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LTC Allen B. West 4th Infantry Division, Iraq Allen West Defense Fund
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LTC Allen B. West 4th Infantry Division, Iraq Allen West Defense Fund
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Intro
Letters & Essays Index News Links Player Contact Info Feedback / Contact Back to YAP's front door |
Sign the Petition on behalf of LTC West
Were Col. West's actions REQUIRED by Law?
By Lisa Painter
Mesa, AZ, USA
Via this web site's Feedback Form. Recd. 26 Nov., 2003I apologize for the length of this, but I've been involved in a pretty hefty forum debate at www.militarypoliceassn.com and copy/pasting it to you guys was the most efficient means of stating my opinions/interpretations of the law.
I've truncated the inapplicable content to keep it as brief as possible for you guys...thanks for the ongoing updates and keep up the great work! ~LP
In short, I believe LTC West was *required* to take the action he took, as follows....
Steve R wrote:
"I have a question for you. I understand that many of the Geneva Convention regulations only apply to regular combants, but can you find me any reg in the UCMJ or any exception in our laws and Army regs that exempt spies from regular treatment or make the standard rules of engagement not apply? I know of no such exceptions and am pretty sure that our rules apply to all prisoners, whether they were spies, terrorists, or regualr soldiers. If I am wrong, I will acknowledge and supprot LTC West, but until then, I will say that he violated our laws and deserves whatever punishment is specified by that law."
Fair enough, Steve... but it's pretty convoluted (particularly with defining what the IP was and, as a result, what protection he's entitled to when detained), so I trimmed it down to the least number of references to make my point. If you'd like more supporting facts of law, PM me and I'll forward you my "collection". In that regard, my apologies for the length of what follows:
As I’ve stated previously, interpretation is where the law goes gray. There are no black & white situations, especially when morality (that may or may not be contrary to legality) enters the picture. With that said, here are the points (and my interpretations of them) that lead me to believe LTC West’s actions were appropriate.
It is a generally-accepted belief that the Rules of Engagement call for absolute right to self defense...including anticipatory self defense under compelling conditions (hostile intent is one).
Let’s start with the charge against LTC West:
"UCMJ ART. 128. ASSAULT
(a) Any person subject to this chapter who attempts or offers with *UNLAWFUL* force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct..." (emphasis added)Bear in mind that the key phrase in the Article is "with unlawful force". Let’s remember...JUSTIFIABLE is the key element to all of this. Were LTC West’s actions justifiable under the circumstances? Particularly when time was of the essence and LTC West’s inaction (or delayed action) would have caused certain other events to happen? In many cases (upheld by Court rulings), justifiability ultimately dictates what is, as an end result, lawful or unlawful action.
That being said, let’s consider what LTC West may have been guilty of had he not taken prompt and necessary action to avoid a planned attack by the insurgents against the U.S. troops:
"UCMJ - ART. 119. MANSLAUGHTER
(b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being--
(1) *BY CULPABLE NEGLIGENCE*; or
(2) while perpetrating or attempting to perpetrate an offense, other than those named in clause (4) of section 918 of this title (article 118), directly affecting the person;is guilty of involuntary manslaughter and shall be punished as a court-martial may direct." (emphasis added)
Which one is the lesser of two evils? The possibility of committing the offense of assault or of involuntary manslaughter? Knowing there was a likelihood that an attack that would injure/kill his troops was nearing execution, LTC West would definitely been negligent and derelict in his duty by not using the minimum force necessary to avert that from happening. Assault vs. Involuntary Manslaughter?
Sometimes, people find themselves between a rock and a hard place such as this...and it appears to me that, placed into a position requiring action one way or the other, he definitely chose the lesser crime when presented with a situation, with a time deadline, where he was forced to take one course of action or the other.
Okay, now...let’s see what the Iraqi Policeman, in a trusted position as an ally, is defined as (or, as the case may be, what he is NOT):
From Army FM27-10 "The Law of Land Warfare":
(**Note: I draw from this set of guidelines, which aren’t laws, but which are formed upon the Geneva Conventions which dictate the rules of engagement, the laws of war and the general allowable conduct therein)
"Section II. PERSONS NOT ENTITLED TO BE TREATED AS PRISONERS OF WAR
81. Individuals Not of Armed Forces Who Commit Hostile Acts
PERSONS, without having complied with the conditions prescribed by the laws of war for recognition as belligerents (see GPW, art. 4; par. 61 herein), COMMITTING HOSTILE ACTS ABOUT OR BEHIND THE LINES OF THE ENEMY ARE NOT TO BE TREATED AS PRISONERS OF WAR and may be tried and sentenced to execution or imprisonment. Such acts include, but are not limited to, sabotage, destruction of communications facilities, intentional misleading of troops by guides, liberation of prisoners of war, and other acts not falling within Articles 104 and 106 of the Uniform Code of Military Justice and Article 29 of the Hague Regulations.
82. Penalties for the Foregoing
Persons in the foregoing categories who have attempted, committed, or conspired to commit hostile or belligerent acts are subject to the extreme penalty of death because of the danger inherent in their conduct. Lesser penalties may, however, be imposed..." (emphasis added)Because of his subversive activities, the IP is not entitled to classification as a POW. Guess what, though...he also fits in the scope of UCMJ ART. 104 and 106 as a spy. Nevertheless, spy or non-POW, he is still considered a "protected person", which is governed by this:
"...248. Derogations
a. Domestic and Occupied Territory.
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, *SUCH INDIVIDUAL PERSON SHALL NOT BE ENTITLED TO CLAIM SUCH RIGHTS AND PRIVILEGES UNDER THE PRESENT CONVENTION AS WOULD, IF EXERCISED IN THE FAVOUR OF SUCH INDIVIDUAL PERSON, BE PREJUDICIAL TO THE SECURITY OF SUCH STATE*." (emphasis added)
By granting and exercising the Iraqi Policeman rights and privileges under the Convention, would it have been prejudicial to the security of our forces? Yes. Did he use the minimum force necessary? Four lesser-scale interrogation attempts indicate he did. Is the IP entitled to protections under the Geneva Conferences (that primarily dictate our AR's and ROE)? Obviously not.
Basically...did the IP have the right to remain silent when the security of our troops was at stake? Nuh-uh.
Going forward a few chapters in FM27-10:
"CHAPTER 6 - OCCUPATION
Section VIII. SECURITY OF THE OCCUPANT: PENAL LEGISLATION AND PROCEDURE432. Enforcement of Obedience
Subject to the restrictions imposed by international law (***to which the IP had no protection under***), THE OCCUPANT CAN DEMAND AND ENFORCE FROM THE INHABITANTS OF OCCUPIED TERRITORY SUCH OBEDIENCE AS MAY BE NECESSARY FOR THE SECURITY OF ITS FORCES, for the maintenance of law and order, and for the proper administration of the country. It is the duty of the inhabitants to carry on their ordinary peaceful pursuits, to behave in an absolutely peaceful manner, to take no part whatever in the hostilities carried on, to refrain from all injurious acts toward the troops or in respect to their operations, and to render strict obedience to the orders of the occupant. As to neutrals resident in occupied territory, see paragraphs 547-551." (annotation and emphasis added)
So...LTC West could demand and enforce from the inhabitants of occupied territory such obedience as may be necessary for the security of his forces, but only subject to the restrictions imposed by international law. The IP, however, was obviously not afforded protection under such international law.
And, from the Army Regs...
(AR190-8 says that spies/saboteurs will be treated as civilian internees, so the following is from the course of action prescribed for the treatment of civilian internees):"AR190-8 - ENEMY PRISONERS OF WAR, RETAINED PERSONNEL, CIVILIAN INTERNEES, AND OTHER DETAINEES states as follows:
Chapter 5 - Beginning of Internment (CI)
5-1 - General protection policy - civilian internee
a. Treatment
(1) No form of physical torture or moral coercion will be exercised against the CI. **THIS PROVISION DOES NOT CONSTITUTE A PROHIBITION AGAINST THE USE OF MINIMUM FORCE NECESSARY TO EFFECT COMPLIANCE WITH MEASURES AUTHORIZED OR DIRECTED BY THESE REGULATIONS**." (emphasis added)Now, to muddy the waters a bit more...here is another facet that isn't being taken into consideration:
The larger problem with these proceedings is the collective opinion that LTC West’s actions were biased in favor of his soldiers’ well-being, ALONE. One must understand that LTC West was responsible for the enforcement of something else, as well...
The protection and well-being of the innocent Iraqi civilian population that would have been endangered or injured in the attacks.
We need to understand that LTC West was acting in full compliance with the Geneva Conventions and its protocols for more than his troops. Because the planned attack was (as defined by the Geneva Conventions) an “Indiscriminate Attack” among civilians, as well, LTC WEST'S ACTIONS SERVED TO NOT ONLY PROTECT HIS TROOPS, BUT TO PROTECT THE IRAQI CIVILIANS AND ENFORCE THEIR RIGHTS UNDER GENEVA CONVENTION IV - "RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR". Both the United States and Iraq are signatories to the Geneva Conventions...these Iraqi civilians who were also jeopardized by the planned indiscriminate attack ARE entitled to our forces’ protection under the Geneva Convention and the detainee, by the book, was NOT.
Once again...in that light, were LTC West’s actions justifiable, in the period of time afforded him to act, to protect the innocent Iraqi civilian population as well as his troops?
Was LTC West entitled to “take such measures of control and security in regard to protected persons as may be necessary as a result of the war”? The following Articles from Geneva Convention I - For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949 state that LTC West was REQUIRED to take such measures:
"Chapter IX. Repression of Abuses and Infractions
Art. 50. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing,(****which is another term for "Indiscriminate Killing", as referenced above****) torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Art. 52. At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention...ONCE THE VIOLATION HAS BEEN ESTABLISHED, THE PARTIES TO THE CONFLICT SHALL PUT AN END TO IT AND SHALL REPRESS IT WITH THE LEAST POSSIBLE DELAY." (emphasis added)
More people...innocent civilians and U.S. soldiers, alike...were provided their full entitlements under the Geneva Conventions, the Rules of Engagement, the UCMJ, the Army Regulations, and all supporting bodies of law than the one whose protection under these bodies of law is extremely restricted (if even existent, at all).
***DO THE INTERNATIONALLY-RECOGNIZED RIGHTS OF THE LAW-ABIDING MAJORITY - BOTH CIVILIAN AND MILITARY -
SUPERCEDE THE RIGHTS (IF ANY) OF A SPY?***Steve (and all others who have voiced a dissenting opinion on this subject)...I want you to know I understand that your position on this issue doesn’t automatically mean that you wouldn’t care about the safety of your own troops...and that maybe you might have done the same thing LTC West did to protect your troops. Because you are standing by the technical side of this situation, I don’t assume that you would sacrifice your troops or their safety in order to follow the letter of the law.
That’s what makes this whole dilemma so confusing...the moral code dictates that the legal code should be ignored in this specific incident. But all too often the moral code isn’t a written, enforceable one.
I started this thread in support of LTC West and I don’t want anyone to be viewed as a Benedict Arnold because they also support the regulations. If you believe in the technicality of it all, and that there are no justifiable exceptions to any rule...but you also believe that a soldier’s safety and life are a good Commander’s first concern...kick a few bucks to his defense fund. It ain’t gonna be cheap for LTC West to prove that his soldiers’ lives were of primary importance in this incident.
As a side note, I heard a journalist reporting a few days ago on the proceedings against LTC West and a statement West made after that day’s session....he said he’d “go to hell, carrying a gasoline can” for his soldiers. The faces of his guards standing behind him were visibly emotional, the journalist said, and one of the guards had tears on his face.
Decisions are being made right now...I hope they’re the right ones because time and history are perched on this moment, as it will dictate what happens next in the future of our war on terrorism and our ability to defend ourselves against those who would do us harm.
As for setting an example for the enemy and what they’ll think of us? I don’t believe LTC West’s actions impact it negatively at all...the insurgents already hate us (the U.S. troop casualty lists, for one, make that fact poignantly clear). Therefore, I don’t believe prosecution of LTC West will make them think we are wonderful and fair and just, either.
In fact, my opinion is best reflected in the quote of another person’s post (from another forum about this subject)...the only thing those guerilla bastards are thinking is:
“Those dumb suckers sure do have a healthy respect for the law”.
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