Should Focus on Self-Defense. (p. 132)

3. ROE Training Should Continue During the Mission and Should Incorporate Current Intelligence and Tactical Situations. (p. 133)

4. Soldiers and Marines Will Have to Understand Multiple ROE. (p. 133)

5. Be Prepared to Articulate Rationale for Use of Riot Control Means and Plan for Alternatives. (p. 135)

6. JAs Must Know the "Peace Operation" Variation to the Code of Conduct for Training. (p. 135)

Back to the earlier sections of LL Kosovo.

This one should be self-evident: "Agreement Must Be Reached on the Applicability of the Law of Armed Conflict Prior to Commencement of Operations. (p. 46; p. 63 pdf)". That LOAC applied was not self-evident to the lawyer-politicians at the highest and next highest NCA levels, nor to their media flaks. Answer (final): LOAC applied to Kosovo. PS: the JAGs knew that.

The target discussion is in several parts. To the present discussion, the most relevant portion is in Operation Allied Force (pp. 48-52; pp. 65-68 pdf; very long footnotes omitted):

2. Reemphasize that the infliction of collateral damage is not a per se violation of international law.

JAs during Operation Allied Force were sensitive to the fact that some participants in the target review process might misunderstand the legal implications of collateral damage. In other words, the JAs wanted to ensure there was no misperception that the infliction of collateral damage was a per se violation of international law, and that the collateral damage analysis did not come at the expense of forgetting the military necessity analysis.[25]

The relevant concept of international law is the principle of proportionality. Proportionality is essentially a balancing test: the "loss of life and damage to property incidental to attacks [also known as collateral damage] must not be excessive in relation to the concrete and direct military advantage expected to be gained."[26] It follows that nothing stops a commander from placing a high premium on minimizing collateral damage.

However, as the USEUCOM JAs point out, a necessary step in the equation is articulating the military advantage to be gained.[27] Disapproving targets based solely on collateral damage assessments without a discussion of military necessity raises the suspicion that an overly restrictive legal standard is being applied. JAs can serve a critical role by emphasizing to staffs and commanders that the infliction of collateral damage is only one side of the proportionality balancing test.

3. Understand the ongoing debate over targeting the will of the enemy.[28]

The primary goal of Operation Allied Force was to compel Milosevic to capitulate to NATO's terms.[29] Accordingly, the air campaign was dual pronged: 1) destroy Serbia's military capability, and 2) break the will of Milosevic and the Serb population.[30] Many of the targets that had the effect of satisfying the latter prong highlight the current debate over the lawfulness of targeting the will of the enemy.

The latest — and most pertinent to this discussion — effort to codify and reflect the law of targeting is Article 52(2) of Protocol I to the Geneva Conventions (GP I).[31] The Article states:

Attacks shall be limited strictly to military objectives. In so far as objectives are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.[32]

The U.S. has not ratified GP I, but it does view Article 52(2) as an accurate statement of customary international law.[33] There is some disagreement, however — not only between states,[34] but within U.S. legal circles[35] — over what exactly Article 52(2) encompasses. The plain language meaning of the Article is not settled, the dispute centering on the interpretation of what constitutes "a contribution to military action" and what provides a "military advantage."

During Operation Allied Force, it is a matter of public record that, in addition to strictly military targets, NATO aircraft targeted "dual-purpose" objects—that is, targets whose destruction had the simultaneous effect of damaging the enemy's military capability and dampening the morale of the civilian leadership and population. Such dual-purpose targets included bridges, highways, electrical power installations, and railroads. Few would question the lawfulness of striking these targets under the Article 52(2) standard. [36]

The selection of other targets, however, has spawned debate in the U.S. and international legal community. For example, NATO aircraft targeted television stations.[37] They also dropped dispensers of specially treated wire over electrical power sources designed to cut off power to seventy percent of the Serbian population for a period of roughly twenty-four hours.[38] Striking these targets undoubtedly contributed to the NATO goal of breaking the enemy's will to fight. However, some argue that these targets may not have been sufficiently military in nature and, accordingly, may have run afoul of a restrictive interpretation of Article 52(2).[39] JAs should understand that varying interpretations of Article 52(2) exist, and familiarize themselves with the terms of this debate.[40]

The JAs mentioned knew comparative LOAC (incl. AP I & II) and were aware of US and international disagreement as to construction of AP I, Art. 52(2).

Regards

Mike

[Pete]

Israel's use of white phosphorus 155mm artillery shells in densely-populated parts of Gaza in 2009 became the basis for war crimes allegations, as defined by Protocol III, Convention on Conventional Weapons, which Israel did not ratify. The shells Israel used were made in the U.S. The same thing about WP was said about the U.S. Marines when they retook Fallujah in 2004. I don't know whether the U.S. ratified the protocol. The Field Artillery School at Fort Sill may have to be more emphatic about defining when it can and cannot be used.

When I was in the Field Artillery we were taught to use WP for establishing hasty smoke screens, marking targets for air attack, and setting fire to supply dumps. It is a legal weapn of war, but many people in the human rights community regard it as some sort of WMD.

[jmm99]

Here are the ICRC Indices:

Treaties & documents by date

Treaties & documents by topic

Treaties by Country

US Ratifications / Accessions

Now you can answer your own question and report back.

Cheers

Mike

[Pete]

Darn, I didn't realize that my participation in this thread would lead to homework assignments!

[SJPONeill]

The European countries have so little in terms of real problems they have lots of time to organise these ridiculous conferences to make them feel good. One hopes the economic crisis will lead them to trim this nonsense.

Probably not...'unproductive' military forces will be early targets in economic rationalisations - look at the UK which is technically still in a war in Afghanistan but which is already Freddy Kruegering its armed forces (again!), desperate to save money - and will probably have even more of these 'ridiculous' conferences so that they more all the more hastily legislate war away totally...as we know, war is a great respecter of law...

[jmm99]

Go teachem fishy.



Mike

[Pete]

"Last calling station, say again last transmission, you're coming in broken and enigmatic, over."

[jmm99]

for fishee, go linkee.

So cheeree

Mikee

[Pete]

When I was a kid I had a Zebco push-button reel and an L.L. Bean fiberglass rod with 12-pound test line, but what that has to do with the varying interpretations of the legality of using white phosphorous rounds in combat situations escapes the narrow confines of ny military mind.

Two or three years ago I believe I read that the U.S. had ratified the Convention on Conventional Weapons, but I could be wrong. When I attended officer courses at the Field Artillery School in '78 and '81-'82 we were taught WP is not to be used as an anti-personnel weapon, so the point may be moot.

One of the major problems with these different versions of the Law of War, and which nations have ratified the different versions and which have not, is when they lead to spurious claims of "war crimes" in the battle for hearts and minds in the media and public opinion. It spills over into Information Operations to paint one side or the other as being vile and wicked.

[SJPONeill]

When I was a kid I had a Zebco push-button reel and an L.L. Bean fiberglass rod with 12-pound test line...

Never been much into fishing myself...but do have an old fly line mounted on the wall at home (was there when we bought the place)....

One of the major problems with these different versions of the Law of War, and which nations have ratified the different versions and which have not, is when they lead to spurious claims of "war crimes" in the battle for hearts and minds in the media and public opinion. It spills over into Information Operations to paint one side or the other as being vile and wicked.

What's changed is that we once aimed to paint the other guy as 'vile and wicked'; now we seem content to do that to ourselves while painting the other guy as merely misunderstood...

[Pete]

The Law of War as we know it originated in Western Europe and North America, and is generally observed by the English-speaking British Commonwealth nations. In the rest of the world it is more honored in the breach rather than the observance. Few people in the Islamic world seem to get upset when terrorist groups blow up non-combatants, cut peoples' heads off and put videos of it on the net, execute people, use mosques, hospitals, or ambulances to store or transport munitions, and so on. On the other hand, when a Western nation does anything legally ambiguous the human rights crowd wants to put the U.S. Secretary of Defense on trial.

[JMA]

Israel's use of white phosphorus 155mm artillery shells in densely-populated parts of Gaza in 2009 became the basis for war crimes allegations, as defined by Protocol III, Convention on Conventional Weapons, which Israel did not ratify. The shells Israel used were made in the U.S. The same thing about WP was said about the U.S. Marines when they retook Fallujah in 2004. I don't know whether the U.S. ratified the protocol. The Field Artillery School at Fort Sill may have to be more emphatic about defining when it can and cannot be used.

When I was in the Field Artillery we were taught to use WP for establishing hasty smoke screens, marking targets for air attack, and setting fire to supply dumps. It is a legal weapn of war, but many people in the human rights community regard it as some sort of WMD.

I believe the concern is when WP is fired into areas of civilian population and/or with the intention to start fires (burn them out).

Can the effect of this photo on the Vietnam war effort (and beyond) ever be truly assessed?



The response to claims of war crimes should be met at a political PR level and not by soldiers on the ground who should bound only by the parameters for the use of such weapons passed down their chain of command.

We had similar problems (but on a small scale) where whatever we did was closely scrutinised and in many instances deliberately misreported. The US and Israel are no strangers to this phenomenon either.

The US and Israeli politicians should be demanding war crimes proceedings be initiated against those firing rockets into civilian settlements. Can't for one reason think why they have not... or maybe they accept that these Israeli settlements are legitimate targets?

[JMA]

Two or three years ago I believe I read that the U.S. had ratified the Convention on Conventional Weapons, but I could be wrong. When I attended officer courses at the Field Artillery School in '78 and '81-'82 we were taught WP is not to be used as an anti-personnel weapon, so the point may be moot.

Help me understand something here please.

If you fire 155 WP air burst/or other at infantry in the open what percentage of enemy would (theoretically) be hit by WP under each burst.

(For example: Everyone within 15m of the burst, 30% out to 30 meters and 10% out to 50m.)

[Tukhachevskii]

One of the major problems with these different versions of the Law of War, and which nations have ratified the different versions and which have not, is when they lead to spurious claims of "war crimes" in the battle for hearts and minds in the media and public opinion. It spills over into Information Operations to paint one side or the other as being vile and wicked.

Let's not forget that our media are very often our own worst enemy's. Given their inability to report the facts faithfully and without embellishment or without supporting our enemies in the process (i.e., doing their IO/Psyops work for them). The following paper really opened my eyes in that respect (and always thought it was Al-Jazeera and Al-Mattar that were the bad guys!)...

The Media as a Weapon in Asymetircal conflict

[M-A Lagrange]

How does a war without rules looks like? Well, it looks like what is described into the UN report on the 1993-2003 conflicts in DRC.

This is relevant to another threat also and has a lot of political implication but it is important for all to actually know how the dirtiest war since WW2 looks like.

Democratic Republic of the Congo, 1993-2003

Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003

June 2010

United Nations High Commissioner for Human Rights

http://www.genocidewatch.org/drofcongo.html
A direct link to the report:
http://www.ohchr.org/Documents/Count...T_FINAL_FR.pdf

Hopefully, even at their worst moment, Irak and Astan never looked like that. (Welcome to Barsoon on hearth, nothing romantic in here).

Secondly, I may come with a more detail post but I would like to respond to the fault assumption that GC are coming from West.

The Law of War as we know it originated in Western Europe and North America, and is generally observed by the English-speaking British Commonwealth nations. In the rest of the world it is more honored in the breach rather than the observance. Few people in the Islamic world seem to get upset when terrorist groups blow up non-combatants, cut peoples' heads off and put videos of it on the net, execute people, use mosques, hospitals, or ambulances to store or transport munitions, and so on. On the other hand, when a Western nation does anything legally ambiguous the human rights crowd wants to put the U.S. Secretary of Defense on trial.

The oldest legal and religious text about regulation on conflict is a Hindu text: the Manu code.
The second oldest text is: the code of Hamurabi
We are talking about -1500 years BC.
And some of those rules are still in place in the GC especially the protection of wounded and disarmed combattants.

The first religious almost western text is the Deuteronom from the Bible (old testament).
Muslim also have a long history of several pre GC legal and religious text on conducting war.
The GC additional protocols were mainly initiated by the non aligned countries after the anti colonial/liberation wars. The Palestinian case was one of the motors of the negotiations (And Palestinian are manly Muslims and definitively non westerners).

It is a fake assumption that GC are a western product. The 1st GC is a 100% European product, targetting the super powers of that time, and the form (a binding treaty) of the GC are mainly based on European/Western international treaties form but such documents do exist in all cultures and all over the time in the past.

Here again, we are not in a legal discussion but fall under an ideological discussion.
How did that happen?
I would recommend reading the book a “bed for the night” which focuses on the turning point (during the 90) from GC to Human Rights as a norm in war and its promotion through NGO and UN.
http://books.simonandschuster.com/Be.../9780743252119

-------------------------------------------------------------------------
Mike,

Sorry for your losses. All my support.

Also, you did not pi$$$d me off, I wanted just to clarify the common idea about the opposition/frictions between NGO and military.

M-A

[JMA]

Here is a story to follow:

Soldiers more likely to be in court: expert

Some background to this:

Army decisions under fire

What galls the soldiers watching this process unfold is that unlike most of us, they have lived through the danger of these situations. Soldiers know that in the midst of a firefight, even battle-hardened veterans find it tough to work out how many people are shooting at them, and from where.

It seems it will all come down to the micro detail of who did what and when during that fire fight. There but for fortune go you or I.

I mentioned before in a little war story about the danger of a 18-9 year old or anyone pulling off a round that will start a train of events that can have tragic consequences... especially at night. And these were the top soldiers that Oz can provide.

The one thing is that if it gets to court the record will be public which allow close scrutiny... for better or worse.

[jmm99]

If you follow the links and look at what the Convention is - and read it closely and do a little independent research, then that information will be impressed within the "confines" (narrow or broad) of your military (or non-military) mind and you will understand it.

Don't give the man fish, teach him how to fish.

The first modern, comprehensive code re: land warfare was the Lieber Code of 1863 ("Instructions for the Government of Armies of the United States in the Field") - the second entry in the ICRC:

Treaties & documents by date

Some provisions pretty much hold up today:

Art. 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

Art. 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

Art. 16. Military necessity does not admit of cruelty -- that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

Others do not:

Art. 17. War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.

Art. 18. When a commander of a besieged place expels the noncombatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.

Cheers

Mike

[SJPONeill]

Can the effect of this photo on the Vietnam war effort (and beyond) ever be truly assessed?

A red herring perhaps in JMM's fishing analogy...? This photo was taken in June 1972 when Vietnamisation was well advanced and US forces had been withdrawn to only a fraction of their 1967-68 peak so arguably it's effect on the Vietnam war effort was negligible. As to its effect beyond, it is probably about the same as Eddie Adam's image from Tet 68 of a captured VC being executed by a South Vietnamese officer, something for the anti-war movement to wave on their placards. As to the effect of either on the conduct of military operations, I'd argue that this was also negligible as nothing really changed until, as previously covered in this thread, DESERT STORM when it all unravelled and we began the descent into the legal anarchy being discussed now...