Category Archives: LOAC

Kill or be killed!

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by Travis Normand
July 17, 2017

I found the following video on YouTube.com this past weekend. It appears to be a legitimate WWII-era U.S. Army training video.

While the objective of every army has been to train its soldiers to kill the enemy in times of war, the training of soldiers has traditionally walked a fine line between (1) teaching soldiers to “kill or be killed,” and that killing is “acceptable” because the enemy is less human than you are, versus (2) the enemy are human beings and therefore you must treat them with a certain amount of respect, dignity, and humanity.

Overtraining your soldiers on point number one (above) can lead to the mistaken belief that anything is acceptable in battle because the enemy is not human. This mentality can lead to some devastating consequences such as crimes on the battlefield.

I am not saying that the following video reaches this point of “overtraining,” as it is my understanding that such a point is only reached after long periods of systemic improper training without ever countering with point number two (above). Therefore this video alone does not rise to this level of improper training.

However, I did find it interesting that at (or just after) the 5:45 minute mark of the video it clearly states that “…your deaf to the rules, because in war, there are no rules!”  

Further, while on the topic of training, “Command responsibility” (also known as the Yamashita standard or Medina standard) is the legal doctrine of hierarchical accountability for war crimes. The is often used to refer to the broad duty to for a military commander to supervise his subordinates, and the liability for his failure to do so. In other words, if you train your subordinates (soldiers) to disregard the laws of war, then as their commander, you may be held liable for any acts and/or crimes they commit during battle.

The “Yamashita standard” is based upon precedent set by the United States Supreme Court during the prosecution of Japanese General Tomoyuki Yamashita in 1945. Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.” [FN1 & 2]. The “Medina standard” is based upon the 1971 prosecution of U.S. Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. In its decision, the Court held that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. [FN3 & 4]

While I do not believe the above training video (although officially produced by the U.S. Army) would be enough to hold a commander liable for any crimes that may be committed by troops under his command; one can certainly see how this video, combined with an understanding of the doctrine of Command Responsibility, might cause a JAG Officer or military commander to ‘cringe’ when they hear their soldiers being instructed that there are no rules in war.

Footnotes:

 

Applying the LOAC to current Middle East conflicts

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Posted by Travis Normand
April 18, 2017

A great discussion involving Geoff Corn (moderator), Ken Watkin, Mike Meier, and Rich Goss regarding the Law of Armed Conflict and its applicability in modern conflicts. This panel discussion was hosted by the University of Virginia Law School’s Center for National Security Law. 

While the entire video is almost an hour and a half long, it is well worth your time.

Video Recorded and Published by the University of Virginia School of Law on March 10, 2017 (with the following caption):

A panel of national security law experts discusses the challenges of translating traditional rules of war to the unconventional conflicts taking place in the Middle East. The panel consists of Brig. Gen. (Ret.) Ken Watkin (former Judge Advocate General, Canadian Armed Forces); Brig. Gen. (Ret.) Rich Gross (former legal counsel, Chairman of the Joint Chiefs of Staff) and Michael Meier (office of the Judge Advocate General, Department of the Army). Geoff Corn, South Texas College of Law, moderates. This panel was part of the UVA Law conference “Region in Turmoil: Conflicts in the Middle East.” (University School of Law, March 2, 2017)
Hyperlinks added by Travis Normand.

My Lai (49 years ago today)

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by Travis Normand
March 16, 2017

On this day in 1968 (March 16), Warrant Officer Hugh Thompson turned his helicopter’s guns on fellow U.S. troops in order to stop the My Lai Massacre.

I truly believe that one cannot fully understand or implement the LOAC without also having a firm grasp on history. For this reason, I recommend using (at the very least) the following links to familiarize yourself with what has been labeled the “My Lai Massacre.”

Israeli Soldier Convicted Of Manslaughter For Killing Wounded Palestinian

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by Travis Normand
January 5, 2017

There are a lot of different angles from which I could approach the discussion of this incident / court ruling. However, I am going to have to collect my thoughts on this topic and revisit it later when I have more time to write. Until then, I will leave you with this thought; due to the difficulties involved with imposing punishments for LOAC violations, it is important that countries continue to prosecute their own for any and all such violations.

Excerpts from the NPR.org article are posted below.  If you would like to read the article in its entirely, you can do so HERE (NPR.org).

Israeli Soldier Convicted Of Manslaughter For Killing Wounded Palestinian
by Camila Domonoske
January 4, 2017
NPR.org

An Israeli military court has convicted a soldier of manslaughter for shooting and killing a Palestinian assailant who was already incapacitated.

* * *

The judges found that 20-year-old Sgt. Elor Azaria acted in cold blood when he shot and killed Abdel Fattah al-Sharif, NPR’s Joanna Kakissis reports from Jerusalem:

“Al-Sharif had been shot and wounded after stabbing an Israeli soldier. Eleven minutes later, Azaria shot the motionless Al-Sharif in the head.

“A human rights activist filmed the killing. The video went viral.

“Many Israelis say Azaria was justified because he feared Al-Sharif might have been wearing an explosive belt. But Azaria’s superior officers say his actions contradict the army’s ethical standards.”

* * *

The AP reports:

“In delivering her verdict, Col. Maya Heller systematically rejected all of Azaria’s defense arguments, saying ‘the fact that the man on the ground was a terrorist does not justify a disproportionate response.’“

Read the entire article at NPR.org, found here:  http://www.npr.org/sections/thetwo-way/2017/01/04/508162405/israeli-soldier-convicted-of-manslaughter-for-killing-wounded-palestinian

Journalists in Armed Conflict and the Loss of Protective Status

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by Travis Normand
December 28, 2016

*THIS POST HAS BEEN UPDATED (SEE BELOW)*

The following was published at TheBlaze.com on December 8, 2016 (emphasis added).

Exclusive: TheBlaze’s Jason Buttrill shoots at ISIS members and shares footage from the Mosul front, by Brandon Morse, December 8, 2016 at 10:15 pm

TheBlaze researcher Jason Buttrill is bringing you exclusive footage from the Mosul offensive in Iraq, and as you will see, the action is getting a bit extreme. Currently, Buttrill is on the front line, seeing the fight to take back Iraq street by street. Not only is he having some interesting conversations, and seeing some unbelievable sites, he’s in the thick of the action.

For instance, Buttrill recently took some shots at ISIS as he was out getting reports from the front line.

Click HERE for the rest of the article.

When a reporter, correspondent, researcher, journalist, or other non-combatant takes direct participation in hostilities, he/she loses any protection afforded to them by the LOAC.

If a journalist who is working in a “war” zone takes direct participation in hostilities, they lose any protection that they are afforded as a journalist for at least as so long as they are taking direct participation. Further, not only is such action unbecoming of a journalist, it shows a complete lack of respect for the law and confuses who might be a legitimate object of attack. Such confusion puts other journalists and protected persons at risk.

Richard White covered this story over at Insurgentsia.com, and so I will refrain from going on a long-winded rant about Mr. Buttrill. However, I will say this, as Mr. Buttrill was apparently in the Marines at one point in time I am sure he has been instructed on the LOAC. Therefore, he should know that the U.S. military prides itself on abiding by the LOAC and that it is the non-state groups such as ISIS and al-Queda who are notorious for failing to follow the law. It is disappointing to see someone fall victim to the same mentality as those who fight for these terrorist organizations.

Note:  Politico.com has reported that due to his conduct Mr. Buttrill was pulled from his assignment.  Also, as you can see below, Buttrill has since apologized via twitter.com for his actions.

*UPDATE DECEMBER 30, 2016:

I have interacted with many people on twitter who believe Mr. Buttrill has done nothing wrong and that he should not have been taken off  his assignment. Most of these people argue that armed non-state groups like ISIS attack and kill journalists regardless of their obligations under the LOAC and therefore Buttrill is justified in taking shots at them. They further argue that he is not giving up any protections afforded by the LOAC as ISIS doesn’t recognize or adhere to those protections, and thus he is not putting any journalists in harms way (as they already are). While I understand these sentiments, my counter argument would be that Buttrill was not exercising his right to self-defense and killing another human is murder when it is not justified. We cannot complain that ISIS (or anyone else) is killing or harming our journalists if our journalists are out there taking a direct participation in hostilities.

This is a reminder that there are far too many who have a total lack of understanding and respect for the law of war. This includes terrorists, unlawful combatants, insurgents, non-state actors, and unfortunately average citizens.

The LOAC permits civilian casualties when they are necessary to accomplish a legitimate military objective

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by Travis Normand
December 28, 2016

This is a great opinion piece that was posted on WashingtonPost.com. I highly recommend taking a moment to read it. You can find the entire piece at WashingtonPost.com, as I have reposted only a part of it below.

The emphasis on counting civilian casualties ends up helping the Islamic State
by Rachel E. VanLandingham and Geoffrey S. Corn
September 7, 2016
WashingtonPost.com

This emphasis on precise, casualty-averse warfare may be distorting the public’s understanding of war and law. The public accounting of every allegation of coalition-caused civilian casualties on the Islamic State battlefield, and the outcome of every civilian casualty investigation, is conditioning both domestic and international audiences to expect that international law demands analogously low levels of civilian casualties in all wars and that this level can be met while successfully prosecuting the conflict. This is wrong. It is also dangerous.

* * *

The Pentagon should accompany its transparency initiatives with a much stronger reminder that the law of war often, even if unfortunately, permits civilian casualties when necessary to accomplish legitimate military objectives. And that it is almost always the Islamic State’s fault, not the coalition’s, when such casualties are inflicted. In an asymmetric war against an enemy that violates the law by hiding and fighting among civilians, these casualties are frequently a calculated price of attacks aimed at destroying enemy fighters and other military targets.

That is, civilian casualties often are the product of strikes conducted despite the knowledge that civilians are likely to be harmed. As long as coalition forces ensure that the law of war’s yardsticks are met — that the military advantage to be gained by a strike outweighs the potential harm to civilians, and that reasonable care has been taken in choice of weapons and tactics to minimize the effect on civilians — civilians may, and unfortunately will often be, killed and injured. That is the horrible essence of modern, lawful war, and a burden that our young warriors carry into battle. But the responsibility for the vast majority of this suffering lies at the feet of the illicit enemy.

Confusion regarding the law of war only incentivizes the Islamic State and similar groups to continue their illegal methods of fighting among civilians. In this vein, if the Pentagon continues to over-emphasize the rarity of civilian casualties during coalition airstrikes, it risks sending potentially delegitimizing shockwaves once airstrikes are used in close air support of ground forces retaking cities and villages, in which the Islamic State’s use of human shields and other illegal tactics will almost inevitably result in much higher civilian casualty numbers.

Read the entire original article HERE.

DOD 2nd Revision to Law of War Manual

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by Travis Normand
December 28, 2016

The Defense Department recently published a new revision to its Law of War manual. This is only the second time the document has been changed since its initial release in 2015.

The first set of revisions focused on journalists and altered some language in order to provide greater protection to reporters working in “war” zones. This second/newest set of revisions attempts to provide more clarity on how the Defense Department views laws concerning human shields and civilians working on military objects.

For the best coverage on the newly revised Law of War manual, I would suggest visiting JustSecurity.org as they have read, digested, and written extensively on the changes to the manual.

While I would suggest reading everything JustSecurity.org has published on the topic, I understand that your time may be limited, so I am listing some of the best postings they have to offer:

  1. How to Read the Department of Defense’s Revised Law of War Manual, by Ryan Goodman, December 22, 2016, JustSecurity.org, found here: https://www.justsecurity.org/35786/read-department-defenses-revised-law-war-manual/
  2. Initial Observations on the Law of War Manual Revision: “Three ups/Three downs,” by Geoffrey S. Corn, December 14, 2016, JustSecurity.org, found here: https://www.justsecurity.org/35531/initial-observations-law-war-manual-revision-three-upsthree-downs/

You can download a copy of the Department of Defense Law of War Manual, June 2015 (Updated December 2016) version HERE.

 

Launch of the updated Commentary on the First Geneva Convention

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by Travis Normand

On 22 March 2016, 09:00-10:30 am, the ICRC is convening a Panel for the Launch of the Updated Commentary on the First Geneva Convention. This livestreamed event will offer the Commentaries’ perspective on key humanitarian issues while showing their practical utility on the ground. The event is part of the Conference Cycle on “Generating Respect for the Law”, which aims at reasserting the importance of IHL and the prevention of violations.

Click HERE for an article about the updated commentaries titled:  “Updated commentaries bring fresh insights on continued relevance of Geneva Conventions.“

Click HERE for the updated commentaries to Geneva Convention I.

Why the LOAC is so important

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by Travis Normand

This article appeared in The Jerusalem Post on 5 May 2015.  The first paragraph includes a quote by Israel’s Defense Minister Moshe Ya’alon that captures one of the many reasons why it is so important for us to have, and follow, the law of armed conflict.

After all the controversy and war crimes allegations following last summer’s Gaza war, Defense Minister Moshe Ya’alon said Tuesday that “I can still look at myself in the mirror.”

Ya’alon was speaking at a Shurat Hadin – Israel Law Center conference in Jerusalem, where he addressed the hot-button issues of lawfare, the Boycott, Divestment and Sanctions campaign, and general efforts to delegitimize Israel.

Following the LOAC allows those who engage in combat (whether it be soldiers, commanders, administrators, and/or executives) to walk away from such armed conflicts knowing that they followed the law and that they did the right thing.

Finding the LOAC in Syria: 2 reports from the IRIN on the Syrian Rebels and IHL (LOAC)

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by Jessica Poarch

Last July the ICRC ruled that Syria was in a civil war bringing the conflict under the LOAC.* On 13 May, IRIN, a humanitarian news source sponsored by the UN, published two stories looking at how the Syrian rebels view the Laws of War. The first story, “Syrian rebels on IHL: In their own words,” is a collection of statements by different sections of the rebel fighters on their views on the rules applicable to the conflict. The statements are a telling collection of varying views that clearly exhibit the lack of uniformity in leadership and mission of the rebel fighters. The opinions range from that of a former Colonel of the Syrian Army now commanding a unit of the Free Syrian Army who has been educated on the principles of LOAC and feels that respecting the law is what separates the rebels from the Syrian government to a member of an Islamist group who only subscribes to the Shariah and fain no respect for international laws such as the LOAC.

The second story, “Sometimes you cannot apply the rules – Syrian rebels and IHL” is an analysis of the statements made by the rebels in the larger context of the rules governing the rebel fighters. This article uses the statements of the fighters regarding their views of the LOAC to show which sources of IHL rules they (the rebels) respect–International Law, in some cases, but mostly Islamic law. The article then goes on to explain the systemic issues faced by the rebel leaders in getting their troops to adhere to the rules.

The general conclusion that can be gleaned from these two articles is that there is no clear, agreed upon set of rules being followed by the rebel forces. Although there are groups who are attempting to educate fighters on the Laws of War, the lack of unified leadership is making the success of the process slow.

* For more detail see my July 18, 2012 post, HERE.