MILITARY JUSTICE AND YOU

MILITARY JUSTICE AND YOU
Good ______________, I’m _____________________. I am an attorney with the Office of the Staff Judge Advocate, US Army Armor Center and Fort Knox. During the next two hours, I will present an information briefing on the military justice system and the leader’s role in it. During this time, you will receive an explanation of the military justice system to include its legal basis, its components, and both the punitive and non-punitive options you have available to you as a commander. MILITARY JUSTICE AND YOU

WHY DO WE HAVE A SEPARATE MILITARY JUSTICE SYSTEM?
PROMOTE JUSTICE HELP MAINTAIN GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES PROMOTE EFFICIENCY AND EFFECTIVENESS IN THE MILITARY STRENGTHEN NATIONAL SECURITY As a unit commander, you will have to administer military justice. Proper administration of military justice will ensure good order and discipline, protect your unit, and enhance the readiness of the military forces. 2

COMPARISON OF MILITARY AND CIVILIAN JUSTICE SYSTEMS
ARTICLE 32 HEARING v.s. GRAND JURY RIGHT TO COUNSEL JURY SYSTEM GUILTY PLEAS The military justice system differs from the civilian justice system in a number of ways. For example: (1) Determining whether the facts of a particular case warrant a trial -- the military justice system uses an Article 32 Hearing, while the civilian system utilizes a Grand Jury. Article 32: Open proceeding, accused & counsel present; right to cross-examine witnesses, and to present a defense. Grand Jury: Secret proceeding, no right to confrontation, no right to present evidence. (2) Right to counsel -- Military: free military counsel in all cases in which legal rights are in issue. Civilian: right to counsel based upon indigence and possible confinement of 6 months or longer. (3) Jury System -- Military: Jury selected by convening authority. Minimum of 5 jurors on a GCM, and 3 jurors in a SPCM -- possible 1/3 enlisted if accused requests. Except in capital cases, unanimous verdict NOT required. Civilian: Jury selected at random, from voter registration lists. 12 persons required. Unanimous verdict is usually required. (4) Guilty Pleas -- Military: Must be provident. Plea agreement sets the convening authority’s sentence approval ceiling. Civilian: Need to be provident. Prosecutor only agrees to make a recommendation to the judge.

LEGAL SOURCES OF MILITARY JUSTICE
US Constitution Uniform Code of Military Justice Manual for Courts-Martial, U.S., 1984 Local Regulations Court Decisions Where does the authority for a separate system of military justice come from? The Constitution of the United States (Art. I, sec. 8, clause 14) grants Congress the power to “make Rules for the Government and Regulation of the land and naval forces.” Pursuant to this power, Congress, in 1950, enacted the Uniform Code of Military Justice in order to govern all the Armed Forces. Article 36, UCMJ provides the President with authority to prescribe pretrial, trial, and post-trial procedures while Article 56 gives him the authority to set forth maximum punishments for violations of the UCMJ. Arising out of this power is the Manual for Courts-Martial, an Executive Order of the President. The most recent edition of the MCM was issued in 1984, and contains 5 parts: Preamble; Rules for Courts-Martial; Mil. Rules of Evid.; Punitive Articles; and Non-judicial Punishment Procedure. Additionally, AR sets forth policies and procedures regarding the administration of military justice, and implements the MCM. Often, local commands provide for their own version of AR Here at the Armor Center, it is USAARMC The final bases of the military justice system lie in military and federal court decisions.

KEY PERSONNEL IN THE MILITARY JUSTICE SYSTEM
COMMANDER Staff Judge Advocate Trial Counsel Defense Counsel Military Judge Legal Specialist/ Court Reporter Several individuals play a role in the military justice system. These individuals are: Commander -- Key player!! Each level has prosecutorial discretion, and exercises independent judgment. Staff Judge Advocate -- On personal staff of GCMCA and, by law, has direct access for military justice matters. Trial Counsel -- Usually assigned to each brigade. Defense Counsel -- Separate organization (TDS) since 1979 to avoid a perception that there is a conflict of interest. Military Judge -- All LTC/COL. Separate organization (Trial Judiciary). Legal Specialist/Court Reporter -- MOS 71D/71E. Consolidated legal centers in some areas.

UCMJ JURISDICTION OVER THE PERSON:
ACTIVE DUTY SOLDIERS & RESERVISTS WHILE ON AD MILITARY ACADEMY CADETS AND MIDSHIPMAN NATIONAL GUARD PERSONNEL IN FEDERAL SERVICE UNDER TITLE 10, U.S.C. ENEMY PRISONERS OF WAR OTHERS OVER THE OFFENSE: WORLDWIDE JURISDICTION POSSIBLE CONCURRENT JURISDICTION When we consider what things or who is governed by the UCMJ, we are asking who or what is subject to its jurisdiction. Person -- The accused must be subject to courts-martial jurisdiction (i.e. must have "status" as member of the Armed Forces). Reserve Jurisdiction -- In 1986, Congress added UCMJ jurisdiction over weekend drills (IDT); allowed UCMJ jurisdiction to continue after a period of active duty for offenses committed during active duty; and provided for involuntary recall to active duty for court-martial, Article 32 investigation, and non-judicial punishment. Offense -- The offense must be subject to courts-martial jurisdiction. After Solorio, all offenses which violate the UCMJ are subject to courts-martial jurisdiction. Concurrent jurisdiction may exist in state or federal authorities. 5

CRIMES UNDER THE UCMJ COMMON LAW CRIMES MILITARY CRIMES
There are 2 types of crimes under the UCMJ -- Common Law Crimes and Military Crimes. Examples of common law crimes include homicide, rape, larceny, robbery, assault and burglary. Military crimes include such things as: Disrespect (Articles 89 & 91) -- may be through actions or words. Disobedience (Articles 90-92) -- Requires a local lawful order (e.g. personal orders, general orders, local orders, routine duty) AWOL (Art. 86) -- Failure to go to appointed place of duty; Going from appointed place of duty. Actual knowledge of appointed time and place of duty is required, not specific intent to be absent. Inability to return, due to misconduct, is not a defense. The General Articles -- Conduct unbecoming an officer and gentleman (Art. 133); Article 134: conduct prejudicial to good order and discipline; conduct of such nature as to bring discredit upon the Armed Forces; conduct constituting a non-capital crime not punishable under another article of the UCMJ.

Preliminary Investigation:
When faced with an allegation of alleged misconduct, the Commander must make a preliminary inquiry into those allegations. This preliminary investigation is informal, and its extent depends on the complexity of the offense alleged. Law enforcement assistance (MP & CID) may be provided in some circumstances. Inquiry should gather all reasonably available evidence bearing on guilt or innocence, as well as any evidence relating to aggravation, extenuation, or mitigation. This investigation should be thorough enough to determine: 1) Whether a UCMJ offense was committed; 2) Whether the soldier accused was involved; and 3) The character and military record of the accused. When questioning ordinary witnesses, you do not need to warn them of any rights. However, before questioning anyone suspected of a crime, you must warn them of their rights, primarily, the right against self-incrimination, and the right to counsel. When are Rights Warnings Required? Before any official questioning of an accused or suspect

WHAT IS THE SOURCE AND CONTENT OF THE WARNINGS?
Article 31, UCMJ, component Nature of the suspected offense The Right to remain silent Any statement made can be used at trial 5th Amendment/Miranda Component Right to consult an attorney prior to questioning and have an attorney present during questioning 6th Amendment Component Right to representation at all critical stages Right against self-incrimination: Comes from the Fifth Amendment to the Constitution, and Article 31 of the UCMJ. Evidence of a “testimonial or communicative nature” is protected by this right. Protected: verbal statements and verbal acts (physical acts which are the equivalent of speaking). Not Protected: Physical characteristics (fingerprints, footprints, scars); body fluids (blood, urine); voice & handwriting samples; identification. Right to counsel: Individuals suspected of committing a crime have the right to consult with and to have counsel present during interrogation.

HOW TO CONDUCT A GOOD INTERVIEW
DEVELOP A LIST OF QUESTIONS BEFORE STARTING THE INTERVIEW USING THE ELEMENTS OF THE OFFENSE(S) IN PART IV OF THE MCM. HAVE A THIRD PARTY SIT IN ON THE INTERVIEW IF POSSIBLE. THE OBSERVER TAKES NOTES. YOU ASK OPEN-ENDED QUESTIONS AND LISTEN. Should an accused choose to waive his or her rights, the government will have the burden of proving such by a preponderance of the evidence. Due process requires that an accused’s waiver of rights must be given voluntarily. In determining whether a waiver was given voluntarily, the test is whether or not the totality of the circumstances suggest an overbearing of the accused’s free will, in obtaining the waiver. 9

HOW TO CONDUCT A GOOD INTERVIEW (cont.)
WRITTEN RIGHTS WAIVER CERTIFICATES AND SWORN STATEMENTS ARE GREAT, BUT NOT REQUIRED. DO THE BEST WITH WHAT YOU HAVE. CONDUCT THE INTERVIEW IN A PLEASANT SETTING WITH AMPLE BREAKS TO AVOID A DUE PROCESS (COERCION) CHALLENGE. Any evidence obtained in violation of an accused’s rights will be excluded from the court-martial. In order to avoid problems, use a “Rights Warnings Procedure/Waiver Certificate” (DA Form 3881); or a “Rights Warning Card” (GTA (Jul 85)); and take sworn statements (DA Form 2823).

SEARCH AND SEIZURE MESS IT UP AND GET YOUR NAME MEMORIALIZED IN AN APPELLATE COURT OPINION! Commanders have the authority to authorize searches and seizures in accordance with Mil.R.Evid. 315, R.C.M. 302. Authority to Search: Commanders with authority over persons and property (e.g. aircraft, vehicle) have authority to search the same, wherever located. Military Installation -- Commander with authority over the place (e.g. billets, post) may search property and all persons thereon. Overseas -- On-Post, commanders have authority to search all persons and property. Off-Post, commanders have authority to search military personnel, military property, and private property in possession of military personnel. 10

SEARCH AND SEIZURE 4TH AMENDMENT
“The right of the people to be secure... against unreasonable searches and seizures, shall not be violated, and no warrants shall be issue but upon probable cause...” Commanders have the authority to authorize searches and seizures in accordance with Mil.R.Evid. 315, R.C.M. 302. Authority to Search: Commanders with authority over persons and property (e.g. aircraft, vehicle), have authority to search the same, wherever located. Military Installation -- Commander with authority over the place (e.g. billets, post) may search property and all persons thereon. Overseas -- On-Post, commanders have authority to search all persons and property. Off-Post, commanders have authority to search military personnel, military property, and private property in possession of military personnel. [Continued on Next Page]

SEARCHES NOT REQUIRING AUTHORIZATION
Consent Search Voluntary consent (shown by clear & convincing evidence) May be partial/limited Good insurance, always ask for it Certain searches do not require prior authorization. These are consent searches, investigative detentions/frisks, and searches undertaken in exigent circumstances. First of all, individuals may voluntarily consent to a search. It is always best to have a witness present, or to obtain such consent in writing. Be advised that the government must prove by clear and convincing evidence, that said individual voluntarily consented. You may request an individual’s consent to perform a search. In doing so, it is not necessary that you inform him of his rights (e.g. against self-incrimination, etc.). A soldier consenting to a search may give a partial/limited consent. In addition, the soldier’s consent may be withdrawn. If a soldier so withdrawals his/her consent, any search being undertaken must stop.

SEARCHES NOT REQUIRING AUTHORIZATION (cont.)
Investigative Detention/Frisks IF DETAINING OR FRISKING, YOU GET TO SEARCH THE PERSON AND THE IMMEDIATE AREA SUBJECT TO HIS CONTROL In addition to consent searches, searches incident to apprehension do not require prior authorization. However, upon apprehending a soldier, there must be reasonable grounds to believe that an offense has been committed, and that the individual being apprehended committed the offense. If such a reasonable grounds exist, the individual making the apprehension may search the suspect’s person, and the immediate area subject to his control at the time the apprehension was made. Evidence obtained in compliance with these guidelines is admissible in either a court-martial or Article 15 hearing.

SEARCHES NOT REQUIRING AUTHORIZATION (cont.)
Exigent Circumstances If delay threatens removal, destruction, or concealment of evidence The requirement of obtaining authorization prior to conducting a search is also done away with in exigent circumstances. What exactly are “exigent circumstances”? Well, where probable cause exists, a search may be conducted without prior authorization, if reasonably believed to be necessary to prevent the removal, destruction, or concealment of evidence while awaiting command approval of the search. Examples of such exigent circumstances would include the “activated marijuana” rule, and the automobile exception.

ADMINISTRATIVE INSPECTIONS
COMMANDERS HAVE THE RIGHT AND DUTY TO INSPECT TROOPS AND EQUIPMENT PRIMARY PURPOSE: TO ENSURE SECURITY, FITNESS (e.g.. HEALTH, SAFETY), OR GOOD ORDER AND DISCIPLINE - NOT EVIDENCE OF A CRIME Commander’s also have the authority to order Administrative Searches. An “administrative search,” refers to a search directed at ensuring the security, military fitness, good order and discipline of a unit, installation, or vehicle. Urinalysis testing may fall within this category. When conducting an administrative search, a commander should articulate why the search is being conducted (its primary purpose). Commanders should also limit the scope of such an inspection/search -- it should be no more intrusive than is necessary to accomplish the primary purpose. In addition a commander should limit the discretion of the individuals actually conducting an inspection. If an administrative search is conducted immediately following the report of a specific offense, if specific individuals are selected for examination, or if persons are subject to substantially different intrusions during the same inspection, then the government carries the enhanced burden of proving by clear and convincing evidence, that the inspection was conducted for a proper purpose.

HANDLING EVIDENCE PRESERVE CONDITION OF EVIDENCE
PRESERVE CHAIN OF CUSTODY Once evidence is seized during a lawful search, it is vital that such evidence is handled in the appropriate manner. Careless handling can be detrimental at the court-martial. To this extent, you might think of the evidence seized during a search as a sort of “sensitive item.” Two main points should be remembered in regard to handling evidence. First, you should prevent or minimize changes to the evidence -- do not accidentally scratch, bend, or unnecessarily touch the evidence. Second, you should preserve the chain of custody. For example, have one person safeguard evidence while the MP/CID is notified. Once evidence is turned over to MP/CID, sign an Evidence/Property Custody Document (DA Form 4137). 16

Then What? Offenses Should Be Disposed of in a Timely Manner, at the Lowest Appropriate Level Once the Commander concludes his preliminary investigation, what is his next course of action? Rule 306 of the Rules for Courts-Martial provides that offenses under the UCMJ should be disposed of in a timely manner, at the lowest appropriate level. Based on the findings of the preliminary investigation, the Commander may take several different courses of action. These options include: 1) taking No Action; 2) taking Administrative Action; 3) Article 15 Punishment; or 4) Preferring and Forwarding Charges. (We will take a more detailed look at these various options during the remainder of this briefing).

NON-PUNITIVE MEASURES TO MODIFY BEHAVIOR/CONDUCT
COUNSELING: ORAL AND WRITTEN BAR TO REENLISTMENT ADMONITIONS & REPRIMANDS ADMINISTRATIVE REDUCTION SEPARATION ACTIONS Rather than instituting legal action against a soldier under the UCMJ, commanders have available various administrative alternatives. Some non-punitive administrative options you have are withholding privileges, counseling, a bar to reenlistment, and an administrative written reprimand. Counseling (AR ) is not only an excellent leadership tool in and of itself, but it also has high evidentiary value in terms of subsequent punitive actions. Soldiers should always be counseled regarding their deficiencies, at least once, prior to the initiation of separation actions. There must also be evidence that such deficiencies have continued following the initial adverse counseling. Therefore, it is necessary to ensure all counseling sessions are recorded in writing (DA Form 4856-R), and filed in unit personnel files. 17

Factors Considered When Choosing Your Course of Action:
Service Record Nature of Offense Harm Done Punishment Available Cooperation Available Evidence In choosing among these several courses of action available, the Commander should consider several factors, including: The character and military service of the accused; The nature and circumstances of the offense; The extent of harm, including effect on morale, safety and discipline; The authorized punishment for such an offense; The cooperation of the Accused during the investigation; and The availability and admissibility of evidence. Always contact your local Trial Counsel if you are unsure of the options available to you.

THE BAR TO REENLISTMENT
THE ARMY DESIRES TO RETAIN ONLY THOSE SOLDIERS OF HIGH MORAL CHARACTER, COMPETENCE, AND DEMONSTRATED ADAPTABILITY (AR ). INITIATION OF PROCEEDINGS REQUIRED FOR: FAILURE TO MAKE SATISFACTORY PROGRESS IN ARMY WEIGHT CONTROL PROGRAM, 2 CONSECUTIVE APFT FAILURES, REMOVAL FOR CAUSE FROM NCOES COURSES. Bar to Reenlistment (AR ): Policy: only personnel of high moral character, competence, and demonstrated adaptability to the professional soldier’s moral code will be reenlisted in the Army. Those who do not meet the standard will be barred. Basis: untrainable soldiers, unsuitable soldiers, and single soldiers or in-service couples with dependent family members who do not file an approved family member. Initiation of Bar or separation proceedings required for failure to make satisfactory progress in weight control program, 2 consecutive failures of the APFT and removal for cause from NCOES courses.

BAR TO REENLISTMENT -- PROCEDURES
INITIATE THE BAR NOTICE TO AND REBUTTAL BY SOLDIER APPROVAL OF BAR PERIODIC REVIEW BY UNIT COMMANDER Any commander in a soldier’s chain of command may initiate bar to reenlistment proceedings (DA Form 4126-R). When initiating such proceedings, it is important to use specific incidents, dates, times, places, etc. -- Avoid generalities! Notice & Rebuttal -- Once a soldier is notified that bar to reenlistment proceedings have been initiated against him or her, the soldier has 7 days in which to comment thereon. The soldier’s rebuttal should be in writing, and attached to the DA Form 4126-R. Approval -- For individuals with less than 10 years active federal service at their ETS, the first commander in the rank of LTC or above, in their chain of command, or the commander exercising SPCMCA may approve. [CONTINUED on Next Page]

BAR TO REENLISTMENT -- PROCEDURES
INITIATE THE BAR NOTICE TO AND REBUTTAL BY SOLDIER APPROVAL OF BAR PERIODIC REVIEW BY UNIT COMMANDER Individuals with years, or over 20, may be approved by the first general officer in the chain of command, or the commander exercising GCMCA. Those with at least 18, but less than 20 years at ETS, may have a bar to reenlistment approved only by HQDA. Review -- Once a Bar is removed, the commander must review the bar at least once every 3 months, or 30 days prior to the soldier’s departure from the unit, or ETS. A removal of the Bar may be recommended by the commander at any time, in writing, if he/she feels the soldier is worthy of retention in the Army. Separation proceedings must be initiated upon completion of the second 3-month review, unless a recommendation for removal of the bar has been submitted. Separation proceedings are not required for those soldiers with more than 18 years active federal service, who will have at least 20 years at ETS. However, once retirement eligibility is attained, such soldiers will be required to retire.

THE ADMINISTRATIVE REPRIMAND
OFFICIALLY DOCUMENTS MISCONDUCT OR POOR PERFORMANCE IN OFFICIAL FILES (AR ) AFTER INITIATED, SOLDIER MAY REBUT IN WRITING FILING OF LETTER An administrative written reprimand is official documentation of misconduct or poor performance, which is placed in a soldier’s official files. Initiation -- Enlisted: Immediate or higher level commander in chain of command. A supervisor, school commandant, general officer, or GCMCA. Officers: Immediate of higher level commander in chain of command, general officer, rater, intermediate or senior rater. Notice & Rebuttal -- Rebuttal in writing. Filing -- Letters are filed in soldier’s MPRJ, for a period of 3 years or until reassignment to another GCM jurisdiction. May be filed in OMPF, upon the direction of a general officer or GCMCA.

ENLISTED ADMINISTRATIVE SEPARATIONS (AR 635-200)
SOLDIERS ALWAYS AFFORDED NOTICE & AN OPPORTUNITY TO RESPOND ENTITLED TO A BOARD IF MORE THAN 6 YEARS OF SERVICE, OR OTHER THAN HONORABLE DISCHARGE SOUGHT AR sets forth the criteria for conducting an Enlisted Administrative Separation. The most common reasons for Separations are: Alcohol/Drug Abuse Rehab. Failure (Ch. 9); Unsatisfactory Performance (Ch. 13); Misconduct (Ch. 14); Homosexual Conduct (Ch. 15); and Failure to Meet Body Fat Standards (Ch. 18). Administrative Separations may saddle a soldier with either an Honorable, General, or Other Than Honorable Discharge. Procedures: Whenever a separation action is initiated, the soldier will receive notice thereof, and have an opportunity to rebut the recommendation for separation. Soldiers with more than 6 years of service, or soldiers sought to be discharged Other than Honorably, are entitled to are entitled to a hearing before an Administrative Separation Board.

PUNITIVE OPTIONS NONJUDICIAL PUNISHMENT (ARTICLE 15)
SUMMARY COURT-MARTIAL SPECIAL COURT-MARTIAL BAD CONDUCT DISCHARGE (BCD) SPECIAL COURT-MARTIAL GENERAL COURT-MARTIAL Among the punitive options available under the UCMJ are both Nonjudicial Punishment (Article 15), and the Court Martial. There are 4 types of Courts-Martial available: the Summary CM, Special CM, Bad Conduct Special CM, and the General CM.

NONJUDICIAL PUNISHMENT
“... any COMMANDING OFFICER may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial...” Article 15 is a provision of the UCMJ which authorizes punishment of soldiers for minor offenses. It is referred to as “nonjudicial punishment” because the punishment is imposed by a commander, rather than by court-martial. A commander should use Article 15 for minor violations of the UCMJ, and when non-punitive administrative procedures have failed or are inappropriate. An Article 15 serves the function of correcting, educating, and reforming a soldier who has engaged in misconduct. Though a punitive action, it enables the soldier to avoid the court-martial stigma. An Article 15 may be imposed on a commissioned officer, as well as enlisted personnel within a command.

ARTICLE 15 -- INITIAL RESPONSIBILITIES OF THE COMMANDER
PRELIMINARY INVESTIGATION Whether offense was committed Whether soldier was involved Character & military record of the soldier DA FORM 2627 or NOTIFICATION OF SOLDIER Initiation of Article Should the allegations appear true following a preliminary investigation, the commander must then prepare either a DA Form 2627 (Formal), or (Summarized). Notice -- Once a commander determines that Article 15 proceedings are warranted, he/she should notify the soldier. Such notification may be accomplished through NCOs in grades E7 and above. Such notice should inform the soldier of his rights in regard to the Article 15 proceedings. Two types of Article 15 exist: The Summarized Article 15, and the Formal Article 15. The main difference between the two types of Article 15 lies in the magnitude of the proceedings. Whether a Summarized or Formal proceeding is initiated depends upon the severity of the punishment a commander believes may be necessary upon completion of his/her preliminary investigation. Formal proceedings should be initiated only where the commander feels that the prospective punishment to be imposed might exceed 14 days of restriction and/or extra duty. This is because of the more severe ramifications a Formal Article 15 proceeding will have.

SOLDIERS’ RIGHTS IN ART 15’s
FORMAL AND SUMMARIZED Remain Silent Examine Evidence Present a Defense Call Witnesses Demand Trial by Court-martial Have an Appeal FORMAL ART 15’s HAVE ADDITIONAL RIGHTS, SEE NEXT SLIDE Soldiers always have a right to be informed of the charges against them, the right to cross-examine witnesses, and to present evidence and witnesses on his/her own behalf. Soldiers also have the right to demand a trial by court-martial when informed of Article 15 proceedings. If the soldier opts for the Article 15, he/she has the right to appeal the decision rendered in such proceedings. Remember, a soldier’s desire to opt for the Article 15 procedure is not an admission of guilt.

SOLDIER’S RIGHTS IN ART 15’S
Additional rights available only in Formal Article 15’s (both Company Grade and Field Grade) Consult with counsel Have a spokesperson Ask for an open hearing Unlike Summarized proceedings, a soldier involved in a Formal proceeding has the right to consult an attorney. However, there is no right to have a government attorney present at the hearing. On the other hand, a soldier may request to be represented by a spokesperson at the hearing. This spokesperson has no right to examine or cross-examine witnesses, but can only suggest relevant issues or questions to the commander. In addition, a soldier may request that the hearing during a Formal Article 15 hearing be open. However, whether or not to open the hearing lies within the discretion of the commander.

HOW TO: ART 15 HEARING PURPOSE: Determine if the accused committed the offense; and if so impose punishment COMMANDER’S ACTIONS: Consider the evidence presented Decide guilt or innocence Impose appropriate punishment Explain rights to appeal STANDARD: CO must be certain of guilt BEYOND A REASONABLE DOUBT. The purpose of an Article 15 hearing is to determine the guilt/innocence of a soldier. When conducting a hearing, the commander should consider evidence, both written and oral, against and in support of the soldier (rules of evidence do not apply). The standard for determining a soldier’s guilt is beyond a reasonable doubt. Depending on whether the commander finds the soldier guilty or innocent, he/she will then either impose punishment or terminate the proceedings, and explain to the soldier, his rights of appeal.

ART 15 PUNISHMENTS CATEGORIES
Admonishment/Reprimand Forfeiture of Pay Restriction Extra Duty Reduction in Rank Correctional Custody Amount of punishment depends on rank of accused and imposer Punishments which may be imposed through Article 15 proceedings include: Admonishment or Reprimand; Restriction; Extra Duty; Forfeiture of Pay; Reduction in Rank; and Correctional Custody. Punishment is usually effective immediately but may be delayed for good cause.

ART 15 APPEALS PROCEDURE; APPELLATE AUTHORITY
Written appeal (some CO’s permit personal appearance) Submitted thru imposing CO APPELLATE AUTHORITY Next highest level commander Soldiers may appeal the punishment imposed through an Article 15 proceeding on grounds that the punishment was unjust, or too harsh. Procedure -- Appeals are made in writing, using a DA Form 2627 or Documents supporting the appeal may also be attached and submitted. Normally, an appeal must be made within 5 days of the imposition of punishment. Review -- Action may be taken on an appeal by the commander next superior to the CO who imposed the punishment. Actions -- Possible actions on an appeal are: (1) Approval of the punishment; (2) Mitigation of the punishment; (3) Remission: canceling the unexecuted portion of the punishment; (4) Suspension of punishment: Soldier placed on probation (Not to exceed 6 months). Punishment canceled at end of probation, unless a UCMJ violation was committed during that time; (5) Setting aside punishment: Punishment is completely abolished, and all rights, privileges, and property are restored.

FILING OF AN ARTICLE 15 SUMMARIZED: KEPT IN UNIT (LOCAL) FILE FOR TWO YEARS OR TRANSFER FORMAL: DEPENDS UPON PAYGRADE OF ACCUSED E-4 and below it is filed locally E-5 and above it is filed in the OMPF When an Article 15 results in a finding of guilt, and the imposition of punishment, the Article 15 must then be filed. Summarized: Maintained in local file, for all soldiers, for 2 years or until the soldier transfers out of the unit. Formal: The filing of a Formal Article 15 depends on the soldier’s grade. For first-term enlisted soldiers who are E4 and below, it will be maintained in the local file. For all other soldiers, the Article 15 is filed in the soldier’s OMPF. The CO imposing the Article 15 decides whether to file it in the Performance fiche, or the Restricted fiche of the OMPF.

COURTS-MARTIAL SUMMARY SPECIAL BAD CONDUCT SPECIAL GENERAL
The most serious type of punitive action which may be taken for a violation of the UCMJ is the court-martial. There are 4 levels of courts-martial: The Summary C-M, the Special C-M, the Bad Conduct Special C-M, and the General C-M. Each level of C-M have different Convening Authorities, and maximum punishments. [NOTE: Explain the Convening Authority and possible Punishment at each level.] Should the commander deem a court-martial appropriate, following the Preliminary Investigation, he must then prefer and forward charges. 25

PREFER & FORWARD CHARGES
DD FORM 458 (CHARGE SHEET), AND R.C.M. 307 PROVIDE INSTRUCTIONS CHARGE & SPECIFICATION FORMAT OATH & PERSONAL KNOWLEDGE or INVESTIGATION FORWARD TO SCMCA WITH RECOMMENDATION The process of preferring and forwarding charges begins when the commander completes a Charge Sheet (DD Form 458). Both the DD Form 458 and R.C.M. 307 provide instructions for properly charging a soldier with an offense. The format used is that of charges and specifications. A “charge” is a statement of the specific Article of the UCMJ or other law the Accused is alleged to have violated. A “specification” is a concise statement which sets forth the essential facts that show the Accused committed the alleged offense. The charges and specifications must then be signed under oath before a commissioned officer authorized to administer oaths and must also state that he has personal knowledge of the facts constituting the offense or has at least conducted an investigation and that the charges and specifications are true to the best of his knowledge. [Continued on Next Page]

PRETRIAL RESTRAINT IS AUTHORIZED UPON PROBABLE CAUSE THAT:
UCMJ Offense has been committed, Accused committed it; and Restraint is REQUIRED to ensure the accused’s presence or to prevent foreseeable serious criminal misconduct When allegations are made, which if true, may warrant a court-martial, the accused should generally be permitted to continue the performance of his/her normal duties within the organization. However, soldiers may be placed under pretrial restraint when there is a “reasonable belief” that: (a) An offense triable by court-martial has been committed; (b) the person to be restrained committed it; and (c) the restraint ordered is required by the circumstances (e.g. when there is a risk of flight, or a threat of serious future misconduct). However, under NO circumstances may soldiers placed under pretrial restraint may be subjected to punishment or penalty for the offense which is the basis for that restraint. In other words, such individuals, while awaiting trial, should not be required to undergo punitive duty hours or be placed on extra duty.

FORMS OF PRETRIAL RESTRAINT
Conditions on liberty Restriction (in lieu of arrest) Arrest Confinement There are 4 types of pretrial restraint which are authorized: Conditions on Liberty -- orders directing a person to do or refrain from doing specified acts. Restriction (in lieu of arrest) -- orders directing the person to remain within specified boundaries. Individuals are required to perform full military duties while on restriction. Arrest -- orders directing the person to remain within specified limits. Individuals placed on arrest may NOT be required to perform their full military duties (e.g. command, supervision of trps., guard duty) Confinement -- physical restraint depriving a person of freedom, pending disposition of charges. Whenever you, as a commander, place a soldier under pretrial restraint, you must inform that soldier of the nature of the offense that is the basis for that restraint.

PRETRIAL CONFINEMENT INFORM THE SJA!
Anytime you should choose to place a soldier under pretrial restraint in the form of CONFINEMENT, you must notify the SJA (or his/her designee) prior to the start of such confinement, or as soon as practicable afterwards. Upon confining a soldier, you should promptly inform him of: (1) the nature of the offense for which he is held; (2) the right to remain silent, and that any statement may be used against the soldier; (3) the right to retain civilian counsel at no cost to the Govt., as well as the right to request assignment of military counsel; and (4) the procedures by which his pretrial confinement will be reviewed by a military magistrate (within 48 hours of the beginning of confinement). Counsel must be made available to a soldier placed in pretrial confinement within 72 hours of such confinement. INFORM THE SJA!

SPEEDY TRIAL REQUIREMENTS
120-Day Rule 90-Day Rule Whenever you, as a commander, choose to place an individual under pretrial restraint, you should always keep in mind the Speedy Trial requirements in the RCM. 120-Day Rule -- Accused MUST be brought to trial within 120 days following the earlier of: notice of preferral of charges or imposition of restraint. 90-Day Rule -- No accused shall be held in pretrial arrest or confinement in excess of 90 days. A violation of these rules will result in a dismissal of the charges against an accused.

10 COMMANDMENTS OF UNLAWFUL COMMAND INFLUENCE
1) Commander may NOT order a subordinate to dispose of a case in a certain way. 2) Commander must not have an inflexible policy on disposition or punishment. 3) Commander, if the accuser, may NOT refer the case. 4) Commander may neither select nor remove court members in order to obtain a particular result. Article 37 of the UCMJ prohibits anyone subject to the UCMJ from attempting to coerce, or unlawfully influence the action of a court-martial, the court members. Basically, there are three (3) populations impacted by UCI: 1) Potential panel members; 2) Subordinate COs; and 3) Witnesses or potential witnesses. [Have students read 10 Commandments, one at a time, giving them examples of each.]

10 Commandments of Unlawful Command Influence
5) No outside pressures may be placed on the judge or court members to arrive at a particular decision. 6) Witnesses may NOT be intimidated or discouraged from testifying. 7) The COURT decides punishment. Accused may NOT be punished before trial.

10 Commandments of Unlawful Command Influence
8) Recognize that subordinates & staff may “commit” command influence that will be attributed to the CO, irregardless of his knowledge or intentions. 9) Commander may not have an inflexible attitude towards clemency. 10) If a mistake is made, raise the issue immediately.

RECAP OF MAIN TEACHING POINTS
Comparison of Military & Civilian Justice Systems UCMJ Jurisdiction Rights Warnings before official questioning Search Authorization/ Admin. inspections Nonpunitive Administrative Actions Article 15, How to Pretrial Restraint Initiation of Court-martial Charges Unlawful Command Influence I would like to remind you of certain points of this briefing, which will be important for you to remember as a small unit leader. It is essential that you understand the basic procedures of the military justice system in order to be a good small unit leader. Proper administration of military justice will ensure good order and discipline, protect the community, and enhance the readiness of the military forces.

DoD POLICY ON HOMOSEXUAL CONDUCT
Good _______________, I’m _____________________. I am an attorney with the Office of the Staff Judge Advocate, US Army Armor Center and Fort Knox. During the next hour, I will present an information briefing on the DoD policy on Homosexual Conduct in the Armed Forces. This briefing is intended to help leaders and other key personnel understand the current DoD poliicy so that they can both implement it and teach it to subordinates.

DoD Policy on Homosexual Conduct
At the conclusion of this session, you will be able to: State basic points of DoD Policy Define Sexual Orientation State Commander’s Responsibilities Describe characteristics of credible information List staff resources who can provide assistance You will have an opportunity to test your knowledge and understanding of the DoD policy on homosexual conduct in the Armed Forces when we discuss several real-world scenarios near the conclusion of this briefing.

The Policy: Suitability is based on CONDUCT
The suitability of persons to serve in the Armed Forces is based on their conduct and their ability to meet required standards of duty performance and discipline. Homosexual conduct is grounds for barring entry into the Armed Forces and for separation from the Armed Forces. Sexual Orientation is NOT a bar to enlistment or continued service.

SEXUAL ORIENTATION Is a personal/private matter
Is “an abstract sexual preference for persons of a particular sex as distinct from a propensity to engage in sexual acts” Definitions are the key to understanding the DoD policy on Homosexual Conduct. What does the term “Sexual Orientation” mean? Are there any questions? As noted before, the suitability of an individual to serve in the Armed Forces is based on his or her CONDUCT and not on abstract thoughts the individual may have.

DEFINITIONS Propensity: Indicates a likelihood that a person engages in or will engage in homosexual acts Homosexual: A person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts “Propensity” means “likelihood.” A soldier’s propensity to engage in homosexual acts can only become an issue if, and only if, the soldier’s otherwise private sexual orientation is manifested in a manner observable to others. That is -- in some form of homosexual conduct. It is improper to question someone about their sexual orientation.

WHAT IS HOMOSEXUAL CONDUCT? S.A.M.
STATEMENT ACT MARRIAGE BETWEEN THE SAME SEX The DoD Policy has defined “Homosexual Conduct” to include statements by a soldier which demonstrate a propensity to engage in homosexual acts; Homosexual acts themselves; and Homosexual marriages. An easy way to remember this definition is through the use of the acronym: “SAM”. Because purported marriages between members of the same sex are rare, let’s focus on statements and acts.

STATEMENT Conveyed through language or behavior
Indicates a propensity or intent to engage in homosexual acts IS REBUTTABLE An example of a statement falling within the SAM definition is a declaration by a soldier that he/she is homosexual. The Department of Defense considers such a statement to be an indication that the soldier is likely to engage in homosexual acts and that the government may rely on this presumption to separate the soldier. However, a soldier making such a statement may rebut the presumption it creates. Such a soldier should be given an opportunity to present evidence that he or she does not engage in homosexual acts and does not have a propensity or intent to do so. Such evidence may include an evaluation of his credibility, based on his testimony and the opinion of other soldiers, evidence regarding homosexual acts, and the circumstances surrounding the utterance of the statement. The burden of proof lies with the soldier. This means the soldier who made the statement must present evidence mentioned in the preceding paragraph. Your supporting trial counsel can advise you if such a situation arises in your command, directorate, or office.

ACTS ANY BODILY CONTACT:
Activily undertaken or passively permitted, between same sex persons for the purpose of satisfying sexual desires That a reasonable person would understand to show a propensity or intent to engage in act described above Homosexual acts are described as any bodily contact that meets these criteria. The continuum of homosexual acts includes forcible sodomy on the one end (a serious criminal offense) to hand holding in certain circumstances (a non-criminal act). The key is to view the act (i.e. bodily contact) from the perspective of a reasonable observer. Would the setting and circumstances lead a reasonable person to conclude that the act was done to satisfy the sexual desires of either party? In evaluating a report regarding an alleged homosexual act, you must take into consideration cultural differences. For example, in certain cultures it is perfectly permissible for two adult males to kiss in some fashion upon greeting each another.

Behaviors which are not homosexual acts
Associating with known homosexuals Marching in a gay rights rally in civilian clothes Possessing or reading homosexual publications Going to a gay bar Just as important as knowing what constitutes homosexual conduct under the DoD policy is knowing what types of conduct are not considered “homosexual conduct.” REMEMBER! Homosexual acts require bodily contact under circumstances which would lead a reasonable observer to conclude the act was performed to satisfy sexual desires. You must be careful not to confuse homosexual acts with “associational behavior.” Now, what exactly do we mean by “associational behavior?” Examples include: (a) associating with known homosexuals; (b) marching in a gay rights rally, in civilian clothing; (c) possessing or reading homosexual publications; and (d) going to a gay bar. It’s easy to see that associational activity, in and of itself, does not constitute a homosexual act because there is no bodily contact for the purpose of satisfying sexual desires.

RECAP Sexual Orientation is a private/personal matter
CONDUCT determines suitability for service Homosexual Conduct (SAM) is justification for administrative discharge Now, to review: (A) Sexual Orientation is a private and personal matter. A soldier’s sexual orientation is a non-issue as long as it remains private and personal, that is, not manifested in some observable fashion (SAM). (B) Suitability for service is based on Conduct not abstract beliefs. (c) Homosexual CONDUCT (SAM) remains a valid basis for administrative separation from the Armed Forces.

DoD POLICY ON HOMOSEXUAL CONDUCT AFFECTS
Accessions Separations Criminal Investigations Security Investigations Military Training The current DoD policy impacts five distinct areas. We will look briefly at each of these areas.

ACCESSIONS Sexual orientation ALONE is not a bar
Will not be asked to reveal whether they are heterosexual, homosexual, or bisexual All will be informed of policy This slide summarizes the impact of the DoD policy on Army accessions: (A) We cannot ask a prospective recruit about sexual orientation, and that recruit is not required to inform us of his sexual orientation. However, voluntary disclosure of sexual orientation may bar a recruit from entering the service. (B) Sexual Orientation, if kept private and personal, is not a bar to service. (C) The Army must advise all applicants, before enlistment, that homosexual conduct continues to be a bar to entry and grounds for separation.

SEPARATIONS Based on CONDUCT Three bases: S A M
Discharge for engaging in homosexual conduct will be “honorable” or “under honorable conditions” A Court-Martial can have worse consequences. Separation may result from Homosexual Conduct. Discharge based on Homosexual Conduct is normally characterized as “honorable” or “under honorable conditions.” However, a soldier’s conduct may warrant an OTH discharge or trial by court-martial if the soldier attempted, solicited, or committed a homosexual act: By using force; With a person under 16 years of age; With a subordinate; Openly in public view; For compensation; or Aboard a military vessel, aircraft, or in a location under military control.

CRIMINAL INVESTIGATIONS
Not done solely to determine sexual orientation Sexual misconduct alone, between consenting adults, in private, is generally insufficient to prompt a criminal investigation Determination of a soldier’s sexual orientation is never the SOLE reason for initiating an investigation. The focus of a criminal investigation must be on CONDUCT. Military law enforcement officials will not normally investigate sexual misconduct between consenting adults that occurs in a private location unless there is some aggravating factor present.

CRIMINAL INVESTIGATIONS
Allegations of sexual misconduct handled by CO in the absence of aggravating factors If CO is uncertain what to do call JAG The Commander generally handles inquiries into the sexual misconduct of his or her soldiers. Should you, as a commander, uncover the presence of aggravating factors during your inquiry, or should you ever be uncertain regarding the facts you uncover -- seek advice from your supporting brigade trial counsel on how to proceed. REMEMBER! Prior to interviewing anyone suspected of a crime, you must advise them of their Article 31(b) rights.

PERSONNEL SECURITY No investigation solely to determine sexual orientation No questions about sexual orientation on Security Questionaire Only sexual CONDUCT can be questioned No info about sexual orientation or conduct can be used for separation Personnel Security Investigations may not be conducted solely to determine a soldier’s sexual orientation. Inquiries and investigations are limited to a soldier’s conduct. If a security clearance investigation uncovers any information about homosexual orientation or conduct, this information cannot be used in a separation proceeding. This prohibition ensures that prohibited information does not make it in the back door.

MILITARY TRAINING Soldiers are to be informed of policy
Commanders, recruiters, and investigators, etc., are to be informed of the policy Soldiers must be informed about the laws and regulations governing sexual conduct, including policies on homosexual conduct. These matters are covered in the Military Justice classes given to trainees during BT and OSUT. Classes should also be taught periodically by the chain of command. DoD is taking steps to ensure that all commanders and personnel involved in recruiting, accession processing, criminal and security investigations, and administrative separations are trained regarding the DoD policy. Such is the purpose of this class.

Commander’s Responsibilities
Ensure soldiers are briefed on DoD Policy on homosexual conduct Ensure refresher and optional individual training in Military Justice, IAW AR 27-10, paragraph 19-2f Commanders must be familiar with this policy and how it impacts on their responsibilities. Commanders are responsible for ensuring that their soldiers receive initial and periodic briefings on the policy. Your servicing Trial Counsel can assist you in preparing such briefings. Commanders must also ensure that they act in accordance with the policy when they are faced with situations involving allegations of homosexual conduct.

HOW SHOULD A COMMANDER RESPOND TO ALLEGATIONS OF HOMOSEXUAL CONDUCT?
Remembering the investigatory principles you learned during the briefing on Military Justice, what actions should you take, as a Commander, when faced with allegations that a soldier within your command has engaged in homosexual conduct?

WHAT THE CO SHOULD DO: Determine if the conduct fits the DoD definition of homosexual conduct (SAM) Verify that the information is credible Start informal fact-finding only if credible info exists (1) Your first step should be to compare the alleged conduct with the DoD definition. Remember SAM! (2) Next, you should make certain that the information about the alleged homosexual CONDUCT is credible. (3) Finally, you should initiate an inquiry ONLY if the situation involves: Homosexual Conduct as defined by the DoD policy and the information is credible. Whenever you have any questions regarding such a matter, do not hesitate to call your Trial Counsel.

WHAT IS CREDIBLE INFO? Comes from a reliable source
Is an observation (sight or sound) of conduct Would lead reasonable person to believe the person making the statement or act intended to convey the fact that he/she engages in or has propensity to engage in homosexual conduct. Now, your responsibilities when faced with allegations of homosexual conduct within your command seem simple enough, but tell me -- how do you decide whether the information you have received is “credible?” (1) Is the person who provided the information a reliable source of information? (2) Is the information based on the informant’s personal knowledge? That is, on the informant’s first-hand observation of the conduct in question (e.g. did he see it, or hear it himself?)? (3) Would a reasonable person believe that a soldier who committed the conduct has the propensity or intent to engage in such conduct?

HOW SHOULD YOUR COMMANDER CARRY OUT THE INQUIRY?
Confine all questions to homosexual conduct (NOT orientation!) Verify that info is credible Seek legal advice as needed How should you conduct an inquiry into homosexual conduct? (1) Remain focused on CONDUCT -- Do not ask questions concerning sexual orientation. (2) Base the conclusions you draw from your fact-finding on credible information. (3) As always, contact your supporting Trial Counsel if you have any questions. Should the Commander’s Inquiry fail to uncover facts which verify that a soldier has engaged in homosexual conduct, the inquiry should be terminated.

RESOURCES AVAILABLE TO SUPPORT YOU
SJA MP CID However, if the Commander’s inquiry verifies that a soldier did engage in homosexual conduct, he/she should contact their Trial Counsel regarding the initiation of administrative separation proceedings or UCMJ action. In addition, should a commander uncover possible criminal misconduct during the course of an inquiry, he/she may contact the local law enforcement officials which include: the local Trial Counsel, the Military Police Investigations (MPI) section or CID.

REVIEW Basic Points of DoD Policy Definitions CO Responsibilities
Available Assistance What is the basis of an individual’s suitability for service in the Armed Forces? (Conduct). Is homosexual conduct still an admissible ground for barring someone from entering into or separation from the Armed Forces? (Yes). What is sexual orientation? (Abstract sexual preference Not a bar to enlistment or continued service). What constitutes homosexual conduct under the DoD Policy? (SAM). What are not homosexual acts? (Associational Behavior). How should CO respond to allegations of homosexual conduct within his command? (Does alleged conduct fall within SAM? Is the information Credible? Conduct initial fact-finding inquiry.) Credible information? (Reliable person. Personal knowledge. Reasonable belief.). Actions following initial fact-finding (Terminate inquiry. Contact Trial Counsel to initiate separation or UCMJ actions.). Who is available to assist? (SJA, MPI, CID).

Questions Concerning the DoD Policy on Homosexual Conduct
[Field Student Questions]

Application of the DoD Policy
(Discussion of Scenarios) Now, lets see how this DoD Policy on Homosexual Conduct may come into play during the everyday exercise of a commander’s duties. 1) Ambiguous statement to CO during an open door visit. 2) Handholding in the park. 3) Frequenting a gay bar. 4) Death threat to a gay soldier pending separation. 5) Outing in local gay publication. 6) Lesbian pride parade. 7) Staking out the local gay bar. 8) CID follow-up on sonsensual sodomy (photos/letter/names). 9) Computer bulletin board list. 10) Undercover CID agent in the gym latrine. 11) Extortion attempt. 12) Soldier promises to behave. 13) Officer discloses to a close friend. 14) Recruit says “I’m gay.”

The Law of War Good____________, I’m____________. I am an attorney with the Office of the Staff Judge Advocate, US Army Armor Center and Fort Knox. During the next 1-2 hours, I will present an information briefing on the Law of War. This briefing is intended to help leaders understand the Law of War so that they can ensure their conduct, and that of their units on the battlefield is IAW U.S. policy on the subject.

Outline of Instruction
Background Forbidden targets, tactics, and techniques Enemy captives and detainees Civilians and private property War crimes Summary This class begins with a very brief history of the LOW. I will then discuss four LOW categories, and end with a summary focusing on ROE and targeting considerations

BACKGROUND HISTORY OF THE LAW OF WAR ANCIENT/BIBLICAL MIDDLE AGES
CHIVALRY GROTIUS GENERAL ORDER 100 GENEVA/HAGUE CONVENTIONS Although history shows that two or more men and women cannot get together without trying to kill or subjugate one another, they have always applied rules to govern the conduct of combat. An early example of the law of war is contained in the Bible, where Moses set out rules for sieges, truces, capture, and handling EPWs (kill the men and keep the women). One early rationale for rules of combat came from Alexander the Great, who said, “Why destroy or kill that which you will soon own?” He advised that captives should not be slaughtered because they could pay tribute, or work, or even be conscripted into the army. In the middle-ages, the rules governing warfare began to grow along with the power of the Church and the rise of chivalry. Chivalry was a code of conduct demanded of honorable fighting men and included the obligation to accept surrender and respect the property of the Church. In response to the decline of chivalry, resulting from the more impersonal nature of warfare brought on by the development of the crossbow, a Dutch lawyer named Hugo Grotius wrote the first comprehensive code on the laws of land warfare. His code contained many of the key concepts followed today, especially the concept of unnecessary suffering, and proper military targeting. The first code on the law of war in the US was known as General Order 100, and was approved by President Lincoln in 1863. As weaponry and tactics have changed, so has the law of war. Today the law of war comes from several sources, primarily the Geneva conventions of 1949, and the Hague conventions of 1907.

BY WARRIORS FOR WARRIORS
Although the LOW was first reduced to writing by a lawyer, it was developed by the fighters. Gustavus Adolphus issued binding Articles of War in July The 150 articles were based on the need to maintain a disciplined and effective fighting force. For example, Article 100 prevented setting fire to churches, hospitals, and schools and forbade mistreatment of clergy, elderly, women, and children, provided that they put up no armed resistance. In the American experience, GEN Winfield Scott was a POW during the War of 1812 and later became the father of U.S. occupation law.

THAT WAS THEN ... “War is an act of force to compel our enemy to do our will. … Attached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and customs, but they scarcely weaken it.” Clausewitz, 1820 In the past, the LOW did not always receive much emphasis, and it was thought that an argument of military necessity could always carry the day against a charge of violating the LOW. This is no longer the case. KEY TEACHING POINT ==> The law of war includes all the principles of military necessity. Military necessity is built into the law of war, and the warrior therefore has no discretion to create his/her own loopholes. Criminal Defense. Military Necessity has been argued as a defense to law of war violations and has generally been rejected as a defense for acts forbidden by customary and conventional laws of war. Rationale: laws of war were crafted to include consideration of military necessity. Approach -- look to whether international law allows targeting of a person or property. W.W.II Germans, under concept called "Kreigsraison," argued that sometimes dire military circumstances allowed them to violate international law -- i.e.., kill prisoners at Malmedy because they had no provisions for them and their retention would have jeopardized their attack (Rejected as a valid defense).

THIS IS NOW …. “The Armed Forces of the United States will comply with the law of war during the conduct of all military operations and related activities in armed conflict, however such conflicts are characterized.” CJCSI , 12 August 1996 Today, there is emphasis on the LOW from the top down. It is U.S. national policy that American soldiers will abide by the LOW. The Chairman of the Joint Chief of Staff Instruction (CJCSI) also states that U.S. forces will “apply law of war principals during all operations that are characterized as Military Operations Other than War.”

SOURCES OF THE LAW OF WAR
CUSTOM TREATIES OR CONVENTIONS Hague Regulations 1949 Geneva Conventions U.S. CONSTITUTION ARTICLE VI DoD.Dir CJCSI Custom means practices which have been firmly established by the practices of nation-states over time. Treaties or conventions are legal agreements between two or more nation-states. The Hague regulations and the Geneva conventions are examples of these kinds of agreements. One thing to remember is that all countries do not sign all parts of these agreements, even the U.S. does not always accept them as a whole (Examples: like land mine treaty.). However, the U.S. has adopted all of the Geneva and Hague Conventions (It has not adopted all of the provisions of the 1977 Protocols.). Article IV states that the Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made…under the authority of the United States, shall be the supreme law of the land. The DOD Law of War Program Requires: US armed forces observe and enforce the law of war Alleged violations of the law of war, whether committed by, or against US personnel, are promptly reported, thoroughly investigated, and where appropriate, remedied by corrective action. Violations of the law of war alleged to have been committed by or against allied military personnel or civilian personnel shall be reported through command channels for ultimate transmission to the appropriate agencies of the allied government.

WHY STUDY/OBEY THE LAW OF WAR?
IT'S THE LAW ENHANCES PUBLIC SUPPORT ENCOURAGES RECIPROCAL TREATMENT BY THE ENEMY YOU'RE PERSONALLY LIABLE FOR YOUR VIOLATIONS TREATIES REQUIRE WE STUDY "LAW OF WAR" The law is usually understood by everyone. Just like with the speed limit, most people exceed the limit, but we all know it is against the law. The difference here is that instead of paying a small fine, violation of the law of war may result in court martial. UCMJ Arts 18 and 21 convey court-martial jurisdiction over law of war offenses. R.C.M. 201(a)(3) and R.C.M. 201(f)(1)(B) give guidance. Wins the hearts and minds of local civilian population. War Crimes Act of 1996 gives Federal courts jurisdiction over persons who commit grave breaches of the Geneva Conventions in cases where the victim is a U.S. national or the offender is a U.S. citizen. This is a direct result of the fact that some soldiers had left the military and could not be punished under the UCMJ for their criminal acts surrounding the incident at My Lai, in Vietnam. Universal jurisdiction is applicable and the concept of double jeopardy does not apply. Several of the treaties signed by the US specifically require that we study the law of war.

WHY STUDY/OBEY THE LAW OF WAR?
YOU MAY BE LIABLE FOR SUBORDINATE'S VIOLATIONS VIOLATIONS OF THE "LAW OF WAR" GAIN NOTHING OUR VIOLATIONS STRENGTHEN ENEMY RESOLVE AND WEAKEN US FM para. 501, which incorporates the Law of Principals from Article 77, UCMJ, addresses command responsibility for violations of the law of war. A Commander will be held responsible if he or she has actual knowledge, or should have knowledge that persons subject to his or her command are about to commit, or have committed a war crime, and he or she fails to take reasonable steps to ensure compliance with the law or to punish violators. Both the Yugoslavia and Rwanda War Crimes Tribunals have charged individuals under theories of command responsibility for acts of subordinates.

THE BOTTOM LINE RESPECT FOR THE LAW OF WAR SEPARATES UNRULY MOBS FROM PROFESSIONAL SOLDIERS. The slide says it all. The military has the lawful right to use force and violence and that is not too dissimilar from gangs. It is the law, however, by which we abide which separates us from gangs. Having the legal right to use force/violence is unique and the law is what guides us.

PURPOSES OF THE LAW OF WAR
PREVENT UNNECESSARY SUFFERING SAFEGUARD FUNDAMENTAL RIGHTS FACILITATE RESTORATION OF PEACE The purposes of the LOW are to prevent unnecessary suffering, safeguard fundamental rights, and facilitate the restoration of peace. The LOW serves these purposes by providing rules for conduct in battle, guided by a set of four legal principles.

LEGAL PRINCIPLES HUMANITY PROPORTIONALITY DISCRIMINATION
MILITARY NECESSITY HUMANITY PROPORTIONALITY DISCRIMINATION There are four main principles contained in the law of war. Most law of war issues can be resolved by considering them in light of these principles.

MILITARY NECESSITY NOT FORBIDDEN BY INTERNATIONAL
LAW AND INDISPENSABLE FOR COMPLETE SUBMISSION OF THE ENEMY AS SOON AS POSSIBLE (FM PAR. 3) The principle of military necessity ensures that the law of war helps the commander accomplish the mission. The law merely lays out the outer boundaries of permissible conduct during armed conflict. Combatants enjoy absolute immunity for their acts (which would be crimes in time of peace), so long as they comply with the law of war. The law expressly forbids a small range of conduct, but recognizes the whole range of conduct that is indispensable for securing the complete submission of the enemy with the least expenditure of resources and time. NOTE: The concept of military necessity does not allow for a waiver of the law of war. A military objective must be something that makes an effective contribution to military action.

HUMANITY INCIDENTAL INJURY COLLATERAL DAMAGE UNNECESSARY SUFFERING
Principle of Unnecessary Suffering or Humanity - “It is especially forbidden to employ arms, projectiles or material calculated to cause unnecessary suffering.” This concept also extends to unnecessary destruction of property. Can't use arms that are per se calculated to cause unnecessary suffering (e.g., projectiles filled with glass, irregular shaped bullets, dum-dum rounds, lances with barbed heads). Can't use otherwise lawful arms in a manner that causes unnecessary suffering (e.g., 2000 pound bomb instead of precision guided munition against a military objective where civilians are nearby, used with the intent to cause civilian suffering. The 2000 pound bomd is OK if it is all you have and the incidental damage to property and loss of civilian life is not excessive in relation to the direct and concrete military advantage to be gained. If the target is not that important in relation to the numbers of civilians who would die, then NO.). Incidental Injury and Collateral Damage. Unavoidable and unplanned damage to civilian personnel and property incurred while attacking a military objective. Incidental (a/k/a collateral) damage is not a violation of international law. While no law of war treaty defines this concept, its inherent lawfulness is implicit in treaties referencing the concept. As stated above, treaties describe indiscriminate attacks as those causing "incidental loss of civilian life excessive to the military advantage anticipated." Id. Caution, however, the law of proportionality still applies.

PROPORTIONALITY UNNECESSARY SUFFERING MUST NOT BE EXCESSIVE IN RELATION TO THE CONCRETE AND DIRECT MILITARY ADVANTAGE The Test. The loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. Judging Commanders. It may be a grave breach of GP I to launch an attack that a commander knows will cause excessive incidental damage in relation to the military advantage gained. The requirement is for a commander to act reasonably. Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as military objectives or defended places but also that these objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated. Example: Al Firdus Bunker. During the Persian Gulf War, planners identified this bunker as a military objective. Barbed wire surrounding the complex, it was camouflaged, and armed sentries guarded its entrance and exit points. Unknown to coalition planners, however, Iraqi civilians used the shelter as night time sleeping quarters. The complex was bombed, resulting in 300 civilian casualties. Was there a violation of the law of war? No. Based on information gathered by coalition planners, the commander made a reasonable assessment that the target was a military objective and that incidental damage would not outweigh the military advantage gained. Although the attack unfortunately resulted in numerous civilian deaths (In hindsight, the attack might have been disproportionate to the military advantage gained -- had the attackers known of the civilians. If knowledge of the civilians during the night, the target could have been targeted during the day when they were not there.), there was no international law violation because the attackers, at the time of the attack, acted reasonably. FM 27-10, para. 41, Ch 1

DISCRIMINATION PLACES PROPERTY PERSONS
Principle of Discrimination or Distinction. The LOW prohibits “indiscriminate attacks.” Under the LOW, these are attacks that: are “not directed against a specific military objective”, (e.g., SCUD missiles during Persian Gulf War); “employ a method or means of combat the effects of which cannot be directed at a specified military objective”, [e.g., might prohibit area bombing in certain populous areas, such as a bombardment “which treats as a single military objective a number of clearly separated and distinct military objectives in a city, town, or village …; “employ a method or means of combat the effects of which cannot be limited as required” by the protocol (e.g., release of dangerous forces, or incidental effect excessive in relation to concrete and direct military advantage; and “consequently, in each case are of a nature to strike military objectives and civilians or civilian objects without distinction.” Combatants. Anyone engaging in hostilities in an armed conflict on behalf of a party to the conflict. Combatants are lawful targets unless "out of combat." Remember, a combatant does not need to be hostile toward you in order for you to engage him or bomb him. Lawful Combatants. Receive protections of Geneva Conventions Unlawful combatants. May be treated as criminals under the domestic law of the captor. An unlawful combatant can be a civilian who is participating in the hostilities or a member of the armed forces who violates the laws of war.

FORBIDDEN TARGETS, TACTICS, AND TECHNIQUES
Noncombatants Parachutist v. Paratrooper Protected symbols Principles revisited Protected property Weapons and Tactics Don’t attack noncombatants. Don’t shoot at a parachute unless it holds a combatant. Don’t shoot at the red cross or hide behind medical service symbols. Don’t cause destruction beyond the requirements of your mission. Don’t attack protected property. Don’t use poison or alter your weapons to increase enemy suffering.

Noncombatants DIPLOMATS & EMBASSY PERSONNEL STAFF OF RELIEF SOCIETIES
MEDICAL PERSONNEL& CHAPLAINS NONBELLIGERENT CIVILIANS SICK AND WOUNDED PWs The law of war prohibits attacks on noncombatants. The general rule is that civilians and civilian property may not be the subject or sole object of a military attack. Diplomats and embassy personnel must be treated with courtesy and must be permitted such freedom of action as is possible, with due regard to the necessities of war. Also, the premises of a diplomatic embassy are inviolable. Personnel of national Red Cross societies and other recognized relief organizations of neutral countries are protected persons. Medical personnel are considered out of combat if they exclusively engaged in medical duties. They may not be directly attacked. Medical personnel include: doctors, surgeons, nurses, chemists, stretcher bearers, medics, corpsman, and orderlies, etc., who are “exclusively engaged” in the direct care of the wounded and sick. Medical personnel also include administrative staffs of medical units (drivers, generator operators, cooks, etc.). Chaplains include, well, chaplains. The law of war requires that civilian medical and religious personnel shall be respected and protected. All available help shall be given to civilian medical personnel when civilian services are disrupted due to combat. Those soldiers who have fallen by reason of sickness or wounds and who cease to fight are to be respected and protected. Civilians are included in definition of wounded and sick who because of trauma, disease, are in need of medical assistance and care and who refrain from any act of hostility. Shipwrecked members of the armed forces at sea are to be respected and protected. Shipwrecked includes downed passengers/crews on aircraft, ships in peril, castaways.

COMMON ARTICLE 3 PROHIBITIONS (also applicable to OOTW)
VIOLENCE TO LIFE AND PERSON, IN PARTICULAR, MURDER, MUTILATION, CRUEL TREATMENT, AND TORTURE TAKING OF HOSTAGES OUTRAGES UPON PERSONAL DIGNITY, IN PARTICULAR, HUMILIATING AND DEGRADING TREATMENT THE PASSING AND EXECUTION OF SENTENCES WITHOUT ANNOUNCEMENT OF A JUDGMENT IN A REGULARLY CONSTITUTED COURT WHICH AFFORDS THE ACCUSED THE BASIC TENANTS OF DUE PROCESS OF LAW RECOGNIZED AS INDISPENSABLE BY THE CIVILIZED PEOPLE OF THE WORLD This is a list of Geneva Convention Article 3 prohibitions. It is important to note that protection for civilians extends across the spectrum of conflict and includes operations other than war.

Parachutist v. Paratrooper
Parachutists jumping from disabled aircraft are considered noncombatants Paratroopers jumping as a means to get to the fight are combatants Paratroopers are presumed to be on a military mission and therefore may be targeted. Parachutists who are crewmen of a disabled aircraft are presumed to be out of combat and may not be targeted unless it's apparent they are engaged on a hostile mission. Parachutists, according to GP I, Article 42, "shall be given the opportunity to surrender before being made the object of attack."

Red Cross Red Crescent Red Star of David Protected Symbols
There is a prohibition against attacking civilians or civilian property. Presumption of civilian property attaches to objects traditionally associated with civilian use (dwellings, school, etc.). Fixed or mobile medical units shall be respected and protected. They shall not be intentionally attacked. Protection shall not cease, unless they are used to commit “acts harmful to the enemy.” Warning requirement before attacking a hospital that is committing "acts harmful to the enemy." Reasonable time to comply with warning, before attack. When receiving fire from a hospital, there is no duty to warn before returning fire in self-defense. Example: Richmond Hills Hospital, Grenada. There are special rules for captured medical facilities and supplies of the armed forces: Fixed medical facilities may be used by captors, in cases of urgent military necessity, provided proper arrangements are made for the wounded and sick who are present. Captors may keep mobile medical facilities provided they are reserved for the care of the wounded and sick. Medical Supplies may not be destroyed. Transports of the wounded and sick or of medical equipment shall not be attacked.

Churches Schools Museums Hospitals Cultural Protected property
You are required to take as much care as possible not to damage or destroy buildings dedicated to cultural or humanitarian purposes or their contents. Examples are buildings dedicated to religion, art, science, or charitable purposes; historical monuments; hospitals and places where the sick and wounded are collected and cared for; and schools and orphanages for children. These places are considered protected property as long as they are not being used at the time by the enemy for military operations or purposes.

PROTECTED PERSONS AND PROPERTY
NO PROTECTION IS ABSOLUTE - MISUSE OR ABUSE RESULTS IN LOSS OF PROTECTION WHAT DO WE DO IF A PROTECTED PLACE OR PERSON IS HIT BY ACCIDENT? REPORT IT. INVESTIGATE AND DOCUMENT IT. MITIGATE IT (CARE FOR VICTIMS/COMPENSATE) TRY TO AVOID THE PROBLEM. FOR EXAMPLE, IF A HOSPITAL IS BEING MISUSED BY THE ENEMY, WE ATTEMPT TO WARN BEFORE STRIKING, UNLESS OPERATIONAL REQUIREMENTS DICTATE OTHERWISE. It is important to remember that no protection is absolute in the LOW. If a protection under the law is abused, it can be lost. Examples might include locating military headquarters in protected buildings like hospitals or using medevac birds to ferry in replacements. If a protected person or place is hit by accident, we take affirmative action to remedy the situation. We do not cover up or ignore the mistake.

Weapons and Tactics “Legal” weapons Chemical weapons
Biological weapons Stratagems and Ruses Treachery and Perfidy Reprisals Many LOW prohibitions deal with weapons and tactics. I have split some of the major rules into these six categories.

“Legal” weapons 1. All weapon systems in the U.S. inventory are legal
2. Military advantage v. suffering caused 3. “Legal” weapons can be used illegally 4. Prohibited weapons All U.S. weapon systems have been approved by TJAG. The key to the legality of a weapon system is whether the suffering occasioned by the weapon is needless, superfluous, or grossly disproportionate to the advantage gained by its use. A legal weapon is used illegally when used in a manner to cause unnecessary suffering. An example might be use of a conventional airstrike on a target with civilians nearby while more precise targeting measures are available, if the choice is made with the intent of causing unnecessary suffering. Some weapons are simply prohibited because of the kind of suffering they produce. Prohibited weapons include: expanding rounds, barbed weapons, glass projectiles, poisons.

WEAPONS FRAGMENTATION INCENDIARIES LASERS SMALL ARMS
Prohibition on exploding or expanding ammunition. FRAGMENTATION INCENDIARIES LASERS Small Arms Projectiles. Must not be exploding or expanding projectiles. The Declaration of St. Petersburg of 1868 prohibits exploding rounds of less than 400 grams (14 ounces). Prohibited by late 19th century treaties (of which US was never a party). US practice, however, accedes to this prohibition as being customary international law. State practice is to use jacketed small arms ammunition (which reduces bullet expansion on impact). Hollow point ammunition. Typically, this is semi-jacketed ammunition that is designed to expand dramatically upon impact. This ammunition is prohibited for use in armed conflict by customary international and the treaties mentioned above. There are situations, however, where use of this ammunition is lawful because its use will significantly reduce collateral damage to noncombatants and protected property (hostage rescue, aircraft security). High Velocity Small Caliber Arms Early controversy about M-16 causing unnecessary suffering. "Matchking" ammunition. Has a hollow tip--but is not expansive on impact. Tip is designed to enhance accuracy only and does not cause unnecessary suffering. Sniper rifles, .50 caliber machine guns, and shotguns. Much "mythology" exists about the lawfulness of these weapon systems. Bottom line: they are lawful weapons, although rules of engagement (policy and tactics) may limit their use. Fragmentation (FM 27-10, para 34.) Legal unless used in an illegal manner (on a protected target or in a manner calculated to cause unnecessary suffering). Unlawful if fragments are undetectable by X-ray (Protocol I, 1980 Conventional Weapons Treaty). Incendiaries. (FM 27-10, para. 36.) Examples: Napalm, flame-throwers, tracer rounds, and white phosphorous. None of these are illegal per se or illegal by treaty. The only US policy guidance is found in paragraph 36 of FM which warns that they should "not be used in such a way as to cause unnecessary suffering." (See also para 6-7, AFP ) Napalm and Flame-throwers. Designed for use against armored vehicles, bunkers, and built-up emplacements. White phosphorous. Designed for igniting flammable targets such as fuel, supplies, and ammunition and for use as a smoke agent. White phosphorous (Willy Pete) artillery and mortar ammunition is often used to mark targets for aerial bombardment. Protocol III of the 1980 Conventional Weapons Convention. Prohibits use of air-delivered incendiary weapons on military objectives located within concentrations of civilians. Has not been ratified by the U.S. The US is currently considering ratifying the protocol - with a reservation that incendiary weapons may be used within areas of civilian concentrations, if their use will result in fewer civilian casualties. For example: the use of incendiary weapons against a chemical munitions factory in a city could cause fewer incidental civilian casualties. Conventional explosives would probably disperse the chemicals, where incendiary munitions would burn up the chemicals. Lasers. US Policy (announced by SECDEF in Sep. 95) prohibits use of lasers specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision. Recognizes that collateral or incidental may occur as the result of legitimate military use of lasers (rangefinding, targeting). This policy mirrors that found in Protocol IV of the 1980 Conventional Weapons Treaty (this portion not yet ratified by US). The Senate is reviewing the protocol for its advice and consent for ratification.

MINES AND BOOBY TRAPS USE IS PERMITTED UNDER THE LAW OF WAR SUBJECT TO THE FOLLOWING LIMITATIONS: INDISCRIMINATE USE PROHIBITED (MUST TARGET MILITARY) CAN NOT BE USE IN A MANNER TO TAKE ADVANTAGE OF THE ENEMY’S COMPLIANCE WITH THE LAW OF WAR (CAN NOT BOOBY TRAP CORPSES WITH MINES, THERE MUST BE SIGNS, A PLAN FOR RECOVERY, OR A MAP TO PERMIT RECOVERY (W.W.I MINES ARE STILL KILLING CIVILIANS Landmines and Booby Traps. Lawful if properly used, however, international process underway to outlaw all antipersonnel land mines. (Claymore mines may not be covered as it is a command detonated mine.) The U.S. presently has a one year moratorium on the use of landmines. U.S. policy is to find an alternative to them by the year 2003. Indiscriminate. Primary legal concern: indiscriminate use which endangers civilian population. Articles 4 and 5, Protocol II of the 1980 Conventional Weapons Treaty restricts placement of mines and booby traps in areas of "civilian concentration." Remotely delivered mines (those planted by air, artillery etc.). Only used against military objectives; and then so only if their location can be accurately recorded or if they are self-neutralizing. Non-remotely delivered mines, booby traps, and other devices. Can't be used in towns or cities or other places where concentrations of civilians are present, unless: they are placed in the vicinity of a military objective under the control of an adverse party; or measures are in place to protect civilians from their effects (posting of signs etc.). Booby Traps. Protocol II of the 1980 Conventional Weapons Treaty also prohibits use of booby traps on the dead, wounded, children's toys, medical supplies, and religious objects (art. 6). Amended Protocol II (Mines Protocol). The President transmitted the ratification package on amended Protocol II, to the Senate on 7 January (1) Expands the scope of the original Protocol to include internal armed conflicts. (2) Requires that all remotely delivered APL be equipped with self-destruct devices and backup self-deactivation features (3) Requires that all nonremotely delivered APL not equipped with such devices (“Dumb Mines”) be used within controlled, marked, and monitored minefields. (Falls short of Presidents APL policy statement of 16 May 1996 that prohibited U.S. military use of “Dumb” APL except in the Korean DMZ and in training. (4) Requires that all APL be detectable using available technology. (5) Requires that the party laying mines assume responsibility to ensure against their irresponsible or indiscriminate use. Provides for means to enforce compliance. In his letter of Transmittal, the President emphasizes his continued commitment to the elimination of all APL. US policy on anti-personnel land mines. US forces may no longer employ "dumb" (those that do not self-destruct or self-neutralize) anti-personnel land mines, according to a 16 May 1996 policy statement issued by the President. Exceptions to this policy: Use of "dumb" mines in demilitarized zone between North and South Korea; and Use of "dumb" mines for training purposes. Ottawa Process. Initiated by the Canadian Foreign Minister, the Process is attempting to draft a convention banning all APL. One hundred nations met in Oslo, Norway in September 1997 to draft the convention. Altogether, approximately 121 nations signed the ban in December 1997 to sign the convention. Although the U.S originally joined the Process, the U.S. withdrew in October 1997 because other countries rejected proposed exceptions for the use of APL mines in Korea and other uses of smart APL.

Chemical weapons 1. No “second use” anymore
2. Riot Control Agents (RCA): probably no use anymore Poison has been outlawed for thousands of years. Considered a treacherous means of warfare. Problem -- once unleashed it is hard to control. Incapacitating Agents are those chemical agents producing symptoms that persist for hours or even days after exposure to the agent has terminated. U.S. ratified the Chemical Weapons Convention and renounced any use of chemical weapons-NO SECOND USE anymore. Riot Control Agents: This issue is very complex. The Senate attached a very long advice and consent resolution which appeared to be a reservation but the treaty did not allow for such reservations. RCA’s are probably not going to be available for use in armed conflict. Too much a chance for confusing it with unlawful chemical weapons. RCA’s are restricted as a means of warfare. No use anywhere combatants. EO allows for use in defensive military modes to save lives such as controlling riots; dispersing civilians where the enemy uses them to mask or screen an attack; rescue missions for downed pilots, escaping PWs, etc.; and for police actions in our rear areas. Such defensive modes were noted in the Senate’s advice and consent resolution. Under the treaty, probably these are not available any longer.

Biological weapons 1. The U.S. has renounced all use
of biological weapons 2. The U.S. will use herbicides only for domestic or defensive purposes 3. The U.S. will not use herbicides first in armed conflict Biological weapons are some of the nastiest weapons ever invented. Because of their resistance to control and of the possibility for permanent harm to noncombatants, the U.S. has renounced all use of these types of weapons. Herbicides are a type of chemical used to clear land and destroy foliage. The U.S. will only use these chemicals for domestic or defensive purposes and will not be the first user in an armed conflict. (Agent Orange is a herbicide)

Stratagems and Ruses Permitted activities Ambushes Bribes Psyops
Use of enemy equipment/clothing Injuring the enemy by legitimate deception is allowed under the law of war. Examples of permitted activities include: ambushes, false communications, deceptive movement, use of enemy passwords, misinformation, moving landmarks, bribery, psyops. Enemy uniforms may be worn, but cannot be fought in. Enemy equipment can be used, but enemy insignia must be removed. Note: that soldiers captured in enemy uniforms or civilian clothing are not entitled to POW status and may be tried as spies.

Treachery and Perfidy Prohibited activities include:
- misuse of symbols - feigning surrender - killing EPWs - misuse of protected places - human shields Treachery and perfidy are unlawful, and include the following actions: misuse of a flag of truce, feigning surrender or injury, outlawing surrender, assassination, wanted “dead or alive” policies, attacking enemy soldiers who can’t resist or are trying to surrender, killing EPWs, misuse of protected places, targeting flag of truce or undefended facilities, mutilating, mistreating, or “boobytrapping” dead bodies, and use of human shields. They are basically acts that take advantage of the enemy’s compliance with the law of war. A good example is during Desert Storm, some Iraqi tanks came into a town where there were allied forces. The tanks came into town and toward allied positions with their “turrets to the rear.” Allied forces took this as a sign of surrender, and when allied forces came out to accept the surrender, the Iraqi’s turned their turrets around and fired on allied forces. No violation of the law of war as “turrets to the rear” is not an internationally accepted sign of surrender.

Reprisals Authorized only if: Timely Responsive to enemy act
Lesser response ineffective Proportional Not against protected persons Ordered by NCA A reprisal is an otherwise illegal act done in response to a prior illegal act by the enemy. The purpose of a reprisal is to get the enemy to adhere to the law of war. Reprisals are authorized if the following requirements are met: it's timely; it's responsive to enemy's act, must first attempt a lesser form of redress; and it must be proportional. Prisoners of war and persons "in your control" can not be objects of reprisals. The law of war prohibits reprisals against numerous targets such as the entire civilian population, civilian property, cultural property, objects indispensable to the survival of the civilian population (food, livestock, drinking water), the natural environment, installations containing dangerous forces (dams, dikes, nuclear power plants) US policy is that a reprisal may be ordered only at the highest levels…National Command Authority (NCA) which consists of the President and the Secretary of Defense (NCA). It does not consist of the vice-president or the Chairman of the Joint Chiefs of Staff.

ENEMY CAPTIVES AND DETAINEES
Allow surrender Humane treatment No coercion Let enemy soldiers surrender. Surrender may be made by any means that communicates the intent to give up. No clear cut rule as to what constitutes a surrender. However, most agree surrender constitutes a cessation of resistance and placement of one's self at the discretion of the captor. Onus on person or force surrendering to communicate intent to surrender. Captors must respect (not attack) and protect (care for) those who surrender--no reprisals. Because PWs are classified as noncombatants, they cannot lawfully use force even in attempts to escape, and are subject to host nation criminal laws for crimes committed while trying to escape. Treat all captives and detainees humanely. Captured enemy soldiers and noncombatant detainees must be treated humanely according to the laws of war. Attacks upon personal dignity or other humiliating or degrading treatment are strictly forbidden by the law of war. It may be difficult to treat PWs humanely after a firefight, however individual reprisals and actions taken in revenge are strictly prohibited. Treat PWs like you would want to be treated if captured, and you will be treating them humanely. Don’t use coercion in questioning captives and detainees. Issues of coercion is complex. Some coercion may be lawful but leave that to the MP and CI experts. Captives and detainees may be questioned for military information of immediate value to your mission but may not use threats, torture, or other forms of coercion. An enemy captive is required only to give his name, rank, service number, and date of birth. Combat experience has proven that useful information has been gained from captives who have been treated humanely while information gained through torture or coercion is unreliable.

ENEMY CAPTIVES AND DETAINEES
Provide medical care Safeguard captives Don’t take personal property Provide medial care for sick and wounded captives. Sick and wounded captives get the same medical care as friendly sick and wounded. As soon as possible, evacuate them to the rear through medical channels. Safeguard captives from the dangers of combat. Captives can be forced to dig fighting positions for their own protection, however, they cannot be forced to support the war effort. Captives should keep their personal protective gear, like helmets and protective masks. (However, if their side-enemy-is adhering to the law of war e.g. Chemical Weapons Convention, they should not need it.) Captives cannot be used as human shields or ground mounted mine clearing plows. Don’t take personal property from captives. When you are going through your five Ss: Secure, Segregate, Silence, Search, and Speed to the rear, limit your search to items of military intelligence value. Do not take personal protective gear like masks or parkas. Leave personal items such as photos and jewelry alone. However, may take jewelry if you think you need to in order to prevent black market type activities…ensure you give a receipt!

TREAT EPWs HUMANELY MUST RECEIVE HUMANE TREATMENT
PROPER MEDICAL CARE, FOOD, CLOTHING, AND SHELTER RESPECT FOR THEIR PERSONS AND PROPERTY PROMPT EVACUATION FROM COMBAT ZONE MAY NOT BE COMPELLED TO PERFORM DANGEROUS, HUMILIATING, OR WAR-RELATED LABOR FREE TO PRACTICE RELIGION NO TORTURE, CANNOT USE COERCION TO OBTAIN INFORMATION MAY NOT KILL BECAUSE PRESENCE RETARDS A MILITARY OPERATION Humane treatment for EPWs includes at the minimum, these eight things.

RIGHTS OF PRISONERS OF WAR
RIGHT TO SANITARY, PROTECTIVE HOUSING AND CLOTHING RIGHT TO SUFFICIENT FOOD TO MAINTAIN GOOD HEALTH RIGHT TO ADEQUATE MEDICAL CARE AND NECESSARY FACILITIES TO ENSURE PROPER HYGIENE RIGHT TO RETAIN MOST PERSONAL PROPERTY EXCEPT ARMS, MILITARY EQUIPMENT AND DOCUMENTS RIGHT TO SEND AND RECEIVE MAIL AND RECEIVE PACKAGES CONTAINING FOODSTUFFS, CLOTHING, AND OR RELIGIOUS, EDUCATIONAL, OR RECREATIONAL MATERIAL RIGHT TO HAVE A PRISONERS' REPRESENTATIVE These are the rights of POWs. An interesting provision, not shown on the slide, says that PW officers cannot be made to do manual labor, NCOs can only supervise, and only EM can actually work. Even the EM cannot be forced to work IOT support the war effort. In any event, POWs cannot be subject to dangerous work as well.

CIVILIANS AND PRIVATE PROPERTY
Don’t violate civilians’ rights in war zones Ensure the safety of civilians Don’t burn or steal civilian property Don’t violate civilians’ rights in war zones. Civilians caught in a war zone should be treated with respect. However unusual the local customs, manners, or religious practices may be, you are required to show respect for them. Civilians must be protected from acts of violence, threats, and insults. It is against the law of war to hold civilians as hostages or expose them to unnecessary danger. Ensure the safety of civilians. Be careful about the issue on forcing civilians to resettle or be deported. Do not allow civilians to be used as human shields. Protect the civilian population from collective punishment and reprisals. Women in war zones must be protected against rape and forced prostitution. Civilian property should be left alone unless necessary for a military purpose. In particular, a village may not be burned as punishment for actions of the enemy. Enemy property is subject to seizure. Civilian property is subject to requisition. Seizure is taking with payment or return after the armed conflict; Requisition is appropriation of private property by occupying force with compensation as soon as possible. Food and medical supplies may only be requisitioned for troops “on the ground.” Medical supplies may not be destroyed.

Do your best to prevent crimes Don’t violate the laws of war
WAR CRIMES Do your best to prevent crimes Don’t violate the laws of war Report crimes immediately through your chain of command A war crime is a violation of the law of war by any person. Grave breaches of the law of war include: murder, mutilation, torture, willfully causing great suffering. Simple breaches include: abuse of flag of truce, maltreatment of dead bodies, pillage, killing spies without trial. Every American soldier has the right and obligation to prevent war crimes. Crimes can often be prevented through the use of argument and persuasion on a soldier about to commit a prohibited act. You have a legal duty and a moral obligation to disobey an unlawful order. If given an unlawful order, you should attempt to have it clarified, challenge it, get your superior to confirm the order. If the order is still unlawful, then you must report it to the next higher link in the chain of command. The most famous defense to a charge of committing war crimes is “I was only following orders.” In order to prevail with this defense, you must not have known the order was unlawful, and must not have reasonably been expected to know that it was unlawful. This defense seldom succeeds, however. Both the Rwanda and Yugoslavia Tribunals have rules which explicitly exclude the defense of superior orders. A recent ruling from Yugoslavia goes so far as to exclude a defense of duress in a case where the accused was told “shoot the prisoners or we will shoot you.” In that case, the accused was sentenced to confinement. In sum, one cannot use this defense to take another life. If you witness a possible war crime, it must be reported immediately to the chain of command, chaplain, IG, MPs, or JAG.

RULES OF ENGAGEMENT MILITARY PLANS POLITICAL POLICY PUBLIC OPINION
LAW OF WAR MILITARY PLANS POLITICAL POLICY PUBLIC OPINION Rules of Engagement. Defined: Directives issued by competent superior authority that delineate the circumstances and limitations under which US forces will initiate and/or continue engagement with other forces. ROE are drafted in part based upon the LOW. Drafted considering LOW, political policy, public opinion, and military operational constraints. ROE are usually more restrictive than what the LOW allows. Targeting rules are often incorporated within ROE for a given operation.

RAMP A TRAINING SYSTEM FOR RULES OF ENGAGEMENT RETURN FIRE ANTICIPATE ATTACK. MEASURE THE AMOUNT OF FORCE USED. PROTECT WITH DEADLY FORCE ONLY HUMAN LIFE AND PROPERTY DESIGNATED BY YOUR COMMANDER. While there is officially no formal method to train soldiers on Rules of Engagement (ROE), various units have implemented the RAMP training. The 82d Abn Division has been a leader. However, there is no reason why Armor units cannot learn this methods as well.

OPERATORS AND TRAINERS,
RULES OF ENGAGEMENT OPERATORS AND TRAINERS, NOT LAWYERS The RAMP system of training is an attempt to get away from the perspective that ROE are written and understood by lawyers. Soldiers, not lawyers, must understand the ROE for a particular operation. There lives and the lives of others may depend on their understanding.

RULES OF ENGAGEMENT HISTORICAL MODEL
CURRENT XVIII AIRBORNE CORPS MODEL RAMP Historically, ROE have been written in an annex to an operation order that most people did not see. More importantly, the soldiers did not see it. Instead, they may receive a small card that summarizes the ROE. A small card usually does not do the ROE justice, and the soldier, without any other training, looks at the card in bewilderment. The XVIII Corps implemented RAMP to provide soldiers with such training.

ROE = INFLUENCE OF POLITICAL FACTORS ON BATTLEFIELD SITUATIONS
ROE - WHY? NUCLEAR ESCALATION FEARS DURING COLD WAR “YOU ARE THERE” COMMO “YOU ARE THERE” NEWS MEDIA First, RAMP is not ROE. It is a training system that enables soldiers to internalizes a set of baseline ROE principles as they apply to them as individuals. Second, it is a training tool to ensure that ROE training does not come last, in some instances as soldiers step onto an aircraft heading into danger. Thirdly, RAMP is nothing more than training to an Army standard against a core set of ROE applicable to both combat and peace operations. It is needed for many reasons but the best reason is for soldiers’ protection and as a way to make baseline ROE second nature to them. CNN, battlefield reporting, and its effect on political factors here in the US are here for good and to stay. We owe it to soldiers to train them so that they are not confused by what the command ask of them. ROE = INFLUENCE OF POLITICAL FACTORS ON BATTLEFIELD SITUATIONS

GETTING IT WRONG MAY CAUSE
ROE - THE CHALLENGES NOT REALLY PART OF OUR CULTURE (ADD-ON, NUISANCE) NO REAL ARMY DOCTRINE (ALL SITUATIONAL) PLENTY OF “HELP”(LAWYERS, MEDIA, ALLIES, POLITICAL LEADERS, SENIOR OFFICERS) Typically, ROE training has been given to the SJA to incorporate into pre-deployment training. In later years, commanders have been getting more involved but we have failed to develop one standard that soldier’s can use as a measure in all training to determine if they are operating within the baseline ROE. Lots of people are trying to help but we need to reduce it to “Gruntspeak” for the benefit of our soldier’s. Bottom Line: Getting it wrong may cost a soldier his/her life and cause mission failure! In addition, we are in an era of the strategic soldier…an action by an individual soldier can have strategic consequences. An action taken at a check point by one soldier can get that soldier’s name on CNN and known in Washington. GETTING IT WRONG MAY CAUSE MISSION FAILURE

TRADITIONAL ROE EXAMPLE 1
UNITAF, SOMALIA: “YOU ARE AUTHORIZED TO USE DEADLY FORCE IN SELF-DEFENSE IF THERE IS A CLEAR DEMONSTRATION OF HOSTILE INTENT IN YOUR PRESENCE.” WHAT IS A “CLEAR DEMONSTRATION OF HOSTILE INTENT”? I am going to show several examples of actual ROE. Most are vague and some are very confusing. RAMP training solves this problem by establishing the baseline far enough in advance that soldiers can train on them routinely so when they are called upon to deploy, they are trained and ready.

JTF CORTINA: “FOR EACH MISSION, PILOTS MUST BE BRIEFED ON THE LOCATIONS OF CIVILIANS AND FRIENDLY FORCES.” HOW DO WE KNOW WHERE CIVILIANS CAN BE FOUND? IF WE DON’T KNOW, CAN WE STILL FLY AND SHOOT?

JTF-B, HONDURAS: MILITARY PERSONNEL RECEIVING HOSTILE FIRE ARE AUTHORIZED TO RETURN FIRE, IF THIS IS NECESSARY IN SELF-DEFENSE. CAN WE SHOOT OR NOT?

WHAT’S WRONG WITH THIS PICTURE?
ROE FOR/BY LAWYERS - SOPHISTICATED TERMS NEED AN INTENT/CONCEPT, NOT SPECIFIC “LAUNDRY LIST” ROE USUALLY COME LATE IN THE GAME - DICTATED RATHER THAN TRAINED RAMP is tailored after METT-T to help soldiers remember ROE. The commander retains the flexibility to issue specific guidance that may supplement RAMP. In this way, the baseline ROE, on which leaders continuously train soldiers, may be built upon or supplemented for specific, unique missions. Once established and trained, they can be practiced during all training. In RAMP training, at the soldier level, ROE consists of internalized principles rather than external, written texts. As a result, soldiers apply these principles by drawing on individual experience and judgment. As a result, for rule breakers, training and retraining is emphasized as opposed to criminal prosecution and media spotlighting. A force facing a contingency mission faces a wide array of ROE. Such a force is better prepared if its leaders have continuously trained individual soldiers on baseline rules that are consistent with the JCS SROE. Commanders then issue specific ROE for a contingency by supplementing the standing rules. Finally, and most importantly, RAMP methodology gives the soldier a realistic chance of retrieving the rules from memory during stressful confrontations. TOO MUCH LEGALISM, NOT ENOUGH TRAINING FOCUS

RAMP- ALTERNATIVE APPROACH
TASK/CONDITION/STANDARD “RAMP” MEMORY KEY-WORD(LIKE SPORTS, METT-T, OCOKA, SALUTE, 5 S’s) STX ITERATIONS RAMP focuses on task, condition, standard. It emphasizes keywords to impart the training to memory. It focuses the application on leaders training their soldiers during all training, ie, STX lanes and FTXs would incorporated RAMP into training that is already programmed rather than creating specific lanes for RAMP, although that is an option open to the commander and trainers. The training model rests on the understanding that stress impairs thought......soldiers seek familiar patterns and relate critical events to mental scripts on which they have come to rely from previous experience. Accordingly, the training model features repetitive, scenario-based reinforcement of a fundamental thought process for grasping and recalling significant concepts. Whether handling captured prisoners or facing a potential terrorist, the soldier is prepared to discharge his duties without having to consider the nuances of his legal status under the Geneva Convention of or how the status of forces agreement relates to the civil trespass laws of a nation hosting US forces. The soldier is trained to use force within the universal legal principles of necessity and proportionality.....allowing higher authorities to determine whether to supplement the baseline ROE for a specific operation. RAMP is not abstract generalities.…it permits soldiers to protect themselves while conveying more substance than the self-defense boilerplate and is more likely to be remembered and not misinterpreted. USING ROE = A TASK LIKE ANY OTHER

RAMP RETURN FIRE WITH AIMED FIRE. ANTICIPATE ATTACK.
MEASURE THE AMOUNT OF FORCE YOU USE. PROTECT WITH DEADLY FORCE ONLY HUMAN LIFE AND PROPERTY DESIGNATED BY YOUR COMMANDER. These measures incorporate: necessity and proportionality; permit flexibility across the spectrum of armed conflict; provide a baseline for training; can be supplemented by the commander for a particular mission; and allows experience in training to internalize these principles. The RAMP rules, when assimilated by the soldier through demanding, supervised experiential training, give the soldier a fundamental, standardized methodology with which to grasp and to recall the core/baseline rules when they are needed in either combat or peace operations environments. In the past, ROE cards have been issued to soldiers to give them a reference they can carry with them. Unfortunately, the rules differ in many contingencies and have tended to be legislative in nature, incorporating various rules as well as trying to define the self-defense concept. Again, it is difficult for the soldier to quickly recall the various rules and determine which apply to a given scenario. The caution for commanders is that ROE cards are no substitute for training. It is essential that RAMP rules be internalized by the soldier. However, if a senior commander feels that it is necessary to issue ROE cards, they should reflect the RAMP rules and their approach to the particular ROE.

RETURN FIRE WITH AIMED FIRE
YOU ALWAYS CAN SHOOT BACK (RIGHT OF SELF-DEFENSE) AIMED FIRE IS KEY; IT KILLS BAD GUYS AND PROTECTS THE INNOCENT

ANTICIPATE ATTACK YOU DON’T HAVE TO TAKE THE FIRST HIT.
“HAND SALUTE” IF UNSURE HAND - WHAT IS HE HOLDING? S (ize) - HOW MANY? A (ctivity) - WHAT IS HE DOING? L (ocation) - HOW CLOSE? HOW NEAR OTHERS? U (niform) - IS HE IN UNIFORM/ORGANIZED? T (ime) - HOW SOON UNTIL HE’S ON YOU? E (quipment) - WHAT WEAPONS? DESIGNATED HOSTILES CAN ALWAYS BE ENGAGED (UNIFORM, EQUIPMENT, ACTIVITY) Gives our soldiers a conditioned response to all encounters. The hand SALUTE acronym can help a soldier anticipate what is a hostile force or not. It gives soldiers a default to go back to as reference to help in determining whether a force is hostile by establishing a standard set of criteria. Most important though is for them to realize that if a force is designated as hostile it can be engaged. First set of criteria for soldier......Is what I see a designated hostile or not? If yes, engage if not, RAMP default!!!

MEASURE THE AMOUNT OF FORCE YOU USE
MEASURE IF YOU HAVE TIME TO DO SO. USE FORCE APPROPRIATE TO THE TARGET/SITUATION. VEWPRIK CONCEPT: V - VERBAL WARNING IN LOCAL LANGUAGE; E - EXHIBIT WEAPON W - WARNING SHOT P - PEPPER SPRAY R - RIOT STICK I - INJURE WITH FIRE K - KILL WITH FIRE Time dependent conditions soldiers to respond based on the perceived threat. Regardless of time, a soldier should try to measure the amount of force to be used. However, a soldier may have to go straight to kill with fire if the situation requires it.

PROTECT WITH DEADLY FORCE HUMAN LIFE
PROTECT OTHER SOLDIERS, ALLIES, CIVILIANS, PRISONERS PROTECT PROPERTY DESIGNATED BY YOUR COMMANDER (EMBASSY, AIRCRAFT, AMMO STORAGE, AID STATION)

DOES RAMP WORK? 101st ABN (AASLT) DIV TESTED RAMP TRAINING
TF IN NEO (JRTC 94-10) TF IN NEO (CORPS EDRE) TF IN NGO SECURITY (JRTC 95-07) BOTTOM LINE: SOLDIERS UNDERSTAND IT ENEMY IS KILLED CIVILIANS/FRIENDLIES ARE NOT KILLED

CONSIDERATIONS FOR TARGETING
LAWFUL VS. PROTECTED COMBATANTS V. NONCOMBATANTS /CIVILIANS MILITARY OBJECTIVES PROTECTED PLACES OR PROPERTY With the understanding of the Law of War and the ROE of a specific operation, you must understand how they apply to targeting considerations. Attack only military objectives, those that confer a definite military advantage. Unlawful targets include: protected persons, wounded enemy, parachutists, disabled ships, medical troops/vehicles/facilities, religious/artistic/scientific/charitable/historic buildings, civilian shelters/hospitals, embassies. KEY NOTE: Misuse of protected status = loss. For example, a sniper in a church tower can be engaged, however, proportionality is key.

TARGETING CONSIDERATIONS SUMMARY
VERIFY THE TARGET MINIMIZE UNNECESSARY SUFFERING AND COLLATERAL DAMAGE PROPORTIONALITY Use weapons which avoid or minimize unnecessary suffering and collateral damage. Do not attack if the advantage to be gained is “excessive” to the concrete and direct military advantage to be gained.

IT’S THE AMERICAN WAY OF WAR
FIGHT AND WIN BY THE RULES IT’S THE AMERICAN WAY OF WAR

MILITARY JUSTICE AND YOU

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MILITARY JUSTICE AND YOU

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