I understand and agree with the first section of your comment

Quote Originally Posted by jmm99 View Post
-------------------------------... But, here is my problem with my agreement. The law (ROE, whatever) must cover this situation - despite the obvious problem that how an individual might or might not actually act is not a given. I suppose the "law" could be no rules at all - that solves one problem and leaves it entirely up to individual to re-invent the wheel as he sees fit. I really have no problem with that kind of non-law, if it works in practice.
The 'law' does cover it -- be it local ROE, the UCMJ, no matter. Legally and regulatorily what must be done is clear. My point is all that not withstanding, no one can tell what they might do in a specific situation until they are in that situation and know what they do of the ramifications. My perception is that most would do what was right but one cannot reliably say everyone will do what's right. One can say "I know what I would do" and then find out that one can or would do something totally surprising. The law is not relevant; it is a consideration but it may-- just may -- be ignored. Survival and and revenge are powerful instincts; mere laziness is not but some few folks don't need much convincing to take the seeming easy way if they think they can without adverse effects on themselves. In a line of work where life is essentially cheap, a different outlook is prevalent to that we can enjoy while we're at home...
If we move beyond a non-law (that is, absolute individual chioice), then we have to see what individuals think they would do in the hypothetical situation - realizing that it all might be a WAG - and develop our best shot at a rule that might work.
Militarily, we're unlikely to ever have a 'non-law' situation so that becomes a non-issue.
You do present some comments that may be the best solution - a form of escape and evasion, which is not necessarily a bad thing.:
"That is very unlikely to occur, the chances of detection are too great and penalties for doing that are too severe. If it occurs, it will be in the heat of a firefight or not at all."

That may be escape and evasion to you but it was what I meant from the beginning. I thought it would be totally obvious to all that any unit indiscipline along that line was quite unlikely (to say the least; everyone is aware of the ROE emphasis, the Haditha myth and charade and other such things) and that any decision to arbitrarily shoot people instead of detaining them in this day and age would have to be an individual and not easily discovered decision. Guess I should've made that clear; Joe is very pragmatic, he doesn't look favorably upon catching the same people over and over but he also doesn't think they're worth a lot of jail time for him. Joe will do what he can get away with and no more.

Let me add, the number of Joes (and they aren't all Privates...) who will take that attitude vary by unit quality. In a good unit, few or none will do that; in one poorly lead, the number who will attempt to bend the rules, any and all rules, goes up. As I said elsewhere, half the units in the army are by definition not as good as the other half...
My problem with that ROE is that it requires people to turn on and off like a light bulb.
Heh. The ROE are the easy part, no matter how dumb they can sometimes be. Combat itself requires people to turn on and off like a light bulb; all day, every day there's a possibility of contact -- and at an unbelievably high rate during contacts. That's what causes most the stress casualties and much of the PTSD. Most people can do it if they have to, a few cannot, quite a few others take to it like a duck to water and it rarely if ever becomes a problem to them.

Most of 'em also obey the rules, even when they can get away with not doing so. My point was only that not everyone can be relied upon to do that and I thought most should and would know the system is tight enough to keep even most of those few honest -- but there's absolutely no way to keep everyone totally honest all the time...

I think you're trying to make the illogical (warfare) into something logical (law). Hard to do...