Saturday, May 03, 2008

The U.S. military justice system's reputation

We have previously noted what appears to be a trend in the international humanitarian law community to view the U.S. military justice system with some scepticism as insufficiently concerned with punishing war crimes -- and, as a corollary matter, insufficiently effective in deterring war crimes.

I am not taking a position on that question, which I certainly have not studied in sufficient detail to have an informed opinion. (A massive Bill Jamesian effort would be required to inform a judgment about whether such criticism has merit -- does anyone know of any academicians who are currently researching this subject?)

But there is a short item in the January issue of the American Journal of International Law that may increase the perception that the military justice system is lenient in alleged war crimes cases. The Journal's "Contemporary Practice of the United States Relating to International Law" section, edited by John R. Crook, has an item titled, Army Snipers Acquitted of Murder Charges in Killings of Iraqis Using Disputed Tactics, 102 A.J.I.L. 185 (2008). The piece begins, "Several courts-martial that were hearing murder charges against soldiers and noncommissioned officers serving as Army snipers have ended in acquittals." The article doesn't suggest whether the outcomes in these cases were just or unjust, but many of the Journal's readers may draw their own value judgments -- which rightly or wrongly will likely be largely unfavorable to the military justice system.


Cloudesley Shovell said...

A trend? Based upon what? Where's the data? Who or what is this "international humanitarian law community" making these allegations against the US military justice system? What are the specific allegations? What specific breaches of the laws of war are alleged? What is the proof?

What is the record of each party to the current conflict in adhering to the laws of war and prosecuting breaches thereof? What are Al Queda's ROE? What are the ROE of the various militias in Iraq?

I am also wondering why you think the short, factual account in the A.J.I.L. (available on Lexis) would tend to increase the perception that the United States is "insufficiently concerned with punishing war crimes." The 416-word article merely restates the facts. Two soldiers are convicted of lesser charges, but acquitted of murder. A third soldier faces charges. That seems to me to indicate a very robust concern with prosecuting war crimes.

There is a difference between prosecuting and punishing. Punishment comes only after conviction. Absent a conviction there is no "war crime." A dead civilian, even when proven that the civilian was killed by a member of an armed force, does not mean that a war crime was committed. The laws of war are fairly complex, but one thing is certain--the laws of war specifically contemplate and expressly permit methods of war that will result in civilian deaths.

What the laws of war specifically prohibit is perfidy (among other things), precisely because perfidy leads to confusion, lessened concern for non-combatants and civilians and an increase in civilian deaths. Hiding in the civilian population while failing to carry arms openly is one specific perfidous war crime, one committed every day by the enemy. Who's responsible when such tactics result in additional civilian deaths? It's the person (and his commander) committing the perfidy, not the shooter.

It would be very interesting to read the judge's instructions in these various trials that have resulted in acquittals (or what are perceived to be "light" sentences). I suspect that many of these cases are resulting in acquittals because the members are following the law, or because the gov't has failed to meet its burden, not because they are engaged in nullification. See also Mr. Richard Stevens' extensive comments in response to No Man's commentary on the Trevino case.

There are some remarkable things in the laws of war, and the history and development of that body of law is quite fascinating. What is so very frustrating is the politics that surround allegations of "war crimes." It's an easy charge to make, one that these days is mostly made against the United States, because it's easy to pick on the US. It's too bad that the reality is that it's the other side who's committing the war crimes every day, and in fact makes perfidous methods part of its regular tactics. I wonder why we're not seeing any trends in the international humanitarian law community condemning the tactics of the enemy?

Anonymous said...


Good post and good thoughts. But "perfidy" cuts both ways. It also includes the chicken-hawk argument: criminal soldiers hiding among real soldiers. That is, war criminals borrowing the credibility of the soldier's profession to get away with murder.

I am agnostic on this issue. I need to see and hear the facts of each case. But I know enough about human nature to know that some American soldiers - like a handful of any soldiers from any other nation - are at least capable of murder.

If your argument has any integrity, you must maintain we we could not form negative perceptions about, say, California criminal courts, based on the O.J. Simpson verdict. But "perception" is not necessarily reduced to a rational treatise.

So, are you saying that you doubt the perception? Or are you saying that the perception is wrong? These are two distinct issues.

Cloudesley Shovell said...

Actually, perfidy has a precise definition in the law of war. "Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy." Examples are:
(a) The feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) The feigning of an incapacitation by wounds or sickness;
(c) The feigning of civilian, non-combatant status; and
(d) The feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.

Have members of the US armed forces committed crimes in Iraq? Sure. Including murder? Sure. Such acts have happened in past wars and will happen in future wars. No society is free of crime. Can we catch and prosecute every single perpetrator? Of course not. One can hardly expect that of any justice system, because no system of justice is perfect. Where are the specific examples of the US military justice system ignoring or being insufficiently concerned with prosecuting these crimes? Does this perception have some defensible basis? If so, what is that basis? If it's because there have been acquittals and light sentences, demonstrate why the particular cases should have been convictions instead of acquittals, and why sentences should have been heavier.

People form perceptions about various things all the time. It's human nature. What I am challenging is the validity and basis of the perceptions cited in the post. If a person wants to make up his mind about the entire California court system on the basis of one highly publicized case, that's his business. If I choose to challenge his perception, however, I hardly need to maintain that nobody is permitted to form a perception on such a basis in order for my challenge to have any "integrity," as you put it. (I might choose the word "merit" instead.) If you haven't read it, get a copy of Vincent Bugliosi's book "Outrage," which is about that case. Excellent book. Ought to be on every criminal lawyer's bookshelf.

In any case, I happen to believe that the burden of persuasion lies with the proponent of a perception or theory, which is why I asked the questions I asked in the first paragraph of my original comment.

Anonymous said...

C.S., while I agree with most of what you said, I think you protest too much and your "burden of pursuasion" argument is too clever by half.

If I am an Iraqi civilian whose family has been killed by an American solider - and that soldier is acquitted - I "have a burden of persuasion"? Before I can form a valid or reasonable perception, I must abide by a logical rule asserted by cloudesley shovell?

America, by act, is asserting its jurisdiction and its military justice system in foreign lands. America is thus the "proponent" of all its attendant theories about military justice. Even under your rule, the burden of persuasion lies with America to defend its military justice system.

That said, I think many of your arguments meet that burden.