The Law of War: Restrictive Rules of Engagement and Increased Consequences for Soldiers Prevents Soldier Action

THE LAW OF WAR: Restrictive Rules of Engagement and Increased Consequences for Soldiers Prevents Soldier Action

Alexander Gualdoni[1]

November 20, 2012

Introduction

            On July 21st of 2011, Soldiers of the 38^th Route Clearance Platoon were conducting a mounted patrol in the Wardak Province in central Afghanistan.  An improvised explosive device (IED) detonated in the vicinity of one of the patrol’s vehicles, a 45,000 pound Buffalo mine-resistant ambush protected vehicle, throwing it ten feet in the air and wounding the five Soldiers inside.  The patrol sought to secure their perimeter and treat the wounded; however, insurgents engaged the patrol with small arms from hillsides along the road.  Two white cars fled the area as well, firing as they sped away.

Soldiers from the patrol found the command wire used to detonate the IED and began to trace it back to its point of origin across an open field.[2]  The wire led toward a black car parked on the side of a road near vehicles of other Afghans waiting for the shooting to stop.[3]  As the three Soldiers tracing the wire approached the vehicle, a figure dressed completely in black, bulky clothing exited the vehicle and moved toward the trunk.[4]  The trunk appeared to have a wire trailing from it, an indicator of a vehicle-borne improvised explosive device (VBIED).[5]       Sergeant First Class Walter Taylor and Sergeant Nicholas Wilson, believing the figure was moving to obtain a weapon or detonate a bomb, engaged the figure, each firing several rounds from their rifle.[6]  The figure, Dr. Aquila Hikmat, was killed by a bullet to the forehead.  Two other occupants of the vehicle were killed and a third wounded.[7]  For his actions that day, SFC Taylor was charged by the U.S. Army with negligent homicide in the death of Dr. Hikmat.[8]  United States Forces – Afghanistan rules of engagement, a derivation of the Law of War, required SFC Taylor to positively identify any suspected threat as hostile before engaging with deadly force.[9]  The Law of War, though well-intentioned to limit suffering and destruction, has moved from regulating leaders involved in the conduct of war to the prosecution of the Soldier making snap decisions in the heat of battle.

In the pages that follow, this paper will examine the origins of the Law of War, focusing on development from the Liber Code through the creation of The Hague and Geneva Conventions.  Additionally, the paper will scrutinize the enforcement of the Laws of War through examination of the trials of Peter von Hagenbach, Captain Henry Wirz, and Lieutenant William Calley followed by an overview of recent trials involving U.S. Soldiers or Marines implicated in war crimes allegedly committed in the line of duty pursuant to combat operations.  This paper is not meant to rehash clear-cut war crimes committed incident to, rather than on the modern battlefield.  Rather, it will illustrate generally the training service members receive on the Law of War, the vague and conflicting guidance given from higher headquarters, and the difficult position in which those Soldiers and junior leaders who actually fight the war are placed as they make split second decisions to save their own lives, the lives of their comrades, or the lives of local nationals on the multi-faceted and confusing counter insurgency battlefield.[10]

History of the Law of War

            No single document or decree can be pointed to as the single source from which modern Laws of War evolved.  Rather, a combination of experience, religion, and a desire to preserve a disciplined force seemed to guide the crafting of rules governing the conduct of war.  The Hindu Mahabharata, written around 200 B.C., urged warriors not to harm surrendered or incapacitated foes while the ancient Hindu Code of Manu and Second Lateran Council held in 1139 A.D. outlawed, or at least attempted to outlaw, the use of barbed or poisonous arrows and the crossbow, respectively.[11]  The Byzantine Emperor Maurice in his Strategica, circa late 6^th Century A.D., decreed a Soldier who injured or killed a civilian would pay restitution in twice the amount of the damage inflicted.  Sun Tzu’s Art of War (700 B.C), the Third Lateran Council (1179 A.D.), and the medieval Chivalric Code all urged restraint and humane treatment, although the motive for such rules was more than likely aimed at protecting against insurrection in conquered territory and the facilitation of the ransom system for prisoners.[12]  Renaissance England and industrial age Sweden and the Netherlands all published regulations for how their respective nations would conduct themselves in times of war.[13]

Though some rule or guideline to lessen destruction and suffering in times of war existed since time immemorial, the first regulations for the U.S. military and most complete code with respect to the regulation of  the actual conduct of war were first promulgated during the U.S. Civil War in the form of the Lieber Codes.  These Codes would later serve as framework for the Hague Conventions and Geneva Conventions in the late 19^th and early 20^th century.  Francis Lieber, a lawyer[14] who taught Law of War at Columbia prior to the outbreak of the Civil War,[15] authored the Codes.  Lieber was propositioned by Secretary of War Edward Stanton and General in Chief Henry Halleck[16] to write a code not only to govern the conduct of the Union Army, but also to be disseminated to the Confederate Army, as well as the armies of Europe, to facilitate a uniform method of conducting hostilities.[17]

Of the 157 rules included in the Lieber Code, perhaps the most relevant punitive sections of the code for recent U.S. conflicts are Rule 11 forbidding cruelty, bad faith, and acts of revenge;[18] Rule 37 requiring the U.S. to acknowledge and protect the property rights and private citizens within areas occupied by United States forces;[19] and Rule 44 prescribing death or other severe punishment against service members looting or committing murder, rape, or mayhem against civilians in occupied areas.[20]   While the Rules, supra, from Sections I and II of the Lieber Code tend to regulate battlefield conduct of U.S. forces, Section IV of the Code limits those to whom protection is afforded.  Rule 81, for example, defines partisans as uniformed enemy, fighting as part of their army while separated from their main force.[21]  However, Rule 82 treats as bandits those who periodically participate in hostilities without being a member of an army then return home to their civilian occupations.[22]  Finally, Rule 85 prescribes death for war-rebels, those who rise up against an occupying army.[23]

Rules 11, 37, and 44 of the Lieber Codes admonish U.S. forces against unnecessary destruction or criminal acts against the populace while occupying territory.  However, Rules 81, 82, and 85 provide limitations to those protected by the Laws of War.  Rule 81 would allow cutoff or holdout elements of an enemy army, remnants of Iraq’s Republican Guard for instance, to continue active resistance and still be afforded Law of War protections so long as the cutoff element remains in uniform.  Rules 82 and 85, conversely, deny Law of War protections to those who rise against an occupying force, such as the various militias conducting attacks against Coalition and Host Nation Forces in the Global War on Terror following the military defeats of pre-war powers.  Almost consistently, belligerents in the Global War on Terror are irregular militias with the occasional individual actor.  Because these militias are not part of a recognized army, wear no uniform, and often use hit and fade ambushes wherein they attack a Coalition patrol with an IED or small arms fire, then break contact and attempt to blend back into the population, these insurgent groups would be classified as either bandits or war-rebels under the Lieber Code.  The individual actor who participates in an attack for a brief payday is more the Rule 82 bandit while the more organized enemy forces acting as militias are war-rebels, having risen against the occupying army and the democratic governments of Iraq and the Islamic Republic of Afghanistan.   As war-rebels these fighters would not be afforded prisoner of war protection by the Liber Code; war-rebels under the Code are, rather, subject to execution.[24]

Conversely, Sections I and II of the Lieber Code appear to allow for good faith exceptions to civilian casualties and collateral property damage while providing severe penalties for revenge or retribution actions against civilians.  Rule 44’s prohibition of wanton violence suggests that so long as a service member is not acting maliciously, civilian casualties and collateral damage occurring by his hand (order by soldiers following his orders) are not punishable.[25]  Requiring malicious intent or some other mens rea standard in the prosecution of battlefield war crimes, rather than the seeming mere negligence standard, might perclude prosecution in many of these types of cases where the actor is seeking to preserve his own life and those of his fellow service members.

Hague and Geneva Conventions

            In 1899, the first peace conference was held at The Hague at the behest of Czar Nicholas II.[26]  26 nations, including the United States, attended the conference, discussing and deciding such matters as the establishment of a permanent international court of arbitration to settle disputes between states before war erupts, appropriate armaments for the carrying out of hostilities, and the Laws of War by appointing a commission devoted to each matter.[27]  Though the Convention purported to establish a permanent court of arbitration, the only arms limitation that came of the conference was an agreement against use of poison gas shells.[28]^{, [29]}  The commission on Laws of War did not promulgate an all-inclusive Law of War; rather, the most significant achievement toward a uniform Law of War was the Martens Clause, which ascribed to signatories of the agreement to comport themselves in accordance with international law and the human conscience in areas of war not specifically addressed by the convention.[30]

The Second Hague Convention was held in 1907, this time by request of President Theodore Roosevelt.[31]  The 44 nations in attendance revisited matters discussed during the First Convention.[32]  No weapons were restricted by this Convention, however, for the first time in an international agreement a penalty, compensation for the injured nation by the offending nation, was prescribed for violations of the Conventions.[33]  Though some articles of the Hague Conventions survive, most were superseded by the Geneva Conventions.[34]

            International powers met in Geneva, Switzerland, five times from 1864 through 1949 to discuss methods of protecting wounded and sick on land; wounded, sick, and shipwrecked at sea; prisoners of war; and civilians, Conventions I through IV, respectively.[35]^{, [36]}  Perhaps most importantly, Article 2 of Convention I states:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.[37]

By assenting to Article 2 of Convention I[38], the United States agreed to abide by the terms of the Convention to which it agreed even if the other party in a conflict, such as the Taliban or al Qaeda, is not a signatory.  Further, even though a military action may not be taking place under a declaration of war, signatories of the Geneva Conventions are nonetheless bound by its terms.

None of the conventions expressly define combatants; however, Article 4 of Convention III extends prisoner of war status beyond regular armies to:

. . . members of militias or volunteer corps forming part of [regular] armed forces . . . [and] organized resistance movements . . . provided such [units] . . . [are] commanded by a person responsible for his subordinates; . . . [have] a fixed distinctive [uniform] recognizable at a distance; . . . [carry] arms openly; . . . [conduct] their operations in accordance with the laws and customs of war.[39]

Under Article 4, the insurgents fighting in the Global War on Terror are not afforded prisoner of war status if captured because, although some could possibly be classified as organized resistance movements, none wear distinctive uniforms, they rarely carry weapons openly outside of combat operations, and they only incidentally, if ever, observe the Laws of War.  The Geneva Conventions, by not addressing counter insurgency, seems to ignore it.  Article 2, Convention I terms require signatories to extend Convention protections to non-signatories which include insurgent groups, but, by not specifically assigning protections, the Geneva Conventions appear to recognize conventional warfare while not envisioning large-scale counter-insurgency conflicts.[40]

Early Enforcement

             The trial of Peter von Hagenbach in 1474 is considered the first international war crimes trial.[41]  Von Hagenbach was appointed governor of Breisach when it was ceded by Austria to Duke Charles of Burgundy.[42]  Von Hagenbach used rape, murder, taxation, and seizure of property against the citizens of Breisach and surrounding areas to coerce them into submission to the rule of Duke Charles.[43]  A revolt of the citizenry and von Hagenbach’s mercenaries in Breisach seized the governor and brought him to trial before a tribunal comprised of members of an alliance against Duke Charles.[44]  Von Hagenbach defended himself against charges of murder, rape, perjury, and ordering others to commit the same by arguing that he was bound by the will of his sovereign, Duke Charles of Burgundy, to carry out the orders received without question or hesitation. [45]  The tribunal refused to heed von Hagenbach’s defense, finding it adverse to the will of God in convicting him, stripping him of his knighthood, and subsequently executing him.[46]

Early American Enforcement

            Among the first war crimes trials in the United States was that of Confederate States of America Army Captain Henry Wirz, commandant of the stockade at the Andersonville Prisoner of War Camp, following the defeat of the Confederate States in the American Civil War.  Captain Wirz was charged with, among other crimes, violating the laws and customs of war by “maliciously, willfully and traitorously . . . conspiring . . . to injure the health and destroy the lives of United States [S]oldiers being prisoners of war . . .[47]”  Like von Hagenbach, Captain Wirz argued he acted as best he could with what resources he had and, regardless, he was following orders when he carried out his duties.[48]  The tribunal found Captain Wirz guilty of nearly all charges.  He was executed by hanging on November 10, 1865.[49]

Early 20^th Century Enforcement

            Following World War I, the Allied powers sought to try 45 German soldiers suspected of war crimes under the Treaty of Versailles.[50]  Germany refused to produce any of the accused claiming their production would topple the already weakened German government.[51]  Instead, Germany offered to try the accused in the German High Court at Leipzig.[52]  There, again, the Germans claimed an inability to produce the accused, though eventually 12 were tried and six convicted, none receiving a sentence longer than four years of house arrest.[53]  This lack of justice would be a driving force behind eventual establishment of international tribunals to handle war crimes claims, most notably at Nuremberg and in Tokyo in the wake of World War II.[54]

Vietnam – My Lai

            Perhaps the most infamous war crimes trial involving U.S. Soldiers was the prosecution of Second Lieutenant William Calley (hereinafter Lieutenant Calley) stemming from the killing of unarmed civilians outside My Lai (4)[55] in the village of Song My in Vietnam.  Lieutenant Calley was charged with three specifications of premeditated murder and one specification of assault with intent to commit murder in the deaths that followed his platoon’s securing of My Lai (4) in support of the company’s clearing operations.

During the C Company mission brief from Captain Ernest Medina to Lieutenant Calley and the other two platoon leaders, Captain Medina

. . . gave them the enemy situation, intelligence reports where the 48th [Viet Cong] Battalion was located in the village of My Lai (4). I told them that the VC Battalion was approximately, numbered approximately 250 to 280 men and that we would be outnumbered approximately two to one, and that we could expect a hell of a good fight and that we probably would be engaged . . . and that the intelligence reports also indicated that the innocent civilians or noncombatants would be gone to market at 0700 hours in the morning.[56]

Captain Medina cautioned his platoon leaders that “[y]ou must use common sense. If they have a weapon and are trying to engage you, then you can shoot back, but you must use common sense . . .” and “. . . that Colonel Barker had told me that he had permission from the ARVN’s at Quang Ngai to destroy the village of My Lai (4), and I clarified this by saying to destroy the village, by burning the hootches, to kill the livestock, to close the wells and to destroy the food crops.[57]”

Whether because of Captain Medina’s briefing or acting on his own initiative, Lieutenant Calley supervised the collection of villagers and then both ordered and participated in the killing.  However, though 11 other Soldiers were charged in the massacre, Lieutenant Calley was the only Soldier convicted of any charge, ultimately being convicted of the premeditated murder of not less than 22 persons and one charge of assault with intent to kill.[58]  Aside from the conviction of Lieutenant Calley, other important holdings came out of the disposition of the case.  For one, the Court upheld the decision in US ex rel. Toth v. Quarles in that once a service member has been discharged they are no longer subject to Uniform Code of Military Justice, but instead are entitled traditional federal constitutional courts and protections.[59]  However, the Calley Court held it legal for the military to involuntarily extend service members for the completion of a court martial prosecution or investigation of allegations that may result in perferral of court martial charges.[60]  The Calley Court also clarified a Soldier’s obligations in response to illegal orders, finding the following instructions to the jury of the court martial by Judge Kennedy permissible and apt:

A determination that an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts done in compliance with it. Soldiers are taught to follow orders, and special attention is given to obedience of orders on the battlefield. Military effectiveness depends upon obedience to orders. On the other hand, the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.[61]

The reviewing court held:

Heed must be given not only to subjective innocence-through-ignorance in the soldier, but to the consequences for his victims. Also, barbarism tends to invite reprisal to the detriment of our own force or disrepute which interferes with the achievement of war aims, even though the barbaric acts were preceded by orders for their commission. Casting the defense of obedience to orders solely in subjective terms of mens rea would operate practically to abrogate those objective restraints which are essential to functioning rules of war.[62]

In other words, an order like the one Lieutenant Calley claims he received from Captain Medina to “waste the villagers” would clearly be an illegal order as no reasonable person would believe an order to kill unarmed villagers to be lawful.  However, the order to destroy the village may have been lawful as it appeared the enemy was using it as a logistical hub and the villagers were supposedly gone from My Lai (4) during the time the operation was planned to take place.

Additionally, and perhaps most importantly, the Reviewing Court considered a number of mitigating factors in deciding to reduce Lieutenant Calley’s sentence to 20 years.  The Reviewing Court considered the fact that, aside from mine fields, C Company had no firefights or other encounters with the enemy, had only been in theater for three months prior to the engagement at My Lai (4), had a popular platoon sergeant killed by a mine two days prior to the operation, and the impact of the faulty intelligence briefed to Lieutenant Calley.  Additionally, the Court recognized that inconsistencies in testimony could be attributed to the more than 40 months that passed between the time of the incident and the commencement of trial.[63]  Perhaps the most germane portion of the Court’s decision was a quote from the House Armed Services report on My Lai:

In a war such as that in Vietnam, our forces in the field must live for extended periods of time in the shadow of violent death and in constant fear of being crippled or maimed by booby traps and mines. And added to this is the fact that this is not war in the conventional sense. The enemy is often not in uniform. A farmer or a housewife or a child by day may well be the enemy by night, fashioning or setting mines and booby traps, or giving aid, comfort and assistance to the uniformed enemy troops. Under such circumstances, one can understand how it might become increasingly difficult for our troops to accept the idea that many of those who kill them by night somehow become ‘innocent civilians’ by day. Understandably such conditions can warp attitudes and mental processes causing temporary deviation from normality of action, reason or sense of values. And the degree of deviation may vary with each individual.[64]

The House Armed Services report could just as easily be applied to either of the counter insurgency conflicts in Iraq or Afghanistan where, similar to the findings on Vietnam, the local national civilians, military, and law enforcement often work with U.S. and NATO Soldiers one day, but become IED emplacers or facilitators, insider threats, or suicide bombers the next.  The House Armed Services Committee recognized during Vietnam the difficulties this sort of battlefield calculus imparts on Soldiers attempting to distinguish enemy from non-combatant in a counter insurgency fight.

Global War on Terror Enforcement – Haditha, Iraq

            Perhaps the most notorious combat incident for which charges were preferred against U.S. forces for alleged Law of War violations during counter insurgency operations pursuant to the Global War on Terror was the deaths of 24 Iraqis near Haditha, Al Anbar Province, Iraq.

A large, buried IED struck a vehicle in a Marine resupply convoy, instantly killing one and wounding two more Marines.  In action following the IED, five Iraqis were killed at a Marine checkpoint that was cordoning the area and 19 more Iraqis were killed when the patrol entered and cleared a building near the blast site.  Reports differ as to whether the Marines were taking fire from the house; however, the platoon leader on the ground determined the building was hostile and ordered his Marines to clear it.  Marines prepared the building for entry with fragmentation grenades, then entered and shot all occupants.

In the aftermath, four enlisted Marines were charged with murder and four Marine officers were charged with, among other things, dereliction of duty, failure to follow orders, and obstruction of justice.  Charges were dropped (often in exchange for testimony) or Marines were acquitted in seven of the eight cases.[65]  Staff Sergeant Frank Wuterich, herein after SSgt Wuterich, the squad leader who told his Marines to “shoot first, ask questions later” prior to entering the house in Haditha, pled guilty to negligent dereliction of duty for which he was ordered to serve three months of confinement.

Because none of the murder charges went to trial, there were no legal findings as to whether the actions of the Marines in Haditha were war crimes as a matter of law or fact.  The unreleased Bargewell Report, the Department of Defense investigation into the matter, focused less on the actual incident, instead criticizing the Marine chain of command for their reporting and investigation into the matter, stating “All levels of command tended to view civilian casualties, even in significant numbers, as routine and as the natural and intended result of insurgent tactics.[66]”

With the lack of details on the actual combat, it is difficult to make any far-reaching conclusions from the disposition of SSgt Wuterich’s charges.  Following the incident, the Multi-National Forces – Iraq Commander recommended force-wide remedial training on rules of engagement and Law of War.  Additionally, the practice of “frag and clear” has been rarely used in urban combat since the incident unless ground forces can confirm no civilians are in the building to be cleared.  Though this prohibition undoubtedly reduced the number of civilian casualties, it also likely increased the number of U.S. service members wounded or killed in action because of their decreased ability to kill or incapacitate the enemy before entering and clearing a structure.  Policy choices in combat have consequences; here, whose blood should be spilled.  Additionally, units preparing for deployment conduct more training on entering and clearing buildings and rooms with an emphasis on target discrimination, especially in reduced visibility and low-light environments.

Prosecution of Sergeant Jose Nazario under the Military Extraterritorial Jurisdiction Act

            In November of 2004, Operation Phantom Fury was launched, a joint U.S. military action to clear the city of Fallujah in the Al Anbar Province of Iraq.  What followed was 18 days of the fiercest fighting by American service members since Vietnam.  Prior to commencement of the clearing operation, U.S. forces cordoned the city of 300,000 and broadcast messages for all civilians to leave the city prior to full-scale clearing operations.[67]  When coalition forces entered the city, an estimated 25,000 souls remained within Fallujah.[68]  As was the case at My Lai, intelligence indicated those who remained were insurgents.[69]

On the second day of the operation, November 9, 2004, Sergeant Nazario led a squad of Marines into a house from which his platoon received fire that killed a Marine.[70]  Inside, Sergeant Nazario and his men allegedly discovered a number of AK-47s, spent casings, and the smell of cordite as well as capturing four military-age males.[71] Supposedly, after reporting his squad’s findings, Sergeant Nazario received an inquiry on radio if the military-age males were dead yet.[72]  Allegedly taking the inquiry as an order, Sergeant Nazario killed two of the military-age males himself and ordered his men to kill the other two due to a lack of capability to take prisoners and a need to move on to other objectives.[73]

In 2006, the incident came to light during a background check of one of the other participants; Sergeant Nazario was charged with multiple counts of murder.[74]  The allegations were raised only after Sergeant Nazario received his discharge from the Marine Corps so, unlike Lieutenant Calley who was involuntarily extended while his matter was investigated and adjudicated, per the Toth decision Sergeant Nazario was no longer subject to trial by court martial because of his discharge.  Instead, charges were brought against Sergeant Nazario in a Federal District Court in California under the Military Extraterritorial Jurisdiction Act (MEJA).[75]

The MEJA fills the jurisdictional gap identified in Toth. When passed in 2000, the MEJA gave the Article III courts jurisdiction over members of the Department of Defense, both military and civilian including dependents of military members, who committed crimes while abroad and are no longer subject to the Uniform Code of Military Justice.[76]  The MEJA was amended in the wake of the Abu Gharib prison abuse scandal to include non-Department of Defense government workers and contractors accompanying the military overseas.[77]

Sergeant Nazario had the unlucky distinction of being the first former service member prosecuted under the MEJA.[78]  The government, however, was unable to get a conviction on any charge; the trial was plagued with jury and evidentiary problems.  The lay-jury of nine included only one former service member, a former Sailor with no combat experience.[79]  Before calling any witnesses, the prosecution called general purpose testimony of combat service member to try to frame its arguments in light of Sergeant Nazario’s training and experience.  The jury, and indeed the judge, had difficulty understanding the jargon and complexities of military life.  Additionally, the prosecution could neither identify the victims nor, because of the destruction of the crime scene in combat operations, could it produce any forensic evidence, to include bodies, against Sergeant Nazario.[80]  The members of Sergeant Nazario’s squad the prosecution sought to use for testimony against him refused to testify; taking contempt charges rather than testify against their former squad leader.[81]  Ultimately, from either lack of evidence or the jury’s refusal to second guess the combat judgment of a Marine, Sergeant Nazario was acquitted.[82]

The thought of civilians who have never been on combat or experienced the fog of war sitting in judgment of a service member months or years after an alleged war crime raises 6^th Amendment concerns.  In order to receive a fair trial, judged by a jury of his peers, a former service member accused of war crimes should be tried by either current or former service members who served in combat.  This does not fit the traditional method of jury selection.  In reality, the 6^th Amendment rights of a former service member accused of a war crime are best served by a trial by court martial, something the Toth Court found unconstitutional.  Perhaps a fitting middle ground would be to conduct jury selection from active National Guardsmen or Reservists.  Rolls of Guardsmen are available at state-level and a voir dire could easily be conducted within or near the trial location of the suspected former service member.

            United States Military Response to the Laws of War

            The Uniform Code of Military Justice is the main body of law governing the conduct of U.S. service members.  The Uniform Code of Military Justice meets the requirement of each Geneva Convention to “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.[83]  The Rules for Courts Martial 201(f)(1)(B) provide that for cases arising out of law of war violations:

(i) General courts-martial may try any person who by the law of war is subject to trial by military tribunal for any crime or offense against:

(a) The law of war; or

(b) The law of the territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or part by the military authority of the occupying power. The law of the occupied territory includes the local criminal law as adopted or modified by competent authority, and the proclamations, ordinances, regulations, or orders promulgated by competent authority of the occupying power.[84]

Thus, as seen in the cases supra, whenever a U.S. service member potentially commits a law of war violation the United States prosecutes the alleged violation under the punitive articles of the Uniform Code of Military Justice in court martial proceedings rather than as a war crime in an international court.  In fact, only two U.S. service members have ever been formally charged with war crimes.[85]

Department of Defense directive 2311.01E promulgates the Law of War program for all entities under the Department of Defense umbrella.^[86]  By this directive, the Department of Defense asserts the policy that

. . . [m]embers of the Department of Defense Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations. . . .  The law of war obligations of the United States are observed and enforced by the Department of Defense Components and Department of Defense contractors assigned to or accompanying deployed Armed Forces. . . .  An effective program to prevent violations of the law of war is implemented by the Department of Defense Components. . . .  All reportable incidents committed by or against U.S. personnel, enemy persons, or any other individual are reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action.^[87]

In compliance with the Department of Defense Law of War Program, the U.S. Army established a training program to ensure its elements have a basic understanding of the Laws of War.  Indeed, refresher training is an annual requirement as well as a requirement prior to deployment to Afghanistan, Kuwait, the Balkans, or any other theater of operations where combat is a possibility.[88]  Part of this training is a PowerPoint presentation providing a watered-down overview of the Laws of War as published in Field Manual 27-10 of the same name and disseminating the Soldier’s Rules.  Per the training package, adherence to the Laws of War promotes a disciplined, more effective fighting force, maintains support for U.S. operations at home and abroad, facilitates an early end to hostilities and promotes reciprocal adherence to Laws of War by the enemy.[89] Further, Soldiers should comply with the Laws of War because it is the right thing to do, it is the duty of a professional Soldier, because it is the law, because Law of War violations could create an international incident and war crimes embarrass the United States and limit policy options.[90]  The principles of the Law of War advanced by the training package are necessity, proportionality, target discrimination, and limitation suffering.[91]  Necessity in combat means only using military force against “[c]ombatants, and those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage . . .[92]”  Proportionality, within the framework of the Laws of War, is using reciprocal amounts of force against an enemy, but only so much force as necessary to eliminate the threat  in order to limit collateral damage and civilian suffering.[93]  Soldiers practice target discrimination to focus lethal effects on enemy fighters, vehicles, and structures while avoiding weapons effects on civilians and protected structures.[94]  To limit the suffering of combatants and non-combatants alike use of glass munitions, expanding bullets such as Dum-Dum or hollow point rounds, and any other material calculated to cause unnecessary suffering are prohibited.[95]  The remainder of the slides explains the 10 Solder’s Rules for complying with the Laws of War.

The Soldier’s Rules provide general guidelines for conduct on the battlefield, but no actual insight for compliance with the rules of engagement.  Most, like rules nine[96] and ten, to prevent Law of War violations and report all suspected Law of War violations, respectively, are self-explanatory.  However, perhaps the most important Soldier Rule, rule one, is vague.   “Fight only combatants[97]” and the subsequent explanation on the slide and the instructor comments in the notes offer little insight as to how to determine if someone is a combatant.  Slide 14 states a combatant is “[a]nyone engaging in hostilities in armed conflict on behalf of a party to the conflict” or “[p]ersons engaged in a hostile act or [d]emonstrating hostile intent.[98]”  The comments go on to elaborate, explaining that:

[a]ny combatant belonging to a declared hostile force may be engaged with force at any time.  An unprivileged belligerent is an individual participating in hostilities who does not meet the [Law of War] criteria of a lawful combatant.  An unprivileged belligerent, though not a part of a declared hostile force, can be legitimately targeted, as a result of their hostile conduct.  An unprivileged belligerent is not entitled to POW status if captured and does not enjoy “combatant immunity.[99]”

The comments offer no further elaboration as to the “combatant immunity” nor does it make any relevant distinction between the Republican Guard and Hezb-e-Islami Gulbuddin.[100]  The comments do, however, describe the components of hostile conduct for the “unprivileged belligerents:”

Hostile Act:  An attack or other use of force against the United States, U.S. forces, and, in certain circumstances, U.S. nationals, their property, U.S. commercial assets, and/or other designated non-U.S. forces, foreign nationals and their property.  It is also force used directly to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel and vital U.S. Government property. A hostile act triggers the right to use proportional force in self[-]defense to deter, neutralize, or destroy the threat.

Hostile Intent:  The threat of imminent use of force against the United States, U.S. forces, or other designated persons and property. It is also the threat of force used directly to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel and vital U.S. Government property.  When hostile intent is present, the right exists to use proportional force in self[-]defense to deter, neutralize, or destroy the threat.[101]

Thus, receipt of fire from an enemy or something to the effect of the observation of the enemy establishing a mortar firing position would allow U.S. service members to engage such non-uniformed actors without much doubt as to the legality of the action under Department of Defense policy.

This training is often supplemented by vignettes to help service members apply the presented material.  However, this classroom-based training is generally not well received by service members who prefer to be in the field training rather than sitting through PowerPoint classes on concepts that seem abstract to them.  In my experience, service members may not pay close attention to such classes, have difficulty envisioning how these concepts apply to them, and instructors often “check the block” on this instruction, presenting the broad topic without offering specific guidance as to application of these principles.  Additionally, hypotheticals posed by service members during these training events rarely receive definitive answers from the legal experts who, instead, usually hedge their answers or provide general responses.  This does not give the service member clear guidance for application in actual combat.

Rules of Engagement

            Rules of engagement are “[d]irectives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.[102]”  Rules of engagement narrow the focus of the Laws of War to a particular conflict and briefly describe permissible and prohibited actions in certain situations.

As a practical matter, rules of engagement perform three functions: (1) provide guidance from the President and Secretary of Defense (SECDEF), as well as subordinate commanders, to deployed units on the use of force; (2) act as a control mechanism for the transition from peacetime to combat operations (war); and (3) provide a mechanism to facilitate planning. Rules of engagement provide a framework that encompasses national policy goals, mission requirements, and the rule of law.[103]

Standing Operating Procedure 373 augments the rules of engagement for U.S. service members operating in Afghanistan.

International Security Assistance Force Standing Operating Procedure 373 spends a full two of its thirteen pages describing actions service members should take in deciding whether or not to use force against a potential threat; it devotes two additional pages to a flow-chart illustrating the process.[104]  The most basic actions are deciding if there is a threat then deciding if force is necessary to deter the threat.[105]  As part of that decision-making process, the standing operating procedure requires service members to consider second and third order effects of using force, identify potential collateral damage that may occur if force is used, possibly switch weapon systems to mitigate collateral damage, and continuously reassess the situation and environment to determine the threat level and the risk to civilians and their property.[106]  Additionally, General McChrystal[107] warned commanders to “not allow troops to take the easy safe route when doing so requires the use of stand-off weapons or indirect fire.[108]”  He then told commanders to “make efforts to engage with Afghan leaders, elders, advisers, and the ANSF in order to validate [their] [tactics, techniques, and procedures].  It is the [c]ommander’s responsibility to look for ways to inform the local people about our [tactics, techniques, and procedures] so that we can work together in the same space.[109]”  McChrystal’s guidance to avoid using standoff weapons in escalation of force makes sense as long-range weapons such as the .50 caliber machine gun, though much more accurate than smaller arms, create the risk of over-penetration, increasing the risk of collateral damage.  The directive for commanders to alert local nationals to unit escalation of force tactics likely runs counter to every fiber of most service members’ being as most do not trust the locals.  The escalation of force measures are one standing operating procedure out of dozens that build the rules of engagement in Afghanistan.

            Law of War/rules of engagement training is at the forefront of deployment preparation for units deploying in support of Operation Enduring Freedom.  It was similarly emphasized for deployments to Operation Iraqi Freedom and Operation New Dawn prior to US withdrawal from the Iraq Theater in the Global War on Terror.  US Army Forces Command establishes training requirements for those units being deployed to an operational environment presided over by a combatant command.[110] This includes units deploying to Africa, the Balkans, the Sinai, the Philippines, and Operation Enduring Freedom.  This training guidance mandates that “training should include use of [escalation of force].  Specific [rules of engagement] and specific instructions on escalation of force, to include use of [non-lethal weapons], tailored to the [area of responsibility], and escalation of force, to include use of [non-lethal weapons] and deadly force, sustainment training should be conducted again in theater.”

Training on rules of engagement/escalation of force for Army units is multi-phasic.  All Soldiers receive baseline rules of engagement/escalation of force training during their initial entry training.  At their units of assignment, Soldiers receive Law of War and rules of engagement, training annually and prior to deployment.[111]  This training is usually conducted by a judge advocate.  The training emphasizes the four basic principles of the Laws of War, explains the need for the Laws of War as an Army and for the individual Soldier, and enumerates the Soldier’s responsibilities under the Laws of War in the Soldiers Rules.

The information learned during the annual classroom briefings on the Laws of War is integrated into field problems and refresher vignettes.  As units come within a month of   deployment, they undergo a mission rehearsal exercise.  These are typically conducted at regional training centers in Fort Irwin, California; Fort Polk, Louisiana; and Hohenfels, Germany.  Infliction of civilian casualties during any of the simulated engagements during the mission rehearsal exercise at a regional training center results in an investigation by the chain of command.  The investigation could lead to simulated courts martial if the investigator determines the casualties were willfully or negligently inflicted.  Additionally, in some instances, actual non-judicial punishment has been given to the Soldiers involved.  In cases where widespread collateral damage occurred during the mission rehearsal exercise or a command climate existed with an apparent disregard for the rules of engagement, chains of command have been relieved or unit deployment was delayed pending retraining on the Laws of War and proper implementation of rules of engagement into the unit’s operations.

While these exercises in application of the Laws of War are effective in clarifying rules of engagement in some cases and may help to bolster a service member’s confidence in their ability to apply the rules of engagement, the exercises often serve to illustrate residual confusion existing on the battlefield.  In one instance, a squad guarding a base entry point identified a suicide bomber in a crowd protesting at the gate.  The squad, being within 100 meters of the bomber, opened fire.  The suicide bomber was killed, but so were most members of the crowd by rounds from the squad or sympathetic detonation of the bomb.  The platoon and squad was verbally admonished in the after action review of the exercise.  While their response was within the scope of military necessity, it was not proportional to the threat and endangered civilians.  Further, as most of these attacks are recorded by insurgents for propaganda use, insurgents could easily edit out the bomb and distribute a video of U.S. service members firing unprovoked on a “peaceful” crowd. The “more correct” response was to attempt to separate the attacker from the crowd so the threat could be eliminated with well-placed rounds.  The platoon leader was relieved pending an investigation into the incident.  Simulated charges were ultimately dropped for lack of available resources.

This exercise became a reality at a combat outpost in Imam Shahib, Kunduz Province, Afghanistan, during the Koran Burning Riots.  In the early morning, a crowd gathered in the street in front of the outpost, perhaps 40 meters from Soldiers manning the entry point.  The crowd became increasingly hostile as the day wore on, throwing bricks at Soldiers and forcing them to take cover behind a vehicle.  Someone in the crowd threw a grenade.[112]  The grenade rolled under the vehicle and detonated wounding 10 Soldiers.  In response to the attack, other Soldiers fired warning shots in the vicinity of the crowd to protect the wounded and gain space necessary to effectuate the treatment and evacuation of the casualties.  The crowd refused to disperse and non-lethal munitions, distributed to outposts throughout the region with little guidance for employment, were used to attempt to disperse the crowd.  Riot control gas grenades were thrown back into the compound by the frenzied crowd and rubber bullets had almost no effect.  The arrival of attack helicopters and reinforcement by a platoon from Shir Khan finally dispersed the crowd and allowed the casualties to be evacuated to higher level treatment facilities.  The commander of the outpost, for his actions to protect his force and disperse the crowd, received a written counseling statement[113] from the Brigade Commander for firing warning shots on the crowd and employing non-lethal munitions without express authority to use such measures from the Brigade Commander.  This response muddies the decision making of the on-scene commander and may illustrate a preference to avoid civilian casualties at the expense of American lives.

Commanders and troop leaders often independently create vignettes to promote additional rules of engagement training.  Leaders draw on their combat experiences to create real world hypotheticals with which to quiz their troops when opportunities arise.  The Army Center for Lessons Learned has published a number of rules of engagement vignette manuals.  The advantage of using these manuals the anecdotal experiences of unit members lies in the fact that the scenarios and responses in the manual are vetted by a judge advocate, allowing leaders the ability to address the issues with more authority, rather than simply state their opinions or how they handled the situation.  Though such information is helpful, unless their action received higher level or legal scrutiny, the leader runs the risk of passing on bad tactics, techniques, and procedures to his subordinates.

CONCLUSION

            The cases tend to show a transition from the macro “I was just following orders” prosecutions of the Nuremburg era to the micro prosecution of individual service members making life or death decisions in the heat of combat.  Such court-martial prosecutions, combined with the additional administrative workload, post-discharge investigations, prosecutions in federal court, post hoc questioning of snap decisions made under enemy fire, not to mention the personal psychological turmoil of killing or wounding non-combatants, all serve to deter service members from acting in self-defense on an already convoluted battlefield where rules of engagement are restrictive and unclear and one misstep could result in a resurgence of an insurgent enemy and attacks against fellow service members in areas hundreds of miles from where the incident occurred.

Deterrence of actions resulting in unnecessary destruction and undue suffering are the lofty and noble goals of the Laws of War.  However, when crafting the articles of the Hague and Geneva Conventions, the authors intended to regulate the conduct of conventional warfare between belligerent nations such as World Wars I and II and not the counter-insurgency  fights between an occupying force attempting to rebuild and stabilize a nation and bands of fighters lacking uniforms or traditional military organization seeking to promote instability with which to usurp a local government and install their own brand of governance.

If the Lieber Codes were applied to the Nazario Case[114], Sergeant Nazario would never have been charged as the four un-uniformed insurgents killed were war-rebels and, therefore, not entitled to protection as prisoners of war.  Similarly, the charges would not have been brought against SFC Taylor nor those involved in the Haditha[115] cases as the civilian deaths were not caused by wanton service member action as required by Rule 44.

Irregular warfare seeks to win hearts and minds of a pragmatic populace.  Insurgents fill the governmental void in rural areas, thwart government outreach efforts, and exploit Coalition missteps, especially those involving civilian casualties or perceived affronts to religion.   The insurgents fighting the Global War on Terror are skilled propagandists.  Their ability to be first to reach the general population with a story allows them to portray their version of an event as the truth.  Through the use of internet, broadcast media, and imams, insurgents are even able to turn their attacks on civilians into Coalition civilian casualty events and rapidly disseminate their propaganda to the population before an official version is able to be collected, vetted, and disseminated by Coalition or government public affairs offices.  General McChrystal remarked,

[i]nsurgents purposely disguise hostile actors as, and amongst civilians, and they deliberately manipulate the circumstances to draw us into the trap of causing [civilian casualties].  Insurgents will seek to attribute all [civilian casualty] incidents to us and use this knowledge to create highly successful propaganda campaigns, using local word of mouth to spread misinformation throughout the Afghan populace.  Where [a civilian casualty] occurs, whoever causes it, we will be accused of having failed to protect the Afghans people.[116]

The insurgency’s mastery of propaganda prompts increased caution by Coalition forces, tightening the rules of engagement, reducing service members’ ability to defend themselves.  The rules of engagement are so restrictive and convoluted that Colonel Harry Tunnell, IV, wrote a memo to the Secretary of the Army expressing his concerns:

[a] gross lack of concern for subordinates manifests itself in guidance that  ‘zero’ civilian casualties are acceptable and coalition soldiers may have to be killed rather than defend themselves against a potential threat and risk being wrong and possibly resulting in injury or death of a civilian . . . [t]he [counterinsurgency] doctrine is not professional and relevant because it does not reflect the studied body of best practice — the concepts it promotes, in fact, contribute to needless American casualties . . . [t]he doctrine is essentially built on two faulty assumptions: that the Afghans can stand up for themselves and that the population doesn’t want what the Taliban have to offer.[117]

A more recent Soldier-level complaint comes from the comic strip “PowerPoint Ranger,” a sort of modern Willy and Joe cartoon.  The panel has an out of frame superior addressing his Soldier regarding the new rules of engagement.  “New rules of engagement! You must be shot in the HEAD or TORSO before you can return fire! Wounds to the arms or legs DO NOT COUNT! Also, impacts on body armor that DO NOT penetrate also do not count![118]”

The hazard becomes more well-defined in light of enemy tactics.  US forces are hesitant to engage unarmed artillery spotters, suspected suicide vest attackers, or IED spotters as these insurgents are difficult to positively identify.  Thus, though each of them may inflict dozens of casualties and millions of dollars in damage, Soldiers will hesitate to shoot as their training has not adequately prepared them to deal with these threats under murky rules of engagement situations.  A return to the Lieber Codes would serve both the interest of protecting civilians in a war zone while also protecting U.S. service members from their own government by requiring a showing of malicious intent for a conviction of war crimes.  Under such a move, the Lieutenant Calley’s, the Staff Sergeant]Robert Bales’s[119], the Specialist Lynndie Englunds’s[120], and Private First Class Steven Green’s[121] of the world would still be held liable for their crimes, while the Walter Taylor’s and perhaps the  Frank Wuterich’s and Jose Nazario’s would not be charged as their actions appear to be based on snap decisions in combat without malicious intent.

Given the concerns up and down the chain of command about the restrictive rules of engagement and the consequences of violation, the Department of Defense should examine its policies and consider of the life of an American service member is more valuable than the life of a foreign national.  Failure to reexamine and relax the Rules of Engagement and post-noncombatant death procedures will lead to greater numbers of preventable American service member deaths as Soldiers, Sailors, Airmen, and Marines become increasingly wary of pulling the trigger unless they are receiving effective fire from a clearly visible enemy.

WORKS CITED

Kim Murphy, Four Seconds in Afghanistan: Was it Combat or Crime? L.A. Times, June 10, 2012, available at http://articles.latimes.com/2012/jun/10/nation/la-na-afghan-shooting-20120610.

Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law, (2010).

John Fabian Witt, Lincoln’s Code. The Laws of War in American History, (2012).

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, available at http://www.icrc.org/ihl.nsf/WebART/365-570005?OpenDocument.

Geneva Convention State Parties, http://www.icrc.org/ihl.nsf/CONVPRES?OpenView (follow “State Parties” hyperlink for each Convention, then follow United States hyperlink in reservations column).

Geneva Convention Relative to the Treatment of Prisoners of War art. 4, Aug. 12, 1949, available at http://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf at 86.

Department of Defense Law of War Program, Department of Defense Directive 2311.01E, May 9, 2006.

Headquarters Department of the Army, Army Regulation 350-1 Army Training and Leadership Development (Dec. 18, 2009).

Army Judge Advocate General Corps, The Law of War: The Rules that Govern the Conduct of Soldiers in Military Operations (May 24, 2010).

Headquarters, Department of the Army.  Field Manual 1-02 Operational Terms and Graphics, (2004).

The Judge Advocate General’s Legal Center & School, US Army, International and Operational Law Department.  Operational Law Handbook (2012).

General Stanley A. McChrystal, ISAF Standing Operating Procedure 373 Direction on Escalation of Force (Apr. 19, 2010).

FORSCOM G3 Central Tasking, FORSCOM Predeployment Training Guidance In Support Of Combatant Commands (2012).

US v Calley 46 CMR 1131 (1973).

Calley v. Callaway 519 F.2d 184 (1975).

US ex rel. Toth v. Quarles,76 S.Ct. 1 (1955).

Raheem Salman & Patrick J. McDonnell, In Iraq, Haditha is a Case of Justice Denied, Jan. 24, 2012. http://www.stripes.com/news/middle-east/in-iraq-haditha-case-is-reminder-of-justice-denied-1.166680.

Josh White, Report On Haditha Condemns Marines, The Washington Post, Apr. 21, 2007,  http://www.washingtonpost.com/wp-dyn/content/article/2007/04/20/AR2007042002308.html.

Olivia Zimmerman Miller. Murder Or Authorized Combat Action: Who Decides? Why Civilian Court Is The Improper Forum To Prosecute Former Military Service Members Accused Of Combat Crimes. 56 Loy. L. Rev. 447 (2010).

Howard Altman, Army Colonel’s Memo Foreshadowed Soldier’s Death, Stars and Stripes, 15 October 2012.

PPTRanger, Think on Productions, https://pptranger.net/?p=359, 2012.