The Wikileaks collection

[jmm99]

Re: this

from motorfirebox
No matter if this conflict falls under GCIII's "convention in miniature" or the more general purview of GCI, this particular engagement falls under Protocol I Additional to the GC, 1977 (specifically, Article 57).

Neither the US nor Iraq has ratified 1977 AP I. How then do you make it applicable to this engagement ?

Regards

Mike

[Massengale]

If that's the legal reality, then the legal reality--on top of being straight up clown shoes--seem more likely to create more strife than it actually resolves.

Not at all. "conflict of an international character" means a conflict overtly between states. insurrections can be dealt with in a more robust and kinetic fashion than simple police actions....and, in fact, arguably with more latitude than straight up international war.

[Wargames Mark]

Re: this



Neither the US nor Iraq has ratified 1977 AP I. How then do you make it applicable to this engagement ?

Regards

Mike

I share your disagreement with the notion of the U.S. being subject to a treaty which the U.S. government has not signed and ratified.

I have noticed a large number of people believing that the notion of "customary law" should make the U.S. subject to API and APII.

I dispute the entire notion of "customary law."

[motorfirebox]

Re: this



Neither the US nor Iraq has ratified 1977 AP I. How then do you make it applicable to this engagement ?

Regards

Mike

*Headdesk* Too focused on remembering where the actual wording was, forgot to verify the list of ratifiers. I'm really batting a thousand on the GC.

The point remains: there is a difference between unlawfully targeting those protected by whatever laws are applicable, and making a bad judgment call that results in the death of those protected.

[jmm99]

from motorfirebox
*Headdesk* Too focused on remembering where the actual wording was, forgot to verify the list of ratifiers. I'm really batting a thousand on the GC.

The point remains: there is a difference between unlawfully targeting those protected by whatever laws are applicable, and making a bad judgment call that results in the death of those protected.

It's very easy (too easy) to have incidents of cranial gas passage when considering "international humanitarian law" in general and the GCs (+APs) in particular.

Moving away from that to your salient point (para 2 quoted above). The video and transcript proved to me that the Apache people's perception (consistent throughout) was that they were engaging a hostile armed force (groiund unit had been in contact; and not everyone in an armed force has to be carrying a weapon openly). Their perception was correct (weapons were found), although they mistook the cameras for weapons ("bad judgment call" or simply "war fog"). Criminal intent is clearly lacking (as opposed to intent to kill hostiles, which is clearly present - it's supposed to be).

Another key factor was the investigation report, which found no wrongdoing. As a worst case scenario, I envisioned that report being ashcanned and a flag officer pushing for a prosecution (which has happened). But then, issues of undue command influence aside, I envisioned "MAJ Investigator" being called by the defense. What a wetdream scenario for defense counsel - a built in reasonable doubt.

-------------------
Hey WM: "I dispute the entire notion of "customary law." As it is often presented, I too. But full discussion of that would move us far off the mark. What is important is this:

I have noticed a large number of people believing that the notion of "customary law" should make the U.S. subject to API and APII.

That number includes some JAs, as well as operational soldiers who have been wrongly indoctrinated. Your post and its long quote, here in another thread, sets out the correct picture under US law. Good material.

I think your link was clobbered by a filter. Could you post the author, name, publication and year of the article, so it can be Googled to get its url.

Regards

Mike

[mendel]

The practical limitations of attack aviation is glaringly exposed, including their great field of view but poor ability to discern fine detail, and inability to influence the battle by anything other than shooting.

I don't think it's the fine detail that's the issue here. Apart from the points in your summary, I see a psychological issue.

After a few days thought about this, I was reminded of Judge Dredd, an old Science Fiction "street cop empowered to act as judge, jury, and executioner". I see the four Apache crew in exactly that role. (Unlike the kind of operations that Anthony Martinez described, where somebody on the ground reviews the video feeds and decides on the use of deadly force (but the crews would still play a large part in the decision-making process), it seemed to me that in this case, the Apache crews were on their own, with "Bushmaster" merely clearing them to fire in the sense of "we're out of the way".)

I've read the Apache crew's witness statements which the DoD has released. It confirms the impression that the video has left me with: that they've consistently overestimated the actual threat; their witness statements speak of 15 people on the street when there were 8, and 5-6 people in the van episode when there were clearly 3. Since I expect people who are allowed to handle helicopters to be able to count, I get the distinct impression that on that day, they were not in the frame of mind that I would wish somebody who acts as in the abovementioned triple role to be in when assessing matters of life and death. (Maybe battle fatigue?) A system that put these people on that day in this role seems broken to me. Has it been fixed?

I've read numerous forum posts on this issue that thank the Apache crews for "saving their bacon"; imagine the number of Iraqis that blame them for killing their sons, husbands or fathers, and it's clear that this is a sensitive issue if we've got a conscience. The question is not, "can these people be legally convicted for this", but rather "do we want things to keep on happening this way"? What has been done to change this, and what still needs to be done?

[Cecil Turner]

I don't think it's the fine detail that's the issue here. Apart from the points in your summary, I see a psychological issue.

In my opinion, using a SciFi flick adapted from a comic book as a cultural reference really doesn't add. And I think logical arguments are more impressive than armchair psychoanalysis.

It confirms the impression that the video has left me with: that they've consistently overestimated the actual threat; their witness statements speak of 15 people on the street when there were 8, and 5-6 people in the van episode when there were clearly 3.

I've not read the apache witness statements and would appreciate a link. But there are at least 17 people in the opening scene on the video, and 9 on the corner. And there are two RPGs, but they only see the big bulky one (that happens to be a video camera). I think that reinforces my view that their analysis suffered from missing fine detail, not overestimation. But they also are barely making out weapons (e.g., missing the AK and RPG at first, then mistaking them for two AKs), and so are logically assuming the others are similarly equipped and so there are others there they can't see. (Which is indistinguishable from overestimation as a practical matter.)

I've read numerous forum posts on this issue that thank the Apache crews for "saving their bacon"; imagine the number of Iraqis that blame them for killing their sons, husbands or fathers, and it's clear that this is a sensitive issue if we've got a conscience.

You persist in viewing these guys as noncombatants and I just can't feature it. They brought along the RPGs for a reason, and I can't think of a more logical explanation than they were setting up a photo shoot of the shot, and still fairly casual and getting ready to drop the empty tubes and run like hell after they took it. If that were a US mission, with combat camera support and drivers, they'd all be wearing uniforms and we wouldn't be pretending it was a war crime if they were engaged by the enemy.

I'm not sure about the van (and the kids are inexplicable), but it seems to me the "saving their bacon" view is at least as valid as the "innocent bystanders with RPGs" one. The ground witnesses consistently claimed only the two kids were noncombatants, and I think they're right.

[William F. Owen]

I've read the Apache crew's witness statements which the DoD has released. It confirms the impression that the video has left me with: that they've consistently overestimated the actual threat; their witness statements speak of 15 people on the street when there were 8, and 5-6 people in the van episode when there were clearly 3. Since I expect people who are allowed to handle helicopters to be able to count,

Memory is actually quite a dynamic thing. It's not a recording. Memories of stressful situations are especially imprecise

The question is not, "can these people be legally convicted for this", but rather "do we want things to keep on happening this way"? What has been done to change this, and what still needs to be done?

War is chaos. You cannot engineer this stuff from not happening, in a dynamic, lethal and adversarial environment. ROE is the best you can do.

... and in 2007 961 US personnel died in Iraq. in 2009 it was 150. This year it's 20. Things are better for now

[motorfirebox]

I've read the Apache crew's witness statements which the DoD has released. It confirms the impression that the video has left me with: that they've consistently overestimated the actual threat; their witness statements speak of 15 people on the street when there were 8, and 5-6 people in the van episode when there were clearly 3. Since I expect people who are allowed to handle helicopters to be able to count, I get the distinct impression that on that day, they were not in the frame of mind that I would wish somebody who acts as in the abovementioned triple role to be in when assessing matters of life and death. (Maybe battle fatigue?) A system that put these people on that day in this role seems broken to me. Has it been fixed?

What would have been different about the Apache crew's response if their estimates had been more accurate?

[Uboat509]

This is what I was talking about with regards to people who have not experienced combat judging the actions of others during combat. I have not commented on whether or not I believe that the crew acted properly or not, and I won't. That was settled by the 15-6. You don't have to like it but that is the way it is.
I will say this, however, it is very easy to second guess the actions of the crew when you have to the benefit of hind-sight and plenty of time in a stress free environment with which to make those judgments. At any given time, the aircrew must be aware of where other aircraft are, where friendly forces are, where the enemy is or is reported to be and what each of those entities is doing now and what they will likely be doing next and they have to do all this from a moving aircraft. They often must make snap judgments based on whatever information they have on hand because the enemy has an annoying habit of not waiting for them. On top of all that they have the additional stress of knowing that if they fail and don't see or don't engage an enemy then the consequences could be a dead or severely wounded US or coalition soldier.

[Fuchs]

A policeman also needs to do snap judgments sometimes and may be tired.
Nevertheless, we expect him not to kill without a reason that withstands a judge's curiosity - or else he faces and deserves serious problems.

Extenuating circumstances aren't the same as "not guilty".
Also keep in mind that these men were highly trained and not mere enlisted personnel or even conscripts. You should be able to have high expectations of their judgmental abilities or else you shouldn't entrust them a multi-million dollar machine of war for a combat mission over a densely populated city.

[PeaceOutE]

Since when is it against the rules to have an AK-47 in Iraq? This is not a justified ground to attack an Iraqi as it is their legal right as Iraqis to own one AK-47 per household. Granted, if the AK-47s where directed at an incoming host nation or other MNC-I combat troops the Apaches would be justified in their attacks.

As far as the camera, the telephoto lens of the cameraman is amazingly huge and at first caught my eye. Then I saw an image of the photographer with a massive telephoto lens. Regardless, the object in the video is smaller than an RPG.

With all of this identified, US Army CID will have one massive job. Also, certain SOPs will possibly be created such as what proper chatter to be used for conversations over the radio. Professionalism can go a long way, even when possible wrongs occur. Second, this may already have been established put proper Rules of Engagement. To my knowledge every combat zone I have been in has issued ROEs prior to boots on the ground. This will most likely be part of the CID investigation.

With regards to the children and the location where they were to go. No one is aware of the nearest hospital, the time it will take for a Blackhawk to arrive versus the IPs medical teams. There are too many unknown variables that resulted in the decision made by the chain of command for the appropriate action for the children.

There is more to the situation than all the self-professed experts identify. I'm in no way an expert and will eagerly wait for the CID report findings. All I am able to do is put my 2 cents in based of my experience in Iraq during the surge.

[jmm99]

from mendel
After a few days thought about this, I was reminded of Judge Dredd, an old Science Fiction "street cop empowered to act as judge, jury, and executioner". I see the four Apache crew in exactly that role.

The problem with this word picture (to this apparently Neanderthalian USAian, JMM) is not that it refers to a sci-fi character, but that it attempts to import the concepts from a civilian due process legal trial and sentencing into a combat situation.

In a combat situation (whether regular or irregular), the soldier operates under the same basic rules: definition of the enemy, distinguishing combatants from civilians, military need for the action taken and proportionality (which does not mean that civilians have to be absent in order to fire on the target). The decision to shoot or not rests on the shoulders of that soldier, who is indeed "judge, jury, and executioner".

Those rules are more difficult to apply in an irregular warfare situtation where irregular combatants are "transitory guerrillas" - they meld into the general population which becomes in effect their camo and cover. It is in this situation that the divergence occurs between parties who have adopted Hague, 1949 GCs, 1977 API&II and the ICRC requirements of "direct participation" in "hostilities" (e.g., Germany) - and those parties who accept only Hague and the 1949 GCs (e.tg., USA).

Now, it is quite possible that, in Germany (I don't know their ROEs), the rules of engagement take away that decision from the soldier at the tip of the spear - and require multi-party review and agreement before a shot can be taken. All that should come out in the charging documents and subsequent events in the German Astan tanker bombing case.

The decision can also be taken from the individual soldier at the tip if the military in question has micro-management in practice (even if not required by the ROEs). In a micro-management environment, legalistic analysis may outweigh operational analysis; but political considerations are more likely to outweigh both legalisms and operations.

The comments from Fuchs, Mendel and others possibly reflect the influence of "international humanitarian law" as it is accepted in their countries; and as it apparently is being applied in Germany in the Astan tanker bombing case.

The problem for many here (including myself) is that their conclusions about this Apache incident are phrased in terms of what would be - if German law applied here. Thus, the Apache crew are "indicted" as "war criminals".

The broader picture, as I see it, is that there are serious chasms within the "Coalition" as to the basic issues of enemy definition, civilian distinction, military need and proportionality.

Regards

Mike

PS - PeaceOutE. Has this case been re-opened for investigation ? Not that I'm aware. It was investigated and the report can be found here, AR 15-6 Legal Review - first linked by pjmunson in this thread at post #8. No criminal liability was found.

It it has been re-opened, please provide a reference so we can explore the logic of that.

[Ken White]

Many seem to miss that distinction, though JMM grasps it quite well.

The civilian concept of self defense is not directly translatable to combat. Nor can the actions of Police Officers, charged with protecting the public be equated to armed forces in combat, charged with killing enemies (all other aspects of warfare are essentially political). Two very different mindsets are required and developed. Some will say Armies should not be so trained, that could be but it's irrelevant, at this time they are...

Fuchs makes a a very valid point:

...Also keep in mind that these men were highly trained and not mere enlisted personnel or even conscripts. You should be able to have high expectations of their judgmental abilities or else you shouldn't entrust them a multi-million dollar machine of war for a combat mission over a densely populated city.

What he elides is that they were highly trained combat aviators in a combat situation, doing what was almost guaranteed they would do. The real issue for many is perhaps whether they should have been in that situation, as Fuchs says in the last phrase. Whether they should have been or not, they were there and to expect other than a combat mentality effort is at best naive.

Many are commenting on the video, while several have commented that this is an extract and that some context may be missing, few seem to be recalling that this incident was thoroughly investigated and reported at the time and even fewer seem to be considering what the US Troops on the ground were telling the Apache crews. Those folks were not as highly trained and saw different things -- as much as one sees while the adrenalin flows -- different than the Aviators saw at the time and quite different than viewers of the video see today...

[motorfirebox]

A policeman also needs to do snap judgments sometimes and may be tired.
Nevertheless, we expect him not to kill without a reason that withstands a judge's curiosity - or else he faces and deserves serious problems.

I'd like to note, here, that the Apache pilots' reasoning did withstand (the equivalent to) a judge's curiosity.

Since when is it against the rules to have an AK-47 in Iraq? This is not a justified ground to attack an Iraqi as it is their legal right as Iraqis to own one AK-47 per household. Granted, if the AK-47s where directed at an incoming host nation or other MNC-I combat troops the Apaches would be justified in their attacks.

Correct me if I'm wrong, I don't believe private citizens in Iraq are allowed to own any number of RPGs. There was at least one RPG-7 visible in the gunsight video, and an RPG-7 and rounds were discovered by the ground troops who arrived to secure the scene.

As far as the camera, the telephoto lens of the cameraman is amazingly huge and at first caught my eye. Then I saw an image of the photographer with a massive telephoto lens. Regardless, the object in the video is smaller than an RPG.

I would point out that I know several people who know what to look for, who had to double-check to make sure the object in the video was a camera. If you got it right the first time, good for you--but you did so with advantages that the Apache crew did not have. Namely, the leisure to focus on the video exclusively; and the headlines that forewarned you that a guy with a camera got blowed up.

[Fuchs]

...The real issue for many is perhaps whether they should have been in that situation, as Fuchs says in the last phrase. Whether they should have been or not, they were there and to expect other than a combat mentality effort is at best naive. ...

How about a thought experiment?

Screen U.S. police helicopter crews about their prejudices against Muslims and Iraqis and whether they personally knew Iraq War KIA/WIA people.

Then take the ones who seem to be able to keep their calm and re-train them on Apaches. A limited training only, without the conventional war, hydra and hellfire stuff.

Maybe that would have helped to keep the mission - to provide security and stability to the people of Iraq - more in the focus?

I ask because the U.S. military culture aspect and arguments seems to make up a huge part of this discussion.

[Ken White]

How about a thought experiment...Maybe that would have helped to keep the mission - to provide security and stability to the people of Iraq - more in the focus?

Almost certainly would have done so. Unfortunately, we didn't do that so we're confronted with reality and not the ever elusive ideal that you keep looking for and I remind you is nonexistent -- that happens all too often in dealings with fallible humans and harsh, messy, illogical reality...

That's not the good call, though, this is:

I ask because the U.S. military culture aspect and arguments seems to make up a huge part of this discussion.

Military culture is indeed the culprit. Not so much the US military culture but really because generic military culture in combat is involved.

I suggest that British, Dutch, Israeli or Singaporean Apache crews or French or German Tiger crews as well as Italian Mangusta crews probably would have reacted in much the same way -- though the cockpit chatter might have been more 'professional' by some (with the Singaporeans the most professional and the Italians or French being little if any better than the Amis). Americans are gauche, everyone knows that...

While we have always been aggressive, others used to be equally so and a number were and probably are, as you know, far more ruthless than any US force has ever been. We seem more aggressive today than many but as one who saw us in action many years ago and for much of the intervening time, I can assure you that we, also, are far, far less aggressive than we used to be.

While I believe this incident exemplifies a generic military reaction I will acknowledge that the US forces today are more aggressive than most -- but only slightly so.

That is as a military force. Like politicians elsewhere, ours are less aggressive than they used to be -- just not quite so much less as most. That is the major difference with respect to the US today...

[Massengale]

Since when is it against the rules to have an AK-47 in Iraq? This is not a justified ground to attack an Iraqi as it is their legal right as Iraqis to own one AK-47 per household. Granted, if the AK-47s where directed at an incoming host nation or other MNC-I combat troops the Apaches would be justified in their attacks.

As far as the camera, the telephoto lens of the cameraman is amazingly huge and at first caught my eye. Then I saw an image of the photographer with a massive telephoto lens. Regardless, the object in the video is smaller than an RPG.

With all of this identified, US Army CID will have one massive job. Also, certain SOPs will possibly be created such as what proper chatter to be used for conversations over the radio. Professionalism can go a long way, even when possible wrongs occur. Second, this may already have been established put proper Rules of Engagement. To my knowledge every combat zone I have been in has issued ROEs prior to boots on the ground. This will most likely be part of the CID investigation.

With regards to the children and the location where they were to go. No one is aware of the nearest hospital, the time it will take for a Blackhawk to arrive versus the IPs medical teams. There are too many unknown variables that resulted in the decision made by the chain of command for the appropriate action for the children.

There is more to the situation than all the self-professed experts identify. I'm in no way an expert and will eagerly wait for the CID report findings. All I am able to do is put my 2 cents in based of my experience in Iraq during the surge.

Iraqi households are not allowed RPGs. Also, the presence of weapons in certain neighborhoods during certain periods by not-uniformed personnel could be considered hostile intent. Determinations of hostile intent are subjective and given great deference. We are not police.

The children were taken to a MTF. Full stop. Wikileaks was simply incorrect.

To the trained eye the telephoto was a 70-200L (can't tell if it was the 2.8 or the 4.0). But I can certainly understand how it was seen as something else. In addition, they spotted the real RPG in the group.

There will be no CID investigation.

[mendel]

You persist in viewing these guys as noncombatants and I just can't feature it.

There were 11 military-age Iraqis and 2 children. We can see from the footage that nobody removed any weapons from the scene after the Apache attack. The 2nd Brigade combat team investigator states in his sequence of events (6.g) that they found 2 RPG-7 and one AK-47; on the face of it, that leaves 10 unarmed people, keeping in mind that they didn't have the time to do a detailed site examination, so there may have been more weapons present than indicated in the report (but I doubt they'd have overlooked that many).

If this was a military operation (with uniforms and all), even the drivers would at least have sidearms.

My view is, if they didn't bring weapons, they're noncombatants. Your view seems to be, if they're in the vicinity of an RPG, they're combatants. That's where we differ.



While there are 17+ people in the shot at 6:19:25, they're beginning to disperse, some moving off with scooters; the gunner switches to closeup to examine at 19:45 the photographers with two cameras with two apparently unarmed companions walking towards the corner, and then at 20:20 4 people with 2 AK 47 and one RPG that are joined by two more apparently unarmed people.

Then the situation with the camera looking around the corner develops, where the Apache crew states (20:40) "yeah, we had a guy shootin'", and BM comes back with "negative". From the further unfolding of events, I think that didn't really get through to them, because from then on they seem to operate on the assumption that any delay is going to cost friendly lives (they then fire into a group of ~10 men, 5 of whom they have PID'd with weapons, if we're including the two cameras - they may not even have misidentified them).

Would more detail have prevented them from mistaking a lens flash for a muzzle flash as their flight path made them lose sight of the cameraman? Hard to say, but I doubt it. I want to know what made them miss the fact that ground said there was no shooting, and what made them see the van as a legitimate target. Why weren't they able to make the most of the available information? How can we provide something in real-time that comes closer to our hindsight awareness of the situation? These are larger issues than mere lack of detail (I doubt adding detail would fix them), and I don't see anybody adressing them.

I'm not sure about the van (and the kids are inexplicable), but it seems to me the "saving their bacon" view is at least as valid as the "innocent bystanders with RPGs" one.

My point is precisely that both views towards the Apache crews (and other military) are valid (in general, not just in this operation - in fact, whenever "collateral damage" is willingly incurred); that's why good judgement is needed to make conscientious decisions in these circumstances.


I like JMM's reply to my post, except for the polemic barbs ("require multi-party review and agreement before a shot can be taken" - come on!).

[Cecil Turner]

If this was a military operation (with uniforms and all), even the drivers would at least have sidearms.

So if the combat cameraman ditches his sidearm he's protected? Recce pilots? How about a MG a-gunner or tank driver? Obviously not; they're combatants. They bring sidearms along because there's no reason not to, not because they're likely to be useful.

My view is, if they didn't bring weapons, they're noncombatants. Your view seems to be, if they're in the vicinity of an RPG, they're combatants. That's where we differ.

If they're executing a combat mission, they're combatants. That includes the guy standing next to the guy with an RPG as he prepares to fire (on a US convoy), the guy who's holding the extra round, the drivers, scouts, messengers, and the camera guys. The most logical reason not to carry extraneous weaponry is that they have to escape afterward, possibly through checkpoints (which is also the most logical reason for the kids); that doesn't mean they are noncombatants, it means they're "unlawful" combatants.

Then the situation with the camera looking around the corner develops, where the Apache crew states (20:40) "yeah, we had a guy shootin'", and BM comes back with "negative". From the further unfolding of events, I think that didn't really get through to them, because from then on they seem to operate on the assumption that any delay is going to cost friendly lives (they then fire into a group of ~10 men, 5 of whom they have PID'd with weapons, if we're including the two cameras - they may not even have misidentified them).

Those conversations aren't related: from context the ground radio transmission is obviously to the other ground unit (somewhat stepped on in the recording by the intercom). And the implication that they should hold fire on an ambusher because the enemy might've brought some unarmed men to the ambush site strikes me as eyerollingly ludicrous. (And, like some of the other disputed changes to the GCs, likely to produce a battlefield even more dangerous to civilians rather than more civilized.)

Would more detail have prevented them from mistaking a lens flash for a muzzle flash as their flight path made them lose sight of the cameraman? Hard to say, but I doubt it. I want to know what made them miss the fact that ground said there was no shooting, and what made them see the van as a legitimate target.

I don't think there's any evidence to support the "lens flash" theory either. The lens remains pointed at the ground and the chatter afterward is that the RPG is "getting ready to fire." As to the ground guy's radio comm, he takes responsibility at ~15:25 into the long vid, and it's clear he vectored the Apaches onto the target, not that he was trying to warn them off. Finally, a van removing combatants from a battlefield is a legitimate target.

I find this overanalysis fun (obviously), but essentially meaningless. The guys actually in contact had to operate with far less information, with far more stress in far less time, and the arguments for their misconduct even with hindsight are underwhelming. The glaring things to me are that the insurgents were playing the ROE like a Stradivarius, and correctly prioritizing the propaganda mission above casualty production. Their allies and fellow travelers still are. And the biggest takeaway is that we need to get our IW act together (starting with better controls over engagement videos).