This is where "lawfare" is leading us. 
I'm sure our "legal model advocates" here would require that any alleged insurgent our military might want to engage would be required to be served with a legal notice for a hearing to determine if the person is indeed a combatant and can be shot as such on the field of battle. This of course would require an independant judiciary, legal representation and translators to ensure due process.
http://weaponsman.com/?p=34483How Anti-Soldier Lawyers Banned a Kind of Ambush
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(File photo of Navy Recon Doc Michael Conti firing a sniper rifle in training).
(File photo of Navy Recon Doc Michael Conti firing a sniper rifle in training).
Two men from the IED cell padded silently down the road. Abdul and Roshanullah had two 107mm rocket warheads, a cell-phone detonator, and detailed instructions, including a sketch map of their emplacement point. The rest of their cell waited for them to return.
At a point where the road crossed a filled area, the two HIG men — many Afghans changed allegiances more frequently than their shalwar kameez, but once you were Gulbuddin Hekmatayar’s man, you were always Gulbuddin’s man — slipped down the side of the fill to the mouth of the culvert. This one hadn’t been fitted with a grating yet, but even if it had, they had been prepared.
There was just enough starlight for Abdul to see Roshan’s grin. This was going to be easy! First, the blessing: “Bismillah al-Rahman al-Raheem,” In the Name of God, the Gracious, the Merciful…
High on a hill facing the culvert, nearly half a mile away, a sniper team leader whispered, “Send ’em.”
The wind was fortuitously towards the hill, and at the culvert, all that there was to hear was the thwack of bullet impacts. Then one of the men — Roshanullah, not grinning any more — groaned and moved.
Thwack.
All was still.
An hour before sunrise it was visibly getting light in the valley, and the five armed men who came down the road moved from cover to cover, nervously. They were breaking every tactical rule that had kept them alive this long, but their leader wanted to lay his own eyes and hands on the IED team.
They all died within the span of one and a half seconds. With five targets, both snipers, the spotters, and the team leader had all taken one. That was breaking a tactical rule too, but the difference was, the rulebreaking worked for the ISAF snipers. They recovered their 360º observation as soon as the shots were sent, also.
The team met the road clearance unit for a ride into the FOB. Intelligence collected from the dead laid bare the workings of the cell, and the telephone carried by the deceased IED cell leader allowed the Afghan NDS to identify two key HIG facilitators; one fled to Peshawar and the protection of ISI, but the other was reputed to be singing like a canary.
It was a successful operation until the Staff Judge Advocate spoke up, taking, as usual, the side of the enemy, and demanded the snipers be charged with war crimes — for shooting armed unlawful combatants carrying out combat operations!
Believe it or not, Army lawyers have defined this tactic as a “baited ambush” and have worked hard, if not to make it a “war crime,” at least to create a grey area in which it is the slightly less felonious “violation of the laws of war” and possibly a “war crime.” Lawyers, of course, love grey areas which take decisions out of the hands of decision-makers and deliver them, instead, to the captivity of cabals of, what else, lawyers.
For example, Army judge advocate LTC Chris Jenks — clearly, from his writing, the sort of SJA who joined the Army for personal gain, hostile to the guys with guns who make up the actual Army part of the Army — wrote in The Army Lawyer1 that this tactic “comes close to, if not enters, the law of war violation continuum….”2
Certainly this is an example of why it is impossible to win a war without first staking out the enemy’s fifth columnists, to wit, about 95% of SJAs, on culverts like the ones in our hypothetical, and letting the enemy have their way with them.
Jenks also doesn’t think the troops should enjoy a victory:
Members of the unit filmed the artillery strike and can be heard laughing and cheering, which presents additional challenges to a command.3
One gets the impression that his spectator sport is golf or tennis, not football or hockey. And he grew up in the age of scoreless soccer, and participation trophies.
Jenks makes a few clumsy gropes in the direction of understanding military necessity, a concept he, not surprisingly, has not picked up by osmosis merely by donning a bestowed uniform bearing an unearned rank. But he still concludes that hunting over bait is outside of the fish and game regulations of scoreless-soccer SJA war:
Ultimately, in the absence of an armistice or suspension of fire, engaging combatants attempting to recover their dead and wounded is not a per se violation of the law of war, but utilizing known—or even suspected—enemy wounded and dead as “bait” for such targeting enters the continuum and, at some point, will constitute a violation of article 15.
(The reference is to Article 15 of the First Geneva Convention of 1949). Jenks continues:
The more time that passes following the engagement, the closer the engagement is to U.S. forces, and the more control U.S. forces have over the “field of battle,” the more likely the failure to search for enemy wounded and dead becomes to violating the Geneva Convention.4
We bet we can guess what Scoreless Chris Jenks thinks about whether pirates should be held hostis humanae generis or treated with kid gloves in Article 3 courts, just based on the way he reasons himself into coming down on the side of our hypothetical decedents Abdul and Roshanullah here.
Army lawyers are entertaining, if you don’t have to operate like Combat Houdini, kicking off every patrol with their manacles and straitjacket on you.
Sources
Jenks, Chris “LTC”. The Law and Policy Implications of “Baited Ambushes” Utilizing Enemy Dead and Wounded. The Army Lawyer, June 2010. DA PAM 27-50-445. pp. 91-94.
Notes
The Army Lawyer is a monthly magazine in which the judge advocate fifth column coordinates their attacks on combat troops.
Jenks, p. 91 fn 1.
Ibid.
Jenks, p. 93.
