The Law of Armed Conflict: Six Questions for Gary Solis

[Jefferson23]

April 20, 2010

By Scott Horton

Cambridge University Press has just issued Gary Solis’s The Law of Armed Conflict, a comprehensive and current treatment of one of the most controversial legal topics. Solis teaches at Georgetown University Law Center, and for six years he directed West Point’s law of war program. He is a retired Marine and was a company commander in Vietnam. I put six questions to him relating to some of the current controversies addressed in his book.

1. Two weeks ago, a videotape was posted by WikiLeaks that showed footage shot from a helicopter in North Baghdad in 2007. The helicopter, responding to reports that an Army armored column had come under attack, fired on a group of civilians, including two Reuters journalists and two children, killing many of them. To what extent did the law of armed conflict provide rules for this incident? Were they violated?

It is risky to form conclusions of law from videotape of combat operations, because context is critical. In this case, the helicopters involved reportedly were in direct support of a heavily engaged infantry unit located within a few hundred yards of the filmed shooting. The helicopter personnel knew there were numerous armed enemy shooters, without uniforms or other distinguishing sign, at or near the location where they observed a group of individuals including, unknown to them, two Reuters reporters. Upon seeing what they believed to be weapons, the helicopter personnel fired, with tragic results.

There are no rules for such incidents to be found in the Geneva Conventions. Customary law of war does provide guidelines, however. Culpability turns on whether the shooters honestly and reasonably believed their targets presented an immediate threat to themselves—the helicopter unit—or other friendly personnel. The tape’s audio seems to indicate a belief of imminent threat honestly held by the aviators. Was that honest belief reasonable, given the circumstances? That is a question for investigators or a jury. Like reasonableness in any trial, it is often a difficult call. The unprofessional radio traffic does the fliers (and the United States) no honor, but comments as are heard in this video are hardly unique in a combat zone. Nor do such comments determine reasonableness.

remaining Q&A here: http://www.harpers.org/archive/2010/04/hbc-90006912