To be judged by twelve or carried by six? Quasi-involuntariness and the criminal prosecution of service members for the use of force in combat - a grunt's perspective.

• Author: Laguna, Lupe

TABLE OF CONTENTS INTRODUCTION I. COUNTERINSURGENCY WARFARE II. THE RULES OF ENGAGEMENT III. SELF-DEFENSE LAW AND THE REASONABLE PERSON A. The Dual Standard B. The Purely Subjective Standard C. The Purely Subjective Standard and the Battered Woman Defense IV. THE SUBJECTIVE STANDARD IS MOST APPROPRIATE FOR REVIEWING A COMBATANT'S DECISION TO USE FORCE A. The Use of Force in Combat Is Not Entirely Voluntary, Making the Objective Standard Inappropriate B. Because the Decision to Use Force Is Subjective, Evaluating It from an Objective Standard Is Inappropriate V. POLICY CONCERNS CONCLUSION INTRODUCTION

As a warrior, you might one day face the single most difficult task any person will ever have to face: to decide whether to use deadly force and take a life.... If you choose to take a life when you should not, or if you fail to take a human life when you should, a world of hurt will come down on you. (1) "Roger, lead victor down, status of Marines inside unknown." When the Marine heard this transmission crackle across the radio from inside his Humvee, on a crisp, late-fall day in 2005, he had been operating as an Infantryman in Haditha, Iraq (2) for less than three months. He had been in the Marine Corps for barely a year. He was in combat for the first time, and an improvised explosive device had just destroyed the vehicle in front of him moments before.

"We gotta find the triggerman," the Marine's vehicle commander told him, "Dismount now."

As the Marine opened the door to the Humvee and bounded toward the nearest piece of cover--a small cement curb--his eyes scanned for improvised explosive devices. His palms were sweating and his heart was racing. His mind was filled with uncertainty. He was uncertain about the safety of his comrades inside the downed vehicle, uncertain that he would pass the test of combat, and unsure about what lay beyond the raised curb, which was the only thing protecting him from a sniper's bullet.

He began to scan for targets and a possible location for the enemy fighter who had detonated the improvised explosive device. Just ahead, a raised berm paralleled the road the Marines were driving on, with several six-foot-wide underpasses cutting underneath. A perfect hiding spot for a triggerman. The Marine's team leader saw the berm too, and the two Marines instantly began bounding toward the underpasses. The junior Marine reached it first and, consistent with his training, prepped a M67 fragmentation grenade (3) to throw into the tunnel before breaching the threshold. But his team leader clasped his arm and told him, "No, remember November 19th."

The author was the junior Marine in this scenario, which highlights the difficulty in determining when to use deadly force in a counterinsurgency environment. The date the author's team leader was referring to, November 19, involved another squad in the author's battalion. That squad encountered a similar situation, but they made the decision to use deadly force.

That incident, dubbed by the media as the "Haditha Massacre," (4) led to one of the most controversial criminal investigations of a service member's use of force in combat to date, leading to international condemnation of American forces. (5) In that instance, an improvised explosive device struck the Marines' patrol and they were ambushed. (6) The bomb killed one Marine and seriously injured two others. (7) After locating the source of incoming small-arms fire, and believing the use of force was authorized under the rules of engagement, the Marines counterattacked. In the ensuing confusion, twenty-four Iraqi civilians were killed. Although none of the combatants were ultimately convicted of murder, (8) the military filed criminal homicide charges against multiple Marines, (9) and the subsequent criminal investigation dramatically shaped public perception (10) of the war and influenced on-the-ground military decisions for years afterwards. (11)

The criminal prosecution of combatants for killing in combat is a relatively recent phenomenon. Since the invasions of Iraq and Afghanistan, military courts have convicted at least twenty-eight service members of homicide offenses for using defensive force in combat. (12) Fifteen others have been prosecuted but later acquitted. (13) Before the conflicts in Iraq and Afghanistan, the convictions of service members who used deadly force in combat, and who in good faith believed such force was necessary, were seemingly much less common. (14)

The current prosecutions of service members in criminal court for the use of force in combat can be attributed in part to a change in the rules of engagement, which were formed in response to a changing battlefield. 15 In previous conflicts against a conventional force, service members were authorized to engage enemy combatants based solely on their status as a member of the opposing force, known as "status" targeting. (16) However, with the United States' recent engagements against irregular forces in Iraq and Afghanistan, where enemy combatants blend in with the civilian population, service members are now tasked with distinguishing enemies from civilians by "conduct." (17)

The U.S. military's movement from "status-based" targeting to "conduct-based" targeting has been a difficult transition. (18) In an attempt to provide a model for conduct that distinguishes a civilian from an enemy combatant, the United States developed rules of engagement that limit a service member's use of force to situations where he or she has positive identification of a "hostile act" or "hostile intent." (19) Considering that law students in a classroom can debate endlessly whether an individual's conduct is "intentional," it is no surprise that service members engaged in dynamic and chaotic situations have had difficulty determining what conduct constitutes "hostile intent."

As a result of this ambiguity, in both Iraq and Afghanistan, civilians are occasionally killed by U.S. forces after being mistaken as enemy combatants. (20) In an attempt to deter the use of force against civilians, some within the military have advocated for harsh repercussions for violating the rules of engagement--even when the combatant was acting in good faith. (21) Such repercussions can include administrative punishment, which may end a service member's career, (22) or criminal prosecution for homicide crimes, such as murder or manslaughter, in military court. (23)

Despite these proponents' alleged desire to deter excessive use of force by punishing rules of engagement violators, the recent prosecutions have been relatively limited in scope, potentially minimizing any possible deterrent effect. Notwithstanding the fact that the use of drone strikes, close-air-support, and other supporting arms results in allegedly high numbers of civilian casualties, (24) the military's prosecutions have been limited to junior enlisted and junior officer ground-service personnel who engage suspected combatants with small arms. (25) Thus, it is difficult to rationalize the prosecutions of ground troops from a deterrence perspective when there seemingly has been little punishment of other combatants who also inflict civilian casualties, making the pragmatic benefits of these prosecutions questionable.

Additionally, prosecuting combatants for traditional homicide crimes poses a number of doctrinal problems, and there are signs that military courts are uncomfortable with prosecuting service members under self-defense standards for actions in combat. The United States Supreme Court recently denied certiorari to the Court of Appeals for the Armed Forces, which asked whether a service member loses his right to self-defense as a matter of law when he, without legal authorization, points his weapon at a suspected enemy combatant. (26) The confusion among military courts is an indication that criminal law doctrine as currently applied to combat engagements might be ill-suited for counterinsurgency. But given that most military commanders accept the notion that the United States will likely engage in counterinsurgency conflicts in the future, (27) military courts must be prepared to apply criminal law to combat engagements in a counterinsurgency environment. This can be done, but it will require some doctrinal evolution in order to keep in step with the evolution of modern combat.

This Comment will focus on the appropriate standard for assessing the "reasonableness" of a combatant's decision to use force. In each case of an alleged rules of engagement violation, both the actus reus and the mens rea will often be satisfied: it is usually known that the defendant did the killing, satisfying the actus reus of a homicide crime, and it is usually surmised that when a service member uses force in combat against an enemy combatant he intends to kill or cause great bodily injury to the suspected enemy fighter, satisfying mens rea. In these circumstances, a combatant will most likely have to argue that his use of force was justified under the rules of engagement. (28) Thus, the key inquiry will likely be whether it was "reasonable" for the combatant to conclude that he was authorized to use deadly force.

Courts and reviewing officers analyze the reasonableness of a service member's use of force in much the same manner that a civilian jury assesses the reasonableness of a criminal defendant's self-defense claim. (29) Currently, when assessing the reasonableness of a defendant combatant's use of force, military courts apply Rule for Court Martial 916(e), which--like traditional self-defense doctrine--requires a defendant's use of force to be both subjectively and objectively reasonable. (30)

But much as the current rules of engagement have evolved to allow combatants to engage in "conduct-based" targeting, the standard of review for assessing the reasonableness of a combatant's use of force must too evolve. This can best be accomplished by analyzing the "reasonableness" of a...