Introduction to Military Law Command and Control Law of Armed Conflict Week Three 30 Jan 08 Lt Col Jennifer Rider Overview The basics – definitions Organizations within the military chain of command Command relationships Command authority What does “Command” mean? “The authority that a commander in the Armed Forces lawfully exercises over subordinates by virtue of rank or assignment. Command includes the authority and responsibility for effectively using available resources and for planning the employment of, organizing, directing, coordinating, and controlling military forces for the accomplishment of assigned missions. “ It also includes responsibility for health, welfare, morale, and discipline of assigned personnel.” DOD Dictionary – Joint Pub 1-02 What does “Command and Control” mean? “The exercise of authority and direction by a properly designated commander over assigned and attached forces in the accomplishment of the mission. Also called C2.” “ DOD Dictionary – Joint Pub 1-02 7 October 2004 What does “Chain of Command” mean? “The succession of commanding officers from a superior to a subordinate through which command is exercised.” DOD Dictionary – Joint Pub 1-02 “ 7 October 2004 Link for DOD Dictionary: http://www.dtic.mil/doctrine/jel/doddict/index.html What does “JOINT” mean? “Connotes activities, operations, organizations, etc., in which elements of two or more Military Departments participate” DOD Dictionary – Joint Pub 1-02 Modern warfare demands we (the military) fight as a integrated team…American military operations are conducted “ “ under JOINT force commanders—in other words… “ WE FIGHT Overview The basics – definitions Organizations within the military chain of command Command relationships Command authority The BIG Picture How is command and control exercised? By the President and SECDEF through two distinct branches: • Operational: Direction of forces assigned to combatant commands • Administrative: Other than operational direction Operational branch: “ • President through SECDEF to the combatant commanders (and subordinates if authority is delegated) Administrative branch: • President through SECDEF to Service secretary to CSAF to MAJCOM/NAF/WING The President The President holds the constitutional authority to direct the Armed Forces • “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” • U.S. Constitution, Article II, Section 2 The Secretary of Defense The Secretary of Defense is the Principal National Security Advisor to the President • “Subject to the direction of the President… • has authority, direction, and control over the [DoD].” 10 U.S.C. 113 The Role of Congress U.S. Constitution, Article I, Section 8: • To declare War…; • To raise and support Armies…; • To provide and maintain a Navy; Important functions, • To make Rules for the Government and but NOT in our Regulation of the land and naval Forces “chain of of Military Justice]; [the Uniform Code command” and • To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…. [including fiscal matters] The National Security Council Chaired by the President President’s principal Important functions, forum for considering national in our but NOT security and foreign “chain of command” policy matters Function: Council advises and assists the President on national security The BIG Picture The Armed Services 3 Military Departments: Air Force, Army, Navy (+ Marines), sometimes USCG Service Secretaries are responsible for • Recruiting • Organizing • Supplying • Equipping • Training Services DO NOT fight wars!! The Air Force Major Commands • ACC, AMC, AETC, AFMC, AFSOC, USAFE, PACAF Numbered Air Forces • 1st AF, 9th AF, 12th AF, etc. Wings Groups Squadrons The BIG Picture The Chairman of the Joint Chiefs of Staff Not a Commander The Principal Military Advisor to the President and SECDEF over JCS PresidesImportant functions, Assists communication in our but NOT between the “chain of command” President/SECDEF and the Combatant Commanders Coordinates with Combatant Commands • Roles and missions • Programs and budgets • Doctrine and joint training Goldwater-Nichols The Goldwater-Nichols DoD Reorganization Act of 1986 Biggest change to DoD since NSA of 1947 CJCS made principal military adviser CJCS manages Joint Staff Assigned all forces to Combatant Commanders except those performing “service-only” The BIG Picture Combatant Commands Broad continuing mission Single commander designated by President through SECDEF Receives advice and assistance of CJCS Typically have geographic or functional responsibilities Authority derived from • 10 USC §164 • Unified Command Plan (UCP) Combatant Commands Geographic-- mission is defined by a general geographic area of responsibility Functional--mission is worldwide performance of a warfighting function Geographic Combatant Commands US EUROPEAN COMMAND • USEUCOM US PACIFIC COMMAND • USPACOM US SOUTHERN COMMAND • USSOUTHCOM US NORTHERN COMMAND • USNORTHCOM US CENTRAL COMMAND • USCENTCOM Functional Combatant Commands US TRANSPORTATION COMMAND • USTRANSCOM US STRATEGIC COMMAND • USSTRATCOM US JOINT FORCES COMMAND • USJFCOM US SPECIAL OPERATIONS COMMAND • USSOCOM The BIG Picture Service Component Commands Includes all Service forces assigned to a combatant command Commanded by Service’s senior officer assigned to forces • e.g., for the AF it is the COMAFFOR – Commander, Air Force Forces Lt Gen Buchanan Service Component Commands Responsibilities based on Services’ support function (organize, train, equip) • Advise on proper employment of forces • Conduct joint training • Responsible for Service specific logistics Conduct operational missions if assigned by combatant commander / JTF commander OPCON / TACON delegated by combatant commander or JTF commander ADCON of Service forces through the Service chain of command The BIG Picture Functional Component Commands Established by Joint Force Commander (JFC) (combatant commander) or JTF commander Forces, responsibilities, and authorities assigned /delegated to the functional component commander Performs operational missions • Joint Forces Air Component Command • Joint Forces Land Component Command • Joint Forces Maritime Component Command Includes forces from more than one service The BIG Picture The Joint Task Force (JTF) A JTF is a joint force typically designated by SECDEF or a Combatant Commander. It may be established on either a geographical area or on a functional basis. • JTF-Southwest Asia • JTF-Computer Network Operations Usually for a limited duration – accomplishment of mission/purpose The commander of a JTF will normally be delegated OPCON by the combatant commander May have subordinate functional components or service components Overview The basics – definitions Organizations within the military chain of command Command relationships Command authority Command Relationships & Other Authority Combatant Command (COCOM) Operational Control (OPCON) Tactical Control (TACON) Support Other Authority - Administrative Control (ADCON) Combatant Command (COCOM) Vested only in commanders of Combatant Commands • Non-delegable/non-transferable Authoritative direction to subordinate commands & forces necessary to carry out missions assigned to the command including: • Military operations • Joint training, and • Logistics COCOM includes all authorities discussed in OPCON, TACON and Support Operational Control (OPCON) Authoritative direction over subordinate forces involving all aspects of military operations necessary to accomplish assigned missions • Organizing • Employing • Assigning tasks • Designating objectives Prescribe chain of command to subordinate commands and forces Exercised at levels at or below Combatant Command • Inherent in COCOM • Delegable Tactical Control (TACON) Command authority over assigned or attached forces made temporarily available to control and direct: • Movements or maneuvers to accomplish assigned missions or tasks Does not provide organizational authority Typically exercised by functional component commanders Exercised levels at or below Combatant Command • Inherent in COCOM and OPCON • Delegable Support Established by a superior commander between subordinate commanders One organization to aid, protect, complement, or sustain another organization Exercised at levels at or below Combatant Command • Inherent in COCOM Establishing directive specifies: • Purpose of relationship • Effect desired • Scope of support relationship (general, mutual, direct or close) • Degree of authority of supported commander over supporting commander Administrative Control (ADCON) Authority over subordinate organizations for • Administration • Support Synonymous with Title 10 organize, train and equip Service responsibilities May be delegated Included in ADCON: • Discipline • Organization of service forces Administrative Control (ADCON) Includes (cont’d) such matters as: • Control of resources & equipment • Personnel management • Individual and unit training • And all other matters not included in the operational missions Key area for deployed legal personnel Issues associated with Reserve/ANG forces Overview The basics – definitions Organizations within the military chain of command Command relationships Command authority Command Authority The Commander Only one person in a command billet per organization Statutory obligations (e.g., Court-Martial Convening Lt Gen John F. Regni Authority or Article Commander, Air University 15 Authority) Who Can Be A Commander? AFI 51-604 sets out the rules Two ways to be a commander: Assumption - most senior • Senior is presumed most qualified • Promotions premised on ability to assume duties of the next higher grade • DUTY to command Appointment - viewed as most qualified • Equal or Senior in grade • Not necessarily senior in rank Requirements for Command To command an organization, an officer must be: • Assigned to the organization; • “Present for duty” (can be absent for short periods for TDYs and leave) • Otherwise eligible and authorized to command the organization Special Rules Flying units • Think: “wings” • Aeronautical rating Civilians Enlisted JAGs – AFLSA/CC Chaplains Medical personnel LAW OF ARMED CONFLICT Use of Force UN Charter • Member nations must resolve conflicts peacefully & refrain from threat or use of force What justifies a use of force? • Actions authorized by UN Council under Chapt VII of UN Charter Art 39 – Security Council determines the existence of a threat to the peace Art 41 – Employ measures short of force Art 42 – Can authorize use of force • Legitimate act of individual or collective self defense under Art 51 Anticipatory self defense under customary concepts negotiated away? • Pre-emptive strike? US Policy advocates use – “risks are too great” Collective Self Defense (eg., NATO) – does not provide international legal basis for use of force abroad, per se – must be a separate legal basis LAW OF ARMED CONFLICT THAT PART OF INTERNATIONAL LAW THAT REGULATES THE CONDUCT OF ARMED HOSTILITIES. ALSO CALLED THE LAW OF WAR. JOINT PUBLICATION 1-02 (2004) CUSTOMARY AND TREATY LAW Customary international law is binding upon all nations Treaty or conventional international law is only binding upon those nations that have ratified a treaty (unless the treaty provisions become customary law) HAGUE AND GENEVA LAW HAGUE CONVENTIONS (1899 & 1907) APPLICATION OF ARMED FORCE USE AND LEGALITY OF WEAPONS GENEVA CONVENTIONS OF 1949 PROTECTION OF COMBATANTS AND NON-COMBATANTS MINIMIZE UNNECESSARY SUFFERING PROMOTE RESPECT FOR THE INDIVIDUAL ADDITIONAL PROTOCOLS OF 1977 PROTOCOL I • International conflicts • Attempt to expand GCs of 1949 and integrate Geneva and Hague laws PROTOCOL II • Non-international conflicts (e.g., civil wars, insurrections) GENEVA CONVENTIONS OF 1949 Wounded and Sick in the Armies in the Field (G. I or GWS) Wounded, Sick, & Shipwrecked at Sea (G. II or GWS [Sea]) Prisoners of War (G. III or GPW) Civilians (G. IV or GC) LOAC PURPOSES DIMINISH THE EFFECTS OF CONFLICTS PROTECT PERSONS FROM UNNECESSARY SUFFERING. SAFEGUARD THE FUNDAMENTAL RIGHTS OF CIVILIANS, PRISONERS OF WAR, AND WOUNDED AND SICK. PREVENT CONFLICTS FROM DEGENERATING INTO SAVAGERY AND BRUTALITY. MAKE IT EASIER TO RESTORE PEACE ONCE THE CONFLICT IS OVER. APPLICATION OF GENEVA CONVENTIONS Geneva Conventions apply even if war has not been declared However, Geneva Conventions apply only to conflicts between two or more parties to the Conventions (i.e., international conflicts) Only 1 country (Nauru) has not ratified the Geneva Conventions PARTICIPANTS IN ARMED CONFLICT COMBATANTS - THOSE AUTHORIZED TO PARTICIPATE IN HOSTILITIES NON-COMBATANTS - THOSE NOT AUTHORIZED TO PARTICIPATE AND WHO DO NOT UNLAWFUL COMBATANTS - THOSE NOT AUTHORIZED TO PARTICIPATE BUT DO SO ANYWAY LAWFUL COMBATANTS MEMBERS OF THE REGULAR ARMED FORCES MEMBERS OF IRREGULAR FORCES • MILITIA OR VOLUNTEER CORPS FORMING PART OF THE ARMED FORCES • OTHER MILITIA OR VOLUNTEERS IF THEY MEET THE REQUIREMENTS OF THE GENEVA CONVENTIONS LAWFUL COMBATANT STATUS FOR IRREGULARS ARTICLE 4, GENEVA PRISONER OF WAR CONVENTION • COMMANDED BY A PERSON RESPONSIBLE FOR SUBORDINATES • HAVE A FIXED DISTINCTIVE SIGN RECOGNIZABLE AT A DISTANCE • CARRY ARMS OPENLY • CONDUCT OPERATIONS IN ACCORDANCE WITH THE LAWS AND CUSTOMS OF WAR UNIFORMS “FIXED DISTINCTIVE SIGN RECOGNIZABLE AT A DISTANCE” (GPW ARTICLE 4A2(b)) “UNIFORM” FOR REGULAR FORCES NOT OTHERWISE ESTABLISHED KEY IS DISTINCTION FROM THE CIVILIAN POPULATION “CLEAN” FLIGHT SUIT IS A UNIFORM NON-COMBATANTS CIVILIANS (INCLUDING MILITARY DEPENDENTS) “PROTECTED PERSONNEL” (MEDICAL AND CHAPLAINS) PRISONERS OF WAR WOUNDED, SICK, SHIPWRECKED, AND AIRCREWS ESCAPING DOWNED AIRCRAFT UNLAWFUL COMBATANTS EXAMPLES: • CIVILIANS TAKING PART IN HOSTILITIES EXCEPT AS PART OF A LEVEE EN MASSE • PROTECTED PERSONNEL FIGHTING OTHER THAN IN SELF-DEFENSE LOAC LEGAL PRINCIPLES MILITARY NECESSITY DISTINCTION PROPORTIONALITY HUMANITY CHIVALRY MILITARY NECESSITY Permits the application of only that degree of regulated force, not otherwise prohibited by the laws of war, required for the partial or complete submission of the enemy with the least expenditure of life, time and physical resources. MILITARY OBJECTIVES Attacks shall be limited to military objectives. In so far as [civilian] objects are concerned, military objectives are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (emphasis added) Art. 52(2), Additional Protocol I of 1977 (AP I) PROTECTED PLACES: RELIGIOUS, MEDICAL LAWFUL TARGETS LAWFUL TARGETS LAWFUL TARGETS LAWFUL TARGETS LAWFUL TARGETS LAWFUL TARGETS LAWFUL TARGETS? LAWFUL TARGETS LAWFUL TARGETS DISTINCTION Attacker has a duty to distinguish between military objectives and civilian objects Attacker cannot intentionally attack civilians or employ weapons or tactics that cause excessive civilian casualties Defender has a duty to separate civilians and civilian objects from military targets PROTECTED PLACES: CIVILIAN OBJECTS Civilian Housing PROTECTED PLACES: CULTURAL PROPERTY PROTECTED PLACES: ENVIRONMENT PROTECTED PEOPLE: HOT TOPIC: DUAL USE TARGETS Bridges HOT TOPIC: DUAL USE TARGETS Fertilizer Plant HOT TOPIC: DUAL USE TARGETS Power Grids HOT TOPIC: DUAL USE TARGETS Radio & TV Stations LOAC - TARGETS Protected Places & Property Medical Symbols LOAC - TARGETS Protected Places & Property Civilian Hospital and Safety Zone for Sick and Wounded LOAC - TARGETS Protected Places & Property Cultural Property 1954 1907 1935 Roerich Hague Hague Pact LOAC - TARGETS Protected Places & Property International Sign for Works and Installations Containing Dangerous Forces: Dams, Dikes, and Nuclear Power Stations PROTECTED PROPERTY, BUT. . . PROPORTIONALITY Article 57(2)(a), Additional Protocol I: “Those who plan or decide upon an attack shall: (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” PROPORTIONALITY Article 57(2)(a), Additional Protocol I: “Those who plan or decide upon an attack shall: (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” HUMANITY (Prevent Unnecessary Suffering) Prohibits the employment of any kind or degree of force not necessary for the purposes of war, that is, for the partial or complete submission of the enemy with the least possible expenditure of life, time, and physical resources (also referred to as the principle of unnecessary suffering). HAGUE REGULATIONS (1907) “The right of belligerents to adopt ways of injuring the enemy is not unlimited.” Art. 22 “Especially forbidden” to (among other actions): • use poison or poisoned weapons; • kill or wound “treacherously;” • kill or wound an enemy who has surrendered; • declare that no quarter will be given; • make improper use of flag of truce, enemy national flag or military insignia and uniform, or distinctive Geneva Convention badges; or • “employ arms, projectiles or material calculated to cause unnecessary suffering” Art. 23 LAWFUL WEAPONS - EXAMPLES Incendiary weapons (*) Landmines (*) Fragmentation weapons and cluster bombs Nuclear weapons (*) Shotguns “Bean bag” ammunition High-explosive Incendiary (HEI) cartridges .50 caliber machine guns against personnel 23 mm cannon against personnel (*) Indicates treaties that some nations have ratified **Legal Review of ALL weapons used by US LOAC - WEAPONS Three Ways A Weapon May Be Illegal Question: Is the suffering caused by the use of the weapon needless, superfluous, or grossly disproportionate to the advantage from its use? Per se Weapon designed to cause needless suffering Lance w/ barbed head; glass bullets By Improper Use By Agreement or Treaty Chem/Bio Weapons; Certain Land Mines UNLAWFUL WEAPONS Poisons Bullets which expand or flatten easily in the human body (“dum-dum” bullets) Projectiles that injure by fragments which in the human body escape detection by X-rays Indiscriminate Weapons • Biological and Bacteriological • Incapable of Being Controlled • Chemical CHIVALRY The waging of war in accordance with well-recognized formalities and courtesies Permits lawful ruses intended to lawfully mislead the enemy Prohibits perfidy - treacherous acts intended to take unlawful advantage of the enemy LOAC – CHIVALRY/TACTICS Especially Forbidden Cannot kill or injure enemy personnel who surrender Cannot treacherously kill or injure enemy Cannot force enemy nationals to take part in hostilities against their own country PROHIBITED RUSES Use of enemy, peacekeeping, or neutral uniforms, flags, or insignia in combat operations Misuse of protected symbols Misuse of flags of truce Pretending to be wounded or disabled to gain an advantage, then resuming combat LOAC - TACTICS Deception Legitimate Deception Existence of Units Size Strength LOAC - TACTICS Treachery and Perfidy Cannot Injury Enemy b/c Enemy follows LOAC Fake surrender Fake noncombatant status Misuse of Red Cross/Red Crescent or protected property symbols LOAC - TACTICS Espionage Not a LOAC violation No POW status if caught Domestic criminal laws apply LOAC – POWs & Detainees Surrender Burden in the surrendering person or force to communicate the intent to surrender Treatment Protect from harm: physical and mental Entitled to EQUAL Medical Treatment Provide food, water, tobacco, clothing & shelter Cannot take personal property Must allow them to keep rank and ID Cards PURPOSE: Take them out of the fight DIFFERENCE BETWEEN POW AND DETAINEE? METHODS OF ENFORCEMENT DOMESTIC LAW (e.g., UCMJ) INTERNATIONAL MILITARY TRIBUNALS UNITED NATIONS TRIBUNALS INTERNATIONAL COURT OF JUSTICE THE INTERNATIONAL CRIMINAL COURT REPRISAL “COURT OF INTERNATIONAL OPINION” INDIVIDUAL RESPONSIBILITY TO KNOW THE LAW TOC COMPLY WITH THE LAW • TO REFRAIN FROM VIOLATIONS • TO REPORT VIOLATIONS CONSEQUENCES OF VIOLATIONS • TRIAL BY ANY STATE PARTY TO THE G.C.s • TRIAL BY A U.N. TRIBUNAL • TRIAL BY THE INTERNATIONAL CRIMINAL COURT • TRIAL BY A DOMESTIC SYSTEM (e.g., UCMJ) U.S. DOMESTIC IMPLEMENTATION WAR CRIMES ACT OF 1996 UNIFORM CODE OF MILITARY JUSTICE CODE OF CONDUCT (NOT A PUNITIVE DIRECTIVE, BUT A GUIDE TO PROPER CONDUCT) “SUPERIOR ORDERS” DEFENSE NUREMBERG TRIALS CALLEY STANDARD U.N. TRIBUNALS - NOT A DEFENSE BUT MAY BE A MITIGATION “WHETHER MORAL CHOICE WAS IN FACT POSSIBLE” LOAC – WAR CRIMES Jodl, Alfred “I don't see how they can fail to recognize a soldier's obligation to obey orders. That's the code I've live by all my life.” Jodl gave orders for the German army's campaign against Holland, Belgium, Norway, and Poland. He also planned attacks against Greece and Yugoslavia. "Terror attacks against English centers of population ...will paralyze the will of the people to resist.“ Hanged in Nuremberg on Oct. 16, 1946 LOAC – WAR CRIMES The Einsatzgruppen Case Q: “What could they have done? After all, the defendants were soldiers and were required to obey orders” A: “They were not ordered to charge into the mouths of cannon. They were called upon to shoot unarmed civilians standing over their graves.” Twenty-four defendants (six-SS-Generals, five SS-Colonels, six SS-Lieutenant Colonels, four SS-Majors and three SS-junior officers) charged with the murder and ill-treatment of two- million POWs and civilians in occupied countries, and with wanton destruction not justified by military necessity. All twenty-four defendants indicted; All were found guilty of one or more crimes. Fourteen defendants were sentenced to death, but ten later had their sentences commuted to life or were paroled. LOAC – WAR CRIMES Dusko Tadic “after all I have done … to contribute to the creation of our common country even when it implied risking my life and my family safety…. Tragedy befell us all and injustice which I am convinced will once come out.” Bosnian Serb was charged with crimes related to the rape, torture and murder of prisoners in and around three prison camps in northern Bosnia. UN Tribunal found Tadic guilty on 11 counts of persecution and beatings. 1997: Tadic was sentenced to 20 years in prison. LOAC – WAR CRIMES Lt William Calley “I felt then--and I still do-- that I acted as directed, I carried out my orders, and I did not feel wrong in doing so.” My Lai, Vietnam, 1968 Court-Martial: Lt Calley testified that he was told there would be no civilians in My Lai, only the enemy. He said that while he was in the village, his CO, Capt Medina, called and asked why he hadn't "wasted" the civilians yet. He admitted to firing into a ditch full of Vietnamese, but claimed that others were already firing into the ditch when he arrived. Convicted of the premeditated murder of 22 infants, children, women, and old men, and of assault with intent to murder a child of about 2 years of age. Dismissal & Life Sentence. Pardoned in 1974.
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