Honor, murder and "the law".

[120mm]

meh...what I keep hearing you describe 120 is not the difference between "the law" and "honor codes", but the difference between enforcing the letter of the law and the intent of the law. I feel you may have an overly romanticized view of "honor codes". Honor codes tend to be every bit as inflexible and illogical as "the law". In fact honor codes are were you get Muslim women stoned to death and acid poured on there face, or were in western society you get rationalized violence against other people for perceived "threats to manhood" or where the Japanese fight way past the point of any possibility for victory, much to the detriment of everyone involved. Now the flexibility to recognize the difference between the "intent" of the law and the "letter" of the law, that may have some function.
Reed

"Law" has the great advantage over honor analogous to stopping to eat at McDonald's while on the road: At least you have a reasonable chance of getting something similar to what you're used to. Law's greatest advantage is predictability.

In fact, "Law" is crucial to things like trade and travel.

Both "Law" and "Honor Codes" have the potential for being abused, and they share one attribute: Only the more egregious abuses of either get publicity, so I'll see your woman-stoning and raise you an O.J. Simpson....

While I do not condone returning to an honor system, I suggest that maybe Western-styled rule of law may not be appropriate in every cultural situation, especially in the middle of a counterinsurgency fight.

[AmericanPride]

Just a hypothetical question: would those who are calling this act "murder" oppose the reprisal had it been authorized by the theater commander (assuming it had been done as a "last resort")?

[jmm99]

Your German example is not what I was getting at - a direct clash between the Criminal Code and the Honor Code (as has been suggested in Mr. Ayala's case and scripted in a A Few Good Men). In your Roe-Hare case, a mistake of fact is remedied by a diversion of the elderly gent to the Honor Court, where he is punished. That is simply having two different court systems for the same factual offense.

My goose pond example was inadequate since it could involve an element of "mistake" (shooting too many geese). Give you one that is clearer. Same pond on another day, and a gaggle comes in with 3 geese downed (1 for each hunter). Other people had been there the day before and left quite a few geese downed but not where they could be readily picked up.

Bruce, who's a young animal (not an elderly gent) has to get the three - so, he takes some rope, circles the pond and swamp and comes back with 10 geese (the 7 from the day before nicely chilled - this is Northern Michigan). So, I walk out with 3 geese - illegal because the crime is possession over limit. No Honor Court for doing that - in fact, as far as we were concerned there should have been an Honor Court if we left them there.

You could say the same about homemade hooch (nothing like first run clear white). But, illegal unless you have a Federal permit. No alternative Honor Court there, either.

So, there are Honor Codes arising from the particular culture which are contrary to the Positive (enacted) Law on the books. Now, as Reed poiints out, and you agree, some Honor Codes suck - maybe accepted (or kept in the closet) under some forms of Sharia Law, but not culturally or legally acceptable here. So, Honor Codes may be parallel to the Criminal Code (your Roe-Hare); or, they may collide with the Criminal Code - some in a benign way; some in a malignant way; and, some, it depends.

An Honor Code can be just as predictable as Positive Law, if you know the rules. As you say, an outsider doesn't know the rules, so Positive Law is the fallback. As you also say, there is an even larger chance of collisions where the Positive Law is imposed by an occupying power.

BTW: I hate the term "Rule of Law", unless one first defines what laws are to rule. Hell, AQ operates under a Rule of Law (as attested by UBL's & Zawahiri's very legalistic writings).

[jmm99]

Just a hypothetical question: would those who are calling this act "murder" oppose the reprisal had it been authorized by the theater commander (assuming it had been done as a "last resort")?

Sounds a lot like the Malmedy Massacre on a smaller scale, which militarily was a "last resort" because the prisoners would have held up the SS advance on Stavelot (just down the Ambleve from Malmedy). Thus, a War Crime on the part of both the shooter and the theatre commander (IMO).

Changing the facts (adding more facts) might give a more nuanced response.

[AmericanPride]

Sounds a lot like the Malmedy Massacre on a smaller scale, which militarily was a "last resort" because the prisoners would have held up the SS advance on Stavelot (just down the Ambleve from Malmedy). Thus, a War Crime on the part of both the shooter and the theatre commander (IMO).

Changing the facts (adding more facts) might give a more nuanced response.

IIRC, a theater commander can order a legal reprisal in order to compel the enemy to conform to the laws of war.

EDIT: I believe this is relevant to the present conversation because of the obvious options which reveal themselves should the US decide to pursue said compellence. If that were decided upon, suddenly the shooter's action in this case is not murder, but (possibly) a legal reprisal. The act remains the same, but it's legality and (supposedly) its moral value change.

[jmm99]

OK. I got the idea. I'm the theatre commander. AQ saws off my captured troopers' heads and sends me the videos ("sawed off" was what I saw in the several videos I've watched). I have AQ prisoners.

Can I issue a legal order to saw off their heads ? - let's assume 1 for 1 so there is direct proportionality; and the reprisal is the only way to deter them and cause them to follow the laws of war (personally, I think that's a bad assumption).

Too late (0115) to sensibly discuss this. Some refs (so they are available):

WWII Balkan Cases (German commanders)

http://www.ess.uwe.ac.uk/WCC/List1.htm

Swedish Masters Thesis 2005 (expect this would be a common Euro view)

http://www.jur.lu.se/internet/englis...ile/xsmall.pdf

FM27-10 also bears on this (1956)

http://faculty.ed.umuc.edu/~nstanton/FM27-10.htm

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Without looking at anything legal, this idea seems off the wall to me.

Is there anybody here who has looked at this from a commander's standpoint ?

[AmericanPride]

This was my source btw.

[slapout9]

If that were decided upon, suddenly the shooter's action in this case is not murder, but (possibly) a legal reprisal. The act remains the same, but it's legality and (supposedly) its moral value change.

Justafiable Homicide is what several of my defense attorney friends are saying. More later as I get their final opinions.

[jmm99]

General message -

Try to give a consise fact situation in any hypothetical, or that underlies any opinion. Context is everything in these cases.

At the U of Mich, homicide was the focus of 1st year Crim Law - a combined Law and Procedure course since so many of the key procedure cases have been capital cases. As Slap pointed out in a prior post, there are many degrees in the criminal charges. And, there are many degrees of justification, including shooting the soldier who is not directly threatening you.

The commandant should read: Thou shalt not kill, except ........

[slapout9]

Well I finished talking to my defense attorney friends and they are a strange lot Their opinions were wild to crazy and everything in between. Here is the condensed version.

The military hired this person to find out about and understand the targeted society in order to achieve a military advantage. This contractor understood the Astans so well that in order for him to continue to operate in this environment he needed to shoot this person in order to maintain his safety because that is how this society works unlike ours. If he did not take this action he could not continue to do his job and his personal safety would always be in jeopardy. It was a preemptive strike, hence it was justifiable.

[Ken White]

I thought that was a definite possibility but I wouldn't have considered it a legal defense. Which is why they're Attorneys and I'm not...

[jmm99]

to this topic - hopefully with some intelligent input - after getting myself out of the house to get a bottle of wine for ChickenDay dinner. Wife doesn't like leftovers - so, a very large roasting chicken will substitute for the T-bird, as has become the custom.

To the rest of you all, Happy Turkey Day.

[jmm99]

Well I finished talking to my defense attorney friends and they are a strange lot Their opinions were wild to crazy and everything in between.

I think we are dealing with three kinds of self-defense by an individual:

1. Immediate self-defense - OK

2. Pre-emptive self-defense - maybe; it depends

3. Preventive self-defense - probably NOK

What your "strange lot" defense attorneys are proposing is really preventive self-defense - scaring the hell out of the bad guys so they won't do the same bad thing in the future - a general deterrence theory.

This concept ties into the issue of reprisals (American Pride's point) - and into the extent of national self-defense under the UN Charter and I Law. So, the topic has an across the board application, so far as COIN is concerned. I'd guess that similar issues are not uncommon at SOCOM, for example.

I am reaching the conclusion that Ken's initial assessment of the defense lawyers' "wild to crazy" opinions was correct:

I wouldn't have considered it a legal defense ...

The problem is explaining all of this without writing a book. Have to think about that for a bit.

Meanwhile, Slap, you might find it worthwhile to ask your prosecutor friends what they would most fear as a defense if they were prosecuting Mr. Ayala.

Along the same lines, I might toss this topic at a couple of criminal court judges I know - meeting with one next week about something else.

PS: If Mr Ayala actually went through the thought process that the defense lawyers are suggesting, he certainly premeditated and deliberated about the shooting. So, instead of 2nd degree murder (the present charge), it should be 1st degree murder - if the defense fails. Blowback !

[slapout9]

jmm, I didn't ask the prosecution but I did ask the defense what they were most concerned about. Almost unanimous in their conclusion...the guy was handcuffed when he was shot. At least that is what has been reported.

[jmm99]

.... the guy was handcuffed when he was shot.

that is a definite problem.

Which is why in the thread on the case I suggested the "Anatomy of a Murder" defense.

That was a real case, tried in Marquette MI by an older lawyer I knew, Johnny Voelker, whose story is here:

http://en.wikipedia.org/wiki/Robert_Traver

Anatomy's "bio" is here:

http://en.wikipedia.org/wiki/Anatomy_of_a_Murder

The real trial is summarized here (last 2 pp. of 10):

http://www.michiganhistorymagazine.c...ch/anatomy.pdf

Now, for the bottom line - closing comment by one of the jurors (end p. 10):

“I was thankful that the trial was over. I felt that the lieutenant was justified in what he did. I was a soldier and a soldier is trained to defend and that’s what the lieutenant did—defend his wife. I don’t think he was temporarily insane. I felt he had a right to do what he did. Why should he suffer the rest of his life to let a man do that to his wife?”

That is what I mean by "jury nullification" - you argue a legal theory as the direct defense, but the real object is to convince the jury of the indirect defense that you can't argue directly.

[slapout9]

That is what I mean by "jury nullification" - you argue a legal theory as the direct defense, but the real object is to convince the jury of the indirect defense that you can't argue directly.

Yep, women's rights issues and sympathies are a lot bigger in this country to. Get a jury that is half female

[Schmedlap]

It is futile to argue "law" with someone who has deemed the cost of whatever activity as an acceptable cost. For someone who values honor more than anything else, a tribal code is not subordinate to law.

I'd be curious to hear some views on that specific point - particularly from the folks in law enforcement. I'm thinking about lower class, black teens who grow up in the ghetto, who seem to identify themselves as members of a class that is oppressed by the government - particularly the law enforcement personnel. Because their identity is in large part based upon opposition to law enforcement, going to jail is a badge of honor. It is respectable to earn a living in a manner that is illegal or otherwise flaunts society's norms. Any law directed at their anti-social behavior is immediately viewed as a government reprisal against their way of life (for example, laws against possession of crack were argued to be biased against blacks rather than against crack possessors). Am I way off base with this?

[jmm99]

the overall juror profile will determine whom you challenge or not. SOP for me was to background all jurors in the array (usually 72 give or take). Be nice to have a jury of vets who spent half of their military careers in burn wards.

Actually, old-fashioned redneck male types who believe in the protection of women - and in a little old-fashioned populist justice - would seem better.

[jmm99]

(Schmedlap)
Am I way off base with this?

but you are coming close. Don't know what identifiable ghetto group(s) is that or those of which you speak. I do know of a group that certainly believes that "Any law directed at their ... behavior is immediately viewed as a government reprisal against their way of life". Visit Stormfront and you will find 31 pages of "Legal Issues - Criminal and civil law affecting activists". I don't think this forum should go there - others may differ.

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As to the general substantive issue, IMO, "law" (unless you believe it is a brooding omnipresence in the sky) is a tribal code - the code of the dominant tribe that establishes it. If the dominant group is inclusive enough, its code will represent the norm of a majoriity of the total population. Within that population, there will be other tribes. Their codes will either supplement or conflict with the dominant tribal code.

If you are in one of the minority tribes, you can accept or reject the dominant code - "For someone who values honor more than anything else, a tribal code is not subordinate to law." If you happen to live in an authoritarian society, your value of "honor" (in your minority tribal code) will result in a bullet in the back of the head, sentence to a gulag or confinement to a nuthouse (in its kinder and gentler phase). Even in a liberal democracy, the dominant tribe will enforce its code.

[120mm]

I'd be curious to hear some views on that specific point - particularly from the folks in law enforcement. I'm thinking about lower class, black teens who grow up in the ghetto, who seem to identify themselves as members of a class that is oppressed by the government - particularly the law enforcement personnel. Because their identity is in large part based upon opposition to law enforcement, going to jail is a badge of honor. It is respectable to earn a living in a manner that is illegal or otherwise flaunts society's norms. Any law directed at their anti-social behavior is immediately viewed as a government reprisal against their way of life (for example, laws against possession of crack were argued to be biased against blacks rather than against crack possessors). Am I way off base with this?

I don't think you're off base at all. And to add to jmm99's above comments, I think one of the "root causes" that has to be addressed, especially in an insurgency that has ties to differeing ethic/cultural groups, is "is the structure of law/honor codes sufficiently consistent with the insurgent group's codes to have legitimacy.