Laws of War to Rules of Law
or the Old Switch-A-Roo!
Bob Weimann, Lt Col
USMC (Ret) | September 6,
2010 | Pdf version
“The purpose of military law is to promote justice, to assist
in maintaining good order and discipline in the armed forces, to
promote efficiency and effectiveness in the military
establishment, and thereby to strengthen the national security of
the United States.” -- Preamble of the UCMJ
[1]
The UCMJ is a uniquely military judicial system because
when you look at the UCMJ Articles, you not only find civilian or
Rules of Law (common law) charges like Murder, Robbery and Larceny
but also military charges like Desertion, Absent without Leave and
Disrespect to a Superior Commissioned Officer. There are some 60
punitive articles in the UCMJ and one of the puzzling features of
the UCMJ is that there are no specific articles for war crimes.
[2]
The Laws of War are fundamentally different from the Rules of Law
because they define 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 War killing civilians is to be
avoided (not forbidden) but can occur because of the need of
“military necessity”. The individual Marine and Soldier also fight
under a stated ROE (Rules of Engagement) based on the Laws of War.
Recently Wikileaks published a Classified Secret ROE along with a
video clip of an Apache Helicopter engagement that took out a
group of armed insurgents in contact with an US Army unit in Iraq.
Wikileaks alleged “collateral murder” when it was discovered that
two reporters were also in the group of bad guys. Personally, I
think the two reporters are candidates for the Darwin Award
[3] …when you hang with enemy combatants;
dressed like enemy combatants; and act like enemy combatants;
don’t be surprised if you suddenly get treated as enemy
combatants.
The “Wilileaks” published ROE, from an ANNEX of an Army Operations
Order that reads as follows starting in paragraph 2:
2. … MILITARY POLICY. Commanders have the inherent
authority and obligation to use all necessary means available and
to take proportional action in self-defense of their units,
other US Forces, other Coalition Forces and other designated
protected persons …
(a) …Military Necessity and Proportionality. At all times,
the requirements of military necessity and proportionality will
form the basis of the judgment of the on-scene commander (OSC) or
individual Soldier as to what constitutes an appropriate response
in self-defense to a particular hostile act or demonstration of
hostile intent.
(i) …Military Necessity. Use of force required against
military objectives to accomplish the mission is authorized in
accordance with these ROE.
(ii) …Proportionality. Military objectives will be
conducted, in so far as possible, to ensure that incidental injury
to civilians and collateral damage to civilian objects are
minimized. Strikes on infrastructure and lines of
communications should, to the extent possible, disable and disrupt
rather than destroy.
(b) …Distinction. All personnel must ensure that, prior to
any engagement; non-hostile forces and civilian structures are
distinguished from military objectives.
(c) …Military Objectives. Military Objectives include hostile
forces or military objectives. (i) …Hostile forces are those who
because of either their status or conduct are actively engaged in
hostilities. Status based hostile forces include members of
designated terrorist organizations, outlined below. Conduct based
hostile forces include those engaging in hostile acts or
demonstrating hostile intent. (ii) …Military objectives are those
objectives which by their nature, location, purpose or use make an
effective contribution to military action. “ (emphasis added)
These ROEs are clearly based on the three principles of the Laws
of War; military necessity, proportionality and distinction. These
Law of War principles are exactly what Soldiers and Marines in
combat are not only trained to base their tactical decisions on
but also they are ordered and continually reminded to follow.
Now here is the issue, if our servicemen are operating in combat
in a foreign country under the Laws of War ROE, why are they being
charged with murder instead of violating one or more of the
principles of the Laws of War. Another way to say this is why are
we charging our warriors with murder on the battle field instead
of violating the combat ROE rules and regulations established for
combat operations?
Each service has its own War Crimes directives. As an example,
let’s look at Marine Corps MCRP (Marine Corps Reference
Publication) 4-11.8B, War Crimes. This publication's
interesting part is that it maps war crimes to UCMJ articles. For
example; “The willful killing, torture or inhuman treatment of
individuals protected by the Geneva Conventions [4]
which is a violation of military necessity, maps to the UCMJ
Articles of:
The Manual for Courts-Martial (MCM) list the “elements of proof”
for each of these punitive Articles. The elements of proof “are
the specifics of the offense. In order to support a finding of
"guilty," the government must prove each and every element of the
offense, beyond a reasonable doubt”. [5]
Murder, for example, has the following elements of proof
(according to the MCM):
Premeditated murder.
(a) That a certain named or described person is dead;
(b) That the death resulted from the act or omission of the
accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused had a
premeditated design to kill. [6]
Another way to state these elements of proof in layman terms:
(a) You need to prove you have a dead body;
(b) You need to prove who pulled the trigger;
(c) It was not self defense (only rules of law I know to justify a
dead body); and
(d) You need to prove beyond a reasonable doubt the accused
intended to kill the victim.
Notice that the MCM elements of proof make no mention of the Laws
of War principles of military necessity, proportionality or
distinction.
Under the Rules of Law, and let’s take the crime of murder for
example, in order to be convicted of murder the evidence must meet
the basic elements of proof; “A person commits the crime of murder
if with intent to cause the death of another person, he causes the
death of that person …” [7] Now anyone who
watches the TV “Law and Order “ series will recognize these basic
elements of proof as our actors (Detectives Briscoe and Green)
attempt to establish the motive for the murder after inspecting
the discovered body. As expected, the MCM elements of proof for
murder mirror the Rules of Law elements of proof.
We need to look at the Rules of Law elements of proof from a
combat perspective of a Marine rifleman who just finished an
engagement and reported one enemy KIA. Let’s assume a Marine in a
combat zone while separated from his squad, comes around a corner
in a vacant house and catches a bad guy squatting in front of fire
stuffing rice and goat meat into his mouth with his AK-47 tucked
in between his thighs and belly. BAM! The Marine reacts and puts a
bullet right between the bad guy’s running lights before he can
take his fingers out of his mouth to grab his AK-47.
Now let’s teleport “Star Trek” style, Detectives Briscoe and Green
from the streets of New York City into this same Iraqi room with
our Marine riflemen and the dead Iraqi insurgent. The detective’s
first reaction is to start the basic steps of a murder
investigation. Briscoe and Green, wondering aloud, ask themselves;
do we have a dead body? ”HELL YA! WANT ME TO KICK HIM AGAIN TO
PROVE HE AIN’T BREATHING?” yells the Marine (I say yell because
after a day of combat, the Marine’s ears are ringing from all the
battle rattle like machine gun fire, exploding grenades, tank
fire, artillery, etc., etc., etc.). Did the Marine intend to kill
this person? “DAMN RIGHT, I DID! I GOT LUCKY, CAUGHT THAT S.O.B.
EATING CHOW; SURPRISED HIM, BIG TIME!” says the Marine proudly. Is
the weapon present that shot the dead guy? “YEP! ME AND MY SWEET
M16A4, SERIAL NUMBER 2687465, WE DID THE JOB! I GOT HIM WITH A
HEAD SHOT. BEST WAY TO TAKE OUT A BAD GUY. HE CAN GET A SHOT OFF
WHILE HE IS BLEEDING OUT WITH JUST A ROUND IN HIS BODY AT CENTER
MASS. THAT’S THE LAST TIME HE EATS LUNCH WITHOUT ESTABLISHING
PROPER LOCAL SECURITY. BY THE WAY, YOU GUYS WANT TO HELP ME GET
THE NEXT ONE? ”, says the grinning Marine. At this point, police
detectives Briscoe and Green, as law officers and not realizing
they are no longer in New York City, are convinced they have an
opened and shut murder case against this Marine under the Rules of
Law.
I am convinced I can continue this ridiculous combat scenario’s
comical absurdity for another 5000 words getting into things like
Miranda Rights, stringing yellow crime scene tape in the middle of
a battle, and attempts at disarming the Marine. The important
point is that in war and on the battlefield the Rules of Law do
not apply. [8] What does apply is the Laws of
War. Everything that our fictional Marine did in the above
paragraphs is legal under the Laws of War.
Whenever you hear a politician (like the late Mr Murtha)
bombasting that our US warriors committed “cold blooded murder” on
the battle field, your first assumption (and the generals) should
be that the political misdirection and “spin” game is on. You
should realize that the politician is making his accusation under
the cover of the Rules of Law instead of the reality of the Laws
of War. This political hoodwinking that belies the truth is the
“old switch-a-roo” between the Laws of War and the Rules of Law.
You should also realize politicians do this to execute a political
maneuver called “Strategic Legalism” [9]. The
definition of Strategic Legalism is “the use of law or legal
arguments to further larger policy objectives, irrespective of
facts or laws”. [10] This Strategic Legalism
definition is actually the most condensed description I have come
across for the entire Haditha incident.
Strategic Legalism is a political maneuver that has existed for a
long while. Peter Maguire, who defined the term, credits the
maneuver to Secretary of War Elihu Root (1845 – 1937) one of the
first US Government lawyer-politician bureaucrats. The interesting
story that Peter Maguire tells as one of the first examples of
Strategic Legalism, centers on USMC Major Littleton Tazewell
Waller and his court martial that took place during the Philippine
American War (1899-1902).[11]
Major Waller successfully defended himself using the existing Laws
of War [12] despite the widespread sensational
press accusations of murder. The Major’s successful defense kept
his career intact. He would later be considered as one of two
candidates for the Marine Commandant; however, the other candidate
would be selected. [13]
Much of the subject of this article addresses the UCMJ and the
Laws of War. In my opinion the UCMJ is an effective, fair and
essential command tool. This is not an article to change the UCMJ.
What is unfair regarding the Haditha Incident is the Strategic
Legalism and the fact that it cannot exist without the cooperation
of the general officer leadership both in Iraq and the Marine
Corps. A considerable number of general officers had the
opportunity to stand up and say that LtCol Chessani’s statement,
“My Marines are not murders”, is absolutely correct and Mr Mutha’s
comment about “cold blooded murder” is absolutely incorrect based
on the Laws of War and not the Rules of Law. Those general’s names
includes Hagee, Conway, Mattis, Abazaid, and Chiarelli and any one
of these leaders could have done the right and fair thing with a
bit of courage.
The other unfair part of this incident is that it also falsely
accuses the enlisted Marines. In the Major Waller case the charges
stopped with the commander and no enlisted, NCOs or junior
officers were charged. To play the Strategic Legalism game with
Marine enlisted and NCOs is a sad state of affairs. SSgt Frank
Wuterich and his squad from Kilo Company, 3/1 fought on a
battlefield and followed their ROE based on the Laws of War. SSgt
Wuterich is the last Haditha Marine to be subject to the injustice
of a strategic legalism based court martial and this month, SSgt
Wuterich, along with his parents and family deserves all the
support we can muster.
Semper Fi
Bob Weimann, LtCol, USMC Ret.
Former Commanding Officer, Kilo Company 3/1
NOTES
[1] UCMJ; Part 1: Preamble; paragraph 3. Nature
and purpose of military law [2] An exception is Article 106: Spying [3] http://www.darwinawards.com/ [4] MCRP 4-11.8B War Crimes; p, 13. And this
includes EPWs (Enemy Prisoners of War); Medical and religious
personnel; sick, wounded and ship wreaked combatants (also
includes crews of disabled aircraft); civilian internees,
refugees, and other civilians under a military’s organizations
control. [5] http://usmilitary.about.com/od/punitivearticles/a/mcm.htm [6] MCM p. IV-63 [7] http://definitions.uslegal.com/m/murder/ [8] Inter arma silent leges: in time of war the
law is silent [9]Law and War: An American Story, Peter
Maguire; Columbia University Press; Copyright 2000; New York,
Chichester, West Sussex, p. 9 [10] Ibid. p.9 [11]Benevolent Assimilation: The American
Conquest of the Philippines, 1899-1903, Stuart Creighton
Miller [12] Instructions for the Government of
Armies of the United States in the Field, General Order No. 100
(The Lieber Code) [13] Despite his successful defense, the
political opposition newspapers of the time would continue to
refer to Major Waller as the “Butcher of Samar” for the remainder
of his career. Many believe this was the deciding factor between
him and the other candidate for Commandant. Despite his successful
defense, the political opposition newspapers of the time would
continue to refer to Major Waller as the “Butcher of Samar” for
the remainder of his career. Many believe this was the deciding
factor between him and the other candidate for Commandant. "He
Served on Samar: Hero or Butcher of Samar?",Captain Paul
Melshen, USMC, Proceedings, US Naval Institute, November
1979.
_________________________________________
Bob Weimann is the former Commanding Officer, Kilo Co., 3/1 and
Weapons Company 3/1. He also served as a Marine Security Force Company
commanding officer, an infantry battalion Operations Officer and the
Executive Officer of 1/6 during Desert Storm, He is
a senior contributing editor to Defend Our
Marines.
