Rule of Law in Iraq & Afghanistan

[jmm99]

on Da Scenario:

You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

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Some "basic” questions

I’d suggest several questions that the “You” in the scenario might ask himself (or herself, that gender less likely):

- Where am I ?

Could be Astan; could be Pstan; could be a training exercise in Texas. Let’s keep the first two and toss Texas because it would get too complicated.

- Who am I ?

Could be military (not necessarily USMC or combat arms); could be a civilian (a modern, new and improved version of Robert Komer).

- What am I doing here ?

“FID”, “COIN”, “LE”, “DA”, etc., etc.

- Why are all of us here ?

That includes separate answers for “You”, the residents of the residential compound, the Marine squad, the ANP, and the six individuals (all “part of” AQ, as “confirmed” - not as “indicated” - by intelligence).

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Some “legal” stuff (don't need a law degree to find the answers)

What Geneva Conventions & Protocols have been accepted by Astan, Pstan and US ?

Different for NATO and ISAF "coalition partners" ?

What SOFAs (formal and informal) exist v-a-v Astan-US, Pstan-US, Astan-Pstan ?

Different for NATO and ISAF "coalition partners" ?

Does Astan recognize the existence of an “armed conflict” in Astan - and its parameters ?

Same question for each of the other parties named above - and then repeat for Pstan ?

What Astan and Pstan criminal law (if any) is applicable to persons who are “part of” AQ ?

What implications result from a person being “part of” AQ under current US law ?

What is the proof standard under current US law to find that a person is “part of” AQ - "beyond reasonable doubt", "reasonable suspicion" or something else ?

When under the Laws of War (LOAC, IHL, CIHL) may an unarmed person be knowingly and intentionally targeted and killed ?

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The comments assuming or not assuming an “armed” group within the compound are interesting. The scenario intentionally did not include openly carried arms - but it did not exclude concealed or cached arms either.

Unfortunately, we can’t use ROEs, RUFs, tactical directives, etc., with any accuracy (one issue is classification; another is different treatment of HVTs and even more classification).

Regards

Mike

[carl]

I’d suggest several questions that the “You” in the scenario might ask himself (or herself, that gender less likely):

- Where am I ?

Could be Astan; could be Pstan; could be a training exercise in Texas. Let’s keep the first two and toss Texas because it would get too complicated.

- Who am I ?

Could be military (not necessarily USMC or combat arms); could be a civilian (a modern, new and improved version of Robert Komer).

- What am I doing here ?

“FID”, “COIN”, “LE”, “DA”, etc., etc.

- Why are all of us here ?

That includes separate answers for “You”, the residents of the residential compound, the Marine squad, the ANP, and the six individuals (all “part of” AQ, as “confirmed” - not as “indicated” - by intelligence).

Isn't most of this implicit in the original scenario?

[LawVol]

because I'm headed out to one of the provinces shortly.

First, I'll be candid and admit that I'm not completely sure we can bring the rul e of law (at least in the western sense) to Afghanistan. The desire for it just doesn't seem to be there. The feeling is more one of "Let me get what I can because the Americans are leaving in 2014." That being said, the mission is the mission and we do what we can to accomplish it. The COIN mission dictates that LoW and RoL apply simultaneously in that, as I've previously indicated, LoW in a subset of RoL. In other words, complying with LoW demonstrates some aspect of RoL.

I think I'm beginning to understand where PolarBear is coming from; although I still disagree with his conclusion. I think he is disturbed by the over-legalization of the battlefield to the extent that it places lives in danger. For example, what would have happened if our sentry had withheld his fire in the Italian case and it was a bad guy. We learned that lesson in Beirut.

If this is the foundation of your argument, I agree to an extent. However, that over-legalization emanates from overly restrictive ROE, not RoL. ROE is a political call, not a legal one. It becomes legal in the sense that it is an order subject to the UCMJ. In other words, to the extent that ROE jeopardizes American lives, blame politicians and commanders not lawyers. We don't make ROE. Also, I do agree (assuming that really is the basis for your position) that ROE is overly restrictive and could place our guys in dangers. That is why I emphasize the self-defense portion of ROE.

In my own case, I always ask "can I articulate a rational reason for fearing for my safety?" If so, I'm good to go. I also support the position that any "close call" shooting should immediately require a defense attorney for the shooter and a 24 hour cooling off period before the shooter can be questioned. This eliminates adrenaline outbursts from the shooter that may or may not reflect reality. I think I may be in the minority on this though.

If I'm completely off target here, I can reengage when I get back from down south.