On the laws of land warfare

[nadinbrzezinski]

...

First off let me preface this by stating a little fact that many people don't like to acknowledge, war is not a moral act, but a legal act. And sorry to tell you this, there is no morality in war. By it's very nature, war is separated from all the rules of moral life that drive your every day life.

Now I'll give you a few examples, an they actually range in the black and white of the basics, on how you teach troops and Red Cross workers. This is very introductory material, but might give you an idea of how messy things get in the real world, and yes these are based in reality.

1.- Can you open fire on a school, House of Worship, Museum, hospital, or power station?

NO, unless, you are actively receiving fire from any of them. Then you are free to remove the threat to you. Translation, fire till you bring it down... you are in the clear LEGALLY.

2.- Can you in a war-zone open fire on a perfectly well marked ambulance? And I mean red crosses, or Half moons on it, in the prescribed locations.

No, unless you witness that unit transporting armed personnel, at which point that unit loses it's neutrality... (By the way that happened to me, I wanted to kill my Cadets, I was not amused)

Now these are two extremely basic examples, and quite honestly, now you can see why war is hell, and why, to be honest, I'd need a lot more than just a tape to decide on whether crimes were committed in any military engagement. There are a few that are damn obvious, but we are talking of things like Abu Ghraib, otherwise it takes a lot more. Oh and even Abu Ghraib required more than just photos at the Court Martial level.

Remember this is not a morality play, but a legal affair. And what morally is a failure, legally it might not be. Oh and what did I do as a younger person? Well one of the things I did was listen to survivors of another forgotten mess. There are reams upon reams, upon reams of legal material, of possible war crimes that will never see the light of a court house... not in this life or the next... That is a fact of life, never mind I'd love a few people facing the music... for rape, murder, torture, genocide (yes genocide), and of course my personal favorite, burning of fields and homes.

But first listening to those stories, one more horrific than the last, and then quite frankly having to apply the principles of land warfare when one side did not sign any of these treaties, disabused me of this notion that this is a moral matter. So leave all the outrage and concentrate on the LEGAL side of this. And on the legal side of it, in order for anybody to decide if an act is breaking the laws of land warfare you need far more than just a tape... as damning as the tape really is. After all, we are talking of law, not morality.

Oh and I know that this will go nowhere and people will wrongly read this as an excuse... well sadly I know what I speak off... and doubly sadly, even if war crimes are committed, unless they are very egregious, you will never see them prosecuted, and when you do (rare as hell) who is tried is not the people GIVING the orders, but the rank and file, who at times actually not know better. (E-2) So do me a favor, you are gonna demand justice, start demanding that the men (and it is still mostly men) who give the orders are the ones facing the music. Until those who give orders actually face the music, don't care what language they used to write those orders, this is not going to change. Oh and I guarantee you, this takes a lot more than just marching. Some people have made it a life's work, and they are still trying to convict the assholes from the LAST war...

[FarCenter]

1. During the 20th century, more civilians were killed in wars than soldiers

[HereSince1628]

2. Do E-2's get sent overseas now?

I didn't see much of that in Vietnam in the early 70's. I was actually under the impression that if you weren't an E-3 you wouldn't be shipped out.

[nadinbrzezinski]

3. Yes, we do have privates going over

And under Geneva an E-3 is also pretty immune, since you still want them saying Yes Sir, NO SIR, three bags full, and not really thinking things over.

Of course soldiers are usually also trained to ask anybody giving a questionable order to put it in well writing. That usually stops bad orders.

[cliffordu]

4. I was an E-2 for a while when in country.

I think it was that whole "Fuck you and the horse you rode in on.." thingy I said to the captain, but I can't be sure, what with the drinking and all....

[Webster Green]

15. Heh!

I can relate!

Hoo-boy, can I ever relate! I made E-1. }(

[cliffordu]

19. LOL....

I hit that once myself....

[cowman]

21. I was a scared

E-3 when I arrived in country in 69-70.

Yeah, that will usually get you busted down, luckily I had a pretty good Senior Chief Petty Officer who answered to a damn good Lt.
BTW I was a Navy Seabee stationed at Dong Ha

[nadinbrzezinski]

22. Only idiots are not scared

:-)

And you were damn lucky to have had a good Senior and a damn good Lt... that helps to keep people alive.

[cowman]

24. Oh yeah

when I fucked up, my senior let me know about it, I credit him with my being alive to post here.

[Ozymanithrax]

5. And for my two cents, legality isn't a matter of personal opinion...nor can it be assumed...

A lot of assuming goes on, for instance many go under the assumption that both Iraq and Afghanistan are illegal wars.

Those opinions do not hold water unless the opinion is from a court that actually holds jurisdiction, say the world court or a body such as the UN.

Those wars were legal under U.S. Law and nobody with standing has ever branded them as illegal wars, even though there appears to have been some shady stuff by the Bush Administration.

To decide that the incident was a war crime would require investigation.

To me, the most valuable thing about the video is that it allows Americans to see the naked face of war. It is as shocking as the image of the girl running naked.



For the most part, the images we see are scrubbed clean. I don't think that is a good thing. Americans should see what is done in our name.

[nadinbrzezinski]

6. Americans should see what is done in our name.

Absolutely on all points,

[Bonobo]

7. "Laws" made by people of that sort do not interest me.

And boy am I getting sick of your smug know-it-all posts.

[Ozymanithrax]

8. Do you mean the Geneva conventions as "that sort?" The International red cross?

Just curious.

[Bonobo]

9. Actually I don't know. But I do know this...

It is madness that the military investigates itself

It is madness that people excuse this because it follows "laws of engagement".

Write your own laws, investigate your own crimes? Sounds fucked up to me and I don't want to hear shit from any "warriors", "flag-wavers" or uniformed people of any sort today.

Period.

[Ozymanithrax]

12. The military doesn't write its own laws...

The UCMJ, Uniform Code of Military Justice, was writen by the Congress and signed by the President. They are required by law to investigate crimes comitted by military people, whether at war or in peace time.

The laws of warfare are determined by the International Red Cross, the Geneva Conventiosn, and the UN, not the U.S.

So, are the ICRC "that sort" you don't like. Would "that sort" be the Geneva Conventions or the UN?

Because the U.S. military does not write its own laws.

[nadinbrzezinski]

14. Of course there is that fact that the US Senate

has to ratify treaties that are then incorporated into the law of the land. Mostly they become US Law, and it doesn't matter if this is the US Convention of 1948 or the Treaty of Guadalupe Hidalgo (Which has a lot to do with border issues) of 1848.

That is in that pesky thing called the Constitution and the Senate is required to have a gasp, SUPER MAJORITY, aka 60 Senators to ratify any treaty.

So the UCMJ did incorporate Articles I, II, III and IV of the Geneva Convention, and a lot of it was actually "written" by us since we insisted in some articles, such as protection of civilians against genocide, Article III.

[Ozymanithrax]

13. Rules of engagement are determined by the President and the civilian

leadership, not the military.

[nadinbrzezinski]

10. Should remove ingore from ignore?

:-)

[Name removed]

11. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Vattel]

16. In the real world

it's not always easy to do the morally right thing. In war it's often especially difficult. That doesn't mean that moral principles don't apply to war. It just means that they are often violated in war. Morally outrageous acts in war merit moral outrage.

[nadinbrzezinski]

17. Actually no they don't

the closest you get to morality is the Just War Doctrine, which is a LEGAL principle, not a moral one.

Now you may bring the worst outrages of recent wars. If you notice the prosecution of all these crimes was not a moral matter, but a legal one.

[Vattel]

26. Traditional just war theory

is a rather out-dated theory of the ethics of war. It is not a legal principle, although some of its principles have been incorporated into the laws of war. Obviously prosecution of war crimes is a legal matter. Just as obviously, one can morally evaluate wars and warfare.

[nadinbrzezinski]

28. It has no legal standing, morality has no standing in the middle of combat,

and the Just War Theory was actually behind the Genocide Convention, and one reason why we should have gone to Rwanda, and why we went to Bosnia.

Those who deal with the consequences know this. I am not morally outraged even if I'd like a few assholes I know to see the insides of a court of law, and not just recent assholes either.

[Vattel]

29. I really don't know what your point is.

Of course some moral rules have no legal standing just as some legal rules have no moral standing. But it doesn't follow that moral rules don't apply to war, right?

[nadinbrzezinski]

30. They don't, that is the point

taking care of wounded by medical personnel was nothing to do with morality.

Laws that protect kids have nothing to do with morality, or for that matter genocide laws.

The point is that once people enter into an active warzone the rules that apply to civilized society, such as though shall not kill go away. In fact, you killing an enemy combatant is not considered murder, not even manslaughter.

Now you killing an unarmed civilian IS murder, but not always... it really depends on the circumstances.

It is a sad fact of life, but there are things troops and armies are allowed to do in the field that have no place in civilized society... but of course there are a few things that they cannot do... though they were allowed in earlier periods. (Rape, mass genocide)

[Vattel]

31. If that is your point then you are mistaken.

"Thou shalt not kill," if taken literally, is not a valid moral principle. Under certain circumstances, it is morally acceptable both in war and outside of war to kill in self-defense or in other-defense. People often try to escape responsibility for what they do by saying that ethical principles don't apply in this domain or that domain. "Murder is not murder here because now we are in war or in the realm of international politics or business or . . ." It's all part of making murder more palatable.

[nadinbrzezinski]

33. Well given how legal things are

in a combat zone, I differ.

By the way, will give you a silly example based upon the can you fire at a hospital scenario

Here is how thigns vary depending on conditions realize for all of this you are a patient in this place.

1.- Armed combatants come into the place and start firing at another group of armed combatants. The other group requests Close Air Support which not only takes them out, but take you out. Is it murder, legally here, no, is it a moral problem? That left the door a while ago.

2.- Armed combatants bring a buddy of theirs to the Emergency Room, and GO OUT OF THEIR WAY to leave their weapons outside. The other group decides that yes they are now going to take them out. SO they request CAS and agian they take them out and you. Under the laws of land warfare NOW this is murder. And not just of you, but also the combatants they took out. You could even accuse them, hard to prove, or war crimes.

To make it worst the second group goes into the Emergency Room and SHOOTS unarmed combatants from the first side... now we are into war crime territory. Yes shooting somebody who is out of the fight is a no-no.

And this is the kind of weirdness that happens in the field. And the kind that most people who have never, ever had to deal with this have trouble comprehending.

Now you as an individual may be here for moral reasons, helping others and all that. I know I was, but that does not mean that my sense of morality has any legal standing. Nor shoud the two ever be confused.

By the way, when the DA wanted to charge the bad guys for taking pot shots at me in a marked vehicle... well they had to go to CIVILIAN law, and cite assault on a public official. But attempted murder, for reaosns that I guess are beyond most people's comprehension, was not done. Armed Army Officer onto one of my rigs, I was no longer neutral. Now ANY OTHER ambulance that was NOT a Red Cross Vehicle, they could have done that.

[autorank]

18. "And what morally is a failure, legally it might not be."

Well, that says it all. The recitations are endless. Who has the rule book in their mind or even close by when you're under fire, seeing people die, etc. There are responsible parties, the parties who put people in place to be human and make mistakes, forget the details, try to stay alive.

That's why the trials after WWII are so important. They laid it out. The guilty parties were there, in the dock, getting the snot beat out of them legally. It should have made a point but it didn't The nations of the world, their leaders that is, went right to work being atrocious again. They couldn't resists being themselves.

They're up high and looking down, those little dots surely can't be people ... unless you're among the dots. But they only join us when there's a mistake or someone really falls for the nonsense that begins and sustains most wars.

The leaders are the minions of the owners who are so greedy ... think of that scene in Dune where the guy literally blows to bits. But they do so much damage before that happens.

Thanks for your reflections!

[nadinbrzezinski]

20. Actually Nuremberg is stating to look more and more like

victor's justice to some. That said, the Conventions have actually changed the nature of war in some ways. It has made it a little less savage.

Compare Dresden to oh Hanoi or for that matter Baghdad. As much as Vietnam was brutal, you never saw cities, beyond the Citadel that is, flattened in indiscriminate bombings

In fact, we haven't seen total war. I know why... MAD... and total war today includes nukes.

We also have a little better in the realm of protection of civilians, compared to the horrors of WW II.

But the system had it's own poison pill, summarized by the defense of Adm Nimitz of his counterpart in the German Navy. As Nimitz correctly said, if the German commander was guilty of total submarine warfare, so was he.

That said, these days, these two wars, have legal fig leaves, even if in my opinion they meet all the requirements of the Nuremberg Indictment, including engaging in Preemptive War, alas I have no standing. Therefore that is just opinion, emotion perhaps, and far removed from the legal reality we are mired in.

[cowman]

23. As a

Vietnam Vet, I would like to say thank you for a very thoughtful piece and everyone here with the exception of one, for being very civil about this. Those that have never been in combat can never know the sheer terror of war and the toll it takes on a person physically and mentally.

Again, Thank You

[nadinbrzezinski]

25. Oh you welcome...

There are times I wonder about posting these things... that means a lot to me, and stay safe.

[cowman]

27. Thank You

after I got home I vowed that I would never again hurt someone if at all possible so I tested for the Las Vegas Fire Dept. and got hired on and have been a Firefighter/Paramedic for the last 35 years, will retire this Sept. but will still volunteer with the local F.D. in the town I live in just to keep my Parmedic Cert. active.

Keep up the good work
Peace Out

[mahina]

32. St. Augustine would argue otherwise...

Hi Nadine,

I so appreciate your input here at DU and I'm the last person to get into a battle of words but I do need to make sure that you're familiar with the just war theory. It's the basis for international law, and defines what constitutes legal war according to the United Nations. Its history goes back to St. Augustine's work.


Jus in bello (justice in the way the war is carried out)
Jus ad bellum (justice in the decision to go to war)
A just war must meet both in bello and ad bellum criteria.
http://www.iep.utm.edu/justwar/

What follows is just the shortest but not nec. the best version that I found in a super quick search. My point really is that while you are right that it's a legal matter, the law is grounded in ethical reasoning.

http://people.westminstercollege.edu/faculty/mmarkowski/312/justwar.htm

JUST WAR THEORY: JUS AD BELLUM (CAUSES)

I. JUST CAUSE
A. Defense against Unjust Invader; Aggression may qualify
B. Protection of family & home from direct harm
C. Recovery goods unjustly taken
D. Protection of rights, liberties, gov't from encroachment
E. Defense of Allies who have been unjustly attacked, etc.

II. JUST INTENT
A. "Peace is our Profession," not selfish gain, power
B. Peace and/or Defense, not hatred and/or expansion, the goal
C. Less just intentions are often mixed: clearly distinguish
D. Perfect intent is unnecessary; justifiability of intent is

III. LEGITIMATE AUTHORITY
A. Legitimate Gov't, or head of, must make the declaration
B. The Authority must also be Legally Competent to do so
C. Recognized International organization (U.N.) may qualify

IV. REASONABLE PROSPECT OF SUCCESS
A. War must be fought to victory ASAP
B. It is Unjust to fight if defeat is clearly the outcome
C. Suicide is Not just (Few or No exceptions)


JUST WAR THEORY: JUS IN BELLO (CARRYING ON WARFARE)

V. LAST RESORT
A. Every reasonable means to settle must first be tried
B. War must be the only means to the end
C. Pre-Emptive Strikes assume much, but can qualify if...

VI. DISCRIMINATION
A. Civilians should be immune from attack
B. Wanton Violence or unfair Brutality must be avoided
C. Prisoners taken must be treated well & honorably
D. Property & Resources should not be unduly harmed
1. Non-War-Related resources should be left intact
2. Life-Sustaining resources must be left intact

VII. PROPORTIONALITY
A. The Good of the Outcome must exceed the Harm endured
B. Excess of Violence or Minor Cause for war, or Extended Warfare after the foe is beaten, Violate this principle
C. Means should not be Overly violent, e.g., Nuke Jaywalkers

VIII. TRADITION
A. Acts of War must not violate accepted Conventions (Geneva)
B. Acts of War must not violate International Law

There's so much out there but for the present this will have to do. The law you mention is grounded in reason.

I won't argue but hope this is interesting. Wars are supposed to be the last resort and be a means to peace, or they are not considered just wars.

Aloha.

[nadinbrzezinski]

34. I am and Grotius (who developed it even further)

has been partially adopted into the laws of land warfare. But realize when those were written, between the 12th and 17th century, things like starving civilian populations was common. There's been an evolution, but realize that it's become legalistic, since regulating morality is hard, and due to Nuremberg we have not seen oh levelling of cities with aerial bombardment.

(I suspect a few nukes have a tad to do wih that as well, but we have not seen the same level of destruction in the last sixty years that we saw in WW II, even when we've used more ordance in a few cases, see Nam)