SFC Taylor, the Fog of War and Army duplicity

[Polarbear1605]

Trying to clarify here…because I am too old and senile for combat zones to observe how this now works…
Based on what you just said…a soldier achieves positive ID of an immediate threat when someone dressed as a civilian puts an AK-47 into their shoulder pointed in the soldier’s general direction …or is just general direction good enough for positive ID of an immediate threat under the existing ROE?
The question now becomes what is the difference between IDing the immediate threat of an AK-47 pointed in your general direction or one driving a VBIED in your general area (ECR) in a county full of suicide car bombers?
Next question…does the ROE, as written, specifically say, “weapon pointed at you” or does it say something more like a soldier has a right of self-defense when an “imminent threat” presents itself to the soldier? Imminent threat, in the laws of war, is described as "instant, overwhelming, and leaving no choice of means, and no moment for deliberation” and applies to both the state and the individual. Generally speaking, I think the “weapon pointed at you part” is a commander’s “dogmatic” interpreted SOP of immediate threat when imminent threat has to be decided at the individual level under the laws of war self-defense rule.
Tactically, this does not work (and I recognize you are agreeing) because we are trying to mix the laws of war and the rule of war and the problem at the strategic level is way worse. For example, you stated:

When we did our pre-convoy briefings before going outside the wire in Kirkuk, I made it a point to tell everyone that it's common in the Iraqi culture for men to carry weapons, so that in and of itself did not pose an immediate threat to us.

(no offense intended here, but when you think about it, at least in my mind, that is like saying we are going to hold mail call until moral improves.)

Under the laws of war anyone who picks up a weapon is a combatant…even if you put it down later you are still a combatant. Once a combatant, the question then becomes, whose side you are on and under the laws of war the principle of distinction is supposed to solve that problem. The enemy, in Afghanistan and Iraq, purposely violates the principle of distinction, in order to hide in the population. The US military (and NATO) is the only organization in the whole wide world that allows citizens to turn themselves into combatants as a step to prove that the rule of law exists in a combat zone. We did this in Iraq and we are doing it in Afghanistan and it is madness. The SFC Taylor case is not only a symptom of mixing the laws or war and the rule of war, but also it demonstrates the enablement of a bad host nation leader with a bad strategic practice of “strategic legalism” (and we are doing it at the expense of our own people). Both at the tactical and strategic level, we are mounting our white horse, pulling our pistol and shooting ourselves in the foot.

[Fuchs]

Under the laws of war anyone who picks up a weapon is a combatant…even if you put it down later you are still a combatant.

That's news to me.

I recall that either participation in combat or membership in a group that means to wage wage (militia, army, paramilitary, but not armed police, bank guards or armed secret agents) is required, too.


Feel free to bring forward a source for your assertion.

[jmm99]

Four seconds in Afghanistan: Was it combat, or a crime?
By Kim Murphy (from Los Angeles Times)
Published: June 10, 2012

Pre-trial hearing at Bamberg opens for soldier who killed Afghan civilian

By Steven Beardsley
Stars and Stripes
Published: June 20, 2012

...
The case centers on the military’s rules of engagement and their application in the heat of combat: Does the instinct to defend oneself trump the stated rule that a soldier must positively identify a target before shooting?

Citing investigations following the incident, Army counsel is arguing that Taylor, who lead a route-clearing platoon with the Bamberg-based 54th Engineer Battalion in central Afghanistan, failed to follow those rules when he shot Hikmat.

Taylor’s lawyer said the rules of engagement fail to reflect a war in which it can be hard to distinguish between civilians and combatants, or passenger cars and vehicle-borne explosive devices.

“These charges present a threat to every U.S. servicemember who will face combat from today on,” defense attorney James Culp said in a phone interview before the hearing. ...

Pre-trial hearing for soldier who killed Afghan civilian continues
By Steven Beardsley
Stars and Stripes
Published: June 21, 2012

Taylor’s platoon leader testified Wednesday that the rules of engagement under which the platoon trained while downrange require a “reasonable certainty” of a target’s hostile intent. Second Lt. Jeremiah Paterson agreed he would use lethal force if “51 percent” sure of the target’s hostile intent, or “pretty sure.”

JMM emphasis added - we train as we fight and we fight as we train.

Soldier who killed Afghan civilian says he felt threat to his men
By Steven Beardsley
Stars and Stripes
Published: June 22, 2012

BAMBERG, Germany — A platoon sergeant charged in the shooting death of an Afghan civilian said Friday he believed his platoon was seconds away from a car bomb attack when he fired his weapon.

Sgt. 1st Class Walter Taylor is charged with negligent homicide and dereliction of duty for the shooting death of an Afghan civilian who drove with her family into the middle of a firefight and abruptly exited the car as soldiers neared.

After three days of testimony at an Article 32 hearing as to whether Taylor correctly followed rules of engagement to identify hostile intent before shooting Dr. Aqilah Hikmat, an investigating officer will soon make a recommendation as to the disposition of charges, which could include forwarding to court-martial.

In an unsworn statement Friday, Taylor apologized for the harm he had caused to both Hikmat’s family and relations between the U.S. and Afghanistan, but he maintained his decision was the best possible under the circumstances.

“Based on the facts available to me at the time, I believed the person dressed in black who exited the vehicle was a threat to me and my men,” he said.

Taylor, 31, has otherwise sat silently through three days of testimony. His soldiers, supervisors and criminal investigators have detailed the July 2011 insurgent attack in Wardak province that preceded the shooting and what ensued when the car drove up and stopped over a command wire, similar to other command wires the platoon had found connected to roadside bombs in previous missions.

and a good comment to the last article:

Kal_El

Unless you have ridden in a Husky, Buffalo, RG-31, or MRAP and have conducted Route Clearance, you cannot truly understand what any Soldier experiences while out on a patrol. This team had just been hit and knew the TTP's, knew and were executing there well trained battle drills, and saw a threat (which is often a secondary device or VBIED). Soldiers are smart, and in instances like this, they react. You have literally mere seconds to react... what would you do? Risk the lives of your Soldiers or eliminate the threat?

Politically driven, after-the-fact hearings and court martial will not bring back this Afghan woman. It will tear a platoon and company apart and ruin the life of at least one platoon sergeant.

I have deployed seven times. The ROE has increasingly gotten longer, more confusing and less clear every time it is "revised".

I am a combat engineer. We would plan missions, review the routes, state the 5 C's, discuss the ROE, make alternate plans, conduct battle drills, and review the threats and previous hot spots EVERY time we went on a mission. I am confident this route clearance team did all this as well.

Maybe the Colonels reviewing this decision have some solid combat experiences and will make the right decision. If they don't, this man will face three years for doing what many would say was the right action.

The CENTCOM ROE (PID, "reasonable certainty", etc.) is discussed in the Dealing with Haditha thread - esp. posts 131, 132, 133.

Regards

Mike

[jmm99]

From the 2012 Manual for Courts-Martial (CLAMO).

Negligent Homicide

60. Article 134—General article

a. Text of statute.

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

85. Article 134—(Homicide, negligent)

a. Text of statute. See paragraph 60.

b. Elements.

(1) That a certain person is dead;

(2) That this death resulted from the act or failure to act of the accused;

(3) That the killing by the accused was unlawful;

(4) That the act or failure to act of the accused which caused the death amounted to simple negligence; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

c. Explanation.

(1) Nature of offense. Negligent homicide is any unlawful homicide which is the result of simple negligence. An intent to kill or injure is not required.

(2) Simple negligence. Simple negligence is the absence of due care, that is, an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care of the safety of others which a reasonably careful person would have exercised under the same or similar circumstances. Simple negligence is a lesser degree of carelessness than culpable negligence. See paragraph 44c(2)(a).

d. Lesser included offenses. None

e . Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

JMM emphasis added - see defenses below (Justification and Self-Defense).

Negligent Dereliction of Duty

16. Article 92—Failure to obey order or regulation

a. Text of statute.
Any person subject to this chapter who—
...
(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.

b. Elements.
...
(3) Dereliction in the performance of duties.

(a) That the accused had certain duties;

(b ) That the accused knew or reasonably should have known of the duties; and

(c) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties.

c. Explanation.
...
(3) Dereliction in the performance of duties.

(a) Duty. A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.

(b ) Knowledge. Actual knowledge of duties may be proved by circumstantial evidence. Actual knowledge need not be shown if the individual reasonably should have known of the duties. This may be demonstrated by regulations, training or operating manuals, customs of the service, academic literature or testimony, testimony of persons who have held similar or superior positions, or similar evidence.

(c) Derelict. A person is derelict in the performance of duties when that person willfully or negligently fails to perform that person’s duties or when that person performs them in a culpably inefficient manner. “Willfully ” means intentionally. It refers to the doing of an act knowingly and purposely, specifically intending the natural and probable consequences of the act. “Negligently” means an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances. “Culpable inefficiency” is inefficiency for which there is no reasonable or just excuse.

(d) Ineptitude. A person is not derelict in the performance of duties if the failure to perform those duties is caused by ineptitude rather than by willfulness, negligence, or culpable inefficiency, and may not be charged under this article, or otherwise punished. For example, a recruit who has tried earnestly during rifle training and throughout record firing is not derelict in the performance of duties if the recruit fails to qualify with the weapon.

d. Lesser included offense. Article 80—attempts

e. Maximum punishment.
...
(3) Dereliction in the performance of duties.

(A) Through neglect or culpable inefficiency. Forfeiture of two-thirds pay per month for 3 months and confinement for 3 months.

Defenses

Rule 916. Defenses

(a) In general. As used in this rule, “defenses” includes any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.
...
(b) Burden of proof.

(1) General rule. Except as listed below in paragraphs (2), (3), and (4) [JMM: not applicable here], the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.
...
(c) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.

Discussion

The duty may be imposed by statute, regulation, or order. For example, the use of force by a law enforcement officer when reasonably necessary in the proper execution of a lawful apprehension is justified because the duty to apprehend is imposed by lawful authority. Also, killing an enemy combatant in battle is justified.
...
(e) Self-defense.

(1) Homicide or assault cases involving deadly force. It is a defense to a homicide, assault involving deadly force, or battery involving deadly force that the accused:

(A) Apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and

(B) Believed that the force the accused used was necessary for protection against death or grievous bodily harm.

Discussion

The words “involving deadly force” described the factual circumstances of the case, not specific assault offenses. If the accused is charged with simple assault, battery or any form of aggravated assault, or if simple assault, battery or any form of aggravated assault is in issue as a lesser included offense, the accused may rely on this subsection if the test specified in subsections (A) and (B) is satisfied.

The test for the first element of self-defense is objective. Thus, the accused’s apprehension of death or grievous bodily harm must have been one which a reasonable, prudent person would have held under the circumstances. Because this test is objective, such matters as intoxication or emotional instability of the accused are irrelevant. On the other hand, such matters as the relative height, weight, and general build of the accused and the alleged victim, and the possibility of safe retreat are ordinarily among the circumstances which should be considered in determining the reasonableness of the apprehension of death or grievous bodily harm.

The test for the second element is entirely subjective. The accused is not objectively limited to the use of reasonable force. Accordingly, such matters as the accused’s emotional control, education, and intelligence are relevant in determining the accused’s actual belief as to the force necessary to repel the attack.
...
(5) Defense of another. The principles of self-defense under subsection (e)(1) through (4) of this rule apply to defense of another. It is a defense to homicide, attempted homicide, assault with intent to kill, or any assault under Article 90, 91, or 128 that the accused acted in defense of another, provided that the accused may not use more force than the person defended was lawfully entitled to use under the circumstances.

Discussion

The accused acts at the accused’s peril when defending another. Thus, if the accused goes to the aid of an apparent assault victim, the accused is guilty of any assault the accused commits on the apparent assailant if, unbeknownst to the accused, the apparent victim was in fact the aggressor and not entitled to use self-defense.

Regards

Mike

[Polarbear1605]

Thanks JMM, You always help by adding clarity but, and as usual, you do raise questions, at least in my mind.

Working my way through this reference because it seems to be a footnote in most of the discussions on ROE. RULES OF ENGAGEMENT AND THE CONCEPT OF UNIT SELF DEFENSE by Lieutenant Commander Dale Stephens, Royal Australian Navy

A Right Sui Generis Part I of this article asserts that the right of unit self defense is a right sui
generis which exists independently under customary international law.

Unit self defense is characterized by its personal focus and has its origin
"directly and chiefly, in the fact that nature commits to each his own
protection." It is this focus which gives the right of unit self defense its
prime characteristic: that of a non-derogable human right. Accordingly, it
is not a right which is dependent upon a 'proper' interpretation of Article
51, nor is it one that derives from the jus in bello, or belligerent
customary rights which are dependent upon a state of armed conflict. It is
a legal right which stands alone and possesses its own indigenous
authority.

With this heritage, the right of unit self defense stands apart from rights
enjoyed under national self defense. Notwithstanding this inexorable
conclusion, there persists a residual academic view that Article 51 has
assimilated all exceptions to the prohibition on the use of force.
Significantly, however, even the adherents of this 'literalist' view
recognize the existence of an independent right for military forces to
defend themselves.

http://www.dtic.mil/cgi-bin/GetTRDoc...f&AD=ADA359487

Can self-defense be called a duty? I ask because I see that duty word in your references.

Discussion
The accused acts at the accused’s peril when defending another. Thus, if the accused goes to the aid of an apparent assault victim, the accused is guilty of any assault the accused commits on the apparent assailant if, unbeknownst to the accused, the apparent victim was in fact the aggressor and not entitled to use self-defense.

How long as that been on the books? I was a little taken aback by that one because I can see all kinds of issues with that on a battle field.

[jmm99]

1998 Stephens, "Rules of Engagement and the Concept of Unit Self Defense" (included in the Naval Law Review issue you linked), is critical of the US CJCS SROEs (then in effect) for allowing more expansive self-defense measures than Stephens found tolerable under his view of "customary international law".

I've attached three .pdfs (all snips from the 2011 Operational Law Handbook) re: unit self-defense based on 2005 Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01B, "Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces". (JMM emphasis added below)

00. The Handbook's introduction:

2. Key Definitions/Issues. The 2005 SROE refined the Definitions section, combining the definitions of “unit” and “individual” self-defense into the more general definition of “Inherent right of self-defense” to make clear that individual self-defense is not absolute. Note, however, that if the ROE are made more restrictive, the SECDEF must be notified.

a. Self-Defense. The SROE do not limit a commander’s inherent authority and obligation to use all necessary means available and to take all appropriate action in self-defense of the commander’s unit and other U.S. forces in the vicinity.

(1) Inherent Right of Self-Defense. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual self-defense include defense of other U.S. military forces in the vicinity.
...
(4) Mission Accomplishment v. Self-Defense. The SROE distinguish between the right and obligation of self-defense, and the use of force for the accomplishment of an assigned mission. Authority to use force in mission accomplishment may be limited in light of political, military, or legal concerns, but such limitations have NO impact on a commander’s right and obligation of self-defense.
...
c. Hostile Act. An attack or other use of force against the United States, U.S. forces, or other designated persons or property. It also includes force used directly to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital U.S. government property.

d. Hostile Intent. The threat of imminent use of force against the United States, U.S. forces, or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital U.S. government property.

NB: The present SROEs contain the same "hostile act" and "hostile intent" definitions to which Stephens objected in 1998.

01. The CJCS introduction:

b. Standing Rules of Engagement (SROE).

(1) Self-Defense. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual self-defense includes defense of other U.S. Military forces in the vicinity.
...
c. Standing Rules for the Use of Force (SRUF).

(1) Self-Defense. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual self-defense includes defense of other U.S. Military forces in the vicinity.

02. Enclosure A (Standing Rules of Engagement):

f. U.S. Forces Operating With Multinational Forces.

(1) U.S. forces assigned to the operational control (OPCON) or tactical control (TACON) of a multinational force will follow the ROE of the multinational force for mission accomplishment, if authorized by SecDef order. U.S. forces retain the right of self-defense. Apparent inconsistencies between the right of self-defense contained in U.S. ROE and the ROE of the multinational force will be submitted through the U.S. chain of command for resolution. While a final resolution is pending, U.S. forces will continue to operate under U.S. ROE.

(2) When U.S. forces, under U.S. OPCON or TACON, operate in conjunction with a multinational force, reasonable efforts will be made to develop common ROE. If common ROE cannot be developed, U.S. forces will operate under U.S. ROE. The multinational forces will be informed prior to U.S. participation in the operation that U.S. forces intend to operate under U.S. ROE.

(3) U.S. forces remain bound by international agreements to which the U.S. is a party even though other coalition members may not be bound by them.

g. International agreements (e.g., status-of-forces agreements) may never be interpreted to limit U.S. forces’ right of self-defense.

2. Policy.

a. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent.

b. Once a force is declared hostile by appropriate authority, U.S. forces need not observe a hostile act or demonstrated hostile intent before engaging the declared hostile force. Policy and procedures regarding the authority to declare forces hostile are provided in Appendix A to Enclosure A, paragraph 3.

3. Definitions and Authorities.

a. Inherent Right of Self-Defense. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in response to a hostile act or demonstrated hostile intent. When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by members of their unit. Both unit and individual selfdefense includes defense of other U.S. military forces in the vicinity.
...
e. Hostile Act. An attack or other use of force against the United States, U.S. forces or other designated persons or property. It also includes force used directly to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital USG property.

f. Hostile Intent. The threat of imminent use of force against the United States, U.S. forces or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital USG property.

g. Imminent Use of Force. The determination of whether the use of force against U.S. forces is imminent will be based on an assessment of all facts and circumstances known to U.S. forces at the time and may be made at any level. Imminent does not necessarily mean immediate or instantaneous.

So, yes, the honcho polarbear has both a right and an obligation ("duty") to take defense measures for all his little polarbears against hostile acts and threats, etc.

And, because "When individuals are assigned and acting as part of a unit, individual self-defense should be considered a subset of unit self-defense", each of the little polarbears has both a right and obligation to protect all the other little polarbears (and himself or herself) - and even the honcho polarbear.

A point here is that this concept of mutual self-defense (as both right and obligation) does not generally apply in the civilian context. E.g., Big Bad Wolf is about to put out JMM's lights. Polarbear has a right (but no obligation) to put one between Big Bad Wolf's headlights.

The "accused acts at the accused’s peril when defending another" example in the Manual for Courts-Martial is not a good example in the military context. In civil law, the rule came from the Yukon when Pierre of the North went to the aid of the "Evil" Polarbear in a 1898 polarbear bar brawl. Pierre couldn't win in any event since Pierre is always screwed whenever he interacts with "Zem Polarbears".

Regards

Mike

[socal1200r]

One of the things I was taught when going thru officer training school was making things black and white, peeling that onion back so it wasn't shades of gray anymore, but black and white. Makes the decision-making process a whole lot easier. This issue is pretty simple. Did he or did he not violate the ROEs that were in effect at the time? Forget all this other crap that's been posted, that just makes the issue more shades of gray. It boils down to whether he did or did not positively ID the subject, and positively ascertain said subject's intent, before firing? Period, dot.

Someone copied a statement from SFC Taylor: “Based on the facts available to me at the time, I believed the person dressed in black who exited the vehicle was a threat to me and my men,”. Really, that's it? That's a piss-poor situational assessment, and is a gross failure of the ROEs.

We all know we have the inherent right to self defense, and that can't be bargained away in ROE's or RUF's, etc. But that doesn't apply in this case.