The Law of War

Some Background

Extract:

“2.  Purposes of the Law of War   

The conduct of armed hostilities on land is regulated by the law of land warfare which is both written and unwritten.  It is inspired by the desire to diminish the evils of war by:

• Protecting both combatants and noncombatants from unnecessary suffering
• Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians; and
• Facilitating the restoration of peace.

—U. S. Army Field Manual 27-10: The Law of Land Warfare

While I agree that there must be a standard — a bridge across which no combatant should cross, such as the murder of a POW, rape, and perfidy — I also think it is essential for the American people to realize, as they send their children off to join the US military, that their government offers advantages to the enemy that it denies to their own troops.  The government calls this their “rules of engagement.”

Partial Rules of Engagement Extract

A. Rules of Engagement (ROE) are the commanders’ tools for regulating the use of force, making them a cornerstone of the Operational Law discipline.  The legal sources that provide the foundation for ROE are complex and include customary and treaty law principles from the laws of war.  As a result, Judge Advocates (JA) [military lawyers] participate significantly in the preparation, dissemination, and training of ROE; however, international law is not the sole basis for ROE.  Political objectives and military mission limitations are necessary to the construction and application of ROE.  Therefore, despite the important role of the JA, commanders bear ultimate responsibility for the ROE 

B. To ensure that ROE are versatile, understandable, easily executable, and legally and tactically sound, JAs and operators [combatants] alike must understand the full breadth of policy, legal, and mission concerns that shape the ROE and collaborate closely in their development, implementation, and training.  JAs must become familiar with mission and operational concepts, force and weapons systems capabilities and constraints, War-fighting Functions (WF), and the Military Decision Making Process (MDMP), and Joint Operations Planning and Execution System (JOPES).  Operators must familiarize themselves with the international and domestic legal limitations on the use of force and the laws of armed conflict. Above all, JAs and operators must talk the same language to provide effective ROE to the fighting forces. 

C. This chapter provides an overview of basic ROE concepts. In addition, it surveys Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces, and reviews the JA’s role in the ROE process.  Finally, this chapter provides unclassified extracts from both the Standing Rules of Engagement (SROE) and other operations in order to highlight critical issues and demonstrate effective implementation of ROE. 

NOTE: This chapter is NOT a substitute for the SROE. The SROE are classified SECRET, and as such, important concepts within it may not be reproduced in this handbook.  Operational law attorneys must ensure they have ready access to the complete SROE and study it thoroughly to understand the key concepts and provisions.  JAs play an important role in the ROE process because of our expertise in the laws of war, but one cannot gain ROE knowledge without a solid understanding of the actual SROE.

Our Discussion

To place these rules of engagement into their proper perspective, I’ll turn to National Review writer David French, who in December 2015 told us the following story:

“The car was moving at high speed. It had just broken a blockade of American and Iraqi forces and was trying to escape into the gathering dusk. American soldiers, driving larger and slower armored vehicles, mostly the large and unwieldy MRAPs (mine-resistant, ambush-protected vehicles), gave chase.

“They were intensely interested in the target. Acting on intelligence that high-value al-Qaeda leaders might be present, a cavalry troop — working with Iraqi allies — surrounded an isolated village near the Iranian border. The mission was simple: to search the village and kill or capture identified members of al-Qaeda. It was the kind of mission that the troopers had executed countless times before.

“It wasn’t uncommon to encounter “squirters” — small groups of insurgents who try to sneak or race through American lines and disappear into the desert. Sometimes they were on motorcycles, sometimes on foot, but often they were in cars, armed to the teeth and ready to fight to the death. On occasion, the squirters weren’t insurgents at all — just harmless, terrified civilians trying to escape a deadly war.

“This evening, however, our troopers believed that the car ahead wasn’t full of civilians. The driver was too skilled, his tactics too knowing for a carload of shepherds. As the car disappeared into the night, the senior officer on the scene radioed for permission to fire.

“His request went to the TOC, the tactical operations center, which is the beating heart of command and control in the battlefield environment. There the “battle captain,” or the senior officer in the chain of command, would decide — shoot or don’t shoot.

“If soldiers opened fire after a lawyer had deemed the attack outside the rules, they would risk discipline — even [war crimes] prosecution.

“But first, there was a call for the battle captain to make, all the way to brigade headquarters, where a JAG officer — an Army lawyer — was on call 24 hours a day, seven days a week. His job was to analyze the request, apply the governing rules of engagement, and make a recommendation to the chain of command. While the commander made the ultimate decision, he rarely contradicted JAG recommendations. After all, if soldiers opened fire after a lawyer had deemed the attack outside the rules, they would risk discipline — even prosecution — if the engagement went awry.

“Acting on the best available information — including a description of the suspect vehicle, a description of its tactics, analysis of relevant intelligence, and any available video feeds — the JAG officer had to determine whether there was sufficient evidence of “hostile intent” to authorize the use of deadly force. He had to make a life-or-death decision in mere minutes.

“In this case, the lawyer said no — insufficient evidence.  No deadly force.  Move to detain rather than shoot to kill.  The commander deferred.  No shot.  Move to detain.

“So, the chase continued, across roads and open desert. The suspect vehicle did its best to shake free, but at last, it was cornered by converging American forces. There was no escape. Four men emerged from the car. American soldiers dismounted from their MRAPs, and with one man in the lead, weapons raised, they ordered the Iraqis to surrender.

“Those who were in the TOC that night initially thought someone had stepped on a land mine. Watching on video feed, they saw the screen go white, then black. For several agonizing minutes, no one knew what had happened.

“Then the call came.  Suicide bomber.  One of the suspects had self-detonated, and Americans were hurt.  One badly — very badly.  Despite desperate efforts to save his life, he died just before he arrived at a functioning aid station.  Another casualty of the rules of engagement.”

It is certainly true that a suicide bomber killed one of our young men, but it is also true that young man might still be alive were it not for the fact that the United States Army aided and abetted the enemy in his horrendous murder of one of their own.  On what rational basis does US military command authority place a lawyer (of all people) in a position to approve or deny a combat soldier from taking appropriate action to save his own life and the lives of the men and women serving under him?

The foregoing development was not only senseless and stupid, but it is also malfeasant.  The President of the United States forced these rules on the Armed Forces of the United States; civilian secretaries ordered such policies implemented, and flag rank naval and military officers executed them.  These are the men who have blood on their hands — American blood and they act as if such circumstances were the unavoidable consequences of war.  No.  Too many Americans have died because of these foolish policies.

The American people deserve to know that these unacceptable conditions await their children once they join the U. S. Armed Forces.  They need to understand that the US government places a higher value on the enemy than they do on their own troops — which should lead us to ask, why should any American join the All-Volunteer Force?  Loyalty, after all, is a two-way street.

To compound the matter further, the US government has aggressively charged American service members with war crimes — that weren’t — and convicted them and handed down prison sentences for doing no more than what the U. S. military trained them to do: locate, close with, and destroy the enemy by fire and maneuver.  And it was that very same government who sent them into battles, to fight in wars, that the government never intended to win.

It Gets Worse

Moreover, the United States government has become complicit in perpetuating “crimes against humanity,” if that is a case we wish to pursue.  There are several angles to this argument, at the top of which is that, diplomatically, the US government has been (a) inept in its formulation and implementation of foreign policy, (b) dishonest in announcing its national interests to justify hostilities, (c) too eager to deploy armed forces to foreign countries, and (d) too accomplished in laying the blame for violations of land warfare conventions on US servicemen, whom the US government recruited, trained, armed, and deployed to carry out its flawed foreign policies.

Numerous violations of human rights, if they in fact exist, are directly related to the behavior of nations and their allies in developing erratic and nonsensical policies that are, themselves, predicated on lies, half-truth, and “spin.”  Who are these nations?  Who must we hold accountable for human suffering in the worst places on the planet?  The list of responsible nations is too long, by far.

As one example, invading Iraq may have made some people feel good about ridding the world of Saddam Hussein, but the consequences of that adventure propelled Iran into its current leading role in the Middle East.  No one can argue while keeping a straight face that sending Hussein to hell substantially improved conditions in the Middle East.

We must also understand that Afghanistan between 1980-2001 was entirely the creation of the United States Congress, the American Central Intelligence Agency, Saudi Arabia, and its puppet, Pakistan.

In its historical context, this situation presents us with a nonsensical juxtaposition to US national interests that defies rational explanation.  Saudi Arabia is also behind the “civil wars” in Syria and Yemen, both of which are sectarian kerfuffle’s within the Islamist world that makes no sense to anyone who doesn’t own camels or goats, and yet, the US has become a full partner with the Saudis inflicting pain and suffering on people.  Most of them are the unfortunate sods caught between surrogates of both the Saudis and Iranians.

According to Andrea Prasow, a writer for Human Rights Watch, the United States is now under international scrutiny for its long-standing involvement in Yemen.  Notably, under a long list of incompetent secretaries, the State Department has facilitated the provision of arms and munitions without regard to the application of these weapons against civilian populations.  Prasow argues that the State Department may have violated US laws by providing weapons to Saudi Arabia to offer them to Saudi surrogates, which makes the US government “a global arms dealer.”  Of course, no American administration cares about international scrutiny because there are no substantial consequences that the international community could impose.

Similarly, Peter Beaumont of The Guardian (4 Oct 2021) reports that according to sources within the United Nations, war crimes and crimes against humanity are omnipresent throughout the Middle East, Africa, and some in Eastern Europe.  In the present, human rights experts claim reasonable grounds for believing a Russian private military company (The Wagner Group) has committed murders not directly involved in Libya’s internal hostilities.  UN experts also cite reports indicating that the Libyan coast guard, trained and equipped by the European Union, has regularly mistreated migrants and handed them over to torture centers where sexual violence is prevalent.

T. G. Carpenter, writing for Responsible Statecraft, asserted on 12 October 2021 that there are numerous instances where humanitarian intervention has led directly to crimes against humanity.  He cites as examples President Obama’s 2011 air war to overthrow Libyan dictator Muammar Qaddafi.  Obama publicly asserted his high expectations for a brighter future for the Libyan people.  Since then, feuding factions of cutthroats have created large numbers of refugees crossing the Mediterranean to find sanctuary while Egypt, Turkey, Saudi Arabia, the UAE, and Russia have become parties to the conflict, each backing their favored to win, and each making substantial contributions to the bloodshed and chaos.

According to the UN report, “Our investigations have established that all parties to the conflicts, including third states, foreign fighters, and mercenaries, have violated international humanitarian law, in particular the principles of proportionality and distinction, and some have also committed war crimes.”  The violence, which includes attacks on hospitals and schools, has dramatically affected the Libyan people’s economic, social, and cultural traditions.  The report also documented the recruitment and participation of children in hostilities and the disappearance and extrajudicial killing of prominent women.

All of the preceding offers a stark contrast to Obama’s rosy pronouncement that “Tripoli is slipping from the grasp of a tyrant. The people of Libya are showing that the universal pursuit of dignity and freedom is far stronger than the iron fist of a dictator.”  Joining Obama, Senator John McCain and Senator Lindsey Graham jointly stated, “The end of the Qaddafi regime is a victory for the Libyan people and the broader cause of freedom in the Middle East and throughout the world.”  A short time later, McCain and Graham sponsored bills that provided combat weapons to Libya’s “freedom fighters.”  Astoundingly, these freedom fighters used these weapons to create the Islamic State in Iraq and Syria (ISIS) founded by America’s long-term nemesis, Abu Bakr al-Baghdadi, Iraq’s face of Al-Qaeda.  For a short time, Al-Baghdadi was on the target list for US and Coalition forces in Iraq until senior commanders were ordered to “back off.”

On 6 January 2017, UPI writer Struan Stevenson observed that when Obama left the White House, he left behind a legacy of death and destruction in the Middle East.  His primary foreign policy opened Pandora’s Box of conflict and sectarian strife across the entire region.  It wasn’t until it was too late that Obama realized that his “nuclear deal” with Iran and his foolish concessions not only threatened the security of the Middle East but seriously undermined the interests of the United States.  Obama, it appears, the so-called well-spoken and clean-looking Negro, wasn’t the intellectual he thought he was.

As Ted Carpenter wisely observed, “Creating a chaotic environment in which war crimes and massive human rights abuses could flourish did a monumental disservice to the Libyan people, and Washington bears most of the responsibility for that tragedy.  Moreover, it matters little if US intentions were good; the road to hell is paved with good intentions.  [All] policies must be judged by their consequences, not their motives or goals.”

How it plays out

During the first battle of Fallujah in April 2004, the Associated Press reported that US Marines bombed a mosque, killing forty (40) innocent “civilians” gathered for prayer.  From the AP’s initial report, the story took off like gang-busters.  False reporting was so intense that it caused senior military commanders to order the Marines out of Fallujah.  See also: The War Crimes that Weren’t.

Throughout the war in Iraq, western news sources routinely employed Iraqis to cover firefights, battles, and clearing operations. In most cases, however, media focused almost exclusively on events occurring around the capital city of Baghdad and only occasionally in outlying regions such as Ramadi and Fallujah. As in the case cited above, these Iraqi journalists were not disinterested parties to the conflict, and their reporting was not simply flawed; they were, more often than not, outright lies.

But the principal challenges in Iraq, and the greatest American/Coalition victories, were those that the American people know least about — because news media always handpicks the things they want the folks back home to know.

Haditha

The region was known as the Haditha Triad region in Al Anbar Province.  The triad region consists of the city of Haditha and outlying towns of Haqlaniyah, Barwana, and Albu Hyatt, all of which follow the Euphrates River corridor.

The enemy was Al-Qaeda in Iraq (AQI).  Because US and Coalition leaders failed to establish an early presence in Haditha, AQI felt comfortable putting down roots there.  It was a place where new fighters could enter Iraq from Syria, along with weapons, money, and supplies.  Haditha was where these men and materials could proceed unmolested into the Iraqi interior, to other strongholds.

Haditha was also the place where defeated AQI soldiers withdrew following such battles as Fallujah and Ramadi.  Defeated or not, they became battle-hardened veterans whose embellished tales of glory in the service of Allah inspired newly arrived AQI recruits.^[1]

The US/Coalition made its first attempt to establish order in the Haditha Triad in 2005.  AQI responded by decapitating several high-ranking Iraqi police officials and murdering members of their families.  To mark their territory, AQI placed the decapitated heads atop stakes at major intersections leading into Haditha.  It was a clear warning to Iraqis and Coalition forces: stay out!  AQI was so successful in their campaign of intimidation that they even established a shadow government in the region and routinely sent out terrorist patrols to keep the locals “in line.”  2005 was also when the 3rd Battalion, 25th Marines (3/25) arrived in Haditha as a coalition show of force.  The battalion lost 49 men during its deployment in what became the deadliest deployment for a Marine battalion since the Beirut bombing in 1983.

At 0715 on 19 November, in this environment of decapitated heads sitting atop signposts, and in an area where 85% of the Iraqi residents oppose coalition forces, where citizens actively aid and abet AQI forces, a Marine security patrol from Kilo Company, 3rd Battalion, 1st Marines (Kilo 3/1) escorted a resupply convoy along the main supply route (MSR) when an improvised explosive device (IED) composed of 155mm artillery shells within a container filled with a propane igniter erupted, instantly killing Lance Corporal Miguel Terrazas.  At the instant of the explosion, Lance Corporal James Crossan was thrown out of the Humvee and was trapped under the vehicle’s rear tire.  Private First Class Salvador Guzman was riding in the back of the vehicle.  He was thrown from the vehicle, as well.  Crossan and Guzman were taken to a landing zone for emergency medical evacuation.

Subsequently, First Lieutenant William T. Kallop arrived on the scene.  His arrival coincided with the commencement of enemy fire coming from a nearby cluster of three houses.  Kallop instructed the Marines to “take the house.”  In clearing these houses, Marines employed standard clearing operations, which included the use of hand grenades and small arms fire.  During this action, Marines killed 15 Iraqis.  Lieutenant Kallop stated, “The Marines cleared [the houses] the way they had been trained to clear it, which is frags [grenades] first.  It was clear just by the looks of the room that frags went in, and then the house was prepped and sprayed with a machine gun, and then they went in.  And by the looks of it, they just … they went in, cleared the rooms, everybody was down.”

Significantly, evidence later used during an investigation of the incident included a video captured at the time of the incident by a Hammurabi Human Rights Organization co-founder, which instigated a Time Magazine Reporter’s “armchair” investigative report four months later, on 19 March 2006.  This video shot at the time of the incident strongly suggests a “set up” by AQI affiliates, a common tactic employed by terrorist factions in Iraq.  It was part of an effort by AQI to initiate an incident and use the consequences of that incident to discredit coalition forces. 

Apparently, it worked because military authorities charged eight Kilo Company Marines with violations of the law of war — four enlisted Marines with unpremeditated murder and four officers with dereliction of duty, including the battalion commander, Lieutenant Colonel Jeffrey Chessani.  In the military’s rush to judgment, the lives of all these Marines (and their loved ones) were negatively affected for years into the future.

Of the eight Marines charged, a military court convicted only one individual for violating the Uniform Code of Military Justice NOT connected to the Haditha incident.  He pled “guilty” for making a false statement that might have been no more than a lapse in memory.

In 2009, Colonel Chessani’s legal counsel, Richard Thompson (Thomas More Law Center), stated, “The government’s persecution of this loyal Marine officer continues because he refused to throw his men under the bus to appease some anti-war politicians and press, and the Iraqi government. Any punishment of LtCol Chessani handed down by a Board of Inquiry would be a miscarriage of justice because he did nothing wrong, and our lawyers will mount the same vigorous defense in this administrative proceeding as they did in the criminal.”

A military court eventually dismissed the charges as spurious or found them “not guilty” because the accusations — preferred against them by incompetent senior officers in their rush to judgment, who either unwittingly or intentionally conspired with Iraqi enemies of the United States, and with their enabler, Times Magazine journalist Tim McGirk — were unfounded.  The question of why military officials charged these Marines at all, particularly in light of the fact that they complied with the rules of engagement, remains unanswered — except that attorney Richard Thompson was prescient: “ … to appease some anti-war politicians and press, and the Iraqi government.”  Or could it be part of the US government’s intention to destroy the effectiveness of its own Armed Forces or convince young Americans not to join the All-Volunteer Force?

Conclusion

David French’s article (above) offered some food for thought: “Imagine if the United States had fought World War II with a mandate to avoid any attack when civilians were likely to be present.  Imagine Patton’s charge through Western Europe constrained by granting the SS safe haven whenever it sheltered among civilians.  If you can imagine this reality, then you can also imagine a world without a D-Day, a world where America’s greatest generals are war criminals, and where the mighty machinery of Hitler’s industrial base produces planes, tanks, and guns unmolested.  In other words, you can imagine a world where our Army is a glorified police force, and our commanders face prosecution for fighting a real war.  That describes our wars in Iraq and Afghanistan.”

US military policy in the Middle East has been inept and criminally negligent.  There is no rational basis for spending billions of dollars in maintaining a powerful armed force, for spending billions more sending those troops into combat, and then, through inane “rules of engagement,” restricting their ability to defeat the enemy and then prosecuting them for doing what the US military trained them to do.  Such policies present a clear and present danger to the morale and effectiveness of our combat forces and, by extension, demoralize the nation as well.

United States foreign policy is corrupt because the men and women who devise and implement those policies are immoral and inept.  United States domestic policy, particularly as it relates to the laws and regulations governing the nation’s prosecution of war, is equally flawed.  These unacceptable conditions result in unimaginable pain and suffering among those who live in the Middle East.  They cause immeasurable anguish among the loved ones whose husbands, sons, and daughters have died or seriously and permanently injured in a war the US government never intended to win.  These Inane policies have caused death and injury for nothing.  The United States has not “won” a war since the Second World War.  The reason for this is simple: The United States has not had a moral imperative for conflict since the Second World War.  I do not understand why the American people put up with such a government.

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Endnotes:

^[1] Haditha was rife with AQI fighters and, according to one Time Magazine poll conducted in 2007, 85% of resident Sunnis opposed the presence of Coalition forces.