Pre-Mob Legal/Military Justice

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

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

Title 10 versus Title 32

Military Justice

Law of War

Rules for Lawful Behavior in Combat

Title 10 = federalized forces

(mobilized guard unit)

Title 32 = state forces

UCMJ and Army regulations now apply

You can be “chaptered out”

You can face court-martial

You get all the Army benefits (including Legal Assistance, Trial Defense Services)

As a soldier, governed by Uniform Code of Military Justice (UCMJ), not civil criminal law.

Allows Article 15’s

Court Martials

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

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

Essentially a military trial

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

Major crimes against the Department of Defense prosecuted by the Dept of Justice:

Espionage

Subversion

Aiding the Enemy

Sabotage

Spying

No unnecessary suffering

EPWs

Wounded and sick

Property

Tactics

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

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

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

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

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

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

Must take as an EPW

Leave them unharmed

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

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

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

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

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?

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

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

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

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)

Your behavior is governed by:

The Standing ROE

The ROE for your mission

The Law of War

Your commander’s General Order

Common Sense

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

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

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

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

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

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?

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

Force is necessary if you face a:

Hostile act

Hostile intent

Force is being used against you right now

No-brainer

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?

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?

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

How serious is the threat?

SALUTE

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

Graduated force

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?

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

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

Framework: Can I target this object?

People

Things

People: the enemy.

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

Civilians not taking an active role

Journalists

Humanitarian aid workers

Medical and religious personnel

UNLESS they fight!

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

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

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

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)

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

Incendiaries

Do not cause unnecessary suffering

Limited use of air-delivered in population centers

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

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

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

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.

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

What is a civilian?

Anyone who is not an EPW, member of the armed forces

Detention of civilians: in your ROE.

Remember your mission

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

Intelligence

Hearts and minds

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