Is a Danish court able to grasp actions taken on the front?

A Danish army officer faces trial over the alleged killing of civilians in Afghanistan. The trial will be the first of its kind in Denmark.

The officer was stationed in Afghanistan’s Helmand province as a company commander in 2011. On October 23 he authorized an attack on four Afghans who were presumed to be placing improvised explosive devices (IEDs) near a Danish base. This decision is now being questioned, and the officer is accused of “gross dereliction of duties during armed conflict” violating Danish military penal code.

This trial raises several questions: will a Danish district court in peaceful Copenhagen be able to grasp the war-like environment in which the Danish soldiers in Afghanistan operate? And is it even right to question our soldiers’ actions in war?
Danish sniper team observing in Afhanistan's Green Zone


Positive identification

Danish soldiers in Afghanistan operate under a NATO mandate and a set of “Rules of Engagements” defining when use of deadly force can lawfully be applied. Generally, units are allowed to defend themselves and their coalition partners with all their available weapons. However, the rules for attacking enemies who do not pose an imminent threat are more rigid. A central concept for doing so is positive identification: the soldier has to be sure that he is actually firing at the enemy and not civilians.

However, neither Danish soldiers nor our allies are murderers. They are soldiers carrying out their mission with the means available. They all have families of their own and no one wishes to open fire on innocent civilians. Personally, I think the term positive identification does not matter. As a Danish officer I would never give the order to fire upon people I was not sure were enemy.


Understanding the dynamics of war in peaceful Copenhagen

Copenhagen’s district court is now to determine whether or not the Danish captain’s actions on October 23 were in alignment with the rules of engagement. To understand the decisions made by the company commander, the court needs to understand not only the specific rules of engagement but also the dynamics of war in Afghanistan’s Helmand province.


Data and gut feeling

From my personal experience I can certainly tell that what seems a rational decision in Afghanistan would probably be judged otherwise in Denmark.

Many of my own tactical decisions in Afghanistan were based on a mixture of analysis of data and impressions mixed with my own gut feeling. In the summer of 2009 my platoon was operating from a small base at the edge of the irrigated area called Green Zone near the Helmand River. Units delivering supplies to the base had to pass a funnel in the desert. We were not able to monitor the funnel from the base and Taliban continuously placed IEDs at the funnel. We therefore placed the funnel under continuous surveillance.
We were then able to identify different patterns that led up to an IED being placed in the funnel.

The first to arrive were always the scouts. They parked their small 125 cc motorcycles at the edge of the desert, walked the same route at the edge of the funnel and met at some ruins where they could keep an eye on us at the base without being seen.

Next to arrive was the man digging the hole and one hour later one or two men would arrive with the actual device and place it in the hole to harm either us or passing civilians.

At first, we did not know that this was the pattern for laying IED. But after seeing this pattern a couple of times prior to actually finding an IED where the digger had been observed, made us certain that we were now able to take the offensive against the IED layers.

We were relieved before we got a chance to intercept the IED layers. Our sniper team, however, stayed with the platoon that took over from us. A week later they killed an IED team.

To be given the authority ultimately to kill other humans requires many considerations. Using this authority requires even more.

Will the district court then be able to understand how these seemingly uncorrelated data can provide evidence and justification for pulling the trigger?

I think they will. At least, it is the job of the accused officer ‘s barrister to make the court understand.


Challenging decisions

Challenging decisions made on the ground in Afghanistan is fair. The soldiers represent a democracy and operate within a mandate. Any suspicion of violation of the mandate must be thoroughly investigated. And if there is evidence suggesting that rules might have been violated, the case must be brought before a judge in a court. In a civilized society governed by the rule of law this is how we solve disputes. And that is what we are trying to promote in Afghanistan.

The problem here in Denmark is that this case is the first of its kind. It creates a lot of uncertainty within the officers’ corps. Are we now being charged for every action taken in combat? I think there has been until now a belief that tactical decisions in combat should never be questioned afterwards, that the leader on the ground always makes the best possible decisions. He still does. The difference is actually nothing: combat leaders must always be able to explain their actions.

After all people’s lives are at stake.

Decision-making in peacetime can be difficult. Making sound decisions in combat is even more difficult. I am sure that the court will take that into consideration as well.

3 thoughts on “Is a Danish court able to grasp actions taken on the front?

  1. Stefan Høegh-Neumann

    This is a very interesting thing, happening now..
    I think it’s going to be hard for the officer’s lawyer to make the court understand the dynamics of war, especially if none of the court’s members has been in a war.

    Of course the men fighting needs to be 100% sure that they are shooting on enemies, but I think the outcome of this case will have a major impact on current soldiers and officers currently fighting, because they can be held accountable for every action they are doing, right or wrong.
    If an officer has to consider all the effects a decision has, if it’s the right or wrong decision he’s about to make, then it can end up costing soldier’s lives, as you mention yourself.

    1. Soren Sjogren Post author


      Thanks for commenting.

      I am confident that the court will be able to take into consideration how difficult decision-making in war can be. I agree, it might be difficult for the officer’s barrister to do so but it is not impossible.

      Soldiers and officers must be held accountable for their actions even in war. I do not agree with the arguments stating that this case hampers the officers’ ability to make decisions in combat. On a personal note I would also have been held responsible had I targeted the wrong people. However, in combat I have never thought about the possible sanctions on my actions. I was entirely focused on solving the task at hand. I cannot see how this case should change that.

      It is also important to remember that this case is the first of its kind and that officer is innocent until a judge rule otherwise.


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