These ROEs are clearly based on the three principles of the Laws of War; military necessity, proportionality and distinction. These Law of War principles are exactly what Soldiers and Marines in combat are trained not only to base their tactical decisions on but also they are ordered and continually reminded to follow.
Now here is the issue, if our servicemen are operating in combat in a foreign country under the Laws of War ROE, why are they being charged with murder instead of violating one or more of the principles of the Laws of War. Another way to say this is why are we charging our warriors with murder on the battle field instead of violating the combat ROE rules and regulations established for combat operations?
Each service has its own War Crimes directives. As an example, let’s look at Marine Corps MCRP (Marine Corps Reference Publication) 4-11.8B, War Crimes. This publication’s interesting part is that it maps war crimes to UCMJ articles. For example; “The willful killing, torture or inhuman treatment of individuals protected by the Geneva Conventions” which is a violation of military necessity, maps to the UCMJ Articles of: Article 93 Cruelty and Maltreatment Article 118 Murder Article 119 Manslaughter Article 120 Rape and Carnal Knowledge Article 122 Robbery Article 124 Maiming Article 128 Assault Article 134 General Article (indecent assault, negligent homicide)
The Manual for Courts-Martial (MCM) list the “elements of proof” for each of these punitive Articles. The elements of proof “are the specifics of the offense. In order to support a finding of "guilty," the government must prove each and every element of the offense, beyond a reasonable doubt”. Murder, for example, has the following elements of proof (according to the MCM):
“ Premeditated murder. (a) That a certain named or described person is dead; (b) That the death resulted from the act or omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had a premeditated design to kill.”
Another way to state these elements of proof in layman terms: (a) You need to prove you have a dead body; (b) You need to prove who pulled the trigger; (c) It was not self defense (only rules of law I know to justify a dead body); and (d) You need to prove beyond a reasonable doubt the accused intended to kill the victim.
Notice that the MCM elements of proof make no mention of the Laws of War principles of military necessity, proportionality or distinction.
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