Why the Recent Civilian Shootings Near Karbala, While Tragic, Were Probably Lawful

On Monday, March 31, in a location near Karbala, Iraq, American soldiers fired on an Iraqi car as it sped towards their checkpoint, killing 10 Iraqi civilians. This tragic incident illustrates the way that law affects war, as well as the roles lawyers perform in the American military before, during, and after such incidents.

Over more than 300 years, a body of law has developed to address the rules for the conduct of warfare. In this column, I will address two questions: How does international law apply to war? And, how does it apply to this incident, in particular?

In the end, my conclusion is that, based on information so far available, U.S. soldiers' conduct in the incident near Karbala, despite its tragic result, appears to have been consistent with international law. In particular, it is likely to be deemed lawful self-defense.

The March 31 Incident Near Karbala

While there is a maxim of war that "first reports are always wrong," different newspaper accounts of the incident at Karbala are consistent enough to form a picture of what occurred. In particular, a Washington Post story by William Branigin, an embedded reporter with the 3^rd Infantry Division, offers an eyewitness account, on which I have drawn heavily. Here, in summary, is what appears to have occurred:

One company (about 120 soldiers and 14 Bradley fighting vehicles) of the 3^rd Infantry Division was assigned to secure a key intersection near Karbala. Their mission was to control traffic, and to screen vehicles for Iraqi guerillas. This was a particular concern, since Iraqi "fedayeen" and other forces had previously used the roads to move behind U.S. lines and attack logistics units.

Two days earlier, on March 29, an Iraqi army officer had committed suicide by blowing his car up at just such a checkpoint, killing four American soldiers, who were also part of the 3^rd Infantry Division. News of this incident had spread across the battlefield, with commanders briefing their soldiers to treat approaching vehicles as a potential threat.

On March 31, while screening traffic at the checkpoint, the company commander, Army Captain Ronny Johnson, noticed a vehicle approaching at high speed. He commanded one of his platoons, over the radio, to fire a warning shot. It was fired, with no effect; the car continued to approach. Then, Captain Johnson told the platoon to fire a machine-gun burst into the car's engine. Again, there was no effect.

After these measures failed to stop the car, Captain Johnson shouted the final order to his Bradley-equipped platoon: "Stop him, Red 1, stop him!" Johnson's soldiers responded as they had been trained to do, firing a burst of 25mm rounds into the car. The kinetic energy of the high-velocity rounds, coupled with the immediate death of the driver and of most occupants, stopped the car.

Next, according to the Washington Post reporter who witnessed the event Captain Johnson radioed the command "Cease fire!" As the smoke cleared, Johnson could see through his binoculars that the Bradley's cannon had torn apart a car laden with women and children. He shouted, "You just [expletive] killed a family because you didn't fire a warning shot soon enough!"

American soldiers immediately rushed to the vehicle, to administer emergency medical aid. Unfortunately, the damage from the sausage-sized rounds, moving at nearly three times the speed of sound, was too great. "It was the most horrible thing I've ever seen, and I hope I never see it again," said Sergeant Mario Manzano, 26, an Army medic with Bravo Company of the division's 3rd Battalion, 15th Infantry Regiment, in an interview with the Post.

International Law as to Civilians in Time of War

It's hard to place such a tragedy in legal context. Yet, military lawyers struggle with issues like this on a regular basis - especially in wartime. International law provides a good starting point.

International law isn't clear on a lot of points, but it is pretty clear about non-combatants - they are to be protected. One of the earliest formal statements of this rule came in the 1868 Declaration of St. Petersburg: "[T]he only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy."

After World War II, international legal scholars returned to the drawing boards, producing the four Geneva Conventions. The Fourth Convention related "to the Protection of Civilian Persons in Time of War." It says that in war, nations should endeavor to protect "[p]ersons taking no active part in the hostilities... [from] violence to life and person, in particular murder of all kinds."

During the Cold War, the world saw a number of armed conflicts in which civilians were caught in the crossfire. The international legal community responded in 1977 with Protocol I to the 1949 Geneva Convention, "Relating to the Protection of Victims of International Armed Conflicts."

Article 51 of Protocol 1 states that any civilian "enjoys general protection against dangers arising from military operations." This generalized protection applies to direct attacks on civilians, as well as blanket attacks that do not differentiate between civilians and combatants.

The U.S. refused to sign Protocol 1, but its views seem nevertheless to be at least somewhat in accord with this section of Article 51. Today, the U.S. Army's field manual states that "it is a generally recognized rule of international law that civilians must not be made the object of attack directed exclusively against them." The same text goes on to say that "Customary international law prohibits the launching of attacks (including bombardment) against either the civilian population as such or individual civilians as such."

Few armies deliberately target civilians. Thus, the hard issue in international law has been the unintentional killing of civilians in war. Legal scholars around the world have disagreed on what level of intent is necessary to make the unintentional killing of civilians a crime. At the end of the day, all they can really agree on is that the killing of civilians is wrong.

No one has suggested that Captain Johnson or his soldiers purposefully killed these civilians. Indeed, the evidence - such as Captain Johnson's exclamation - suggests to the contrary that they did no such thing. Thus, the international law inquiry will focus on whether these soldiers followed their orders - including the Rules of Engagement that governed them - in shooting at the Iraqi car.

Rules of Engagement: The Soldier's Basic Guide to the Law of War

Soldiers aren't lawyers. However, leaders and soldiers have to learn enough about the law so that they can apply it in complex situations that make law school look easy.

Today's American military does this with "Rules of Engagement," or "ROE". These documents are prepared prior to every military operation, and are phrased as lists of positive and negative commands for soldiers to follow.

Every American ROE starts with the same phrase: "Nothing in these ROE limit an individual soldier's right to defend himself or a commander's inherent authority and obligation to use all necessary means available and to take appropriate action to defend his unit and other U.S. and friendly forces in the vicinity."

The cardinal rule of these rules is that they don't affect a soldier's right to self-defense. This is important for the Karbala incident, since the soldiers there seem to have perceived that they were under attack - possibly suicide attack - from the vehicle that speeded toward them, and refused to stop despite warnings.

Military lawyers (often called Judge Advocate General officers, or "JAG") develop their ROE before deployment. The rules are carefully calibrated to the political situation on the ground.

For missions like Bosnia, the ROE can change frequently with intelligence updates. For combat missions like Iraq, the ROE are substantially less restrictive. They focus mostly on the protection of designated persons (such as non-combatants) and locations (like mosques and hospitals).

Here's an example, from an unclassified ROE developed for an exercise:

"Hostile forces may be engaged with all lawful means, up to and including deadly force, subject to the following restrictions: Do not engage anyone who has surrendered or is out of the battle due to sickness or wounds."

The Rules of Engagement are lawful orders - meaning they have the same force as a direct order from a superior officer. Accordingly, soldiers who break them can be prosecuted in a military court following the incident.

In many ways, ROE resemble the use-of-force guidelines for civilian police departments. Soldiers are authorized to use force within the guidelines; they can be disciplined for straying outside the rules.

Training Before the Incident: An ROE Briefing, Among Other Things

Before deployment, every military unit goes through at least one ROE briefing - often several. In some units, commanders go so far as to give these briefings themselves, with every soldier signing in, to document his or her attendance.

In the age of instantaneous media coverage, one soldier's mistake can create a strategic problem for the President. Thus, military units take these rules - and the law of war - quite seriously.

Army units train extensively on these rules in peacetime, long before they are called to war. The premier training centers in Germany, Louisiana and the California desert run large units through scenarios every month that push soldiers and units to the breaking point. During the 1990s, these centers increasingly added things like peacekeeping and civil-military operations to their repertoire, seeking to build expertise in the ranks for future missions in the Balkans and elsewhere. In one of these training scenarios, units may encounter civilians on the battlefield, hostile guerillas, or some combination of the two.

Each of the 3^rd Infantry Division's brigades went through this kind of rotation at the Army's National Training Center before they deployed to Iraq. During those rotations, soldiers dealt with scenarios that look very much like what happened near Karbala.

In these scenarios, contractors are hired by the Army to role-play civilians on the battlefield, and they do so very well. During one two-week scenario, a unit may see car bombings, riots, refugee columns, drive-by shootings, and other humanitarian crises. Units are evaluated on their performance, and subjected to a rigorous "after action review" following each encounter.

The Role of JAG Officers In ROE Training

Army JAG officers play a critical role in this process. Every brigade or regiment (about 3,000-5,000 people) has a JAG officer who advises the commander on legal issues. This includes an area of law known as "operational law," which broadly means all the legal issues that may arise during the course of military operations.

Sometimes, the commander may need to know whether he can attack a specific target. At other times, the commander may need a JAG officer to investigate friendly-fire incidents or potential war crimes. During the Kosovo War, for example, military lawyers played a key role in General Wesley Clark's headquarters, clearing every target to ensure that NATO scrupulously followed the laws of war as it conducted this forceful humanitarian intervention.

It is usually the JAG officer who plans and supervises ROE training, and it's often the JAG officer who ensures these rules get understood at the soldier level. Before deploying to Kuwait, 3^rd Infantry Division lawyers likely briefed every single soldier in the division (more than 15,000 people) on the ROE, with just such an incident in mind.

JAG officers are also likely to be the ones leading the investigation by military police and others into this tragedy.

How the Investigation of the Incident at Karbala May Proceed

Despite the tragedy, Captain Johnson's company has not stopped fighting - suggesting that the Army has some confidence in the lawfulness of what occurred. The 3^rd Infantry Division's mission continues, and this company has apparently continued its advance towards Baghdad in the days since the attack.

This means that JAG officers and agents from the Army's Criminal Investigative Command will have to conduct interviews and gather evidence in the heat of battle. Notwithstanding the need to accomplish the mission, the investigation will still go on.

These investigators will piece together the chain of events, using the vehicle positions and physical evidence to model the scenario as best as possible. The initial effort will focus on reconstructing the incident's timeline, to produce the most accurate version of the facts.

Agents will interview everyone who was listening to Captain Johnson's radio frequency to nail down precisely what was said - and what was heard. And they will mark where bullets were fired, and where they landed (if possible).

This process may not be perfect. Even if the agents gather perfect physical evidence, every statement they take will be affected by the psychological trauma and perspective of war.

The Likely Conclusion of the Investigation: The Shooting Was In Self-Defense

Given the facts reported to date, investigators will likely focus on a theory of self-defense.

As stated earlier, every American ROE starts with the reminder that soldiers have an inherent right to self-defense. In many ways, this right is similar to the self-defense in civilian criminal law. If the facts add up to self-defense, the soldiers' conduct will be ruled justifiable and the investigation will be closed.

The nature of combat, as well as the suicide bombing of a checkpoint two days earlier, will factor heavily in this self-defense analysis. The framework of this analysis will differ somewhat from the framework that might be applied in a civilian context.

Unlike in civilian law, where the ultimate goals are principles like liberty and due process, the ultimate goal in military law is mission accomplishment. Thus, the commander's investigation will take this unit's current mission into account, as well as the effect the investigation may have on future units in similar situation. Furthermore, there is no "retreat" requirement like there is in civilian self-defense law. Soldiers are not required to retreat from an encounter before using deadly force, as they are in some civilian jurisdictions.

A harsh set of findings may make future units more gun-shy, something no commander wants in combat. At some point, to protect themselves and their mission, soldiers must fire at incoming cars speeding towards them if they will not stop despite warnings. Firing a little too early can be tragic, as this incident showed. So can firing a little too late. Absent exceptional circumstances - such as very early firing, or the failure to provide warnings - it may be best to leave most decisions when to fire in the hands of those on the scene.

The Facts Supporting a Self-Defense Finding

Several determinative facts which have appeared in multiple news reports on this incident suggest that the soldiers did, indeed, act in self-defense. Accordingly, that is the conclusion the investigators are likely to reach.

First, it appears that the Iraqi civilian driver ignored a sign in Arabic instructing him to slow for the checkpoint.

Second, the American soldiers responded with something called "graduated" force: Captain Johnson did not command his soldiers to immediately destroy the car as it approached. Instead, he proceeded from warning shot, to non-lethal shot, to lethal force.

Granted, if Captain Johnson's exclamation was reportedly correct, he did seem to believe that his soldiers "didn't fire a warning shot soon enough." But there is no indication that their failure to do so came from anything other than an honest - if tragic - misjudgment as to when was the right time to shoot. In combat, soldiers may only have seconds to make such a judgment call, and any investigation will also take that into account.

Third, and finally, the investigation will focus on the intelligence briefings on possible suicide bombings and the way this car must've appeared to the soldiers as it approached at high speed. Bravo Company's soldiers were fighting on the front lines, where there was a substantial likelihood of guerilla attacks on American forces.

In light of all these facts, a reasonable soldier, given the same intelligence and put in the same situation, would probably have reacted as these soldiers did.

A Contrary Finding Will Result in A Court Martial, But That Is Unlikely

If the investigators find otherwise - for example, if they find that the soldiers acted with malice and killed the civilians with criminal intent (or even negligence) - the soldiers who fired the shots could face court martial. But in the absence of such evidence of bad intent - and so far, no such evidence has been reported - these soldiers will most likely be exonerated.

Ultimately, the lawyers and investigators on the ground will reach some conclusion as to the facts of this case. They will decide, that is, whether these soldiers acted in self-defense or in accordance with their rules of engagement.

A lot is unknowable at this moment, because of the fog of war and restrictions on information from Iraq. But from what is known now, it appears this incident will be ruled a tragic accident, and not a crime.