I recently came across an interesting article talking about the US European Command (EUCOM) lessons learned from their training exercises over the past several years. EUCOM is the Combat Command for the US European Command Area of Responsibility.
The interesting part for me is that the article was published in the Army Lawyer, a US Army Judge Advocate General’s Corp periodical (Sept/October 2018). The article, Back to Basics: The Law of Armed Conflict and the Corrupting Influence of the Counterterrorism Experience, is authored by Col. Gail A. Curley and LTC Paul E. Golden, Jr. two JAG Officers assigned to Headquarters, US Army Europe. These officers make the case that the 18 years of CT (Counter Terrorism) Strategy we have employed in Afghanistan and Iraq have adversely affected the Army’s ability to fight a HIC (High Intensity Conflict).
The article states that the CT ”mindset continues to dominate many aspects of relevant US policies and practices and the outlooks of many commanders, staff, and legal advisors charged with planning and executing operations”. They also state that “there are serious implications for mission accomplishment and compliance with the laws of armed conflict (LOAC)”. However, they stated, that in their observations, the LOAC is “repeatedly” applied too restrictively (repeat “too restrictively”) in notional ROE for PID (Positive ID), engaging legitimate targets, and munitions usage.
“During discussions with other operational law attorneys, USAREUR’s judge advocates learned that many legal advisors and operators believe that low tolerances and high approval levels, rather than responsible commanders applying LOAC principles, are the only way to ensure protection against excessive civilian casualties and collateral damage.”
I thought this was striking because with a little bit of thinking the article then raises the question; in Afghanistan and Iraq (and Syria) is our military leaders applying the Laws of War “too restrictively”? Is the “too restrictive” the cause for the multiple “war crime” cases we are currently seeing in the media? Major Matt Golsteyn, LT Michael Behenna, LT Clint Lorance, SGT Derrick Miller, CPT Roger Hill and Chief Eddie Gallagher have all recently been in the news involving, court-martials, presidential paroles, writs of habeas corpus, paroles, and charges of prosecutor misconduct. These cases are only a few of the many cases we have seen in the last 18 years since the start of the Afghanistan and Iraq Wars.
The other question is why US military leaders are not applying the Laws of War properly. These are professional “warfighters”, formally educated in an extensive military education system, competitively selected by their service selection board for command, and competitively promoted; in theory, the best we have.
The Laws of War are basically a branch of international law that establishes a set of principles which regulate the conditions of war and the conduct of hostilities between belligerents. Those principles are Military Necessity, Distinction, and Proportionality. All three principles govern the legal use of force in an armed conflict in order to protect civilians and civilian property. Military necessity means you can only attack legitimate “military objectives”. Distinction states that combatants must be distinguished from civilians (hence military uniforms). Proportionality establishes that the use of force does not cause excessive damage to civilians or civilian property in relation to the attack on the military objective. All combat ROEs are based on these three principles. The Laws of War are not written to restrict military operations nor protect enemy combatants but are to protect civilians.
In each one of the mentioned cases, charges are raised that the fairness of the military justice system is being abused. Media stories mention the withholding of exculpatory evidence and political manipulations, called unlawful command influence or the “mortal enemy of military justice”. In each one of the above cases, our warriors knew and had identified the enemy. Usually, because their unit is taking casualties from those individuals that the government calls Afghanistan or Iraq nationals. The Laws of War authorizes the privilege and requires combatants to kill enemy combatants, in fact, it is the individual Soldier, Marine or Sailor’s duty to kill enemy combatants.
I believe that our military commanders as “warfighters” no longer understand the Laws of War and they also ignored our warrior’s right to combat self-defense. We now know that their failure to study and understand the Laws of War is not only affecting the operational readiness, as the “Back to Basics” article points out but also the fairness of the UCMJ court-martial proceedings with political “war crime” prosecutions.
Bob Weimann LtCol., USMC Ret.
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