The Wikileaks collection

[Dayuhan]

Do you want to tell all journalists that holding a camera in a war zone turns them into fair game?

Not exactly fair game, but every war zone journalist knows that when you walk into that zone you are at risk (and yes, I have been there and done that). You may be intentionally targeted by people who don't want journalists around. You may be accidentally targeted by an adrenaline-soaked combatant who expects to see an enemy and decides that you are what he expects to see (the degree to which expectation governs perception has to be experienced to be appreciated). You may simply be standing in the same space where a projectile happens to be passing. It's not a safe environment, and being a journalist is no protection at all. Maybe it should be in theory, but in reality it's not.

From the perspective of a civilian who's been around a little bit of it: anyone who thinks you can send young men into combat and get politically correct dialogue, accurate and dispassionate interpretation of observed circumstances, and calm, rational, effective decision making all the time is living in the land of fantasy. War is hell; that hasn't changed and I don't expect that it will. We may feel it necessary to punish those who remind us that war is hell and who fail to conform to the illusion of a precise, clean, surgical war in which every action can stand up to hindsight... but there's probably just a bit of hypocrisy in that need.

[Seabee]

Maybe some people are missing some cultural background facets more badly than I'm missing combat experience.

I like to think I have a bit of both, but there is a thing that bothers me with most of the arguments here...

This was not ONE action, this was a series of actions. It may be fairer for the men involved to see it that way.

If you approach me swinging a stick and I think you are a danger to myself and family and I tazer you and handcuff you... then go into the kitchen and drink a beer... while looking for the bottle opener I find a pair of scissors and come out and cut of your pinkie fingers, give you a kick in the crotch then go back in for another beer...then go into my garage and get a bat and come out and break your ankles

When the cops come, they will buy it that the tazer and cuffs may have been legitimate self defense. over and above that they are probably going to view everything that happened after that as a seperate case.

if it turns out the guy swinging the stick was actually blind, and did not even know you where there... he was just trying to find his way... you can argue that

1) It was an honest and tragic mistake that led to a tazer, cuffs... then went totally pear shaped...

or

2) you did not have the time (or TAKE the time) to access the situation... acted rashly... and then went into overdrive....

Lets give the benifit of the doubt here....

The crew made a decision based on all possible information they had. What happened in the first part of the movie with the journalist was an honest and tragic mistake...

That takes us up to the Tazing and handcuffs....

And at that point they went into the kitchen to have a beer...

everything that happened afterwards... IM(as always)HO was a different story altogether....

[glaterza]

[...]. You may be accidentally targeted by an adrenaline-soaked combatant who expects to see an enemy and decides that you are what he expects to see (the degree to which expectation governs perception has to be experienced to be appreciated). You may simply be standing in the same space where a projectile happens to be passing. It's not a safe environment, and being a journalist is no protection at all. Maybe it should be in theory, but in reality it's not.

From the perspective of a civilian who's been around a little bit of it: anyone who thinks you can send young men into combat and get politically correct dialogue, accurate and dispassionate interpretation of observed circumstances, and calm, rational, effective decision making all the time is living in the land of fantasy. War is hell; that hasn't changed and I don't expect that it will. We may feel it necessary to punish those who remind us that war is hell and who fail to conform to the illusion of a precise, clean, surgical war in which every action can stand up to hindsight... but there's probably just a bit of hypocrisy in that need.

Even if the two journalists had been enemy combatants with RPG´s, they were surrounded by unarmed people. And you can´t kill those. If you do, you are feasible to be charged according to the Laws of War. And that´s exactly what it´s happening. If there were "2 enemy combatants with RPGs, lawful or unlawful", the apache killed around 12 or 15 unarmed.

I understand your position, but, like it or not, we can all kick and cry all we want, but you won´t convince a court. the law is written in cold, clean letters. It´s the game we play now, we have to understand it prior of our deployments.

"War is hell" is a poor defense.

[William F. Owen]

If you do, you are feasible to be charged according to the Laws of War. And that´s exactly what it´s happening. If there were "2 enemy combatants with RPGs, lawful or unlawful", the apache killed around 12 or 15 unarmed.

I understand your position, but, like it or not, we can all kick and cry all we want, but you won´t convince a court. the law is written in cold, clean letters.

Laws of War? What Laws? What Court? I am aware of National and Theatre ROE, and the Geneva and Hague Conventions. What "Laws of War" are you referring to.

[Schmedlap]

Even if the two journalists had been enemy combatants with RPG´s, they were surrounded by unarmed people. And you can´t kill those.

Wrong. You can be both armed and a combatant (spotters, for example).

And that´s exactly what it´s happening. If there were "2 enemy combatants with RPGs, lawful or unlawful", the apache killed around 12 or 15 unarmed.

You don't have enough information to draw that conclusion.

I understand your position, but, like it or not, we can all kick and cry all we want, but you won´t convince a court. the law is written in cold, clean letters.

So what you're saying is, you have no idea what you're talking about.

[braun]

I understand from reading AAR material on the Centcom site that an RPG launcher was located among the KIAs by the ground troops that responded.

There were at least two AK series weapons and an RPG launcher within the group as they were walking across the road. These are clearly visible in the 38 minute youtube footage if you watch it in full screen mode. The reporter's camera equipment is visible as well.

If you go to the Centcom FOI site there are still images from the same TADS imagery which clearly show these weapons. That makes a minimum of five (including the two stringers and their misidentified bazooka DSLRs) "armed" men out of the group of eight who were engaged by the initial bursts.

Where do you draw the line? Three men appeared to be unarmed but the rest of the group appeared to be armed. At that time, a US vehicle patrol was around 100m away from that location. From the helos it would have looked like a bunch of JAM organising an ambush.

There is quite a bit of speculation that the armed men might have been some sort of security detail for the Reuters employees, but why would local security have an RPG launcher?

There are also reports that the two stringers were in the area on an unrelated job and heard sounds of a contact nearby and went to investigate, which is why they were milling around with the group out in the open with their cameras slung.

[Uboat509]

Even if the two journalists had been enemy combatants with RPG´s, they were surrounded by unarmed people. And you can´t kill those.

That's not true. Nothing out weighs the right to self defense. You can absolutely take what actions you reasonably believe are necessary to protect yourself or, as in this case, fellow US or coalition soldiers. If hiding amongst unarmed people was a viable defense then the human shield concept would be a lot more effective.

[Polarbear1605]

Law vs Law! says Polarbear as he pulls out his soap box and takes a step up. Analogue’s using cops and judges and rules of law drive me nuts, because we (and especially general officers) seem to confuse them all the time. The opposition party (at least in the US and it can be either the donkeys or the elephants) does it on purpose to undermine the folks in power. Example: Congressman Murtha calling the Haditha Marines “cold blooded murders”; before the investigation is complete btw. This is WAR and war is governed by the Laws of War and not by the Rules of Law. The difference is monumental at least in my mind.
The Rule of Law “is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed law adopted and enforced in accordance with established procedural steps that are referred to as due process”. For example, killing citizen is considered murder or manslaughter and the concepts of legal equality, presumption of innocence, Habeas Corpus, etc. are in play. The Rule of Law is also supported by a complete system of police, lawyers, prosecutors and judges. The US Rules of Law do not extend outside its borders. In addition, they do not exist in the county we are fighting in because the insurgents usually have killed the judges, police and other various government representatives.
The Laws of War defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians, wounded and POWs. The principles of distinction, military necessity and proportionality are in play. For example: Under the laws of armed conflict killing civilians is to be avoided (not forbidden) but can occur because of the need of “military necessity”. I have a hard time listening to anyone you says the US military does not go to extraordinary lengths to avoid civilian casualties.
Glaterza: Your correct, under the Rules of Law this is manslaughter, however, under the Laws of War it is civilians being killed out of military necessity(if they are truly civilians and not combatants; remember if your dressed as a civilian and you pick up a weapon your now a combatant). I bet this one pegs everyone’s moral meter way over to one side.

[Cecil Turner]

The guys with the RPG and AKM are obviously combatants, as are the guys supporting them. The Apache guy mistook the camera for another RPG, which is both understandable and doesn't materially change the legal or moral aspect of the situation (though it added to their perceived urgency). They were in easy range of US troops with offensive weapons and demonstrating hostile intent. Firing them up was perfectly legit.

As to engaging the van, it's a bit less definitive, but I think still allowed. If it were in fact an ambulance (and properly marked), it'd be protected. But as it is, it's simply another couple combatants attempting to aid their comrade, and hence not protected. Fuchs went to the trouble of finding the treaty, but then failed to read the pertinent notes section, which includes in part: "An escape, or an attempt at escape, by a prisoner or any other person considered to be ' hors de combat, ' justifies the use of arms for the purpose of stopping him."

The ROE on pursuit also appears to me to allow the shot . . . and though I might not've taken it in a similar situation, it's clearly not a war crime.

[stanleywinthrop]

Law vs Law! says Polarbear as he pulls out his soap box and takes a step up. Analogue’s using cops and judges and rules of law drive me nuts, because we (and especially general officers) seem to confuse them all the time. The opposition party (at least in the US and it can be either the donkeys or the elephants) does it on purpose to undermine the folks in power. Example: Congressman Murtha calling the Haditha Marines “cold blooded murders”; before the investigation is complete btw. This is WAR and war is governed by the Laws of War and not by the Rules of Law. The difference is monumental at least in my mind.
The Rule of Law “is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed law adopted and enforced in accordance with established procedural steps that are referred to as due process”. For example, killing citizen is considered murder or manslaughter and the concepts of legal equality, presumption of innocence, Habeas Corpus, etc. are in play. The Rule of Law is also supported by a complete system of police, lawyers, prosecutors and judges. The US Rules of Law do not extend outside its borders. In addition, they do not exist in the county we are fighting in because the insurgents usually have killed the judges, police and other various government representatives.
The Laws of War defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians, wounded and POWs. The principles of distinction, military necessity and proportionality are in play. For example: Under the laws of armed conflict killing civilians is to be avoided (not forbidden) but can occur because of the need of “military necessity”. I have a hard time listening to anyone you says the US military does not go to extraordinary lengths to avoid civilian casualties.
Glaterza: Your correct, under the Rules of War this is manslaughter, however, under the Laws of War it is civilians being killed out of military necessity(if they are truly civilians and not combatants; remember if your dressed as a civilian and you pick up a weapon your now a combatant). I bet this one pegs everyone’s moral meter way over to one side.

Polarbear I agree with your sentiment. You are absolutly correct when you state that the U.S. military goes to extraordinary lengths to avoid civilian casualties. I have lived and breathed that effort personally.

However, your technical points about the law are somewhat incorrect. Various Congressional acts HAVE applied U.S. law outside U.S. territory. Specifically I am talking about 18 U.S.C. 7 "The Special Maritime and Territorial Jurisdiction of the United States" and 18 U.S.C. 3261 the Military Extraterritorial Jurisdiction Act. Both of these acts HAVE been applied specifically to combat related events in Iraq and Afghanistan.

[Fuchs]

The definition of "combatant" is a completely different one than of "armed".

I agree with Seabee on the "taser" example.

@Wilf:
International treaties gain the power of law with ratification, so it's not inappropriate to call GC III and IV the laws of war.

@Uboat509:
American forces have stretched claims of "self defence " so far that I've become allergic to this excuse.
Think of Mach 2 fighter pilots bombing wedding festivities in response to AK muzzle flashes, claiming to have acted in "self defence".

There was no line of sight between ground forces and the suspected RPG at the time when the AH opened fire, so there was no self defence at all. Self defence ceases to be possible once the aggression is over.
Here wasn't even an aggression.

[Polarbear1605]

Polarbear I agree with your sentiment. You are absolutly correct when you state that the U.S. military goes to extraordinary lengths to avoid civilian casualties. I have lived and breathed that effort personally.

However, your technical points about the law are somewhat incorrect. Various Congressional acts HAVE applied U.S. law outside U.S. territory. Specifically I am talking about 18 U.S.C. 7 "The Special Maritime and Territorial Jurisdiction of the United States" and 18 U.S.C. 3261 the Military Extraterritorial Jurisdiction Act. Both of these acts HAVE been applied specifically to combat related events in Iraq and Afghanistan.

Hi Staleywinthrop, Your correct in both cases (and I am sure your now waiting for this shoe to drop); BUT the Special Maritime thingy is for pirates; and MEJA does not apply to active duty military. Sorry but we are back to Laws of War and combat scenarios.

[William F. Owen]

@Wilf:
International treaties gain the power of law with ratification, so it's not inappropriate to call GC III and IV the laws of war.

I disagree. There are simply no "Laws of War" in the way the term suggests, and especially in reference to the specific circumstances under discussion.

[Cecil Turner]

There was no line of sight between ground forces and the suspected RPG at the time when the AH opened fire, so there was no self defence at all. Self defence ceases to be possible once the aggression is over.
Here wasn't even an aggression.

Nonsense. The recovered photo shows the US convoy in easy range of the RPG. The Apache crew thought the camera was an RPG, but the actual RPG could've looked around the corner and fired in a matter of seconds (which was probably the next step in their plan). You're suggesting they have to wait until the insurgents actually fire, which is ridiculous.

[Fuchs]

You are wrong. I did in NO WAY suggest that they have to wait till one fired.
I wrote "Self defence ceases to be possible once the aggression is over.
Here wasn't even an aggression." Aiming a weapon is already an aggression in such a context. They would not need to wait for a shot.


The definition of self defence is not up for debate, though. You cannot assert that something was done in self-defence if no aggression was ongoing.

You cannot shoot your neighbour next door just because you suspect he's got a weapon. You gotta wait till he threatens you with it.

You cannot shoot your neighbour next door just because he threatened you with his gun a while back and then returned to his apartment. The time for self defence has passed in this case.


The inflationary use of the excuse "self defense" by U.S. forces has gone too far. This was no self defence, raiding compounds is no self defence, bombing weddings is no self defence.
The term is defined (differently in different countries, with afaik no definition matching your interpretation) and has a very narrow application. You cannot occupy it as an excuse for offensive action. (This applies even to foreign policy, where the term has experienced inflationary use as well.)


To provide excuses and to argue in favour of the pilots who obviously killed innocents and committed war crimes (there's no way to argue around that in regard to the medevac van scene!) fosters an environment in which additional soldiers will feel justified to commit war crimes.

[stanleywinthrop]

Hi Staleywinthrop, Your correct in both cases (and I am sure your now waiting for this shoe to drop); BUT the Special Maritime thingy is for pirates; and MEJA does not apply to active duty military. Sorry but we are back to Laws of War and combat scenarios.

Polar Bear on your two points you are

1. Wrong.
2. Half Wrong.

As to your first point 18 USC 7 crimes ARE NOT limited to crimes committed by pirates. See United States v. Passaro, 577 F.3d 207.

As to your second point it is true that a single accused miltary member cannot be tried in Federal court for crimes committed on active duty while he is still subject to the UCMJ. However see 18 USC 3261(d)(2). Active duty military members CAN be charged under MEJA when it is alleged they commited crimes in concert with one or more persons not subject to the UCMJ.

My overall point, however, is that under these laws federal criminal law CAN be used to regulate the behavior of the armed forces while overseas in combat zones. There is simply a delayed effect. See United States v. Jose Nazario and United States v. Steven Green. Should it be that way? I would argue that it shouldn't.

As it stands now, there is no legal barrier preventing an overzealous AUSA from presenting this video to a grand jury sometime in the future after one or both of these pilots seperate from the service.

[Polarbear1605]

and this question is for my own information: but I thought Title 18 excludes any war crime that can be charged under Title 10??? Understand there are a couple holes there but most military lawyers will tell ya don't move the UCMJ stuff under Title 18....Capt Roger Hill is an exception but he never went to court martial.

As it stands now, there is no legal barrier preventing an overzealous AUSA from presenting this video to a grand jury sometime in the future after one or both of these pilots seperate from the service.

Should it be that way? I would argue that it shouldn't.

I hear ya brother, I hear ya!

[jmm99]

If you (a generic "you" aimed at no one particular) feel that this incident should be prosecuted - I would not prosecute as to any of it, including the van segment - then you prosecute under 18 USC 2441 (War Cirmes), which spells out its extraterritorial jurisdiction:

(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act). ... (the act goes on to define "war crimes" in part (c) with special emphasis on Common Article 3 in part (d) which should be read carefully).

This is treated as though it can be incorporated by reference into the UCMJ.

Regards

Mike

[Danny]

We have a successful history of treating participants in the fight the same way regardless of whether they are carrying a weapon.

See:

http://www.defense.gov/news/newsarticle.aspx?id=48166

To curb insurgents’ ability to communicate, Costa decided on a revolutionary move: He and his unit would dismantle the enemy’s communication lines by neutralizing the threat from signalers. Sparing no time, he set a tone in Ramadi that signalers would be dealt with no differently from their weapon-wielding insurgent comrades.

By successful, I obviously mean "it worked."

HPS

[Cecil Turner]

You cannot shoot your neighbour next door just because you suspect he's got a weapon. You gotta wait till he threatens you with it.

Totally inapt. This isn't a backyard outing, it's a wartime engagement in which the convoy in question had already been fired upon. This group of insurgents had offensive weapons, were obviously part of the larger attack, and were pointing optics on the convoy. They were obviously combatants with hostile intent. The ROE in effect defined it as: "evidence of hostile intent is considered to exist when a foreign force or terrorist(s): is detected to maneuver into a weapon launch position; is preparing to fire, launch or release weapons . . ." There was no requirement to wait until they aimed, or whatever split-second point before firing you believe is when they "threaten."

And on the van thing, you're also wrong. It was not marked (red cross or crescent), and hence not an ambulance. The presumption of them being civilians is not plausible as they run into a fire zone to rescue combatants, and the law of war does not obligate shooters to allow combatants (even wounded ones) to escape.