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

Laguna, Lupe | January 1, 2015

Post-9/11 conflicts have altered the way that the United States of America and her allies fight wars. Over the last ten years military commanders have embraced counterinsurgency doctrine as the path to victory in the War on Terror. As they have done so, commanders have been faced with the difficult task of balancing the need to protect local civilian populations with the need to proactively target insurgent fighters. To accomplish this mission, the military has adopted rules of engagement that allow a service member to engage a target when he or she perceives that the target exhibits “hostile intent.” The difficulty in applying this standard in the field has been highlighted by a number of high-profile criminal investigations that, in some cases, have resulted in service members being convicted of homicide offenses for mistakenly engaging civilians. This Comment argues that since counterinsurgency has changed targeting doctrine via a change in the rules of engagement, the standard for assessing the reasonableness of a service member’s decision to use force should also change. Specifically, the author maintains that a purely subjective standard, which makes the justification question turn on whether the service member acted in good faith, is the most appropriate way to analyze the combatant’s decision to use force in a counterinsurgency environment.