Laws of War and Rules of Law

“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:

Article 93 Cruelty and Maltreatment
Article 118 Murder
Article 119 Manslaughter
Article 120 Rape and Carnal Knowledge
Article 122 Robbery
Article 124 Maiming
Article 128 Assault
Article 134 General Article (indecent assault, negligent homicide)

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.

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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 detectives 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 Marines 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 scenarios 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 manoeuvre 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 manoeuvre that has existed for a long while. Peter Maguire, who defined the term, credits the manoeuvre 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 generals 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


[1] UCMJ; Part 1: Preamble; paragraph 3. Nature and purpose of military law
[2] An exception is Article 106:  Spying
[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.
[6] MCM p. IV-63
[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 isa senior contributing editor to Defend Our Marines