LAW OF ARMED CONFLICT
ESSAYS ON SCENARIOS ONE AND TWO
CH (CPT) JUSTIN DUBOSE
DL C4 (H-RC) FY16 CLASS 412
August 22, 2017
SCENARIO ONE: WAR CRIMES
Charlie Company Soldiers and their Commander are both at fault and guilty of committing war crimes in this scenario. Various Army Regulations are clear about this behavior and its unacceptability in the United States Army. AR 350-1 places responsibility on the Command for his dereliction of responsibility. Paragraph G-21 states that an integral part of command responsibility is to “ensure proper treatment and prevent abuse of detainees”. This was clearly violated the company commander of Charlie Company.
The responsibility is not solely on the Company Commander, however, in this case. While the military is an institution of order and the chain-of-command is essential to maintaining order and discipline, Soldiers are also required by law to disobey orders that are criminal or unlawful. FM 27-10 states that Soldiers of all ranks “must take all reasonable steps to ensure that the objectives are identified as military objectives” so that “these objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage gained.”
Furthermore, it is the duty and expectation of every Soldier to report such blatantly criminal orders and unlawful activity. UCMJ has legal precedent for these actions in both United States v. Heyward and United States v. Medley. Additionally, the military principle of proportionality was clearly violated by the Soldiers of Charlie Company. Jonathan Keiler states that military actions which are “deliberately indiscriminate and designed to terrorize” are a clear violation of the utility of proportionality.” In other words, Keiler suggests, the harm inflicted is grossly disproportionate to the military advantage gained by such actions.
Soldiers are morally and legally obligated to report such crimes to their chain of command. If necessary, the presence of the Chaplain and/or JAG officer may be required. In the case of the famous My Lai Massacre in Vietnam, it was only the reporting of such crimes to superiors that led to a cease-fire and, ultimately, to the legal handling and condemning of such actions. It is imperative that all Soldiers adhere to such regulations in order to conform to the Law of Armed Conflict and maintain the professionalism and integrity of the United States Army.
SCENARIO TWO: FIRING ON POPULATED AREAS
While the fine line between military necessity and civilian considerations in armed conflict can require careful deliberation and judgment, Army Regulations and other legal agreements provide guidance for the appropriate actions.
Commanders must not make any decision without considering the specific provisions made for both civilians and civilian property during times of armed conflict. The Geneva Convention specifically addresses that armed forces are not to attack civilians or any civilian property. This specifically includes “all acts of violence, whether committed in offence or defence.” Consequently, such acts of violence are expressly forbidden whether they are intended to be offensive and pro-active, as is the case here, or defensive and reactive. This foundational international agreement clearly and expressly forbids the destruction of civilian property, even if military targets are likely to be neutralized in the process.
Army Regulations reinforce this necessity of lawfully following the Law of Armed Conflict. Paragraph 2 of FM 27-10 states that the LOAC is “inspired by the desire to diminish the evils of war” and this is accomplished, in part, by “protecting…noncombatants from unnecessary suffering.” This same Field Manual also states that Soldiers of all ranks “must take all reasonable steps to ensure that the objectives are identified as military objectives” so that “these objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage gained.”
Therefore, even when “military necessity” may appear to dictate the urgency of indiscriminate destruction, considerations for civilian populations and property must not be disregarded or overlooked. This is not only a moral obligation of Army officers and Soldiers which is in line with Army Values, but it is also unequivocally a legal obligation. Thus, it is not only a bad idea and strategy to follow the recommendation of the chief of staff, but to do so would demonstrate a blatant disregard for and neglect of those foundational principles which govern and guide the Law of Armed Conflict.
NG, LR, NCU, USAR
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