2007 Apache Engagement on Video: Appears Incriminating

[motorfirebox]

Originally Posted by Fuchs

@ Entropy:
You mentioned mostly extenuating circumstances that don't influence the question of "guilty or not?".

@motorfirebox:
Actually, it's a civil war with foreign participation. That's not an international conflict.

Foreign "participation"? Foreign instigation, foreign control and direction of the conflict. To characterize the fight in 2007 as an internal Iraqi matter augmented by foreign forces is ridiculous.

Medical personnel is obliged to mark itself as such in order to avoid misunderstandings as much as possible. This does not rule out that civilians can spontaneously recover wounded and still be protected.

That's not what happened. The van's arrival and their attempt to aid the wounded were not at all spontaneous. That much is obvious from the video: just as the van drives up, two other men appear from an adjacent courtyard. Without even stopping to discuss it, the driver of the van gets out, opens the cargo door, and gets back into the driver's seat. Meanwhile, the two pedestrians immediately help the wounded guy to his feet and start moving him towards the van's cargo door. Their behavior doesn't indicate spontaneity, it indicates coordination and cooperation with the first group.

[Fuchs]

Originally Posted by motorfirebox

To characterize the fight in 2007 as an internal Iraqi matter augmented by foreign forces is ridiculous.

Tell that to the State Department, because this "ridiculous" interpretation is the official and on the national level legally binding version.

[jmm99]

Re: stanleywinthrop's post #83, the Aug 2009 Depaul Rule of Law Journal, MEJA for Street Crimes, Not War Crimes, by Tara Lee ("Tara Lee is a partner in the Litigation group of DLA Piper LLP. She is a graduate of the U.S. Naval Academy and a former member of the U.S. Navy JAG Corps.").

The article makes the following point about the shift in DoJ use of MEJA to cover cases not within its original "gap-filling" purpose:

From 2000 to 2008, only twelve MEJA prosecutions were brought, and none of them were war crimes cases. In the first seven months of 2009, however, the pace of MEJA prosecutions has increased tenfold, in large part because prosecutors have forgotten MEJA’s purpose and therefore are misapplying the statute as a means to prosecute headline-grabbing war crimes. A few examples of recent MEJA-based prosecutions illustrate this trend. ...
....
In 2007, Jose Nazario, a former sergeant from Camp Pendleton's Third Battalion, First Marine Regiment was indicted via MEJA, like Green, after leaving the service. He was charged with killing two of the detainees his squad encountered in a home they searched during the 2004 Battle of Fallujah and with directing junior Marines to kill two others. Prosecutors had statements from the other soldiers involved admitting that none of the detainees posed a threat when shot. Nazario was acquitted however, and one of the San Diego jurors in the Nazario case told the media afterwards that he did not feel he “had any business” judging combat conduct.[15] Like Green’s trial, Nazario’s crimes could have been charged under the War Crimes Act Section (d)(1)(D), and similar to Green’s trial, the Nazario trial also drew significant media coverage.

15 Dan Slater, Will Legacy of Jose Luis Nazario Haunt Blackwater Prosecutors?, WALL ST. J.: LAW BLOG, Dec. 9, 2008, http://blogs.wsj.com/law/2008/12/09/...erprosecutors/. (JMM: link is now dead) ...

See also, short Wiki on Jose Luis Nazario, Jr.

So, Nazario was acquitted via the jury's version of "combatant immunity". On its face (an incomplete record as media reported), Nazario was a much stronger case for the prosecution than the 2007 Apache case.

To make it very clear, I wouldn't prosecute under 2441 (War Crimes) or 3261 ("Street Crimes"), or under the UCMJ's articles governng various types of homicide. There is simply no murder case likely of success before a US jury (military or civilian). Whether what was done constituted "best practices COIN" is not for me to judge and second guess.

Regards

Mike

[mendel]

Originally Posted by motorfirebox

That's not what happened. The van's arrival and their attempt to aid the wounded were not at all spontaneous. That much is obvious from the video: just as the van drives up, two other men appear from an adjacent courtyard. Without even stopping to discuss it, the driver of the van gets out, opens the cargo door, and gets back into the driver's seat. Meanwhile, the two pedestrians immediately help the wounded guy to his feet and start moving him towards the van's cargo door. Their behavior doesn't indicate spontaneity, it indicates coordination and cooperation with the first group.

Do you any evidence that your version of events is more than wishful thinking?

There were witnesses to this scene in buildings around the open space; one of them could have phoned for help; there might have been somebody else who saw this from a sidestreet who might have run to flag down a vehicle on a thoroughfare; it took 4 minutes (from the first attack) until the van arrived; as has been noted, the streets were empty.

That nobody stops to to discuss may be testament that they're in a hurry to get Saaed to a hospital, and that occurrences such as these have happened all too frequently in Baghdad.

The widow of the van driver has stated that her husband was on his way to drop the two children off at a "special school".


Sombody else held against them that they were moving on a street that was otherwise empty. Another reporter says that whenever a journalist gets out of his car, people come out and cluster around him because they want to tell their story. There's tragedy in that.

This isn't a WW1 type trench warfare no-man's-land; people live there. Not everybody who might be an enemy is one.

[Polarbear1605]

One of the principles of the Laws of War is Military Necessity, as I said before, under the laws of armed conflict killing civilians is to be avoided (not forbidden) but can occur because of the need of “military necessity”. Here is an example that occurred not too long ago in Afghanistan.
http://www.washingtontimes.com/news/...stan-kills-90/
The other part of the law states that the “field commander determines “military necessity: Apparently this general officer did determine MN and here is his take on the incident:
http://www.military.com/news/article...justified.html

[jmm99]

Hey, Great White Furry Critter What Gnaws at Generals' Ankles. Greetings and a half-a$$ed salute.

The Astan incident you mention was discussed in this SWC thread, Germans in Afghanistan, starting at post #20, Germany and the Haji Sakhi Dedby airstrike and continuing on to the next page with input from two Germans (Fuchs and Igel).

Although the 2009 German situation was much less direct than the 2007 Apache situation - no Coalition ground assets were in direct contact or subject to imminent attack; and the purpose was preemptive (so, neither tankers nor fuel could be used in future attacks on German FOBs or convoys), I had no bitch with GEN Schneiderhan's initial assessment re: no criminality. But, he resigned his command in Nov 2009 (2 mos post-incident); and so also the Defense Minister - Igel's post #37.

Curiousity requires me to ask: Were any charges preferred in Germany (civilian or military courts) against anyone because of this incident ?

Regards

Mike

[mendel]

Originally Posted by jmm99

Curiousity requires me to ask: Were any charges preferred in Germany (civilian or military courts) against anyone because of this incident ?

There's been a congressional inquiry (Untersuchungsausschuss des Deutschen Bundestages), and some politicians took their hats.

A "regular" DA started an inquiry, but the proceedings were soon escalated to the Attorney General (who in Germany is not a member of the executive, but rather part of the judiciary branch of government). The Attorney General (Generalbundesanwältin Monika Harms) spent some time gathering information before deciding in March to formally charge Oberst Klein und Oberfeldwebel Willhelm. The law being used is the German Völkerstrafgesetzbuch; §8-12 cover war crimes, and §11, paragraph 1, number 3 specifically prohibits military actions that would predictably result in a disproportionate number of civilian casualties.

[Seabee]

Originally Posted by jmm99

Hey, Great White Furry Critter What Gnaws at Generals' Ankles. Greetings and a half-a$$ed salute.

The Astan incident you mention was discussed in this SWC thread, Germans in Afghanistan, starting at post #20, Germany and the Haji Sakhi Dedby airstrike and continuing on to the next page with input from two Germans (Fuchs and Igel).


Mike

Just so the Yanks dont feel everyone is out to get them... Wikileaks had the secret German report of this affair as well ;-)

best
Chris

[jmm99]

thank you for the input - are the charging documents online ?

Also welcome to SWC. Some background information would be helpful and is completely voluntary.

Regards

Mike

[motorfirebox]

Originally Posted by Fuchs

Tell that to the State Department, because this "ridiculous" interpretation is the official and on the national level legally binding version.

At best, it's a civil war and an international conflict.

Originally Posted by mendel

Do you any evidence that your version of events is more than wishful thinking?

There were witnesses to this scene in buildings around the open space; one of them could have phoned for help; there might have been somebody else who saw this from a sidestreet who might have run to flag down a vehicle on a thoroughfare; it took 4 minutes (from the first attack) until the van arrived; as has been noted, the streets were empty.

That nobody stops to to discuss may be testament that they're in a hurry to get Saaed to a hospital, and that occurrences such as these have happened all too frequently in Baghdad.

The widow of the van driver has stated that her husband was on his way to drop the two children off at a

"special school".

The evidence is right there in the video--it very much appears to be a coordinated, practiced effort by guys who knew what they were doing. In that circumstance, such coordination in relation to insurgent activity strongly suggests further insurgent activity--which enough for PID.

[Cecil Turner]

Originally Posted by mendel

There were witnesses to this scene in buildings around the open space; one of them could have phoned for help; there might have been somebody else who saw this from a sidestreet who might have run to flag down a vehicle on a thoroughfare; it took 4 minutes (from the first attack) until the van arrived; as has been noted, the streets were empty.

Do you any evidence that your version of events is more than wishful thinking?

Seriously, the problem with the innocent explanation is that two RPG-7s were discovered at the scene. The "bystanders" cooperate immediately with the van driver, who, when under fire, decides to turn the van around (away from US forces) and tries to escape. The soldiers on the scene thought they were all combatants. And their explanation make a lot more sense than a guy driving kids to a "special school" across a courtyard that he knows he can't go out from.

And while we're on the subject of criminal prosecutions, the standard under the UCMJ or title 18 requires intent, and that any reasonable mistake of fact by the defendant is assumed as correct. Hence a court would have to assume the Apache drivers did in fact see an RPG aimed at the US convoy, and were motivated by trying to protect said convoy and then to prevent the ambushers from escaping. I've sat on several courts (though admittedly all non-combat prosecutions), and my personal estimate of chances for conviction is that they're nil.

[jmm99]

is briefly Wikied; but in full - in German and English.

This is the law that confers universal (global) jurisdiction on German courts to prosecute any person (any nationality, any place) determined to be a "war criminal" by its prosecutors. The Wiki mentions a case pending against Don Rumsfeld (more fully discussed in the German Law Journal, and in an ASIL Guest Editorial).

Two critical provisions of the German Völkerstrafgesetzbuch deal with attacks on civilians:

§ 11 Kriegsverbrechen des Einsatzes verbotener Methoden der Kriegsführung

(1) Wer im Zusammenhang mit einem internationalen oder nichtinternationalen bewaffneten Konflikt ...

1. mit militärischen Mitteln einen Angriff gegen die Zivilbevölkerung als solche oder gegen einzelne Zivilpersonen richtet, die an den Feindseligkeiten nicht unmittelbar teilnehmen,
....
3. mit militärischen Mitteln einen Angriff durchführt und dabei als sicher erwartet, dass der Angriff die Tötung oder Verletzung von Zivilpersonen oder die Beschädigung ziviler Objekte in einem Ausmaß verursachen wird, das außer Verhältnis zu dem insgesamt erwarteten konkreten und unmittelbaren militärischen Vorteil steht, ....

and (in English):

Section 11 War crimes consisting in the use of prohibited methods of warfare

(1) Whoever in connection with an international armed conflict or with an armed conflict not of an international character

1. directs an attack by military means against the civilian population as such or against individual civilians not taking direct part in hostilities,
....
3. carries out an attack by military means and definitely anticipates that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated,

These provisions are very influenced by Additional Protocols I and II, and by the "direct participation in hostilities" requirement of the current ICRC (see here, International humanitarian law and Clarifying the notion of direct participation in hostilities).

The Germans are not shy about prosecuting not only their own soldiers under these provisions; but also are not shy about prosecuting those from other countries (including the US) as war criminals - even though their acts or omissions would not be prosecuted under their own laws. E.g., the US has not ratified AP I & II; certainly has not accepted the ICRC's "direct participation" standard; and has a different take on Common Article 3 and what is prohibited and allowed under it.

Do not think that, via this explanation of the Euro construct, I am endorsing it and its views on "international humanitarian law". I'm not (but "know thy enemy" ).

Regards

Mike

[William F. Owen]

I've not bothered to comment on this, because my observations would be largely worthless, given how emotional people get about this stuff.

... but all this falls a murder mile from anything that could be constituted as a war crime. As concerns bad things happening in war, this is really small fry. Breach of ROE? Maybe? So what?

If one of the dead wasn't a journalist, this wouldn't even get aired.

Wikileaks "leaked it" to make money. They're media. They have to make money, and entertain. That's what media does. Sometimes good, sometimes bad. Democracy creates a free media. Free media does not create democracy.

[Schmedlap]

Originally Posted by William F. Owen

I've not bothered to comment on this, because my observations would be largely worthless, given how emotional people get about this stuff.

We don't need no stinkin' logic.

[Polarbear1605]

I posted the “German” example for a couple reasons. First, the morality issue screams at you as in all civilian deaths. As we all know, the morality of war and its associated acts has been debated since “before Christ was corporal”. (Of course that is a Marine Corporal; Marine records show that he entered boot camp in 18 AD, his parental consent form was also signed in 17 AD.) The fuel truck is seen as a threat by the military commander; and the tragic part is civilians see it as a windfall of free heat. The commander has to make a call based on the situational risks and the ticking clock. The Laws of War, in my opinion, provide for this situation under the rules of military necessity. The War Laws provide protections for civilians and the warriors that must prosecute that war. The Laws of War are not meant to be and cannot be precise. They present principles (“general guidelines” in my opinion) that are meant to be used with our best and subjective judgments, hence, the "field commander" rule. The German Col’s intent (IMO) is not to kill civilians but to protect his soldiers and do what he can to win the war. The Laws of War are based on the notion that wars need to be rigorously pursued in order to end them quickly minimizing destruction and death. The reason I like the Lieber Code is that it states that clearly and strongly. I also think the beauty of the Lieber Code is in what it accomplishes concerning war in just over 9000 words.
Another reason I use this example isbecause the inspector “General” applies the Laws of War when he states the air strike was justified. He stays out of the politics and sticks to his expertise (he is after all, a general). He is, in effect, reinforcing the protections of his soldiers. US generals tend to cross that line on a regular basis…hence the charge of “political correctness” by throwing the soldiers into the political arena where they have far less protection.
I did not realize that the political fallout of the German example was still on-going and thanks for that information…I will follow that more closely. I still think the US military leadership can learn from the German General’s example. There is a certain amount of courage there that I have to admire.
The last reason I posted this example is I wanted to get away from the “you Americans” issue.

[Cecil Turner]

Originally Posted by William F. Owen

... but all this falls a murder mile from anything that could be constituted as a war crime. As concerns bad things happening in war, this is really small fry. Breach of ROE? Maybe? So what?

That's my view in a nutshell. As a retired attack aviator (Marine) and FAC in GWI, I've seen worse mistakes by well-meaning idiots (a couple far worse) and feel the major lasting issue here is the propaganda value of the film. The practical limitations of attack aviation is glaringly exposed, including their great field of view but poor ability to discern fine detail, and inability to influence the battle by anything other than shooting. I'm going to recap my view of this and quit, and apologize in advance for the length.

• The convoy of US troops was ~100m away at the time, and had been fired at several times. One of the witness statements identifies the victims of the airstrike (unconvincingly) as what "Hotel 2-6" called "the ones taking pop shots at his PLT all day." Though unlikely to be the same guys, they are equally unlikely to be unrelated bystanders just happening on the running firefight with cameras and RPGs.
  
• There are two RPG-7s and an AK rifle at the scene, but the Iraqis do not appear to be efficiently maneuvering to employ them. The first photo in the tribute to Eldeen shows a propaganda shot with an RPG, and I suspect the mission was to produce something similar. The RPG team appears to be in support of the cameraman rather than the other way 'round. But this is still a combat mission.
  
• The Apache pilots see weapons and cameras and mistake them all for weapons. They mistake the camera at the corner of the building as an RPG assuming a firing position. Their mistake has no practical effect except instilling a sense of urgency that doesn't actually exist. The subsequent engagement is perfectly righteous.
  
• The van removing the wounded man appears more interested in transporting him than providing medical care. Assuming they're combatants, pursuit/preventing that escape is a legitimate military mission, and the van is a legitimate target. From the Apache driver's view, assuming they just interrupted an RPG attack in progress, it's a judgment call. If they'd known the photog was the target and there were kids inside, it's clearly not warranted.

As far as war crimes issues go, the GCs are incorporated in the ROE, and the soldiers are responsible for a working knowledge of the former but following the latter. That defines things like "self defense/ troops-in-contact," not some nebulous international law consensus. Similarly, German law has no practical application. As far as I can tell, the aircrew are scrupulously adherent to the ROE except for the final Hellfire attack, where there is a bystander walking by who clearly appears to be uninvolved (which terminates the authorization to use deadly force under the "Pursuit of Hostile Forces" section, as I read the ROE). That's pretty small potatoes, and the investigation covers it all pretty well.

[Massengale]

as a practical matter, considerably "worse" engagements have been deemed to follow the relevant ROE. this one is of primarily of pedantic interest except for the hyped video.

motorfirebox: I think you make good points as to the action itself. But as a matter of law this is not a conflict "of an international character" and has not been since the dissolution of the Iraqi Army in 2003. We don't take POWs anymore and we didn't in 2007 either...and that's why. I understand what you're saying, but it's a legal term of art and not the plain meaning in English. hope that makes sense.

[stanleywinthrop]

Originally Posted by jmm99

Re: stanleywinthrop's post #83, the Aug 2009 Depaul Rule of Law Journal, MEJA for Street Crimes, Not War Crimes, by Tara Lee ("Tara Lee is a partner in the Litigation group of DLA Piper LLP. She is a graduate of the U.S. Naval Academy and a former member of the U.S. Navy JAG Corps.").

The article makes the following point about the shift in DoJ use of MEJA to cover cases not within its original "gap-filling" purpose:



See also, short Wiki on Jose Luis Nazario, Jr.

So, Nazario was acquitted via the jury's version of "combatant immunity". On its face (an incomplete record as media reported), Nazario was a much stronger case for the prosecution than the 2007 Apache case.

To make it very clear, I wouldn't prosecute under 2441 (War Crimes) or 3261 ("Street Crimes"), or under the UCMJ's articles governng various types of homicide. There is simply no murder case likely of success before a US jury (military or civilian). Whether what was done constituted "best practices COIN" is not for me to judge and second guess.

Regards

Mike

Mike, I agree 100% that these apache bubbas should be tried under any scheme. My first post in this thread was my gut reaction 15 minutes after seeing the shortened version of the video. Upon further reflection I agree they shouldn't be prosecuted.

However, the point of Tara Lee's article is that as it stands MEJA can be used for war crimes or street crimes. Lee's main argument is that USAs shouldn't attempt to prosecute war crimes under MEJA. I agree with that 100% as well. However, Congress has yet to heed Lee's plea and as it stands now war crimes can still be prosecuted under MEJA.

The real problem with the Nazario case was a lack of evidence. The Defense was able to speculate all day about military necessity etc. with basically no contradiction from the prosecution who presented no substantial evidence. I hope his acquittal serves as a deterrent to future zealous AUSAs.

[jmm99]

In this:

from sw
Mike, I agree 100% that these apache bubbas should be tried under any scheme

you did mean "should not be tried", did you not ?

Agree that trial under MEJA is allowed (even if not best practice); just as incorporation of war crimes offenses into the UCMJ is allowed - but not best practice - see MAJ Martin N. White, Charging War Crimes: A Primer for the Practitioner (FEBRUARY 2006, THE ARMY LAWYER, DA PAM 27-50-393):

Introduction

This primer provides the practitioner with a framework for determining the proper method for charging an American service member accused of committing war crimes. Compared to charging traditional offenses, charging war crimes offers more options and potential pitfalls to the trial counsel drafting the charge sheet. Using a hypothetical situation involving a Soldier who commits several acts of misconduct while deployed, this primer outlines the advantages and disadvantages of charging war crimes as an enumerated offense under the Uniform Code of Military Justice (UCMJ)[1] — as conduct prejudicial to the good order and discipline of the armed forces under clause 1 of Article 134,[2] as a service discrediting act under clause 2 of Article 134,[3] or as a violation of a federal law by assimilation under Article 134, UCMJ.[4]

This primer discusses why, in drafting a charge sheet, the prosecutor should begin with offenses enumerated in the UCMJ. As discussed below, the enumerated offenses can be properly applied to a broad spectrum of misconduct, including offenses considered war crimes. Due to the nature of the misconduct, however, a prosecutor should also consider the possibility of charging the service member with violation of war crimes [5] by assimilating federal law in addition to the enumerated offenses. This primer outlines various offenses that the prosecutor could potentially charge as war crimes. It concludes that only in the rarest of circumstances should a prosecutor charge a war crime by assimilating federal laws governing the prosecution of violations of the laws of war.

1 See MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. IV, ¶¶ 1 - 113 (2005) [hereinafter MCM].

2 UCMJ art. 134 (2005).

3 Id.

4 Id.

5 There are several definitions of “war crimes.” See, e.g., U.S. DEP’T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE para. 499 (July 1956) (“The term ‘war crime’ is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.”) [hereinafter FM 27-10]. In addition, the Department of Defense Law of War Program defines law of war as the following:

U.S. DEP’T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM para. 3.1 (9 Dec. 1998). For purposes of this primer, a “war crime” is considered to be a criminal act committed during international armed conflict against an individual who is protected from such acts by codified and/or traditional laws of war.

And, as correctly noted, an over-zealous prosecutor will not be stopped by a caveat that an available avenue is less than "best practice".

Regards

Mike

[motorfirebox]

Originally Posted by Massengale

motorfirebox: I think you make good points as to the action itself. But as a matter of law this is not a conflict "of an international character" and has not been since the dissolution of the Iraqi Army in 2003. We don't take POWs anymore and we didn't in 2007 either...and that's why. I understand what you're saying, but it's a legal term of art and not the plain meaning in English. hope that makes sense.

If that's the legal reality, then the legal reality--on top of being straight up clown shoes--seem more likely to create more strife than it actually resolves.

The problem with Fuchs's interpretation is that is leaves zero room between the lawful killing of armed combatants and simple murder. I find it hard to believe that the GC is to be interpreted such that any misidentification is a war crime. No matter if this conflict falls under GCIII's "convention in miniature" or the more general purview of GCI, this particular engagement falls under Protocol I Additional to the GC, 1977 (specifically, Article 57). All evidence available at the time strongly indicated that both sets of targets were viable.