Military Studies

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Sergeants Distance

Education Program

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MILITARY STUDIES (8013A)

Course Introduction

Scope An outstanding Marine NCO must have the ability to train and advise Marines on many different subjects. You must be technically and tactically proficient in these subjects to accomplish this task.

This course discusses a variety of subjects that will enhance your ability to assist junior Marines in their quest to be better Marine leaders. Though the subjects are considerably larger than this course can handle, this is merely a starting point in responding to inquiries from your junior Marines who are striving to become Marine leaders.

References The following references were used in the writing of this course: · Manual for Courts-Martial, United States (2000) Edition.

· JAG Instruction 5800.7C, Manual of the Judge Advocate General. · MCRP 5-12.1A, Law of Land Warfare.

· MCRP 4-11.8A, Food Services Reference. · Army Pamphlet 27-10, Military Justice. · Marine Corps University Archives

· Simmons, Edwin Howard, The United States Marines, A History, 3rd

Edition

· Department of the Navy, Naval Historical Center. · www.marinemedals.com

· www.usmc.mil/historical.nsf

·

www.history.navy.mil

· MCO P5060.20 Pt 1/Pt 2, Marines Corps Drill and Ceremonies Manual. · MCO P10520.3B, Marine Corps Flag Manual.

· MCO P1020.34F, Marine Corps Uniform Regulations.

· TM 10120-15/1, Marine Corps Fitting and Alterations Manual.

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Course Introduction,

Continued

Table of

Contents This course contains the following study units:

Study Unit Title Page

-- Course Introduction i

1 Non-Judicial Punishment (NJP) 1-1

2 The Law of Land Warfare 2-1

3 History and Contributions of Marine Noncommissioned Officers (NCOs)

3-1

4 Drill 4-1

5 Uniforms and Inspections 5-1

-- Review Lesson Exercise R-1

Estimated

Study Time You will spend about 12 hours and 30 minutes completing this course. This _{includes the time to study the text, complete the exercises, and take the final}

exam.

Reserve Retirement Credits

You will earn four retirement credits after you complete this course. You can earn reserve retirement credits at the rate of one credit for each 3 hours of estimated study time.

Note: If you are awarded credits for drill attendance during drill periods, reserve retirement credits are not awarded for MCI study time.

Summary The all-important gateways to successfully complete this course are summarized in the table below:

Step After you… Then you will…

1 Enroll in the program Receive your program material. 2 Complete the self-paced

text Arrange to take the final examination. 3 Pass the final examination Receive a course completion

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STUDY UNIT 1

NON-JUDICIAL PUNISHMENT (NJP)

Overview

Estimated

Study Time 2 hour, 45 minutes

Unit Scope This unit addresses the use of information required in the professional development of a senior NCO. This unit of study will enhance knowledge, benefit training, and help maintain discipline within a unit. The premise of this unit is every Marine should have a basic understanding of the Uniform Code of Military Justice (UCMJ) and non-judicial punishment (NJP).

Learning

Objectives After completing this study unit, you should be able to

· Explain the rights of the accused to an accused suspect. · Identify proper documenting of a charge sheet.

Unit Content This study unit contains the following lessons:

Topic See Page

Lesson 1 Fundamentals 1-3

Lesson 2 Article 31 1-9

Lesson 3 Documenting the Offense 1-25

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LESSON 1

FUNDAMENTALS

Introduction

Estimated

Study Time 20 minutes

Lesson Scope This lesson will provide background information critical to understanding non-judicial punishment (NJP) and will identify the two basic elements of Article 31 under the Uniform Code of Military Justice (UCMJ).

Learning

Objectives After completing this lesson, you should be able to

· Describe the references for NJP.

· Identify the source authority for self-incrimination protection.

In This Lesson This lesson contains the following topics:

Topic See Page

Introduction 1-3 References 1-4

Self-Incrimination Protection 1-6

Lesson 1 Exercise 1-7

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References

Multiple

Sources The system of military justice gets its authority from many sources. Just as a _{Marine must follow his or her chain of command, you must also research}

information from all the military justice sources.

References of

Information The table below lists various sources of information for military justice:

Source Information

Constitution of the

United States of America · Basic source that authorizes a separate system of criminal law in the military · Authority from Article I, section stating that

Congress shall have the power …to make rules for the government and regulation of the land and naval forces…

Uniform Code of

Military Justice (UCMJ) · Congress enacted in 1950

· Military Justice Act of 1968 revised · Provides a separate system of military

criminal law for the armed forces · Referred to as the code

· Contains 140 articles that form a basis for administering justice for the Armed Forces of the United States

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References,

Continued

References of Information, continued

Source Information

Manual for Courts-Martial

(MCM) · A regulatory supplement that explains UCMJ provisions · An executive order of the president

· Article 36 authorizes the president to issue regulations prescribing the procedure to follow before military tribunals, including the rules of evidence

· Article 56 authorizes the president to establish limits of punishment for most offenses

· Provides the force and effect of law · Must be complied with

Manual of the Judge Advocate General (JAGMAN)

· Published by JAG of the Navy · Contains additional provisions

· Explains how to carry out and supplement the MCM relative to Navy and Marine Corps service members

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Self-Incrimination Protection

Source

Authority The Fifth Amendment of the Constitution of the United States grants the _{privilege against self-incrimination.}

Military

Application The Fifth Amendment protection applies procedurally to military personnel _{through the provisions of Article 31, UCMJ. To be admissible in a}

court-martial, the accused makes a pretrial statement, which must meet the requirements of Article 31, UCMJ. These requirements are described in detail in the next lesson.

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Lesson 1 Exercise

Estimated

Directions Complete the exercise items 1 through 3 by performing the action required. Check your answers against those listed at the end of this lesson.

Item 1 Congress enacted which of the NJP references listed below in 1950? a. Manual of the Judge Advocate General

b. Constitution of the United States of America c. Uniform Code of Military Justice

d. Manual for Courts-Martial

Item 2 Which of the following is a major reference source that explains NJP? a. Battle Skills Guidebook

b. Warfighting Handbook c. Manual for Courts-Martial

d. Commanding Officers Leadership Book

Item 3 The privilege of self-incrimination is granted by the _____ Amendment of the Constitution of the United States.

a. Third b. Fourth c. Fifth d. Sixth

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Lesson 1 Exercise,

Continued

Answers The table below lists the answers to the exercise items. If you have any questions, refer to the reference page listed for each item.

Item Number Answer Reference

1 c 1-4

2 c 1-5

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LESSON 2

ARTICLE 31

Introduction

Estimated

Lesson Scope This lesson explains Article 31 of the UCMJ in detail. This article ensures that protection from self-incrimination is provided to military members suspected of committing a crime.

Learning

· Identify the contents of Article 31 by paragraph. · Identify the two parts of Article 31 rights.

· Describe the proper procedure for advising accused suspects of rights. · Identify who can give Article 31 warning.

· Identify when Article 31 warning should be given.

· State the importance of properly advising accused suspects of rights. · Identify specific situations where Article 31 warning and waiver are

required or not required.

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Introduction,

Continued

Topic See page

Introduction 1-9 Contents 1-11

The Suspect’s Rights 1-13

Advising the Suspect 1-15

The Importance of Properly Advising the Suspect 1-17

Specific Issues on Article 31 Rights 1-18

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chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and any statement made by him may be used as evidence against him in a trial by court-martial.

Paragraph (b) of Article 31, UCMJ is the equivalent to the Miranda Rights that civilians must be advised of before they can be questioned pertaining to an offense that they are believed to have committed.

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Contents,

Continued Protection From Incriminating Yourself, continued

Paragraph Contents Remarks

c No person subject to this

chapter may compel any person to make a statement or to produce evidence before any military

tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

Paragraph (c) of Article 31 protects military personnel from having to testify to immaterial and degrading matters. This kind of testimony would have a tendency to disgrace the witnesses or to bring them into disrepute even if they would not be subject to any real danger of prosecution.

d No statement obtained

from any person in

violation of this article, or obtained through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

Paragraph (d) forbids the introduction of evidence obtained in violation of Article 31 into a court-martial (evidence obtained without a proper warning or through coercion or unlawful influence). Statements, confessions, and admissions must be voluntary if they are to be admissible in a court-martial.

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The Suspect’s Rights

Elements There are two basic elements of Article 31: · Warning

· Waiver

Warning A warning is given so the accused suspect is informed and advised in

compliance with Article 31, UCMJ. Before asking the suspect a question, he or she must be warned and advised of their rights:

· (Suspect’s name), you are suspected of the offense(s) of (a general description or the offense, such as larceny or assault).

· You have the right to remain silent.

· Any statement you make can be used as evidence against you in a trial by court-martial.

· You have the right to consult with a lawyer, to have a lawyer with you during all questioning, and to seek the lawyer's advice before you answer any questions.

· If you desire, you may obtain a civilian lawyer at your own expense. · If you cannot afford or do not desire a civilian lawyer, a military lawyer

can be appointed to you without cost.

· If you decide to answer questions now without a lawyer present, you will have the right to stop answering at any time. You also have the right to stop answering questions at any time in order to obtain a lawyer.

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The Suspect’s Rights,

Continued

Waiver After the warning has been given, make sure the suspect or accused understands his or her rights by asking the three questions listed below: · (Suspect’s name), do you want a lawyer? (Suspect replies.)

· Do you understand that if you should decide to answer questions, you may stop answering questions at any time? (Suspect replies.)

· Do you want to answer questions and make a statement? (Suspect replies.)

Once the suspect understands their rights, then he or she can freely, knowingly, and intelligently waive them if so desired.

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Advising the Suspect

Who Warns

Suspects Article 31(b), UCMJ imposes the duty to warn on only those persons subject _{to this code. However, by necessary implication, the duty is also imposed on}

any person acting as an agent of the military authorities for the purpose of furthering a military investigation.

When to Warn

Suspects Give the accused suspect Article 31 rights before any interrogation begins or _{whenever an act constitutes a statement of admission.}

Verbatim

Reading A verbatim (word for word) reading of Article 31 rights is the method to use _{to advise the suspect of his or her rights. The two elements (warning and}

waiver) of Article 31 should be stated exactly as published in Article 31 without error to the suspect or accused.

Procedural Recommend-ations

The manner in which to advise suspects of their rights is as follows: · Identify yourself to the suspect.

· Read the Article 31 Warning Card verbatim without error to the suspect. · Ask the suspect three questions:

· Do you want a lawyer?

· Do you understand that if you should decide to answer questions, you may stop answering questions at any time?

· Do you want to answer questions and make a statement? · Terminate the reading if the suspect:

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Advising the Suspect,

Continued Procedural Recommend-ations, continued

· Document the suspect’s Article 31 advisement on the Suspects Rights and Acknowledgement/Statement Form.

· Instruct the suspect to read and sign the Suspects Rights and Acknowledgement/Statement Form.

Note: Intoxication either by alcohol or drugs (illegal or prescribed) can prevent a suspect or an accused from understanding the warning. Delay interrogation until the effects of the intoxicants are reduced and the accused or suspect can understand the warning. Otherwise, the warning would be ineffective and improper.

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The Importance of Properly Advising Suspects

Understanding

the Warning At trial, the admissibility of a confession or admission of guilt depends on his _{or her signing of the Suspects Rights and Acknowledgement/Statement Form,}

which is in compliance with Article 31.

Of course, no one can know what the accused did or did not understand. If the defense contends the accused did not understand his or her rights, that burden of proof rests with the defense and not the trial counsel.

Written Advice

and Waiver If a written advice and waiver of the suspect's rights is available, it may be _{introduced to show what the accused saw, possibly read, and signed. This}

evidence does no more than show the circumstances from which the court could conclude the pretrial statement of the accused was in compliance with Article 31 and was voluntary.

However, the defense counsel may introduce testimony of the accused to show that he or she did not understand their rights. The court decides whether any statement is admissible.

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Specific Issues on Article 31 Rights

Statements Article 31(b) prohibits the interrogation of an individual or the requesting of a statement from an accused person or suspect without first giving him or her the prescribed warning. The key word is statement—verbal statements include

· An interrogation, which is any attempt to induce an accused or a suspect to make a verbal statement. In other words, an interrogation is a question or group of questions.

· Some physical acts that a suspect performs at the interrogator's request may be considered verbal statements in court.

Visual

Inspection Visual inspection of the person of an accused or suspect does not violate any _{right provided by the Constitution or by any provision of the UCMJ. An}

accused or suspect can be compelled to submit to · Fingerprinting

· Be photographed

· Write or speak for identification · Assume a stance

· Make a particular gesture

Problem The problem is deciding when a situation requires the Article 31 rights to be read, understood, and waived, and when it is not required.

A problem arises when the accused or suspect is not asked to make a statement, but asked simple questions to provide the investigators with physical evidence or to assist them in getting it.

Note: Whenever an act may constitute a statement of admission, an Article 31 warning and waiver is required.

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Specific Issues on Article 31 Rights,

Continued

Examples The impact of Article 31 rights on admissibility in court for specific situations is cited in the table below:

Example Situation Article 31 Discussion

A The person who is accused or suspected of an offense is asked to identify his clothing among clothing belonging to others. The action of the accused in complying with this particular request has been determined to be an acknowledgement of ownership and is considered a statement.

An Article 31 warning is needed before the request is made so the clothes can be admitted in a court-martial.

B A Marine’s superior suspects the accused of having

marijuana and informs him, “I think that you know what I want; give it to me.” So the Marine points to his shirt where the marijuana is then

discovered. Since the Marine handed over the marijuana without receiving an Article 31 warning, the marijuana is not admissible at trial.

Handing over a package of marijuana cigarettes by the suspect to the superior was inadmissible at trial because an Article 31 warning of rights did not precede the act.

C Examining the hands of a larceny suspect to determine the presence of a stain caused by stolen money, which had been dusted with a fluorescent powder.

This falls under the category of visual inspection and need not be prefaced by an Article 31 warning.

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Lesson 2 Exercise

Estimated

Item 1 Which paragraph under Article 31 states: No statement obtained from any person in violation of this article or obtained through the use of coercion, unlawful influence, or unlawful inducement, may be received in evidence against him in a trial by court-martial?

a. Paragraph a b. Paragraph b c. Paragraph c d. Paragraph d

Item 2 What are the two basic elements of Article 31 rights?

(1) _________________________________________________________ (2) _________________________________________________________

Item 3 How many questions are in the waiver element of Article 31? a. Three

b. Four c. Five d. Six

Item 4 When must Article 31 warning and waiver be administered to the accused suspect?

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Lesson 2 Exercise,

Continued

Item 5 Who is responsible for advising an accused suspect of the Article 31 rights? ____________________________________________________________ ____________________________________________________________ ____________________________________________________________

Item 6 How must the Article 31 rights be read to the accused suspect? a. Verbatim

b. Slowly

c. Whether or not the individual understands, he or she is guilty. d. Suspects are not required to have their rights read.

Item 7 In the case of an intoxicated or drug-induced (prescribed or illegally) suspect, what is the proper procedure you should carry out?

a. Read the Article 31 rights immediately because of the regulations. b. Ask the suspect if he or she wants to drink some coffee.

c. Allow time to pass before reading the warning, but proceed with the interrogation.

d. Delay interrogation until the effects of the intoxicants are reduced and the accused or suspect can understand the warning.

Item 8 The admissibility of a confession from a suspect depends on his or her a. willingness to give you the truth.

b. understanding the rights under the Article 31 warning. c. having a lawyer present.

d. signing of the Suspects Rights and Acknowledgement/Statement Form, which is in compliance with Article 31.

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Lesson 2 Exercise,

Continued

Item 9 Which of the following situations requires Article 31 warning and waiver to be administered?

a. Visual inspection b. Asking simple questions

c. Examining the hands of a suspect for residue from an item handled during a crime

d. Requiring a suspect to write or speak for identification, to assume a stance, or to make a particular gesture

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Lesson 2 Exercise,

Continued

1 d 1-12 2 (1) Warning (2) Waiver 1-13 3 a 1-14 4 _{· Before any} interrogation begins · Whenever an act constitutes a statement of admission 1-15

5 Any person acting as an

agent of the military authorities for the purpose of furthering a military investigation 1-15 6 a 1-15 7 d 1-16 8 d 1-17 9 b 1-18

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LESSON 3

DOCUMENTING THE OFFENSE

Introduction

Estimated

Lesson Scope This lesson provides the information you will need to charge someone of an UCMJ violation. As a Marine sergeant, you will be required to document an offense of the UCMJ. Once you have identified the violation, you will be able to submit a charge sheet for processing.

Learning

· State the punitive articles of the UCMJ. · Identify the components of a punitive article. · Identify who can submit a charge sheet.

· State the basic information required on a charge sheet.

Topic See Page

Introduction 1-25

Punitive Articles 1-26

Narrowing the Charges 1-28

Example Article 1-29

Submit a Charge Sheet. 1-32

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Punitive Articles

Reference The offenses are listed in the Manual for Courts-Martial (MCM) as punitive articles 77 through 134.

The MCM contains the UCMJ (Appendix 2) and explanatory material needed to implement the code. Of particular importance is Part IV, which contains a discussion of military offenses and a listing of their elements.

Note: The Manual for Courts-Martial (MCM), (19xx edition) is available through the Government Printing Office, Washington, DC.

Components The six components of a punitive article are discussed in the MCM in the following sequence:

· Text of the article

· Elements of the offense or offenses · Explanation

· Lesser included offenses · Maximum punishment · Sample specifications

Example Article 86, unauthorized absence consists of five offenses that in turn are composed of separate elements. The offenses are

· Failure to go to appointed place of duty consisting of three elements. · Going from appointed place of duty consisting of three elements. · Absence from unit, organization, or place of duty consisting of four

elements.

· Abandoning watch or guard.

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Punitive Articles,

Continued

Determining

Article Violated From any given set of facts, which crime has been committed, you will _{determine the nature of the offense the accused has allegedly committed. It is}

critical that you avoid erroneous determination. Follow the four steps listed in the table below:

Step Action

1 Get all the facts about the incident: · An informal investigation · A formal investigation

· A report from an investigative agency · Criminal Investigation Division (CID) · Naval Criminal Investigation Service (NCIS) · Local civilian law enforcement agencies · Witnessing the events yourself

Note: The MCM requires a commanding officer to start a preliminary inquiry of an offense that may be tried by court-martial.

2 Check the list of offenses for the one(s) that fit the facts (see Contents, Part IV, Punitive Articles of the MCM. Read the list and select any possible offenses.

Note: Each offense is assigned a number such as Article 85, Desertion; Article 86, Unauthorized Absence, etc. 3 Turn to the offense(s) you selected. Each offense is discussed

separately within Part IV, MCM. After the text, a paragraph entitled ELEMENTS sets forth the essential conditions that must exist to convict an accused of the offense. These essential conditions are called the elements of an offense.

4 To be found guilty of an offense,

· The essential elements must match the facts of the case. · All the elements must be proven beyond a reasonable doubt.

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Narrowing the Charges

Reference An individual may be charged with more than one offense, but each offense must have its own specification. Part IV, MCM references the language for almost every charge and specification.

The Rules for Court-Martial (R.C.M.) 307(c) of the MCM discusses in detail how to prepare the charge and specification once the offense has been

identified.

The information that follows is an example of an article’s structure and considerations you must make when applying that charge to a suspect taken directly from the MCM.

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Example Article

Article 86 Article 86, Unauthorized Absence (UA)

· Contains five separate UA offenses (see Punitive Articles, Example in this lesson).

· Covers every case not provided for elsewhere in which any member of the Armed Forces is, through the member's own fault, not at the place where the member is required to be at a prescribed time. It is not necessary that the person be absent entirely from military jurisdiction and control. For purposes of this course, only the first offense will be discussed in detail. In actual practice, you would have to read through all five offenses of Article 86 to determine which offenses were violated.

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Example Article,

Continued

Offense The first offense of Article 86 is Failure to Go to Appointed Place of Duty. To charge someone with the first offense, you must be able to prove all three essential elements of proof. The table below lists what the elements mean to you as a leader:

Element Discussion

(a) That a certain authority appointed a certain time and place of duty for the accused.

The ultimate offense. An oral or written order is sufficient to appoint a time and place of duty.

· Violations of written orders that appoint a time and place of duty can be charged; however, the accused will only be punished for his unauthorized absence (for which a lesser punishment is permitted). The ultimate offense is not the violation of the order, but the absence that violated the order.

· Generally, violation of an oral order that appoints a time and place of duty can only be prosecuted as UA.

(b) That the accused knew of that time and place…

Knowledge of the order. The accused knew or should have known of that time and place of duty. This element may be proven by either

· Direct Evidence

· A witness testifies that at 1410 he heard the accused say, “Oh, oh – I’m in trouble now. The Gunny told me to report to the CO at 1400.” · Evidence that tends to prove or disprove a fact

in issue. In this example, the fact in issue is knowledge of the order.

· Circumstantial Evidence

· Evidence such as the Plan of the Day (POD) was properly posted and included an

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Example Article,

Continued Offense, continued Element Discussion (c) That the accused, without authority, failed to go to the appointed place of duty at the time prescribed.

· Completion of the Offense. The accused failed to go to his or her appointed place of duty. The offense is complete at the moment the accused fails to appear at the appointed place of duty at the prescribed time. The fact that the accused later went to his or her appointed place of duty is not a defense. That the accused finally made an

appearance may lessen the severity of the sentence that may be awarded. However, the Marine is still in violation of this article by failing to appear at the prescribed time.

· Without Authority. The key words in all absence offenses are without authority. Absence is not an offense. It must be coupled with the fact that the absence was without authority to constitute an offense under the UCMJ. A Marine may be absent with authority from his or her unit or place of duty as on liberty, leave, temporary additional duty (TAD), etc. Therefore, the allegation must be that a particular absence was without authority before that absence becomes an offense under the UCMJ. · Use of Documents. Failure to go to an appointed

place of duty at a prescribed time in violation of Article 86 is generally proven by official records, a copy of orders directing the time and place for reporting, etc. This offense is easily proven through the introduction of documentary evidence created by the particular order; e.g., a restriction muster, or a log sheet. This order directed a specific accused to be at a specific place at a

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Submit a Charge Sheet

Who Can Charge the Offense?

Before an NJP may be imposed, the offense must be identified and a charge and specification(s) determined. Once that is done, anyone may initially prepare a charge sheet. This sheet is to be forwarded to a unit’s local legal support section or law center.

DD Form 458 When the offense has been identified, a Charge Sheet, DD Form 458 is prepared. This form must be prepared before any punitive action can be taken.

Elements There are two elements of a charge sheet:

· Charge: a one-sentence statement that lists the number and title of the alleged offense.

· Specification: always included with the charge; it details who committed the offense, when, where, against whom, and under what circumstances. In other words, it specifies all the elements of the particular offense. A single charge sheet can have multiple charges and specifications on it. The charge and the specification's purpose is to inform the accused of the offenses alleged against him or her so that he or she will have an opportunity to plan a defense against those charges.

Example of a

Charge The charge would be as follows:

· Desertion: Charge I, Violation of the UCMJ, Article 85. · Larceny: Charge I, Violation of the UCMJ, Article 121.

Example of a

Specification In a case of larceny, the specification would be as follows:

In that Lance Corporal John Doe, United States Marine Corps did, at Marine Corps Base, Quantico, Virginia, on or about 20 November 1999

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Submit a Charge Sheet,

Continued

The Front View of DD Form 458

The front view of the Charge Sheet, DD Form 458 is identified in the diagram below:

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Submit a Charge Sheet,

Continued

The Back View of DD Form 458

The back view of Charge Sheet, DD Form 458 is identified in the diagram below:

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Lesson 3 Exercise

Estimated

Item 1 What are the numbered punitive articles found in the Manual for Courts-Martial (MCM)? a. 17 through 34 b. 31 through 76 c. 77 through 134 d. 177 through 234

Item 2 What are the six components of a punitive article?

(1) _________________________________________________________ (2) _________________________________________________________ (3) _________________________________________________________ (4) _________________________________________________________ (5) _________________________________________________________ (6) _________________________________________________________

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Lesson 3 Exercise,

Continued

Item 3 Who can prepare a charge sheet and forward it to the unit’s local legal support section or law center?

a. The commanding general b. Anyone

c. The legal counsel of the accused d. The Marine accused of the offense

Item 4 What basic information is required on the charge sheet? a. Who and what happened

b. Rights of the accused and request for counsel c. The commands authority and regulations d. The charge and specification

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Lesson 3 Exercise,

Continued

1 c 1-26

2 (1) Text of the article

(2) Elements of the offense or offenses (3) Explanation (4) Lesser included offenses (5) Maximum punishment (6) Sample specifications 1-26 3 b 1-32 4 d 1-32

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STUDY UNIT 2

THE LAW OF LAND WARFARE

Overview

Estimated

Study Time 1 hour, 15 minutes

Unit Scope Ancient wars were characterized by total and unrestrained violence. Defeated forces and civilians were subjected to wholesale extermination, torture, and slavery. During the Middle Ages, war was studied from both a philosophical and technical perspective, military and political leaders recognized that unlimited war was counterproductive to their objectives. Today, the Laws of War regulates combat.

Learning

Objectives After completing this study unit, you should be able to

· Identify the law of land warfare fundamentals. · Identify the rules of engagement

In This Study

Unit This study unit contains the following lessons:

Topic See Page

Lesson 1 Law of Land Warfare Fundamentals 2-3

Lesson 2 Rules of Engagement (ROE) 2-21

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LESSON 1

LAW OF LAND WARFARE FUNDAMENTALS

Introduction

Estimated

Lesson Scope Following World War II, the Nuremburg Tribunal, which tried the major German war criminals, declared:

International Law is not the product of an international legislature. The law of warfare is to be found not only in treaties, but in the customs and practices of states which gradually obtain universal recognition from the general principles of justice.

This lesson will discuss the purpose for the laws of war. The key to understanding the laws of war is to know the overall objective of war as viewed by the United States. This lesson will show how the laws of war benefit the overall accomplishment of the military mission assigned to achieve that objective.

Learning

· Identify the two main sources for the laws of war. · Identify the objective of war.

· State the purpose for the laws of war.

· Identify the four basic concepts underlying the laws of war. · Identify the nine Marine Corps principles for the laws of war. · Identify what constitutes a war crime.

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Introduction,

Continued

Topic See Page

Introduction 2-3

Sources of Land Warfare 2-5

War 2-7

Concepts Underlying the Laws of War 2-9

Basic Principles of the Laws of War 2-10

War Crimes 2-12

Preventing War Crimes 2-13

Reporting War Crimes 2-15

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Sources of Land Warfare

Main Sources There are two main sources for the laws of war: · Customary International Law

· Ratified Treaties

Customary International Law

The customary international law is a body of rules that civilized nations recognize as binding them in their conduct towards one another. This body of rules is established by the custom and practice of a country:

· International Custom · Codified International Laws

International

Custom International custom, as evidence of a general practice accepted as law, _{consists of}

· A practice by a number of nations regarding situations falling within the domain of international relations

· Continuous practice over a long period of time

· Conception that the practice is required by or is consistent with prevailing international law

· General acquiescence by other nations

Many customary practices are eventually codified, such as most of the contents of the Geneva Convention.

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Sources of Land Warfare,

Continued

Codified International Laws

The codified international laws (Geneva Convention) can become so widely accepted that it is considered customary, even for nations that are not yet a party to a particular international agreement.

Customary acts that have become internationally accepted practices are listed below:

· Formal declarations of war · Prisoner exchanges

· Protection of civilians and non-combatants · Communication through neutral third parties

Ratified

Treaties Treaties are formal agreements that are made between two or more countries. _{Sources for the laws of war are in treaties and international customs, which}

have been practiced over a long period of time by a large number of countries in the belief that it is required by law. Treaties that establish laws of war and have been ratified by the U.S. Senate are part of the U.S. law. The two main treaties that deal with laws of war are

· The Hague Rules of 1907 · The Geneva Convention of 1949 · Treatment of prisoners of war

· Protection of the sick and wounded on land

· Protection of the sick, wounded, and shipwrecked at sea · Protection of civilians during times of war

A Marine in violation of the laws of war would be punished under the UCMJ.

Other

References There are numerous references for the law of land warfare. A few of them are _{listed below:}

· Handbook, On The Law of War For Armed Forces, written by Frederic De Mulinen

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War

Objective of

War The objective of war is to destroy the enemy’s will to resist or change their _{will until it agrees with the objective set forth by higher authorities. Obeying}

the laws of war will help accomplish this objective with the least amount of suffering and destruction of personnel and property.

Purposes for

Laws of War There are three purposes for laws of war:

· Prevent unnecessary suffering of combatants and non-combatants. · Safeguard certain fundamental human rights of persons:

· Prisoners of war · Sick and wounded · Shipwrecked people · Civilians

· Encourage the restoration of peace.

Constitutional

Obligations The Nation’s law requires that we afford certain rights to persons captured on _{the battlefield. Every disciplined Marine needs to be aware of this basic}

philosophy. As the defenders of our Constitution, we have an obligation to enforce its provisions. However, affording this legal protection to captured persons also is of military value.

Prisoner Treatment Effects Military Objective

Warriors developed the general rules on how to treat enemy prisoners of war (EPWs). Lawyers only wrote down what the commanders practiced. We also comply with these rules because it helps us on the battlefield. If the enemy knows that we will treat him with dignity and respect and not harm him, he is more likely to surrender. We also hope these basic rights will be afforded to our Marines if they become prisoners of war.

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War,

Continued

Handling

Prisoners Once a person has surrendered or comes into your custody, it is your duty to _{ensure they are treated humanely. You must account for each and every EPW}

from capture until you turn him over to higher headquarters.

Initially, treat a captured person as a prisoner of war¾always. Process them according to the five Ss:

· Search · Silence · Segregate · Safeguard · Speed to the rear

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Concepts Underlying the Laws of War

Four Basic

Concepts The four basic concepts underlying the laws of war are listed below:

· Military necessity · Proportionality · Unnecessary suffering · Discrimination Military

Necessity The principle of military necessity justifies the employment of that degree or _{kind of violence, not forbidden by international law, required to secure the}

timely submission of the enemy.

Military necessity is never accepted as a justification for committing a war crime.

Proportionality In combat operations, Marines are required to strike a balance between infliction of suffering and the use of force. Marines must apply only the amount of force needed to accomplish the mission.

Unnecessary

Suffering Although suffering cannot be eliminated in war, you must exercise a degree _{of restraint in combat. Destruction must be limited to that which is necessary,}

relevant, and proportionate to the accomplishment of legitimate military missions.

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Basic Principles of the Laws of War

Source of

Reference The list of acts covered under various treaties and conventions are extensive. _{Every leader must review FM 27-10, The Law of Land Warfare, to enhance}

their knowledge on this subject.

The time to teach the Marines in your unit the laws of war is now, not when you are in harms way. The nine basic principles of the laws of war are listed in the table below:

Number Principle

1 Marines fight only enemy combatants. While it is perfectly

lawful to kill an enemy combatant, it is not legal to intentionally target a civilian who is not taking part in the hostilities.

2 Marines do not harm enemies who surrender. They must

disarm them and turn them over to their superior. Giving good treatment of EPWs will encourage more enemies to surrender and shorten the time to achieve victory. It will also encourage the enemy to give better treatment to U.S. prisoners.

3 Marines do not kill or torture prisoners. Killing or torturing an

enemy prisoner is a violation of the UCMJ and will be punished harshly.

4 Marines collect and care for the wounded whether friend or foe.

Wounded enemy troops will not be left on the battlefield after the engagement is over to suffer a slow and lingering death.

5 Marines do not attack medical personnel, facilities, or

equipment. Both friendly and enemy medical personnel are to be encouraged to come to the battlefield in safety to care for the wounded combatants.

6 Marines destroy no more than the mission requires. While it is

legal to destroy properties to accomplish the military mission, unnecessary destruction of civilian property wastes resources and detracts from mission accomplishment.

7 Marines treat all civilians humanely. Civilians who are not

taking part in the hostilities are to be treated with respect.

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Basic Principles of the Laws of War,

Continued Source of Reference, continued Number Principle

8 Marines do not steal. Marines respect private property and

possessions. A thief is a thief whether in peace or war and will be prosecuted under the UCMJ.

9 Marines should do their best to prevent violations. They must

report all violations of the laws of war to their superior. It is not sufficient for the individual Marine to only obey the laws of war, but Marines must use their authority to prevent others from violating the law. Where they cannot prevent a violation, they must report the offense up their chain of command. If the Marine believes his superior is partially responsible for the violation, this report may be made to any other officer in a position of authority. It may also be made to the provost marshal, judge advocate, or even the chaplain.

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War Crimes

Definition A war crime is the intentional harming of civilians not taking part in the hostilities, enemy prisoners of war, medical personnel, or other

non-combatants. While any violation of the laws of war may be considered a war crime, the violations that are directed at these particular protected persons are most likely to be prosecuted harshly.

Examples In all cases of armed conflict (whether or not there is a declaration of war) acts that violate the Geneva Convention are war crimes. Some examples of war crimes are

· Torture · Rape · Murder

· Reprisals against EPWs or civilians · Mutilation

· Unnecessary destruction of cultural sites · Attacks on medical facilities

· Faking surrender only to attack

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Preventing War Crimes

Morale

Courage Marines must step forward and use moral courage to halt atrocities. The _{bottom line is if you know in your gut that what is happening is wrong, tell}

the perpetrators to cease their actions immediately.

Correct Pattern A review of war crime cases reveals that a pattern of lack of training, boredom, and poor leadership usually occurs just before acts of misconduct toward EPWs, the sick and wounded, and civilians. You should look for this pattern and take affirmative steps to prevent war crimes:

· Conduct tactical training. · Stress normal military behavior. · Provide good leadership.

Conduct Tactical Training

In all tactical training before deploying, teach the procedures for dealing with situations that can easily become laws of war violations, such as how to · Handle troublesome EPWs properly.

· Select a lawful military target in the middle of the civilian community. · Respond properly when a white flag is shown, using careful tactical

responses.

Under the stress of combat, Marines will respond the way they were trained. Remind Marines that they are authorized to use deadly force and to destroy property only because of military necessity. Tactical situations will dictate confrontation with the enemy. Criminal conduct during a deployment is intolerable, distracts from accomplishment of the military mission, and will be dealt with swiftly.

Properly treated, the civilian populace may be a prime source of intelligence information. Reinforce the basic laws of war instruction by emphasizing the nine basic principles of the laws of war.

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Preventing War Crimes,

Continued

Stress Normal Military Behavior

Most laws of war violations result from the constant change of combat stress and then long periods of boredom. Good leadership should emphasize normal behavior and positive activity. Constantly remind Marines of normal military behavior standards:

· Maintain high standards of military: · Courtesy

· Discipline · Hygiene · Moral conduct

· Keep your Marines informed.

· Prevent personal wars or vendettas within the unit and with local civilians.

Provide Good

Leadership Be watchful for signs of

· Personality disorders · Stress-related actions · Antisocial conduct

· A breakdown in military discipline and courtesy

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Reporting War Crimes

Identify Illegal

Orders Orders are presumed to be legal. Remember training is aimed at preventing _{the issuance of illegal orders. Illegal orders are regarded as a war crime}

violation. Examples of illegal orders are to · Kill the prisoners.

· Mutilate the bodies.

Report

the Order The first way you should report the order is by following the chain of _{command, bypassing the superior who issued the order. The commanding}

officer has the responsibility and the authority to immediately correct and discipline any misconduct.

A second option is to report the order to the military police, if a report cannot be made up the chain of command.

If neither the chain of command nor military police are available, report the order to a judge advocate or chaplain.

Procedure To report an illegal order, follow the steps listed in the table below:

Step Action Example

1 Clarify the order. The order is, “Take care of those useless prisoners. You know what to do with them.” Your response should be, “Sir, are you ordering me to kill the helpless enemy prisoners?” 2 Refuse the order. “Sir, I will not shoot the prisoner.” 3 Report the order using the

chain of command, but bypassing the superior who issued the order.

“Colonel, on this date, I was ordered to shoot a prisoner.”

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Lesson 1 Exercise

Estimated

Directions Complete exercise items 1 through 9 by performing the action required. Check your answers against those listed at the end of this lesson.

Item 1 List the two main sources for the laws of war.

(1) ________________________________________________________ (2) ________________________________________________________

Item 2 Which two treaties deal specifically with laws of war issues?

(1) ________________________________________________________ (2) ________________________________________________________

Item 3 What is the objective of war?

(1) ________________________________________________________ (2) ________________________________________________________

Item 4 What are the three purposes for the laws of war?

(1) ________________________________________________________ (2) ________________________________________________________

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Lesson 1 Exercise,

Continued

Item 5 List the four basic concepts underlying the laws of war.

(1) ________________________________________________________ (2) ________________________________________________________ (3) ________________________________________________________ (4) ________________________________________________________

Item 6 Following the basic principles of the laws of war, what are the proper procedures for handling a wounded foe discovered on the battlefield? ___________________________________________________________

Item 7 Define war crime.

___________________________________________________________ ___________________________________________________________ ___________________________________________________________

Item 8 What three procedures are included in tactical training for preventing war crimes?

(1) ________________________________________________________ (2) ________________________________________________________ (3) ________________________________________________________

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Lesson 1 Exercise,

Continued

Item 9 What are the three steps to report an illegal order?

(1) ________________________________________________________ (2) ________________________________________________________ (3) ________________________________________________________

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Lesson 1 Exercise,

Continued

1 (1) Customary International Law (2) Ratified Treaties

2-5

2 (1) The Hague Rules of 1907

(2) The Geneva Convention of 1949 2-6

3 (1) Destroy the enemy’s will to resist.

(2) Change their will until it agrees with the objective set forth by higher authorities.

2-7

4 (1) Prevent unnecessary suffering of combatants and non-combatants. (2) Safeguard certain fundamental

human rights to people such as EPWs, the sick and wounded, civilians, etc.

(3) Encourage the restoration of peace. 2-7 5 (1) Military necessity (2) Proportionality (3) Unnecessary suffering (4) Discrimination 2-9

6 Collect and care for the wounded. 2-10

7 The intentional harming of civilians not taking part in the hostilities, enemy prisoners of war, medical personnel, or other non-combatants

2-12

8 (1) Handle troublesome enemy

prisoners of war properly. (2) Select a lawful military target in

the middle of civilian community.

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LESSON 2

RULES OF ENGAGEMENT (ROE)

Introduction

Estimated

Lesson Scope Although the laws of war provide the basic foundation for all military operations, individual Marines should receive detailed rules of engagement (ROE) for each particular exercise. This lesson explains the general principles that apply to rules of engagement.

Learning

· Define the term rules of engagement. · Identify the three main purposes of ROE.

· Name the three classes of persons who are entitled to self-defense. · Name the three types of actions that will justify self-defense.

Topic See Page

Introduction 2-21

General Information 2-22

Self-Defense 2-24

Lesson 2 Exercise 2-27

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General Information

Rules of Engagement Definition

The Joint Pub 1-02, DOD Dictionary of Military and Associated Terms defines rules of engagement (ROE) as…directives issued by competent military authority which delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.

Higher authorities should establish the ROE to explain proper conduct in detail.

Purposes

for ROE The three main purposes for ROE are listed below:

· Provides implementation guidance on the application of force for mission accomplishment

· Serves as a fire control method of military operations by the civilian and military chain of command

· Implements the inherent right of self-defense

Standing ROE The Chairman of the Joint Chiefs Instruction 3121.01A dated 15 January 2000 provides the standing rules of engagement (Standing ROE) for U.S. forces. In the absence of superseding guidance, the Standing ROE (SROE) establishes fundamental policies and procedures governing the actions to be taken by U.S. force commanders. The SROE will apply in the event of a military attack against the United States and during all military operations, contingencies, terrorist attacks, or prolonged conflicts outside the territorial jurisdiction of the United States.

The SROE was established far in advance of any current deployment. The Chairman’s instruction recognizes that each particular mission will have different levels of threat, different objectives, and different weapons mix. Competent military authorities draft more specific ROE to accomplish a particular mission. The SROE provides guidelines for incorporating ROE development into the crisis action planning and deliberate planning processes

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General Information,

Continued

Mission ROE The responsibility of the mission specific ROE is listed below: · G-3—when engaged in operations or crisis action planning · G-5—when engaged in deliberate planning

Generally, the staff judge advocate provides assistance in developing specific mission ROE.

Restraints and

Constraints ROE are prepared based upon the following:

· Laws of war (LOW) · Political policy · Public opinion

· Military operational constraints

ROE are more restrictive than what the LOW allows. Targeting rules are usually incorporated within the ROE.

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Self-Defense

Of Whom Marines are authorized by ROE to use deadly force to defend three classes of persons. Those three classes are identified in the table below:

Class of Persons Explanation

Individuals and Self Marines have the inherent right to defend themselves.

Units Marines have the right and obligation to defend

U.S. forces, including elements or personnel

thereof, and other U.S. forces in the vicinity against a hostile act or hostile intent.

Example: In 1983, the Marine Barracks in Beirut, Lebanon was the victim of a suicide bombing. In the investigation, the young Marine sentry explained that he hesitated to chamber a round into his weapon upon the approach of the truck for fear that under his vaguely worded ROE card, he would be committing a war crime. The Marine sentry should have been instructed that he had the right to exercise unit self-defense. National Interests Marines have the right to defend U.S. citizens and

their property from hostile acts or hostile intent. Note: The SROE do not automatically authorize

Marines to defend designated non-U.S. forces, foreign nationals, and their property. Authority to exercise this collective self-defense is normally retained by the National Command Authority (the President,

Secretary of Defense, and National Security Advisor). Therefore, the correct level of authorization to defend non-U.S. forces and nationals should be obtained prior to

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Self-Defense,

Continued

Against What U.S. forces need not be attacked before they can respond in self-defense. The use of force in peacekeeping, and even in peace enforcement, is normally a measure of last resort. Under those circumstances, attempts should be made to control the situation without the use of force.

If force is necessary, the nature, duration, and scope of the force should not exceed the amount required to decisively counter the hostile act or intent. Self-defense force used against a hostile situation is identified in the table below:

Situation Explanation

Act An attack or use of force against U.S. forces and,

when national and or collective self-defense has been implemented, against those persons and assets

protected by those definitions.

Intent The threat of imminent use of force, including the threat of force used to impede or preclude the

mission or duties of U.S. forces. Hostile intent is fact specific.

Note: Although the classified portions of the SROE contain guidance throughout to the factors that may constitute evidence of hostile intent in various situations, the ultimate decision rests with the commander against whom the potential hostile intent is being demonstrated. Force Any force (civilian, terrorist, paramilitary, or

military) that has committed a hostile act or demonstrated hostile intent, and is considered a continuing hostile threat. Once declared hostile by appropriate authority, U.S. forces need not observe a hostile act or demonstration of hostile intent before engaging. The basis of the engagement shifts from conduct of the potential threat to merely status of the force.

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Self-Defense,

Continued

Request for

Changes The SROE expects the threat assessment will likely change throughout the _{course of a single mission and the mission specific ROE will have to change}

to stay current. During any deployment, you should expect routine changes to the mission specific ROE based upon better intelligence on the threat

assessment and or the scope of the mission changes.

If your unit is requesting a change for supplemental mission specific ROE, it should always include the justification for the request. Your unit should serialize all requests sent up the chain of command and all approvals,

especially the Joint Task Force and higher headquarters that are promulgating and or approving the ROE.

Example: A unit that has received CINC ROE approval serial 005 should ensure that they possess approval serials 001 through 004, unless the latest message is a total restatement of all previously approved ROE.

Training During the stress of combat, Marines will react the way they are trained. In developing tactical unit training, ROE should be written for unit commanders and individual Marines to practice making judgment calls with regard to a possible threat.

ROE will seldom, if ever, state in explicit detail when force may be utilized.

Such a decision is subject to many factors that the person responsible for facing the threat must determine. Therefore, ROE should not be regarded as a comprehensive checklist of events that must occur before force can be used.

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Lesson 2 Exercise

Estimated

Directions Complete exercise items 1 through 4 by performing the action required. Check your answers against those listed at the end of this lesson.

Item 1 Define rules of engagement.

___________________________________________________________ ___________________________________________________________ ___________________________________________________________

Item 2 The three main purposes for ROE are

(1) ________________________________________________________ (2) ________________________________________________________ (3) ________________________________________________________

Item 3 What three classes of persons does ROE authorize the use of deadly force to defend?

(1) ________________________________________________________ (2) ________________________________________________________ (3) ________________________________________________________

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Lesson 2 Exercise,

Continued

Item 4 List the three types of hostile situations that justify self-defense.

(1) ________________________________________________________ (2) ________________________________________________________ (3) ________________________________________________________

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Lesson 2 Exercise,

Continued

1 …directives issued by competent

military authority which delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.

2-22

2 (1) Provides implementation

guidance on the application of force for mission

accomplishment

(2) Serves as a fire control method of military operations by the civilian and military chain of command

(3) Implements the inherent right of self-defense

2-22

3 (1) Individuals and self (2) Units (3) National interests 2-24 4 (1) Act (2) Intent (3) Force 2-25

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