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The number of alleged violations of
the Geneva Conventions and their Protocols by U.S. soldiers and
Marines continues to grow, reaching the threshold at which most
of the U.S. public needs the proverbial "scorecard"
to keep track of the different incidents. In addition to the
trials of soldiers who perpetrated the abuses and caused the
death of at least one detainee at Abu Ghraib, there were no fewer
than five high-profile enquiries or formal investigations underway
at the end of the first week in August:
* A Marine squad accused of
killing 24 civilians and members of the chain-of-command falsifying
or failing to investigate the incident (Haditha);
* Five soldiers accused of
premeditated rape of an Iraqi teenager and murdering her and
her family (Mahmoudiya);
* Marines accused of killing
an Iraqi civilian and then planting an AK-47 beside his body
(Ramadi);
* Marines accused of assaulting
detainees during interrogation:
* Preliminary enquiries into
an alleged order from an Army brigade commander to "kill
all military aged males" and the subsequent deaths of three
Iraqi men (Salahuddin).
Add to these a trial just beginning
in North Carolina, under provisions of the USA PATRIOT Act, of
a former CIA contractor accused of beating an Afghan detainee
who later died, and the complications of who is subject to what
provisions of which law is enough to give the non-lawyer a headache.
These possible violations of the laws of war and the Geneva Conventions
are not unique to the war in Iraq (or in Afghanistan). Similar
incidents have been documented in previous wars by different
armies, and looking across the landscape at ongoing conflicts
from Sri Lanka to Somalia to Israel-Hezbollah-Lebanon and Israel-Palestine-Gaza,
the pattern of ill-treatment repeats itself. Is this something
that simply "happens" in war regardless of policy and
troop training, a "collateral feature" of war the "bleeding
hearts" in the world simply must expect and accept because
humans are prone to excessive brutality in wartime? Or can war's
brutality be moderated sufficiently by intensified training and,
if needed, intense psychological counseling so that those trained
by government to kill during combat develop an ability to control
aggression when not in combat? Are there specific "triggers"--location
or the habitual carrying of a loaded weapon--that might be identified
with increased frequency of atrocities?
First, some background on the history--which is very short--of
prosecuting individuals for war crimes.
Prior to the tribunals in Nuremberg
and Tokyo following World War II, leaders of defeated governments
(usually royalty) and military commanders were rarely held legally
accountable for the policies of their governments or the actions
of their armed forces in war. Certainly, when the victors happened
to be in a vengeful mood, a formal legal trial was superfluous.
But occasionally trials were held--for example, in 1648 parliament
formally charged Charles I of England with treason for raising
an army against parliament. He was tried, pronounced guilty on
a vote of 68-67, and executed in 1649.
Conversely, the Soviet government
representatives at Nuremberg thought that whole procedure a waste
of time since--as was common in their "legal" system--anyone
accused had to be guilty.
The Nuremberg and Tokyo trials
broke new legal ground by holding individuals accountable to
the international community for political-diplomatic-military
policies and actions of a government. Prior to these tribunals,
no comprehensive agreement existed that defined what constituted
a "war crime" or what penalties could be levied on
those convicted of committing "war crimes." The Hague
Conventions of 1899 and 1907 detailed how prisoners-of-war, other
detainees, and non-combatants were to be treated during combat
and under occupation and how civilians were to act when under
occupation--the "customary laws of land warfare." But
the Hague Conventions provided no enforcement mechanism. By default,
enforcement fell to the winner--and the winner was certainly
not going to charge its "heroic" leaders or soldiers
with war crimes even should an especially brutal atrocity have
happened--as long as it could be subsumed in the larger "war."
In fact, the only mention of judicial proceedings in the Hague
Conventions is the requirement to hold a trial for an accused
spy.
(It's important to note that
the customary laws of land warfare were incorporated into the
Uniform Code of Military Justice which became part of U.S. law
in 1951, after the start of the Korean War. Moreover, in July
1950, General Douglas MacArthur announced that U.S. and UN forces
in Korea would abide by the 1949 Geneva Conventions.)
As World War II drew to a close,
the four major allies, determined to hold their enemies to account,
agreed in the "London Charter" of August 1945 on three
categories of offenses: violations of the customary laws of war,
crimes against humanity (mistreatment , enslavement, murder of
large groups with common characteristics such as ethnic origin),
and crimes against peace (planning or implementing aggressive
warfare). Under these categories, twelve high ranking Nazis and
seven Japanese were tried, found guilty, and executed. Over the
years, others deemed to have committed war crimes have been pursued
and tried in national courts.
Article 147 of the Fourth Geneva
Convention of 1949, which was being drafted at the same time
as the war crime trials were being held, finally filled the definitional
void. It defines war crimes as the "Willful killing, torture
or inhuman treatment, including... willfully causing great suffering
or serious injury to body or health, unlawful deportation or
transfer or unlawful confinement of a protected person, compelling
a protected person to serve in the forces of a hostile power,
or willfully depriving a protected person of the rights of fair
and regular trial..taking of hostages and extensive destruction
and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly."
All too soon, the world was
again embroiled in significant, extended combat. Although a mere
five years had passed since the conclusion of World War II, in
some aspects the Korean War would turn out to be a "transitional"
conflict. In the early days of the war, and again--albeit less
often--when the Chinese crossed the Yalu River into North Korea,
U.S. (and UN) units often found themselves operating on their
own, sometimes in quite perilous circumstances. (Eventually,
battle lines were re-established, producing the familiar "front"
of the two world wars, especially the trench warfare of World
War I.) And it was during these periods, when individuals and
units were under maximum stress and chaos and confusion reigned
in headquarters and in the chain-of-command, that "battlefield
exigencies" led to violations of Article 147.
For example, Far East Bomber
Command, headed by the U.S. Air Force, routinely employed incendiary
weapons against North Korean villages and towns. One unofficial
source reports that more napalm was dropped in Korea than in
Vietnam. Similarly, hydroelectric dams and irrigation reservoirs
were targeted in an effort to impede industrial output, reduce
agricultural production, and cause flooding. At the time, these
incendiary weapons were not banned under any agreement nor were
attacks on civilian infrastructure.
In fact, all parties in the
conflict targeted civilians or mistreated POWs. North Korean
and Chinese troops executed thousands of prisoners, both military
and civilian, and South Koreans killed suspected "communist
sympathizers." Declassified Fifth U.S. Air Force records
include a July 25, 1950 memo stating: "The army has requested
we strafe all civilian refugee parties approaching our positions.
To date, we have complied with the army request," adding
that "it is not understood why the army is not screening
such personnel or shooting them as they come through if they
desire such action." The memo's author recommends stopping
the strafing, not because it might be wrong, but because "more
suitable targets are available."
The "fortunes of war"
did find army units shooting at refugee columns believed to be
infiltrated by North Korean fighters No Gun Ri has become synonymous
with these actions in Korea during the North's initial sweep
south between June 26 and August 4, 1950, when the Pusan perimeter
was finally established. However, to set up the perimeter, bridges
over the Nakdong River were blown up--including at least one
occasion with civilians still trying to get across despite warnings
that the bridges were about to be destroyed.
During that first month, the
chain of command was so desperate to slow the North Korean assault
that discipline within the command structure itself broke down
and corners were cut--widely cut. Moreover, the first U.S. troops
sent into Korea had been plucked from occupation forces in Japan.
Few had seen any combat, and occupation duty was not the sort
of experience that promoted what we today term "unit cohesion."
This was the period when battle lines didn't exist and units
were not in contact with each other, which meant that flanks
were unprotected from enemy attack. Under orders to stop at all
costs the enemy's momentum, and aware that North Korean soldiers
were mixing with legitimate civilian refugees to get behind U.S.
positions and attack from the rear, some troops took "at
all costs" to include firing on groups of civilians trying
to push into the rear areas. Possibly, had commanders accompanied
the "at all costs" orders with explicit instructions
to not fire on fleeing civilians, the number of "No Gun
Ris" might have been fewer. But even spelling out the rules
more plainly--e.g., "I was only following orders" no
longer was a valid justification for an illegal act--could not
guarantee that these minimally-trained soldiers would actually
follow the Convention when confronted with "real life."
By the time the Chinese entered
the fray in November 1950, pushing the UN forces back from the
Yalu to below the 38th parallel, U.S. and UN troops were better
trained, battle hardened, and more disciplined--all of which
would contribute to a reduction in Article 147 transgressions.
Nonetheless, on the basis of the Fifth U.S. Air Force memorandum
mentioned above, one can assume that Korea had its share of known
violations of Article 147 of the Geneva Accords that were not
investigated at the time or even after the 1953 armistice. Only
when No Gun Ri re-surfaced along with "the war on terror"
were further investigations made by South Korean and U.S. officials
that identified some forty separate incidents contrary to the
laws of land warfare.
Vietnam presented different political-military and operational
parameters, some of which have only recently come to public knowledge
through newspaper accounts of a once-classified 9,000 page Pentagon
report on some 820 alleged war crimes committed between 1967-1971--of
which 320 were confirmed. The Pentagon has moved to withdraw
public access to the report on "privacy act" grounds.
Withdrawing the entire report would protect the identities of
those investigated in connection with unsubstantiated allegations,
but it also allows the Pentagon to conceal the identities of
those who failed to follow up on the substantiated crimes or
whose actions might be deemed to be contributing causes to the
specific violations.
Throughout its duration, the Vietnam War resembled Korea in that
first month before the Pusan Perimeter finally produced a continuous
line of battle for the U.S./UN forces. Isolated fire bases and
Special Forces camps, division or brigade fortified bases, even
Vietnamese province and district "seats" with their
own military units and command structures, often were little
more than islands of government control in a sea of passive or
hostile influences. The predominate attitude among U.S. forces
in-country was distrust of all Vietnamese--again because one
could never be sure who was a real friend and who was a clandestine
enemy. Intelligence was contaminated with personal rivalries,
especially at the higher levels of the South Vietnamese government
and military--reflected in the numerous coups staged after President
Diem was assassinated. The practice of declaring "free fire
zones" for both artillery and air power added to the number
of incidents described in the report just made public. And to
these must be added the public accounts in the last few years
of SEAL and Special Forces raids in which non-combatants were
deliberately targeted, as they were in My Lai.
As to the "why" these violations occurred, one can
point to indiscipline, fear, and the use of a twelve month individual
replacement system that limited trust and fostered the attitude
that "I" would not be the last American killed in Vietnam.
The constant psychological pressures added to the never-ending
need to be on guard against both the known and the unknown enemy
(which might even include the GI in the next "foxhole"
with the urge to "frag" someone) could easily evolve
into a murderous hatred of all things Vietnamese. And the actions
of other nationalities fighting in Vietnam could be taken as
"validation" of the U.S. soldiers' outlook--one need
only think of the South Korean "tiger cages."
Iraq is quite similar to Vietnam in the conditions that can lead
to atrocities. Until very recently, troops were not trained for
counterinsurgency warfare let alone a sectarian-based civil war--a
point made by LTGEN Peter Ciarelli about his own military training
and experience. Constantly harassed, constantly on guard, not
sure who is "with us or against us" or simply passive;
improvised explosive devices randomly striking convoys at places
that were "clear" the day before; sectarian strife
bordering on civil war (compare Vietcong and "loyal"
South Vietnamese); a political system that seems incapable of
getting its act together--these are some of the factors creating
the psychology of lawlessness in which atrocities occur.
There have probably been fewer incidents in Iraq given the length
of time U.S. forces have been there, but another reason for fewer
incidents may well be that the number of troops in Iraq has consistently
been around one-quarter the total in Vietnam at any one time
(Vietnam's maximum was 550,000).
Here the "why" might better be posed as a "how"--how
did this happen again?
The underlying problem is not new: the recurring belief that
the world can be made to conform to the Pentagon's preferred
world "vision" rather than the Pentagon having to respond
to the world as it is--in this instance, declaring after Vietnam
that the U.S. was not going to get mixed up in any new long-term
counterinsurgencies. Lack of military leadership, lack of experience
with war among the civilian leaders in and outside the Pentagon,
and an ideological bias devoid of realpolitik all contributed
to a sense of total freedom of action in formulating and implementing
policy.
At the individual soldier level,
there is a failure in the training regimen which takes a young
man or woman off the streets and tears down whatever sense of
personal worth and dignity he or she has in the interest of rebuilding
and reintegrating the "new" person into the military
system. There used to be a military culture that accepted and
integrated both enlisted personnel and officers into the military
community, one that conditioned and regulated actions and attitudes.
That structure is less pervasive, less influential--or perhaps
already "missing in action"--as the compensating force
restraining illegal behavior both in combat and back in the "safety"
of U.S. territory. (An indication of this absence is the spate
of homicides at military bases last year among returning troops.)
Put another way, the government trains men and women to kill
and destroy, but then doesn't provide the support and the tools
to keep these proclivities under strict control when--as is the
norm in life--they are inappropriate. So the liberator becomes
the occupier, and necessary (though not morally "justified")
fighting undertaken to preserve the nation turns into revenge
for the deaths of close comrades. Noncombatants become "collateral
damage," with images seared into memory, like a landmine
waiting to be activated by some seemingly innocuous event sometime,
somewhere, in the future when even greater destruction will be
possible .
Yes, there are now war crimes
and crimes against humanity that most nations acknowledge and
instruct their militaries to avoid. But as Abu Ghraib and Guantanamo
and the CIA's secret global network of prisons attest--and now
also the combat involving Israel, Hezbollah, Palestinians, and
Lebanese--knowing is not the same as "no-doing." This
needs correcting, and the Middle East conflagration offers an
opportunity to bring knowledge and action into alignment.
At the 1945 London negotiations,
the four allied powers could not agree on a definition of aggressive
warfare even though they did prosecute high ranking Nazis for
crimes against peace. Today, many see war as nothing less than
organized murder, crime on a massive scale. Combining this interpretation
with the London conference's concept of "crimes against
peace" could be a useful next step by the international
community in trying to reach consensus on a definition of aggression
and aggressive war. Achieving this goal would complete the agenda
of the London meeting, close a gap in the Treaty of Rome establishing
the International Criminal Court, and move the world closer to
eliminating the scourge of war.
Col.Dan Smith is a military affairs analyst
for Foreign Policy In Focus,
a retired U.S. Army colonel, and a senior fellow on military
affairs at the Friends Committee on National Legislation. Email
at dan@fcnl.org or blog "The
Quakers' Colonel."
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