View Full Version : How much law should there be after the battle?

Rising Sun*
09-28-2010, 07:56 AM
When one considers the vast numbers of civilians accidentally killed or killed in pursuit of larger objectives during WWII, Korea and Vietnam with no thought of anyone being charged, it is difficult to avoid a sense of disbelief that soldiers can be charged with serious offences because they responded to someone shooting at them, whether or not their presence might have provoked them being shot at.

Many questions arise from these charges, but the four I'd like to pursue (and everyone else is welcome to present other questions) are:

1. Given the inadequate training and leadership adverted to in the second and third quotes below, who should really be on trial?

2. Why is it a crime to take whatever steps are necessary to stop someone shooting at you with the intention of killing you?

3. Is it sensible in a war against an enemy which has no moral or legal standards even vaguely similar to ours, to the extent that it can sponsor 9/11, to restrict ourselves by applying our high standards to our own troops and thereby limit our ability to fight the enemy on his own terms?

I'll raise the fourth question in my third post as it is somewhat tangential to the issue of combat.

Anger as commandos face manslaughter charge
Dan Oakes and Rafael Epstein
September 28, 2010

Australian commandos have lashed out the military prosecutor's decision to level a charge of manslaughter over the killing of six civilians during a botched night-time raid in Afghanistan.

As foreshadowed in the Herald, three commandos will face a charges over the deaths of four children and two adults in a compound. It is believed to be the first time Australian troops have been charged with killing civilians in a combat situation.

The Herald reported in early June that a reservist commando and his section commander were likely to be charged, along with their commanding officer, a lieutenant-colonel.

The reservist will be charged with manslaughter or dangerous conduct and the section leader with failing to comply with a lawful general order or prejudicial conduct. A third man, believed to be the lieutenant-colonel, is overseas and will be charged on his return.

Two of the soldiers released a statement yesterday saying they were ''deeply disappointed'' by the decision of the Director of Military Prosecutions, Brigadier Lyn McDade, to prosecute.

The soldiers said they were sure that when the circumstances of the incident became public, people would understand why they acted as they did.

''Words will never adequately express our regret that women and children were killed and injured during the incident on 12 February, 2009. These were people we were risking our lives to protect,'' said the soldiers, identified as A and B.

''However, it should not be forgotten that the casualties were ultimately caused by the callous and reckless act of an insurgent who chose to repeatedly fire upon us at extreme close range from within a room he knew contained women and children.

''This forced us to make split-second decisions, under fire, which almost certainly saved the lives of our fellow Australian and Afghan soldiers.''

It is understood that the Chief of Army, Ken Gillespie, wrote to Brigadier McDade recently expressing his concern at the prospect of charges. Soldiers have also said there is widespread anger at the treatment of the commandos, and a belief that they will never be convicted.

An Australian Defence Association spokesman, Neil James, said yesterday that it was in the commandos' interests for the charges to be heard at courts martial. ''It's not only fairer for the Diggers, it's better for the reputation of the army and of Australia,'' he said.

The family of the six people killed have said that Australian troops burst into their compound in the early hours of the morning and attacked using machine-guns and grenades.

They accused the Australians - from 1 Commando Regiment, which includes many reservists - of shooting without identifying targets and then admitting they were in the wrong compound.

The soldiers say they exchanged fire for an extended time with an Afghan man, who was killed.

Those close to the soldiers are adamant that grenades were necessary because the soldiers were under fire and the shots ceased after only a second grenade was thrown. http://www.smh.com.au/world/anger-as-commandos-face-manslaughter-charge-20100927-15u3o.html?from=smh_sb

However, it may be that the people who bear ultimate responsibility were those who allowed apparently under-trained reservists to go on active service.

Commando unit under legal cloud returns fire

Tom Hyland
September 12, 2010 - 3:00AM

SOLDIERS facing possible manslaughter charges over the deaths of civilians in Afghanistan have defended their actions, saying the unintended killings happened after they came under sustained gunfire from a man who ignored appeals to drop his weapon.

Five children were killed when the soldiers tossed grenades into a room during a raid on an Afghan farm compound on February 12 last year.

The soldiers, including army reservists in the First Commando Regiment, have been under a legal cloud since the incident, with the military prosecutor considering unprecedented charges against them.

While they are barred from talking to the media, members of the regiment have told supporters the Afghan man fired scores of bullets from an AK-47 rifle during the nighttime raid near the village of Surkh Morghab in Oruzgan province. Afghan soldiers with the Australians, speaking the Pashtu language, called on him to stop shooting, according to a source briefed by the commandos. Instead, he reloaded and continued firing.

The head of the organisation representing army reservists has been given a similar account.

Retired major-general Jim Barry, president of the Defence Reserves Association, said the commandos were in a room just metres from the Afghan man, ''with the walls exploding around them due to the fire that was aimed at them''.

The Australians responded with grenades, killing the man. When the commandos entered the room, they found the dead children.

The army has released no detailed official account of the raid, beyond confirming the children and the man were killed after the Australians came under fire.

The incident was investigated first by an army inquiry officer, whose findings were referred to the armed forces investigation service. The second investigation ''astonished and dismayed'' troops involved, according to a senior member of the regiment who cannot be named. ''They all believe the tragic events of February 12 would have transpired that same way for any other company,'' he said.

The issue then went to the director of military prosecutions, Brigadier Lyn McDade, last November. The protracted delay in announcing a decision has compounded unease in the regiment.

Major-General Barry said the commandos had been under intense strain due to the protracted inquiries. It was legitimate that there was a defence inquiry into this matter, he said, but it wasn't referred to the prosecutor until last November, an extraordinary period of time for a military inquiry. ''Under normal circumstances, you'd have thought this would have been dealt with last year.''

A key issue could be whether flaws in leadership and training contributed to the killings.

A defence investigation into the death of a soldier two months before the fatal raid highlighted major failings in the pre-deployment training of the commandos, the first such deployment by an Army Reserve unit since World War II.

The investigation by retired vice-admiral Chris Ritchie found ''deficient training, assessment, certification and consequently leadership'' of the commandos contributed to the soldier's death.

Neil James, head of lobby group the Australia Defence Association, said it was understandable the possibility of charges was causing unease in the army.

''It is better that such allegations or charges are aired, answered and dealt with in open court,'' he said. ''The alternative is that the individuals concerned … would remain the subject of unproven allegations, untrue public memories, popular mythology or scurrilous media sensationalism for decades.

''In particular, there is the big-picture truth that holding the ADF accountable is an issue that again underlines the moral, legal and accountability differences between us and our enemies and the causes for which we fight.'' http://www.theage.com.au/national/commando-unit-under-legal-cloud-returns-fire-20100911-1561w.html

continued ...

Rising Sun*
09-28-2010, 07:57 AM
The above wasn't the only time questions have been raised about the quality of commando training and leadership around the same time as the event leading to the charges.

Major sacked after soldier's death

Brendan Nicholson
November 3, 2009 - 12:06AM

THE officer in charge of an Australian special forces unit in Afghanistan has been removed from his command after a high-level investigation into the death of a young lieutenant revealed problems in the elite unit's training and leadership.

Lieutenant Michael Fussell, 25, was a member of a commando patrol on foot in an early morning operation against the Taliban in late November when he stood on the trigger of an insurgent bomb.

The explosion killed him instantly and wounded two other soldiers.

The officer in charge at the time, a major who was leading the patrol, was sacked from his command and it is understood he may sue the Australian Defence Force over that move, which is considered a serious disgrace.

Air Chief Marshal Houston said the worst thing that could happen to military personnel was to be removed from command.

''All of us aspire to command and to be removed is indeed a drastic action and it's a very difficult set of circumstances for the individual concerned,'' he said.

The major was still in the army, Air Chief Marshal Houston said, but for legal and privacy reasons he could not say more.

A high-level investigation carried out by the former chief of the navy, Vice-Admiral Chris Ritchie, found that the risk of the unit suffering casualties in Afghanistan was increased by deficiencies in training, assessment, certification and leadership.

Air Vice Marshal Houston said all of those problems had been fixed.

Lieutenant Fussell, an artillery officer, was a member of the 4th (Commando) Battalion, which is now known as the 2nd Commando Regiment, operating in central Oruzgan Province.

The commandos were on their way on foot through rugged terrain at 1.12 am to search compounds where insurgent leaders were believed to be hiding. The patrol was moving through the darkness with the aid of night-vision equipment when Lieutenant Fussell stood on the bomb's pressure plate.

The report suggested that, in the minutes before the explosion, the soldiers did not properly maintain what the army called ''track discipline'', a form of movement designed to lessen the chances of troops triggering a bomb or landmine by keeping within boundaries that have already been checked, cleared or walked over.

Air Chief Marshal Houston said that when soldiers stepped off this path, other members of the patrol, including the major, should have been in a position to warn them of the danger.

Lieutenant Fussell was responsible for calling in air support or gunfire if necessary and the investigators said he might have been distracted by these duties.

One of the two soldiers wounded in the blast was treated in Afghanistan; the other was more seriously hurt and was sent back to Australia for specialist treatment.


Rising Sun*
09-28-2010, 08:06 AM
My fourth question is: How much responsibility do army lawyers bear for civilian and other deaths in Afghanistan?

There is a high degree of irony in a brigadier / lawyer / military prosecutor bringing charges against soldiers from what appears to be an inadequately trained unit operating under direction and or instruction from inadequately trained army lawyers responsible for telling them and or their superiors how to operate in the field and what the rules of engagement are.

Again, who should really be on trial?

Assuming anyone should be on trial for killing someone trying to kill the charged soldiers.

Army's lethal legal gap

Tom Hyland
February 21, 2010 - 12:09PM

ARMY chiefs have refused to act on warnings that major gaps in the training of military legal officers are increasing the risk of Australian troops killing civilians in Afghanistan.

The legal officers - lawyers in uniform - were not properly trained for their role in advising commanders on the legality of targeted killings of insurgents, an inquiry has found.

Instead, they were left to learn on the job, during combat operations.

The findings are in a report by Colonel Rodger Shanahan, who conducted an army inquiry into an incident last April when four Afghan men were killed in a US air strike ordered by an Australian commander in Oruzgan province.

Civilian casualties are a major cause of friction between ordinary Afghans and foreign forces, undermining allied efforts to win support in the battle against the Taliban.

Australia has paid compensation to the families of civilians killed, even when the troops were found to have acted within their rules of engagement.

Colonel Shanahan found the four men killed were ''very likely'' to have been insurgents, and he made no adverse findings against the soldiers involved.

But his report recommended the army improve the training of legal officers, who approve ''kinetic'' attacks on ''dynamic'' targets - air strikes on insurgents where there might be little time to plan the attack.

Colonel Shanahan said legal officers were responsible for authorising such attacks, but ''they are neither trained nor certified in the kinetic targeting process before they deploy''.

''From a duty-of-care perspective this shortfall needs to be addressed,'' Colonel Shanahan said.

His report went to Lieutenant General Mark Evans, Chief of Joint Operations, who has rejected the recommendations.

In a written response to questions from The Sunday Age, a Defence spokesman said inquiries such as Colonel Shanahan's were set up ''in order to continually improve ADF's processes''.

''However, in some circumstances the appointing authority may not agree (with) a specific recommendation,'' the spokesman said. ''This is the case with regard to this recommendation.''

The spokesman said legal officers were trained in the legal aspects of targeting but did not need ''intimate knowledge'' of each phase of the process.

Australian soldiers operate under international and Australian law, including the Geneva conventions, which make them liable to charges in the event of war crimes. The key issue is whether the target is a combatant. Other legal factors in the targeting process include the risk of civilian casualties.

The men killed on the night of April 27-28 were hit by missiles and bombs fired by a US drone aircraft, known as a Reaper.

The weight of evidence was that they were insurgents laying roadside bombs, but Colonel Shanahan's report reveals that some officers thought they were farmers irrigating their fields.

He reinforced his call for greater training of legal officers by highlighting the risk of civilian casualties in a conflict where it was hard to distinguish insurgents from civilians.

''There is … a very heavy responsibility on commanders and their staffs whenever they take a decision to engage targets to make sure that they understand the targeting process intimately, for the consequences of not doing so are enormous,'' the report said.

It was anomalous that officers who were likely to use deadly force were ''neither trained nor tested in it'', the report added.

''If in future a targeting error is made, individuals will suffer the consequences, the enemy will gain [a propaganda] victory, and the ADF will be open to criticism for failing to provide an adequate level of training and evaluation for those responsible for the kinetic targeting decision-making process prior to deployment.''


Rising Sun*
09-30-2010, 09:02 AM
The plot thickens with the latest report.

Maybe the prosecution under Army charges headed off worse international war crimes charges.

Although I'm still ****ed if I can see how killing someone shooting at you, and killing or harming people he has around him while he's shooting at you, is a war crime.

A terrible misunderstanding perhaps, if you've raided the wrong compound, but in war a long way short of anything that deserves the majesty of the criminal law in all its objective glory minutely dissecting a simple situation to no sensible purpose.

If the same approach had been adopted during the Allied assault and progress through western Europe from D Day onwards, a fair part of the ground and air troops would have been charged.

Charges headed off war crimes trial

Dan Oakes
September 30, 2010 - 3:00AM

THE charging of Australian commandos over the deaths of six Afghan civilians headed off an international probe into the killings, it has been revealed.

A spokeswoman for the International Criminal Court told The Age yesterday that investigators from the ICC prosecutor's office had begun preliminary inquiries into the killings, which happened when Australian commandos threw grenades into a room containing five children and an armed man.

However, the spokeswoman said the ICC's interest in the case would end with the charging of the commandos by the Australian military prosecutor, as the court takes action only if the country in question is unwilling or unable to prosecute.

There has been speculation that the Director of Military Prosecutions charged the three commandos - one with manslaughter - partly because there was a risk that they could be charged with war crimes by the ICC prosecutor if no action was taken here.

Australia is a signatory to the Rome Statute on war crimes and consequently has an obligation to prosecute its nationals in Australia or risk having suspects prosecuted separately by the ICC in The Hague.

''The [prosecutor] is conducting a preliminary analysis of the situation in Afghanistan in order to assess whether or not there is a reasonable basis to open an investigation,'' the spokeswoman said.

''A reasonable basis to open an investigation would be that there are sufficient grounds to believe that crimes have occurred that fall under the jurisdiction of the ICC, by their nature and gravity, and that the states that normally have jurisdiction over these crimes are unwilling or unable to conduct the prosecution.

''The [prosecutor] has not concluded its preliminary analysis and has not yet decided whether or not to request the judges' authorisation to open an investigation.''

Defence sources have said they could not be certain how much the prospect of the ICC prosecuting the commandos influenced Brigadier McDade's decision to charge them.

But they said she would undoubtedly have been aware the ICC was taking an interest in the case. It is unclear what contact the ICC had with the Office of Military Prosecutions.

A reservist commando who threw a grenade will be charged with manslaughter or dangerous conduct, and his section commander will be charged with failing to comply with a lawful general order or prejudicial conduct.

A third man, believed to be a lieutenant-colonel, is overseas and will be charged on his return.


10-06-2010, 08:18 PM
Below is a copy of a MACV directive all GIs in VN were required to read, possess, and adhere to.
Obviously there were failures with varying results, but the intent was clear.
I believe this guideline has not changed that much.
Some effective weapons like Napal, WP, and flamethrowers have been eliminated.
Even in the heat of battle professionalism and control can often play a part.
Seen it personally.

MACV Pocket Card,
"The Enemy In Your Hands"
As a member of the U.S. Military Forces, you will comply with the Geneva Prisoner of War Convention of 1949 to which your country adheres. Under these Conventions: You can and will:
Disarm your prisoner.
Immediately search him thoroughly.
Require him to be silent.
Segregate him from other prisoners.
Guard him carefully.
Take him to the place designated by your commander.
You cannot and must not:
Mistreat your prisoner.
Humiliate or degrade him.
Take any of his personal effects that do not have significant military value.
Refuse him medical treatment if required and available.
English Vietnamese Halt
Lay down your gun
Put up your hands
Keep your hands on your head
I will search you
Do not talk
Turn Right
Turn Left
Dung Lai
Buong sung xuong
Dua tay len
Dau tay len dau

Toi Kham ong
Lai dang kia
Xay ben phai
Xay ben trai
1.) Handle him firmly, promptly, but humanely.
The captive must be disarmed, searched, secured and watched. But he must also be treated at all times as a human being. He must not be tortured, killed, mutilated, or degraded, even if he refuses to talk. If the captive is a woman, treat her with all respect due her sex.
2.) Take the captive quickly to security.
As soon as possible evacuate the captive to a place of safety and interrogation designated by your commander. Military documents taken from the captive are also sent to the interrogators, but the captive will keep his personal equipment except weapons.
3.) Mistreatment of any captive is a criminal offense. Every soldier is personally responsible for the enemy in his hands.
It is both dishonorable and foolish to mistreat a captive. It is also a punishable offense. Not even a beaten enemy will surrender if he knows his captors will torture or kill him. He will resist and make his capture more costly. Fair treatment of captives encourages the enemy to surrender.
4.) Treat the sick and wounded captive as best you can.
The captive saved may be an intelligence source. In any case he is a human being and must be treated like one. The soldier who ignores the sick and wounded degrades his uniform.
5.) All persons in your hands, whether suspects, civilians, or combat captives, must be protected against violence, insults, curiosity, and reprisals of any kind.
Leave punishment to the courts and judges. The soldier shows his strength by his fairness and humanity to the persons in his hands.
(September 1967)

12-12-2010, 01:13 AM
It was not an Ouradour, it was not a Mei Lai.

If these men are guilty of anything, it is that they are guilty of being the scapegoat victims of the professional incompetence and meaningless Political Correctness drivel that sent them into the field and into combat under such a ridiculously f***ed-up set of ROE's.

I'm certain these men did NOT set out to harm civilians, nor have any such intent.

Unlike Ouradour, or Mei Lai.

I do see that fear of another Mei Lai led to the idiocy of the ROEs these men had to attempt to survive under. Fine.

BUT: Be it remembered: There is NO SUCH THING as a war without civilian casualties, intentional or otherwise.
And where men such as these have NOT set out to cause civilian casualties, they should be FREE of any taint of suggestion to the contrary. Automatically, without question.

That Politicians, lawyers, diplomats and other professional idiots seek to impose upon warfare a whole series of completely unworkable ROEs and related bullsh*t is EXACTLY WHAT LEADS to events like Mei Lai in the first place.
The above classes of "professionals" forget that at their Eternal Peril: Always.

Respectful Regards, Uyraell.