Hey John (and anyone else interested),

You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.

Regards

Mike
__________________
JMM
Interesting question, I am going to take a different approach here looking at different techniques (or tactics) required (probably too strong of a word here…hmmm… how about taught vs required) in both the Laws of War and the Rule of Law. If you are operating under the Laws of War, the squad leader should immediately order his grenadiers to start pumping 40mm 203 rounds through the windows while his AR men put a steady stream of suppressive fire into the exterior doors. As suppressive fires are executed, the squad leader leads a 4 to 5 man stack to the best entry point and proceeds to clear the house with grenades and small arms fire. After the house is cleared, he sorts the bodies, secures POWs, treats the wounded, and hopefully, at least one AQ is captured and/or wounded and available for intelligence interrogation and gathering. As a Law of War scenario everything I just described is legal and they stay legal even if you add the collateral damage of a dead mother and child to the causality list. BTW because of the mother and child’s presence, the AQ survivor should also be charge with the war crime of using civilians as shields.
In the Rule of Law approach the Afghan national police surround the house. The police Lt or sgt pulls out the bullhorn and announces the house is surrounded and states the AQ should come out with their hands in the air to allow their arrest. If the AQ members refuse and announce they have a mother and child as hostage, the Afghan police begin captive hostage negotiations. (Hopefully, there is not another AQ unit in the area that can attack and wipe out the police while negotiations are ongoing.) When they surrender (big assumption here considering AQ is an organization full of suicide bombers and everyone of them believes that martyrs go to heaven) the chief policeman starts to collect evidence to support his case against the members of the AQ for charges of….hmmm…charges??? What do we charge these AQ folks with?? What have they done that is illegal…what laws have they broken…? (Maybe illegal immigration?? How many cases have been prosecuted in Afghan for illegal immigration?) And Oh!...the Afghan policeman has 96 hours to build this case before all detainees must be released. Oops sorry, that is our NATO rule not the Afghan police rule.

Now according to LawVol, the correct answer is c. Rule of Law and Laws of War:
Thus, both the law of war and rule of law must be simultaneously applied.
after all, that’s the doctrine (remember you said it brother, and I am not putting words in your mouth this time). I am very excited about reading LawVol's solution to this JMM scenario.

Carl in many ways you have the correct approach and answer. However the risk is very high, (I know, no guts no glory!) and I think your assumption is that in this scenario your gut (or that feeling for situations warriors can and do develop in war) is telling you that you can pull this off. But what if your feelings are telling you these AQ guys will go down taking as many Americans as they can with them. The scenario says these are confirmed AQ, not Taliban, not pilgrims, and not visiting relatives. Remember, no one knocked on Zarqawi’s door in Iraq. We dropped two 500 lb bombs on the house he was in and caused multiple collateral deaths (including a woman) and guess what…under the Laws of War it was legal.

One more step: Let’s assume the Carl approach, but when the chief policeman knocks on the door mister AQ guy answers the door, seizes the initiative, and puts a pistol to the knocker’s forehead and blows out his brains. Will the remaining Afghan policemen apply their Rule of Law techniques or will they turn to the squad leader and say; “Clear that house”? At that point the squad leader needs to make a decision of which applies, the Rule of Law or the Laws of War. It is a decision of either or…not both.

Inter arma silent leges: in time of war the law is silent.