The Law Of War The Rules That Govern The Conduct Of Soldiers In Military Operations

1. The Law Of War The Rules That Govern The Conduct Of Soldiers In Military Operations CPT John H. Mark Chief, Administrative and Operational Law 520-533-0620 John.h.mark@us.army.mil Current as of 06 May 2008

2. Training Objectives • Understand the “Need” for the LOW. • Understand the legal basis for the LOW. • Identify the LOW Basic Principles. • Military Necessity. • Unnecessary Suffering/Collateral Damage. • Discrimination or Distinction. • Proportionality. • Apply the Ten LOW Standards – The Soldier’s Rules.

3. What Is The Low? Law of War Legal Basis: • Hague Regulations. • Geneva Conventions. • Other International Treaty Law. • International Customary Law of War. Reflection of international legal values.

4. References • Geneva Convention (III) Relative to Treatment of Prisoners of War, 12 AUG 1949 (GPW) • Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (GC) • 1977 Protocol I to the Geneva Conventions (Protocol I), 12 DEC 1977 • Not ratified by U.S. but parts are customary international law • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment • 18 U.S.C. 2340, Torture • Presidential Military Order, 13 November 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

5. References • DoD Instruction 5100.77, DoD Law of War Program • CJCSI 5810.01B: Implementation of the DoD Law of War Program • AR 190-8, Enemy Prisoners of War, Civilian Internees, Retained Personnel, and other Detainees, 1 Oct 97 • Being Revised • FM 3-19.40, Internment/Resettlement Ops, 1 Aug 01 • Being revised • FM 2-22.3 (FM 34-52), Human Intelligence Collector Operations, 06 Sep 06 • Theater Specific Guidance/ROE/SOP • 2008 Uniform Code of Military Justice

6. Why Do We Need The LOW? • To assist Commanders and Soldiers in mission accomplishment. • To regulate the use of force and prohibit unlawful conduct. • To protect against unnecessary suffering and excessive collateral damage. • To promote the humane treatment of noncombatants, wounded and sick, and civilians.

7. Why You Need to Follow LOW • Adherence promotes: • A disciplined, more effective fighting force. • Support for U.S. operations both at home and abroad. • An early end to hostilities. • Reciprocal adherence to LOW by the enemy. • It’s the Right thing to do: • Moral Courage and Self Discipline are the hallmarks of a professional warrior. • It’s the Law: • Violations can create an international incident. • War crimes are serious charges. • War crimes embarrass the United States & limit policy options.

8. Think this is HELPING? What would this do to YOUR will to fight?

9. Low – The Basic Principles • Military Necessity • Unnecessary Suffering/Collateral Damage • Discrimination or Distinction • Proportionality

10. Basic Principles: Military Necessity Military Necessity refers to the use of force, not otherwise prohibited by the law of war, which is necessary for the complete submission of the enemy as soon as possible. The Rule: Destructive force must be directed at LEGITIMATE MILITARY TARGETS

11. Basic Principles: Military Necessity(Legitimate Military Target) Military Objective: “Combatants, 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--are permissible objects of attack (including bombardment). Key elements: - Nature - Location - Purpose - Use

12. Basic Principles: Military Necessity • Unavoidable destruction of non-military persons and property in the course of destroying a legitimate military target is “collateral damage” and is normally not a law of war violation. • The targeting of a military target that results in excessive collateral damage is unlawful. • Military necessity is NOT a defense for acts expressly prohibited by international law.

13. Basic Principles: Unnecessary Suffering The Rule: • It is forbidden to use arms, projectiles, or material CALCULATED to cause UNNECESSARY SUFFERING. The rule applies to both of the following: • Combatants: prohibits unlawful weapons which cause unnecessary suffering (i.e. fragmenting bullets) and the use of lawful weapons in a manner designed to cause unnecessary suffering. • Civilians and civilian property: prohibits intentional attack on civilians, civilian property, or collateral damage excessive in relation to the reasonably expected military advantage.

14. Basic Principles: Discrimination Or Distinction Discrimination: Indiscriminate attacks are prohibited • Must target military objective and use appropriate means Distinction: Soldiers must distinguish: • Combatants from non-combatants. • Military objectives from protectedproperty or protected places.

15. Basic Principles: Proportionality • Loss of civilian life and damage to civilian property (collateral damage) must not be excessive in relation to the concrete and direct military advantage gained by an attack. • Proportionality is not a separate legal standard. • It is a method for commanders to assess their obligations as to the law of war principle of distinction, while avoiding actions that are indiscriminate.

16. Question • Q: If you were in the gunner in a M1151 with • a .50 cal, M4 and an AT-4 available, • and were attacked by an insurgent • armed with an AK 47  along an • unpopulated route in the desert, which • weapon system(s) does proportionality • permit you to use?

17. Question Q: Now the attack is happening in a crowded marketplace in Sadr City with a heavily concentrated population. Do your choices change?

18. Tactics • Ruses/PSYOPs—OK • Ambushes and Surprise Attacks • Psychological Operations (PSYOP) • False/Deceptive communications and movements • Use of Enemy Passwords, Codes, etc. • Disinformation • Moving Landmarks • Bribes of Enemy Civilian & Military to not fight • Treachery- Perfidy—NOT OK • No Killing EPWs • No use of Human Shields • No Feigning Injury or pretending to Surrender • No Targeting “White Flag” of Truce • No Misuse of Protected Places or Undefended Facilities • No Mutilating, Mistreating or “booby-trapping” the bodies of the Dead • No lying about peace treaties or cessations of hostility

19. What about Reprisals? • Reprisal is “an eye for an eye.” • The idea that two wrongs make a right • Since the enemy violated the law of war, we will also violate the law of war, to teach the enemy a lesson • May not Target Detainees, including EPWs and Protected Persons • U.S. Policy - Requires Presidential approval! Bottom line: Don’t even think about it

20. AMIRIYAH (AL FIRDUS) BUNKER • Constructed As Civilian Air Raid Shelter • Modified Into Command Bunker • Struck 13 February 1991

21. Question • Prior to moving locations, your unit commander orders you to leave behind two boxes of MRE’s and place hand grenades with the pins pulled underneath the boxes. • Is the order legal?

22. Fight only combatants. Treat humanely all who surrender or are captured. Do not kill or torture detained personnel. Collect and care for the wounded. Do not attack protected persons and protected places. Destroy no more than the mission requires Treat all civilians humanely. Respect private property and possessions. Prevent LOW violations. Report LOW violations. Ten LOW StandardsThe Soldier’s Rules

23. Rule #1: Fight Only Combatants

24. Rule #1: Fight Only Combatants “Combatant”: Anyone engaging in hostilities in armed conflict on behalf of a party to the conflict. May be: • Persons “declared” hostile. • Persons engaged in a Hostile Act orDemonstrating Hostile Intent. Versus Non-Lawful Combatant Inherent Right of Self Defense (ROE Principle) • Anyone engaged in a hostile act. • Anyone demonstrating a hostile intent.

25. Rule #1: Fight Only Combatants LAWFUL • Responsible Command • Fixed Distinctive Sign Recognizable at a Distance • Carry Arms Openly • Abide by the Laws of War (ARTICLE 4, GPW) • UNLAWFUL • Persons, such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the conditions prescribed by the laws of war... • If captured, not entitled to POW status and may be tried and sentenced to execution or imprisonment. • FM 27-10, para. 80

26. Rule #1: Fight Only Combatants Non-Combatants; Unlawful Targets • Diplomats / Embassy Persons • Staff of Relief Societies • Medical Personnel and Chaplains • Nonbelligerent Civilians • Out of Combat Persons • wounded/sick • Parachutists • surrender/POWs • pilot and crew bailing out of a plane

27. Are they combatants … ? • A woman stealing a box of MREs from the back of your HMMWV • A man carrying an AK-47 down the street, but not pointing it at you • A child who points a BB gun at you • A teenager holding a Molotov cocktail in his hand • A man coming out of a building during a cordon and search operation with a pistol in his hand • A man carrying a Rocket-Propelled Grenade launcher, but not aimed at you • A man emplacing an IED on the side of the road

28. Rule #2: Treat Humanely All Who Surrender Or Are Captured • Follow the 5 S’s and T • Search • Silence • Segregate • Safeguard • Speed to the Rear • Tag • Provide Humane Treatment • Respect and Protect

29. Rule #2: Treat Humanely All Who Surrender Or Are Captured Respect and Protect: • Protect from retaliation or retribution. • Protect from public humiliation or curiosity. • Respect for person, honor, cultural beliefs. International and domestic law applies to federal employees and contractors: • DOD civilian employees and contractor personnel. • Non-DOD civilian employees and contractor personnel engaged in the handling or interrogation of detainees.

30. Rule #2: Treat Humanely All Who Surrender Or Are Captured Provide Humane Treatment: • Medical Treatment. • Food. • Water. • Shelter. • Basic Hygiene Care. • Clothing. • Women will be treated with respect: • Protected from sexual assault. • Women are entitled to respect for their persons and their honor.

31. Scenario • You are assigned to a Brigade Holding Area, providing Intelligence Analyst support to Interrogation Operations. The interrogator has promised the detainee cookies and sweet tea if he cooperates. Your analysis indicates that the detainee is lying. Are you still obligated to give the detainee the cookies and tea?

32. Rule #3: Do Not Kill Or Torture Detained Personnel • Killing & Torturing detained personnel is a crime under both international and domestic law. • Humane treatment is the minimum standard for ALL detained personnel regardless of status. • Let trained interrogators conduct interrogations -- Torture is not only unlawful, but produces unreliable information.

33. Rule #4: Collect And Care For The Wounded The LOW requires you to care for enemy wounded. • Once they are out of the fight, take care of them. • Triage the most seriously wounded -- whether friendly or enemy. • Safeguard from further attack.

34. Rule #4 – Collect And Care For The Wounded 'Mercy Killer' GI Gets Three YearsBAGHDAD, Dec. 11, 2004(CBS/AP) -  A U.S. soldier was sentenced to three years in prison after pleading guilty to killing a severely wounded Iraqi teenager - The soldier also received a reduction in rank to private, forfeiture of wages and a dishonorable discharge. - He pleaded guilty to one count of unpremeditated murder and one count of soliciting another soldier to commit unpremeditated murder. - The charges relate to the Aug. 18 killing of a 16-year-old Iraqi male found in a burning truck with severe abdominal wounds sustained during clashes in Baghdad's Sadr City, an impoverished neighborhood that was the scene of fierce fighting between U.S. forces and Shiite rebels loyal to anti-U.S. cleric Muqtada al-Sadr.

35. Rule #4: Collect And Care For The Wounded • The Obligation to collect & protect the wounded extends to the dead. • Mutilation or desecration of dead bodies is a violation of the LOW.

36. Rule #5: Do Not Attack Protected Persons And Protected Places Protected Persons. • Intentional targeting generally prohibited. Protected Places. • Civilian objects protected from intentional attack. • Military purpose/military necessity analysis. • Incomplete intelligence & civilian casualties.

37. Rule #5 Do Not Attack Medical Personnel, Facilities, Or Equipment Do not attack people, vehicles, or places marked with these symbols. Hospitals don’t lose protected status if fortified strictly for defense: • OK for hospital to have armed sentries, Doc’s to have side-arms. • Not OK to co-locate hospital with SAM site, or to hide large weapons supplies there. • Hospitals, medics, or medical vehicles CAN lose their status if they are used improperly.

38. Objects as Lawful Targets • Places/Objects that contribute to the enemy’s military action or war-fighting/war-sustaining capability • Direct and concrete military advantage • Direct benefit, not secondary benefit • Military Targets: • Barracks, Military Airfields, Command and Control Nodes, Ammo Supply Points, Motor Pools • Dual-Use Facilities/Objects: • Places/objects which provide a benefit for the civilian population, as well as the enemy • Can include food warehouses, power-plants

39. Direct and Concrete Military Advantage? • The Surface to Air Missile Launcher that has missiles, and is within range of our helicopters? • The enemy tank that has no more ammunition, and is simply fleeing the battle? • The enemy barracks building that is empty? • The cell phone towers which the enemy insurgents, local residents, journalists and Coalition Forces are using to communicate? • The power plant which supplies electricity to the enemy insurgents, as well as the local population?

40. Rule #6: Destroy No More Than The Mission Requires Only target legitimate military objectives. • Avoid excessive or wanton destruction of property. Minimize collateral damage. • Protect civilian property. • Protect historic and cultural sites. • Remember: During OIF, our focus was the Iraqi regime, not the people. The more you destroy in battle, the more we’ll have to help rebuild in peace.

41. Rule #7: Treat All Civilians Humanely ALL Civilians must be respected. • Never intentionally target civilians. Civilians must abstain from Hostile Acts. • You don’t have to stop your mission to care for them. • But: DO help civilians if safe to do so & it doesn’t interfere with your mission.

42. Rule #8: Respect Private Property And Possessions Civilian Property: • Do not retain unless it is contraband. • The taking of personal property for immediate military necessity or emergency is permissible. Issue a receipt for property taken, when possible. War trophies: • Do not retain without express authorization from your Commander.

43. Rule #8:Soldiers Do Not Steal! By Kimberly HeflingASSOCIATED PRESS 2:11 p.m. July 29, 2004 FORT CAMPBELL, Ky. – A military jury found a soldier guilty of armed robbery Thursday for taking an Iraqi sheik's sport utility vehicle at gunpoint.

44. Rule #9: Prevent Low Violations General Dwight D. Eisenhower (center), Supreme Allied Commander, views the corpses of inmates who perished at the Ohrdruf camp. Ohrdruf, Germany, April 12, 1945. (National Archives) “I was only following orders” and “ambiguous orders” are not defenses to war crimes: Mai Lai Village, Vietnam, March 1968, Civilian women, children and infants “suspected” of aiding the NVA enemy were killed by U.S. ground forces “All that is necessary for the triumph of Evil is for good men to do nothing”

45. “I was only following orders” and “ambiguous orders” are not a defense to war crimes!!

46. Dealing With Illegal Orders • Clarify unclear orders. • If illegal, the soldier must state so. • Use moral arguments against order. • Threaten to report the act. • Ask the senior soldier to stop the act. • Refuse to obey the order. • If the order is not withdrawn, or act is committed, report incident or order.

47. Rule #10: Report Low Violations • Report ALL suspected LOW violations (enemy or friendly) to your chain of command, judge advocate, inspector general, or chaplain. • It is your duty to know the LOW and follow the rules. • If you are ordered to commit a criminal act or LOW violation, you are under an obligation to refuse the order. • “I was just following orders” is NOT a defense.

48. Rules of Engagement

49. Purpose of ROE • Maintain the right to use self-defense • Designate hostile forces • Establish rules for use of force • Authorize the use of various weapons • Implement the Law of War • Accomplish the mission with the minimum necessary force • Maintain public opinion • Follow the law

50. Authority to use ROE You may engage any force that: Isdeclared hostile or Has committed ahostile act or Has demonstrated ahostile intent