Pre-Mob Legal/Military Justice

HHD, Engineer Brigade

Pre-Mob Legal/Military Justice

• Purpose: To provide an awareness of the laws and rules of combat and a brief introduction to military justice.

Agenda

• Title 10 versus Title 32

• Military Justice

• Law of War

• Rules for Lawful Behavior in Combat

Military Justice

• As a soldier, governed by Uniform Code of Military Justice (UCMJ), not civil criminal law.– Allows Article 15’s– Court Martials

Nonjudicial Punishment

• Article 15’s• Imposed by company commanders and

above• Used to:

– Correct, educate and reform offenders– Avoid court-martial record– Maximize military efficiency

• Can be appealed

Nonjudicial Punishment

• May Include:– Loss of Privileges

– Counseling

– Reduction of Grade

– Extra Training

– Bar to Re-Enlistment

– Reprimands

– MOS reclassification

– Correctional Custody

– Restriction

– Extra Duties

– Forfeiture of Pay

Courts-Martial

• Essentially a military trial

• Used for more severe offenses and allows more severe punishments than an article 15

Major Crimes

• Major crimes against the Department of Defense prosecuted by the Dept of Justice:– Espionage– Subversion– Aiding the Enemy– Sabotage– Spying

Law of War Agenda

• No unnecessary suffering

• EPWs

• Wounded and sick

• Property

• Tactics

Unnecessary Suffering

• When no military benefit and collateral damage possible, that is the limit

• Can’t use weapons that are designed to cause suffering

– US weapons in compliance -- don’t modify weapons or ammo

– Hollow-point is allowed in hostage rescue

Unnecessary Suffering

• Can’t use lawful weapons to cause unnecessary suffering

– Choosing a flame-thrower over an M16 when the M16 would work

• Don’t mutilate or abuse enemy wounded and dead

• Limit death and destruction to the minimal amount necessary

EPWs

• Treat all detainees in all operations as EPWs (Enemy Prisoners of War)

• Some detainees may be later found not to be EPW, but initially all are treated as EPW’s

EPWs

• Taking EPWs– Cannot give a “take no prisoners” order– If enemy surrenders, must take them prisoner

or leave them unharmed– Safeguard and evacuate as soon as possible– Cannot turn over to a non-Geneva party

EPWs

• Treatment of EPWs– Must let EPWs keep protective gear (helmet,

gas masks, shoes, clothing), rank insignia, ID card, personal property and valuables with no military value

• May remove temporarily for military necessity• May remove once in protected area

– Treat all EPWs humanely• No torture, cruel treatment, humiliation,

degradation, threats, coercion

EPWs

• Treatment of EPWs– Must give them food, water, medical treatment,

equivalent shelter– CAN:

• Blindfold and bind temporarily for safety

• Question

• Use force in self-defense or to prevent escape as a last measure

EPWs Review

• Must take as an EPW

• Leave them unharmed

Wounded and Sick

• Must provide medical treatment to enemy wounded the same as friendly wounded

• Priority of treatment is based on medical reasons only

• If tactical conditions permit, search the battlefield for all wounded and sick

Property

• Enemy property– Can seize and use enemy military and

government property– But not an enemy soldier’s personal property

(TA-50 is not personal property)– Cannot intentionally destroy enemy medical

supplies– Report all captured or abandoned property that

you seize

Property

• Private property– Try to contract for it first– Can seize and use only if there is a military

necessity and you issue a receipt– Can use private places if there is a military

necessity– Don’t have to issue a receipt for battle damage

or loss (clearing crops for field of fire

Property

• Don’t loot, pillage, steal, or take war trophies

Tactics

• Deception is okay

• Treachery is not– Are you taking advantage of the enemy’s

reliance on the laws of war to harm him?– Is what you are doing blurring the distinction

between civilians and combatants?

Tactics

• Deception:– Ambushes– Feeding the enemy false information– Inducing surrender through PSYOPS– Using the enemy’s passwords and codes– Spying– Using enemy equipment if markings are

removed

Tactics

• Treachery:– Using vehicles and aircraft marked with a

medical symbol to move troops• Medics can report intelligence

– Pretending to surrender to ambush the enemy– Establishing an ambush site from a hospital– Faking wounds or sickness, or civilian status– Putting price on the enemy’s head, other than

their leadership

General Orders

• No privately-owned firearms• Don’t enter mosques• No alcohol or drugs, porn, gambling• Don’t take cultural artifacts• No black markets• No pets• No war trophies

THE RULES FOR YOUR BEHAVIOR IN COMBAT

Rules for Behavior in Combat Agenda

• Self-defense (SROE)• Who is the enemy (ROE, LOW)• When you can kill the enemy (ROE)• What you can kill him with (ROE, LOW)• How much force you can use (ROE, LOW)• Civilians on the battlefield (ROE, LOW)• What else you can and can’t do in combat (LOW,

GO)

THE RULES FOR YOUR BEHAVIOR IN

COMBAT• Your behavior is governed by:

– The Standing ROE– The ROE for your mission– The Law of War – Your commander’s General Order– Common Sense

Definitions• SROE = Standing Rules of Engagement• ROE = Rules of Engagement

– Your commander’s rules for when you can use force during mission accomplishment

– ROE = self-defense + mission accomplishment + fratricide prevention + maneuver control + LOW + international agreements + political considerations

• LOW = Law of War– Geneva Conventions, other treaties, international law

IntroductionWhy should you follow these rules?

• It is the right thing to do– You are an American– You are a human being

• The world is watching– Impact on strategic objectives and public opinion– CNN test – How will your action appear on TV

• Effect on the enemy– More likely to surrender– If you violate, may fight to the death

IntroductionWhy should you follow these rules?

• Encourages reciprocal conduct from the enemy• Improves Discipline

– Fratricide prevention– Mission accomplishment (“Whites of their eyes”)

• Subject to Criminal prosecution– War Crimes Act– Court-martial– Host-nation court system

Self-Defense

• Comes from the SROE

• Applies to ALL OCONUS operations, and applies CONUS when we are under military attack

• When will this come up?– Unanticipated violence by terrorists, thugs,

criminals, upset locals

Self-Defense

First point: You have the right and the duty to defend yourself and your unit.

Second point: Force used in self-defense must NECESSARY and PROPORTIONAL

Third point: Don’t confuse this with Mission Accomplishment ROE

Principles of Self-Defense

WHO DECIDES? YOU DO!• Can I defend this person or thing?

• Can I use force? (Necessary)

• How much force can I use? (Proportional)– How serious is the threat?– What amount of force will stop the threat?

What You Can Defend

You have the right and the duty to use NECESSARY and PROPORTIONAL force, to include deadly force, to defend:

• People

• Certain mission-essential equipment

• Your mission

NECESSARY FORCE

Force is necessary if you face a:

• Hostile act

• Hostile intent

NECESSARY FORCEHOSTILE ACT

• Force is being used against you right now

• No-brainer

NECESSARY FORCEHOSTILE INTENT

• The threat of imminent use of force.– IMMINENT, not IMMEDIATE!– YOU DON’T HAVE TO WAIT!

• How do you know if force is imminent?– Use SALUTE– If I don’t stop him now, will he hurt me before

I can get help?

NECESSARY FORCEHOSTILE INTENT – SALUTE

• Size – How many are there?• Activity – What is he going to do?• Location – Where is he? am I?• Unit – Is he part of a larger force?• Time – How much time do I have before

he hurts me?• Equipment – Is he armed? With what?

PROPORTIONALITY

• Self-defense “proportionality” = minimal amount of force necessary to eliminate the threat

PROPORTIONALITY

• How serious is the threat?– SALUTE

• What is the minimal amount of force that will stop the threat?– Graduated force

YOUR FRAMEWORK

PROPORTIONALITYHow serious is the threat?

• Size – How many are there?• Activity – What is he going to do?• Location – Where is he? am I?• Unit – Is he part of a larger force?• Time – How much time do I have before

he hurts me?• Equipment – Is he armed? With what?

PROPORTIONALITYWhat is the minimal amount of force that will

stop the threat?

• Use the “Four Ss”– Shout: Yell “halt” or “stop”– Show: Let the threat see that you have a

weapon and that you are willing to use it– Shove: Use non-deadly force– Shoot: Shoot to eliminate the threat

PROPORTIONALWhat is the minimal amount of force that will stop

the threat?• You may not have time to go through every “S”• Deadly force may be the only appropriate

response• Deadly force is any force which, when properly

used,would cause death– Shooting is deadly force regardless

• Pointing a weapon at somebody is force

Who is the enemy?

• Framework: Can I target this object?– People– Things

• People: the enemy.

People• Can Target The enemy UNLESS:

– Out of combat• Surrender • Wounds or sickness (no “double-tapping”)• Parachutists (pilot bailing out, not a paratrooper)• PW• Shipwrecked

– Medic or chaplain (not chaplain’s assistant)– UNLESS they fight!

• Carrying a weapon for self-defense is not enough

Non-Combatants

• Civilians not taking an active role

• Journalists

• Humanitarian aid workers

• Medical and religious personnel

• UNLESS they fight!

Things

• Must have a military necessity

• Examples:– Military vehicles, positions, weapons, depots– Bridge that the enemy uses– Civilian bus carrying enemy troops– Factory making enemy material– Hotel billeting enemy troops

Things• DON’T TARGET:

– Hospitals, aid stations, medical vehicles or aircraft, medical supplies

– Places of worship– Cultural sites (schools, museums, historical places)– Civilian property, food and water stores, structures

• UNLESS in self-defense or the enemy is using the object for a military purpose

Weapons

• Chemical and biological: US does NOT use!

• Riot Control Agents: allowed in combat theaters as long as not a method of warfare

– Can only use in defensive mode• Riot control, disperse civilians masking an attack,

stop escaping POWs, etc.

– Need authorization

Weapons

• Mines– No “dumb mines” (Korea is an exception)– Claymores

• Attended okay

• Trip-wire if not longer than 72-hours, located in your immediate proximity, you monitor the area to ensure civilians stay out

– Anti-personnel authorized if “smart”• FASCAM (self destructs)

Weapons

• Booby traps. Not in or on:– Protected places– Sick, wounded, dead persons– Graves or cremation sites– Medical facilities or equipment– Things children will play with or use– Food, drink– Animals or their carcasses

Weapons

• Incendiaries– Do not cause unnecessary suffering– Limited use of air-delivered in population

centers

Proportionality

• Proportionality – only comes into play if there is a possibility of collateral damage

• Collateral damage = unintended death or injury to civilians, or unintended damage to civilian property– We target a military object or person, and some

civilians or civilian property are unintentionally harmed

Proportionality

• If possibility of collateral damage exists, then collateral damage cannot be excessive in light of the concrete and distinct military advantage to be gained

• Your ROE during hostilities may set a higher standard.

• Generally, a problem for the planners

LOW vs. Self-Defense Proportionality

• Self-defense: minimal amount of force necessary to eliminate the threat

• Law of War: collateral damage cannot be excessive in relation to the concrete and distinct military advantage gained– Only applies if collateral damage– Less restrictive than self-defense

Proportionality Summary

• Judgment call, just act reasonably

• Accidents happen. They aren’t war crimes. You need to make a sound decision based on the facts that you know.

Civilians on the battlefield

• CANNOT TARGET CIVILIANS!– Unless in self-defense– Unless they are taking an active part in the

fight (working on a weapons system)– Report any contact to your command

immediately– Collateral damage v. intentional targeting

Civilians on the battlefield

• What is a civilian?– Anyone who is not an EPW, member of the

armed forces

• Detention of civilians: in your ROE.

Civilians on the battlefield

• Remember your mission

• Kicking down doors and flex-cuffing everyone in sight may have serious repercussions

– Intelligence– Hearts and minds

Conclusion

• Follow these rules in combat even if the enemy does not. We are Americans and we do what is right.

• Report:– All violations of these rules to your command– Any enemy violations of the Law of War– All contact with civilians to your command– Fratricides