Quote Originally Posted by jmm99 View Post
In another thread, I've been flopping about like a large-mouth bass in the bottom of the boat on much the same issue. Perhaps, some progress was made in my presentation at posts ## 54-56 - you judge.

Any how ways, my theory is that operational law must correspond to what is a reality in the field (law serves the soldier; the soldier does not serve the law); which requires placing more discretion in the field commander to set the rules, based on the "totality of circumstances" as viewed by him and subject only to some very general guidelines.

So, it is more important to me to hear from field folks on what they think the rules should be in this and related situations (basically a point A to point B problem with an intermediate hitch which requires a go or no go decision).

Don't have to be a lawyer - this is a "what the rules should be" problem with no "correct answer". Also, we could have a general rule (fitting situations A, B, C and D), together with exceptions for E, F and G.

There are some articles out there (feel free to find them), but are not particularly helpful cuz they tend to be top down solutions - law imposed on soldiers, not law developed by and for soldiers. Betcha we can do better.

I'd appreciate comments on this proposition.

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These kind of problems caused Grotius to develop his work on the laws of war. The problem with Grotius' (the European or Code Systems) method of legal development is a tendency to impose law from above (theorists). That is contrary to the UK-US method of legal development (in its pure form) which derives the law from actual practice (Bracton and those who have followed him for 800 years). Guess which school of thought I belong to.
I don't think this one even falls under a "should be". While the good Captain probably should receive some sort of "corrective action" for not following the correct ROE, it is not "murder". The insurgent, from what little we have, was already triaged out, and was being left to die. If this is not murder then neither is speeding up the process. Was it inappropriate? It probably was, but it was not murder. Of course I am far from a lawyer and a strong believer in the precedence of "intent" of the law outweighing the "letter" of the law. I certainly hope that the CA legal system sees it the same way or I will lose a great deal of respect for our Northern Neighbor.
Reed