The Kill Company

[William F. Owen]

Can we more correctly say "two or more armed groups"?

We could just say, "conflict between armed groups, of which two are the minimum number required to qualify."

[Polarbear1605]

"War leads to war crimes, and the only sure way to avoid that seems to be to avoid war."

Fully agree with the above statement but it raises the question of why, it seems, the general officers did not see these war crime incidents coming. Consequently, moving forward, if they are now expected, is there a better way to handle them? We seem to want to handle war crimes as a legal issue vs a laws of war issue. In my mind there is a significant difference. In Rules of Engagement? A Social Anatomy of an American War Crime. Operation Iron Triangle, Iraq., Mestrovic makes the point that when we go to prosecute the soldiers or Marines for a war crime, we do so with little or no evidence. It is very hard for anyone to collect legal evidence on a battle field; the plastic evidence bags make too good of a target as you seal them with your hands in front of your chest. In other words, I just can’t imagine a crime scene investigator stringing yellow crime scene tape across a battlefield. This then gets us into judicial water boarding http://www.blackfive.net/main/2008/0...al-waterb.html that gives the appearance and perception of unfairness. Seems to me, we need to get the determination of a war crime away from the lawyers and back to the commanders.

[jmm99]

Good to see a post from you.

I'm presently slogging through Grossman's "On Killing" and Mestrovic (who drives me up a wall - he is a major piece of work).

Mestrovic is not gospel on this point:

from PB1605
Mestrovic makes the point that when we go to prosecute the soldiers or Marines for a war crime, we do so with little or no evidence. It is very hard for anyone to collect legal evidence on a battle field; the plastic evidence bags make too good of a target as you seal them with your hands in front of your chest. In other words, I just can’t imagine a crime scene investigator stringing yellow crime scene tape across a battlefield.

as Schmedlap points out in another thread, here. As to the current abililty of combat units to gather evidence, I'll go with our CPT here at SWC rather than Mestrovic whose practical knowledge of such things is zilch.

I've got through only 3-1/2 chapters of Mestrovic's book (hard to read fast when every other paragraph gets a mental critique). I will say one good thing of him: he verbatims a lot of the evidence. And, there was a lot of evidence; the problem was that it was inconsistent.

He also is hung up on ROEs (which he does not understand). His thesis (as I now understand it) is that the "new ROE" (as he calls it) was a factor in the shootings of 4 Iraqis (the one in the window initially; and the 3 detainees later). I can't form any conclusions until I work through the book - and, if it seems worthwhile, look for more data via Google.

Your point here (in response to Fuchs) is a good one:

from Fuchs
"War leads to war crimes, and the only sure way to avoid that seems to be to avoid war."

from PB 1605
Fully agree with the above statement but it raises the question of why, it seems, the general officers did not see these war crime incidents coming. Consequently, moving forward, if they are now expected, is there a better way to handle them? We seem to want to handle war crimes as a legal issue vs a laws of war issue. In my mind there is a significant difference.

and ties in with Wilf's comment:

from Wilf
... there is vast difference, between abuses, and war crimes. Shooting holes in someone rooftop water tank, is not a war crime. Selective definitions of what does and does not constitute a crime is being used for political purposes.

I can't comment on flag officers' foresight. I do believe that these incidents loom much larger in hindsight (which, of course, is perfect), than in foresight. In short, if the incident is big enough, it is easy for an outside reviewer to say that the flag officers "should have known they were likely to occur and should have taken steps to prevent them."

In fact, that is Mestrovic's position, since he is in love with the Yugoslav-Hague and ICC rules that superior officers can be held liable on a "should have known" basis.

Truth in lending: that was the US position in Yama####a (Frank Murphy, a WWI Inf CPT, dissented with logic that applies as well today).

A military commission was appointed to try the petitioner for an alleged war crime. The trial was ordered to be held in territory over which the United States has complete sovereignty. No military necessity or other emergency demanded the suspension of the safeguards of due process. Yet petitioner was rushed to trial under an improper charge, given insufficient time to prepare an adequate defense, deprived of the benefits of some of the most

Page 327 U. S. 28

elementary rules of evidence, and summarily sentenced to be hanged. In all this needless and unseemly haste, there was no serious attempt to charge or to prove that he committed a recognized violation of the laws of war. He was not charged with personally participating in the acts of atrocity, or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit the acts of atrocity. The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge. This indictment, in effect, permitted the military commission to make the crime whatever it willed, dependent upon its biased view as to petitioner's duties and his disregard thereof, a practice reminiscent of that pursued in certain less respected nations in recent years.

In my opinion, such a procedure is unworthy of the traditions of our people or of the immense sacrifices that they have made to advance the common ideals of mankind. The high feelings of the moment doubtless will be satisfied. But in the sober afterglow will come the realization of the boundless and dangerous implications of the procedure sanctioned today. No one in a position of command in an army, from sergeant to general, can escape those implications. Indeed, the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision.

In effect, Yama####a was executed on a charge of passive negligence.

The standard for war crimes has changed since the days of Yama####a and Nuremberg. In the Yama####a case, no question existed that Japanese forces had committed serious war crimes (some against friends of Frank Murphy, who was the pre-WWII Governor-General and then High Commissioner of the Philippines). From my armchair, the standard appears to have moved more and more into the area of common crimes.

For example, CPT Hill and his 1SG were charged under the War Crimes statute (as incorporated into the UCMJ), but the facts would support only simple assault charges under criminal law (the 1SG for sitting on the guy's chest; Hill for discharging his pistol some distance away from the detainees as an implied threat).

----------------
PS: Wilf, if your review of "On Killing" is online, I'd appreciate a link.

[Polarbear1605]

Jmm99: like you, I am wading through Mestroic and you are not alone climbing those walls. Mestroic, however, does present a view from a very different angle that provides a good operational check of the brain housing group functional cycle; your replies to my blog comments have a similar effect. I appreciate the mental function check.

I read “Schmedlap’s” link you provided. A whole bunch of questions there; Which army are we talking about? I believe that the US military has made little or no effort to charge, investigate and prosecute war crimes committed against US soldiers, Marines or civilians in either Iraq or Afghanistan. In fact, General Ordinao, just released a enemy prisoner that executed four soldiers after they were captured. All DoD and Services Orders are very clear and state something like all war crimes will be reported, thoroughly investigated and corrective action taken of all war crimes committed by or against US and enemy personnel. To date, the US military seems to have ignored the word “against” in those Orders. And that is Orders with a capital “O”.
Next question: Is Schmedlap talking about war crimes or civil crimes? And this plays into one of my old arguments. In war, especially in insurgencies, judges are not always available. In the Haditha incident … no judges, no police, or any government reps…they were all beheaded or driven off by the bad guys. The only law that the Marines could bring to Haditha were the Laws of War. My old argument is that for that reason, in insurgencies, that has to be a conscious designated decision point, to switch from the Laws of War to the Rules of Law. You can’t make that switch until the friendly government has established itself in the area the military has seized, cleared and secured.

Your Capt Hill and 1stSgt Scott example surprised me. I must have missed it when they were charged with war crimes under the UCMJ 134 Article. I will go back and do some more research. But if so, that will be one of the first true War Crime cases I have come across. I say true because from my understanding, the only way to bring a Title 18 War Crimes charge into the military legal system is Art 134. BTW I have yet to find a military lawyer that would recommend that route.
I think, the Capt Hill case is a better an example of an officer standing by his integrity (to his detriment…basically, he admitted, Yes! That is exactly what I did) and his service working the legal plea bargaining system to avoid the embarrassment of a court martial lacking physical evidence. In addition, and I don’t think that Capt Hill realized this, but his defense was an argument for the Laws of War principle of “military necessity” and that is where it would have gotten embarrassing for the Army. And again, the only law Capt Hill had out there in "only Gawd knows where Afghanistan" were the Laws of War and again, we switch the trigger pullers, to their detriment, back to the Rules of Law standard using the UCMJ.

Your turn to think...

[jmm99]

than my avatar - so how could I disagree with you - see me submitting - Baaaa ... And besides, the Golden Rule for French-Canadian males is not to get mixed up with Polar Bears. Of course, you also know that the Golden Rule for French-Canadian women is the opposite.

I'll take your comments in reverse order - actually no real mind benders here (most all of this stuff is taught in one or another of the USMC manuals, which you know better than I).

I think, the Capt Hill case is a better an example of an officer standing by his integrity (to his detriment…basically, he admitted, Yes! That is exactly what I did) and his service working the legal plea bargaining system to avoid the embarrassment of a court martial lacking physical evidence. In addition, and I don’t think that Capt Hill realized this, but his defense was an argument for the Laws of War principle of “military necessity” and that is where it would have gotten embarrassing for the Army. And again, the only law Capt Hill had out there in "only Gawd knows where Afghanistan" were the Laws of War and again, we switch the trigger pullers, to their detriment, back to the Rules of Law standard using the UCMJ.

Amen - and "necessity" was exactly the defense my brain came to.

Your Capt Hill and 1stSgt Scott example surprised me. I must have missed it when they were charged with war crimes under the UCMJ 134 Article. I will go back and do some more research. But if so, that will be one of the first true War Crime cases I have come across. I say true because from my understanding, the only way to bring a Title 18 War Crimes charge into the military legal system is Art 134. BTW I have yet to find a military lawyer that would recommend that route.

Yup, I too was surprised by the use of this combo of Title 18 + Art 134 (not that it could be used - here is a long 2005 article on it in html format and pdf format analyzing "Integrating Title 18 war crimes into Title 10: a proposal to amend the Uniform Code of Military Justice", which I downloaded last year). I got the Title 18 charge reference from the lawyers' statement:

Puckett & Faraj, PC are often called upon to defend the courageous and moral men and women of our military. In their service to their country, these young military members are called on to make difficult decisions to save the lives of those they lead. CPT Roger Hill did just that on the battlefield in the mountains of Afghanistan last fall. The Army charged him with wrongfully inflicting cruel and inhuman treatment to detainees under the 18 USC Section 2441 — War Crimes.

Under the Rule of Law (domestic US), the facts alleged in the charges would support a simple physical assault (1SG), unlawful discharge of a firearm and a non-physical assault if that discharge caused someone to feel "threatened" (CPT). No way those "civilian" charges would support a charge carrying a life sentence. But, that is how Title 18 + Article 134 were used to coerce the 1SG and CPT. A low day for military lawyers (IMO). End soapbox speech.

Next question: Is Schmedlap talking about war crimes or civil crimes? And this plays into one of my old arguments. In war, especially in insurgencies, judges are not always available. In the Haditha incident … no judges, no police, or any government reps…they were all beheaded or driven off by the bad guys. The only law that the Marines could bring to Haditha were the Laws of War. My old argument is that for that reason, in insurgencies, that has to be a conscious designated decision point, to switch from the Laws of War to the Rules of Law. You can’t make that switch until the friendly government has established itself in the area the military has seized, cleared and secured.

I'll let Schmedlap tell you what he is talking about. This is a "transition" issue, which is your area of expertise. From my armchair, establishing a HN Rule of Law presence in an AO is a tough proposition (not impossible, just tough) and requires more than a military effort. The "more" being a large civilian input (cops, lawyers & judges, at least as advisors), which so far has been hard to come by to meet the standards of, say, Dobbin's Nation Building.

I read “Schmedlap’s” link you provided. A whole bunch of questions there; Which army are we talking about? I believe that the US military has made little or no effort to charge, investigate and prosecute war crimes committed against US soldiers, Marines or civilians in either Iraq or Afghanistan. In fact, General Ordinao, just released a enemy prisoner that executed four soldiers after they were captured. All DoD and Services Orders are very clear and state something like all war crimes will be reported, thoroughly investigated and corrective action taken of all war crimes committed by or against US and enemy personnel. To date, the US military seems to have ignored the word “against” in those Orders. And that is Orders with a capital “O”.

Again, Schmedlap can throw in his 2 or more cents worth. I agree and suggest that "war crimes" prosecutions, either before (1) revived MCA commissions; (2) Federal District courts; or (3) a National Security Court, would be a method of taking offensive lawfare against members of Transnational Violent Non-State Actors. In fact, I would go a step further and indict AQ as a international war criminal organization ala the Nurenberg standards and RICO.

Take a few ibuprofens for your head - and stay cool (or move up here - think we may have come close to frost last nite). Noticed I screwed up and promoted you from leaf to bird. That's at least better than what I did to Tom Odom last year by making him a deceased LTG by calling him Bill.

Cheers to all

Mike

[Polarbear1605]

And learning always creates additional questions. I understand War Crimes can carry a greater max punishment when compared to the UCMJ. But your comment then gets us into the role of plea bargaining that happens in most of these cases. There is no provision for plea bargaining in the UCMJ. What is the authority for plea bargaining in the UCMJ process? …it has to be the Commander (Convening Authority). Do commanders understand that? I ask that question because I feel that plea bargaining if a lawyer's “free kill zone” despite a set of legal ROE.

And a clarification here, in Capt Hill’s case, if the charges are War Crimes, are the elements of proof things like “military necessity, distinction, and proportionality” compared with the Rules of Law elements of proof?

That reference “Integrating Title 18 war crimes into Title 10” is what I have been in search of for months…THANKS!

[jmm99]

In reverse order - and after some thought, CPT Hill had at least two defenses, which are interconnected.

One is the argument that only "grave breaches" of the Laws of War and the Conventions are subject to the criminal sanctions of "war crimes". MCRP 4-11.8B War Crimes (2005), pp.10-11, gives an overview. This is a good publication (and it's doctrine ; although it has to be read in light of the cases since 2005).

The other defense is "necessity" (in the legal sense), which is controversial (especially if someone is killed). The argument is that "legal necessity" applies when the harm generated by the decision is materially less than if the decision had not been made. In the UCMJ context, the concept is not that much different from “military necessity, distinction, and proportionality”. I don't know whether a military judge would buy that defense, or whether it has ever been asserted in a court-martial (as a formal defense).

--------------
As to plea bargains under the UCMJ, my experience is limited (more in the civilian criminal justice area). Plea bargains have many reasons. One is that the prosecution overcharged (as in Hill). Another is that without them (try every case) the system would overload and grind to a halt. Anyway, they are with us as part of the institutionalized system.

Once upon a time (a long time ago), JMM tried a UCMJ case to its conclusion - before a military judge, sans a military jury. The case involved a nuclear device and a B-52 (which is to say enough). Judgment was for the accused, which ended the matter, right. No, wrong. Higher command was very unhappy with the result (as a precedent for future cases - and possible publicity). My client was happy with the result, but there were some future adverse civil consequences. Some genius (that's not being sarcastic) at higher HQ came up with a solution that involved dropping all charges (as though the case never happened) and giving my client a bargain he couldn't refuse - no coercion, he thought it was a good deal.

So, plea bargains can cut both ways and become something of a win-win for each side.

[Greyhawk]

...and by that I mean "I'm confused".

Was Cpt Hill "charged" with anything? Was there a "plea bargain" in the legal sense? (There seems to have been a bargain, as happens in such cases.)

There was an art 32 hearing, there was no court martial. I'm not certain the art 32 hearing reached any conclusion. (Though it did end.)

[jmm99]

but let's work through the 2008 MCM.

A court-martial is (RCM Rule 103):

(8) “Court - martial” includes, depending on the context:

(A) The military judge and members of a general or special court-martial;

(B) The military judge when a session of a general or special court-martial is conducted without members under Article 39(a);

(C) The military judge when a request for trial by military judge alone has been approved under R.C.M. 903;

(D) The members of a special court-martial when a military judge has not been detailed; or

(E) The summary court-martial officer.

So, a court-martial technically is the folks who try you - not the trial or the process leading up to the trial, or following it. That being said I have a tendency to be sloppy and say X was court-martialed (pedantly wrong).

However, RCM Preamble, 2(b) has this to say:

(b) Agencies. The agencies through which military jurisdiction is exercised include:

(1) Courts-martial for the trial of offenses against military law and, in the case of general courts-martial, of persons who by the law of war are subject to trial by military tribunals. See Parts II, III, and IV of this Manual for rules governing courts-martial.
....
(4) Non judicial punishment proceedings of a commander under Article 15. See Part V of this Manual.

Now, of Parts II (RULES FOR COURTS–MARTIAL), III (MILITARY RULES OF EVIDENCE) and IV (PUNITIVE ARTICLES), Part II cover the "court-martial" process from initiation of charges through final appeal.

In time order, we have RCM Rule 307 Preferral of charges; and then Rule 405 Pretrial investigation (Article 32 investigation). The charges and specifications have to be in standard form - Charge Sheet (DD Form 458). A Rule 405 Pretrial investigation is required unless waived by the accused.

My understanding from reading what Greyhawk and I posted elsewhere (here, here and here) is the following:

1. Charges and specifications were filed - I haven't seen the charge sheet (looked for an on-line, but found none).

2. An Article 32 investigation was launched and almost completed, except for the Article 32 report (maybe filed, but not released; I don't know).

3. The process was then diverted to an Article 15 via the agreement, but I've seen no documentation on how that was done - or what the Article 15 looked like.

If anyone has found the documentation for the Hill case on-line, that would be helpful.

[Schmedlap]

Quit picking on the squirrels at AM. 22-6 indeed...

Are you referring to this? That could have been any Schmedlap. I admit nothing.

[Ken White]

I knew your Uncle Smedley -- he was devious also...