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12 May 2012
Written by MEDEVACmatters.org

Just a reminder of the official US Army position on the need to make changes to MEDEVAC policies and procedures. This is the final three paragraphs of the statement issued by the Army Chief of Public Affairs on January 20, 2012 following the CBS Evening News segment on the death of SPC Chazray Clark:

“Further, arming MEDEVACs would not reduce the need for armed escort. Again, our aircraft travel in pairs. The decision to use escort is the tactical commander’s, and the Army does not dictate how or when it is necessary to use these assets.

Finally, it’s important to remember that the Army would change its policy if battlefield commanders wanted a change. We take our obligation to perform the MEDEVAC mission very seriously. We’re a learning organization and periodically we review our policies to make sure they remain relevant. We looked at the MEDEVAC policy in 2008, but after a review, we determined no change was necessary.

Additionally, neither the International Security Assistance Force or U.S. Forces – Afghanistan has requested a change in policy; because our MEDEVAC crews and aircraft provide the best chance at survival ever seen in warfare, and because — as commanders in Afghanistan have told us — not arming our MEDEVACs and identifying them with the red cross has had no impact on the medical evacuation mission.”

Yep. In 2008 they “looked at MEDEVAC policy” and determined “no change was necessary”. You know, the fact that the number of KIA and WIA increased more than 6 fold in 2009 and 2010 didn’t prompt any new “review” – why would it? This only reflected a sea change in the level of intensity of fighting and the weapons used. Did the number of MEDEVAC helicopters sustaining hits from ground fire increase after 2008?

If fires in your town increased 6 fold year over year, would you expect the fire department to re-examine its operations to make sure it had stations in the right places and procedures that got the fire trucks to the scene of a fire ASAP? If the last time your ambulance service reviewed procedures it defended getting a trauma victim to a medical facility within 2 hours (and accomplished that only 75% of the time) as being OK – would you be sanguine about how they operated? How about if they then published an article informing you that the benefits of the Golden Hour was all a myth?

Between 2008 and 2012 did the Army review some of its policies and procedures? Sure. Was a comprehensive review done? Not that I have found mentioned or documented anywhere. Even in 2012 the Army leadership still points to a 4 year old study done on activities that were conducted at a pace that is a fraction of the current one.

Did the Army heed any after action reports that stated that current launch authority procedures slow the initiation of MEDEVAC missions? No.

What else happened in that time frame? Oh, yeah. The question of removing Red Crosses from the MEDEVAC helicopters and mounting guns was posed to the Army Judge Advocate General by the Army Surgeon General. Much to the horror of AMEDD command, on October 8, 2008 the official 4 page legal opinion from the Office of the Judge Advocate General – International and Operational Law Division said there was no violation of international law or the Geneva Convention if the Red Crosses were removed and the helicopters armed.

“2. Purpose
Reference f. requests legal review of the proposal by C Company (Air Ambulance), 2-227 GSAB, to “paint over” the red crosses on three MEDEVAC Aircraft, in order to employ them as chase aircraft during their upcoming deployment. The unit is intending to keep the MEDEVAC carousels, medical equipment sets, and flight medics on board during all missions and install M240, 7.62 Medium Machine Guns in the door-gunner’s windows. the unit is exploring the possibility of training for aerial gunnery. The unit proposal is to use the aircraft in an escort/support role and use an “extra” set of cargo doors with red crosses for actual MEDEVAC mission, if required, after the M240′s have been removed. This legal review is provided at the request of the Office of the Surgeon General of the Army, to provide a legal opinion as to the implications of the proposed action under the Geneva Convention.

3. Summary Finding
As more fully described below, the arming of the MEDEVAC helicopters and employment in an escort/support role is not legally objectionable, even though it may result in the loss of GWS protection for the aircraft and its crew. However, the Surgeon General should coordinate with the receiving operational commander, to determine the best course of action for this unit, in this mission.

4. Discussion
[snip]
c. Analysis: Removing the distinctive insignia and mounting the M240 Medium Machine Gun (a crew served weapon according to Army doctrine), in order to conduct escort/support missions would be an act “harmful to the enemy,” which would deprive the aircraft, any patients it carried, and its crew of the protections of the GWS. Replacing the red cross insignia and removing the M240 would enable the aircraft to regain the protections of the GWS for the duration of the MEDEVAC mission. The aircraft could be accused of “perfidy,” a law of war violation that involves feigning protected status to gain an advantage on the enemy, should the aircraft be armed with crew-served weapons and marked as a MEDEVAC aircraft, however.

d. Legal/Policy Considerations: Ref. g, the DoD Law of War program, provides that Secretaries of the Military Departments shall develop policies and procedures consistent with the law of war, while Commanders of Combatant Commands must implement the law of war within their respective theater of operations. Longstanding Army policy and doctrine, outlined in ref. c. and para. A-12 of FM 4-02.02, prohibits the mounting of crew served weapons on MEDEVAC aircraft, lest the platform lose its protected status under the GWS. Although the Secretary of the Army has responsibility under ref i. to train, equip and mobilize forces, the Combatant Commanders are responsible under ref. h. to organize them for combat. Accordingly, while the Surgeon General, delegated the responsibility to establish law of war doctrine for medical personnel from the Secretary of the Army, can dictate policy and doctrine in preparing the unit for deployment, it is the receiving theater headquarters which must decide how they are to be organized for combat, as long as it is done in a manner consistent with the Geneva Conventions.

6. Conclusion.
While the GSAB proposal to arm MEDEVAC helicopters and employ them temporarily as escort/support aircraft is not a violation of the law of war, as long as the aircraft does not engage in “perfidy”, this action would deprive the aircraft and crew of any protections available from the GWS. Recommend coordination with the theater operational commander, through ARCENT, to determine the parameters of employment of the unit.”

So armed helicopters can fly MEDEVAC or non-MEDEVAC missions without limitation and no change in the medical equipment on board would be required as long as the Red Cross insignia is not displayed. It was a decision that the JAG opinion said rested with the operational commander. This opinion was signed by Richard B. Jackson, Special Assistant for Law of War Matters.

The only caution is that by removing the Red Cross insignia, it exposes the aircraft and crew to hostile fire from the enemy. Let’s recall the January 20, 2012 statement by the Chief Public Affairs Officer:

“First, there is no evidence, implied or proven, that the enemy deliberately targets MEDEVAC helicopters, but we know from hard experience that the enemy does try to shoot down any and all U.S. and coalition aircraft.“

(Clearly, even the Army says the presence of the Red Cross insignia does not provide the promised protection from the Geneva Convention. What would be lost then by removing them and arming the MEDEVAC helicopters?)

So how did the Army Surgeon General react to getting the A-OK on October 8, 2008 from the JAG to arm the helicopters? On January 8, 2009 he sent a memo to the Deputy Chief of Staff. In the memo Lt. General Schoomaker informed the Deputy Chief of Staff of the Army:

“Key Points:
a. There are significant legal concerns regarding the execution of the concept [painting over the Red Crosses and installing M240 crew served weapons on MEDEVAC aircraft] and the likely problems that will arise from a practical standpoint.

b. Longstanding Army policy and doctrine prohibit the mounting of crew served weapons on MEDEVAC aircraft and provide detailed guidance on the utilization of the MEDEVAC aircraft, lest the platform lose its protected status under the Geneva Convention.

c. The Hague Convention, Regulations Respecting the Laws and Customs of War on Land specifically prohibits the misuse of the Red Cross symbol. A misuse would include marked with Red Crosses for offensive operations (M240 crew served weapon viewed as offensive) or in self-defense beyond that allowed by Geneva Convention. The arrangement proposed by the 1st CAB invites the possibility of a Law of War Violation.”

Did you notice the sleight of hand that happened? Aside from not informing the Deputy Chief of Staff of the JAG opinion 90 days earlier approving the Combat Aviation Brigade proposal, the Lt. General misrepresented the facts by saying “There are significant legal concerns” about painting over the Red Crosses and arming the MEDEVAC helicopters.

In points b and c, he has shifted to ignoring the part of the proposed action that painted over the Red Crosses and therefore removed any issue about violating the Geneva Convention and its non-existent protection of MEDEVAC helicopters in 21st century warfare with non-signatory forces.

Lt. General Schoomaker concludes by asking for the Deputy Chief of Staff for the issuance of “immediate guidance in reference to the utilization of MEDEVAC aircraft” that would prohibit the proposed action by the CAB.

I understand that the Army Surgeon General was concerned about losing control of MEDEVAC aircraft. This had been a point of contention since the 1960′s. I do have a problem that he did not rest his case solely on an argument based on assuring adequate equipment availability for MEDEVAC missions. His memo can at best be charitably described as being misleading through omission.

Aside from the core issue at hand in this case (removing Red Cross insignia and arming MEDEVAC helicopters), there is a lesson here about taking Army and DoD statements at face value. If a Lt. General felt comfortable wordsmithing his appeal to the Deputy Chief of Staff of the Army in a way to manipulate a response, why should we (and interested Congressmen) think we are immune to similar tactics directed at those wishing to review AMEDD and Army handling of MEDEVAC issues? Caveat Emptor.

The original article can be found here.