Command Responsibility and War Crimes: general discussion

[Polarbear1605]

Understand what you are says about risk aversion…but I honestly do not believe that our general officers are applying any type of risk analysis or matrix to these situations. I do believe that the “double standard” is now dogma and an indicator of bad strategy. For example, and I have used this one frequently because the world watched this event on their TVs. When we got al-Zarqari in Iraq, we dropped two 500 LB bombs on the house he occupied. There was collateral because among the multiple bodies was a woman and probably a child. We also know that Special Forces had eyes on target because when they got to Zarqari to confirm his death, he was still alive. This attack is easily justified under the laws of war based on the principle of military necessity.
When we look at Lt Lorance's case, as an example (I say example, because our military leadership has gotten so confidently numb with this dogma, they no longer leak the investigations and we only have these passing lines in short news articles), he was not convicted of violating the laws of war. He was convicted of murder. When two “civilians” are dogging you on motor cycles on a counter insurgency battlefield, calling them civilians and charging you with the Rule of Law crime of murder, avoids the issue that they may have been acting like recon. Acting as recon moves them into the Laws of War category of “Enemy Combatants”. What this legal case does (and many others) is to extend the right of civilians to enemy combatants and denies the rights of combatants (and self-defense) to Soldiers and Marines in combat.

[jmm99]

I understand the catagories:

1. Personnel Risk Aversion, involves both Command Responsibility and Responsible Command.

2. Personal Risk Aversion, involves almost exclusively Command Responsibility (perhaps ?)

but I think the construct needs more development.

I'd suggest a distinction between "personal risk aversion" and "unit risk aversion" (which I'd distinguish from "personnel risk aversion"). E.g., under one set of facts which could be argued in the Behenna case (which involved multiple, variant and contradictory sets of facts and "facts"), with respect to a specific individual (say, a unit commander), personal self-defense would be not justified to him, whereas unit self-defense would be justified to him - all under the same set of posited facts (or "facts"). In short, a unit commander in killing a person could be unjustified with respect to the concepts underlying personal self-defense (variable), but justified with respect to the concepts underlying unit self-defense (absolute).

More broadly, we have the concepts underlying "individual" and "collective" self-defense; as well as the concepts underlying "individual" and "collective" offense against what is perceived or defined as "evil". I'd argue that both Command Responsibility and Responsible Command are involved as soon as a "unit" (e.g., a 4-man fireteam) enters the picture. So, the "Strategic Lance Corporal".

Thus, the focus should be focused on what I'd call "Comparative Combat Philosophies and Policies", driving "Comparative Combat Law" (not Google categories) - a very non-objective topic, subject to biases and emotions (and rightly so, I'd argue).

While the "laws of war regulating combat" (jus in bello) have been discussed ad nauseum (at least to me presently), discussion of their underlying philosophies and policies is less frequent. Perhaps, I've missed some things.

Gabriella Blum is one who has discussed this topic in two recent articles (abstracted below).

For an introduction to her, see these videos (less than 10 min each): Gabriella Blum, Tomorrow 2008 (JMM comment: Focus is on the future of International and Regional Organizations - "coalitions of the willing" vs "coalitions of the pi$$ed"); and Gabriella Blum, Tomorrow 2009 (JMM comment: Focus is on Liberal Arts Education vs "Trade Schools", to include law schools; "a collection of slaves").

Besides being interesting (much more so than Michael Walzer), she has great methodology and depth, as exemplified in the following:

Gabriella Blum, The Dispensable Lives of Soldiers (2009)

Abstract:

Why are all soldiers fair game in war? The laws of war, under their current interpretation, divide up populations into two classes – that of civilians and that of combatants – and accord each its own set of privileges and obligations. Taken together, the legal principles of military necessity and distinction strike up a bargain by which combatants are to be sacrificed for the protection of civilians. Under this bargain, all soldiers are fair game, regardless of their role, function, or the degree of threat they pose at any particular moment. Consequently, the killing of retreating soldiers in Iraq, the attack on officials meeting in Korea or shooting soldiers playing soccer in Bosnia – are all legitimate military operations.

This paper challenges the status-based distinction of the laws of war, which has so far been widely accepted by international law scholars, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. My argument stems from a recognition of the value of all human life, including that of enemy soldiers. I argue that the changing nature of wars – the decline in the importance of any generic ‘combatant,’ the growing civilianization of the armed forces, and the advance in technology – casts doubts on the necessity of killing all enemy soldiers indiscriminately.

I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.

I discuss the practical and normative implications of adopting these amendments, suggesting some possible legal strategies of bringing them about.

Gabriella Blum, The Individualization of War: From Collectivism to Individualism in the Regulation of Armed Conflicts (2013)

Abstract:

In a celebrated humanitarian move, wartime regulation has evolved from a predominantly state-oriented set of obligations — which viewed war as an inter-collective effort — to a more individual-focused regime. In fact, the regulation of armed conflict increasingly resembles, at least in aspiration, the regulation of police activities, in which it is the welfare of individuals, rather than the collective interest of the state, that takes center stage.

I demonstrate that many contemporary debates over the laws of war, including the distinction between the jus ad bellum and jus in bello, proportionality, detention of combatants, and reparations for victims implicate exactly the tension between collectivism and individualism in the regulation of armed conflict.

I further argue that notwithstanding the humanitarian benefits of the move to greater concern over the human rights of those affected by war, reimagining war as a policing operation harbors real dangers that must not be overlooked. These include imagining more of policing as war, inhibiting military action for the protection of others, and inviting more aggressive acts “short of war” against targets around the world.

Her subject matter choices (from the 2009 article) are mine also:

The article proceeds as follows. Part 2 offers an overview of the general principles of the laws of war, as they pertain to the permissible targeting of combatants on the battlefield. Part 3 summarizes the mainstream philosophical justifications for subjecting combatants to deliberate targeting and the dissenters’ voices in challenging them. Part 4 fleshes out three fundamental strategic changes in the nature of wars and combatants, namely the declining value in killing generic combatants in modern
conflicts, the civilianization of the armed forces, and the technological sophistication of at least some militaries. In Part 5, I propose possible alternative doctrines, which aim at limiting the legitimate targeting of combatants. I discuss the practical implications of this amended reading and the possible legal strategies for bringing it about.

All that being said, for the most part, I strongly disagree with much that she opines as a recipe for the future. But, that is a matter of variant philosophies and policies - which proves my point (at least to myself ).

Where we end up on these issues of "Comparative Combat Philosophies and Policies", driving "Comparative Combat Law", hinges little on dry reason, but rather on our experiences and our concepts of integrity, moral courage, loyalty and accountability - see 1993 Krulak USNA, pt.1 and pt.2 (about an hour total); and Hugh Thompson at My Lai (USNA, 5 videos, about 1 hour).

Regards

Mike

[jmm99]

Some (Gabriella Blum not among them) cite the following incident (mentioned in Blum's 2009 article as quoted below) as evidence of an enemy spared by the humanitarian instincts of the poet and mythologist Robert Graves (one of my favorite authors on myths):

In Just and Unjust Wars , Michael Walzer ([1977] 2006, 143) famously takes on the question of the Naked Soldier, first raised by Robert Graves (1929) in his memoir Good-bye to All That : Is a soldier stripped naked and swimming in the lake a legitimate target during an armed conflict? The answer, says an uncomfortable Walzer, is unequivocally “yes.”

My recollection of Graves WWI memoirs, Good-bye to All That, was that the event was less than humanitarian. Lo and behold (at p.132) we find it - and a discussion of individual and collective risk:

Like everyone else, I had a carefully worked out formula for taking risks. In principle, we would all take any risk, even the certainty of death, to save life [of a comrade] or to maintain an important position. To take life we would run, say, a one-in-five risk, particularly if there was some wider object than merely reducing the enemy's manpower; for instance, picking off a well-known sniper, or getting fire ascendency in trenches where the lines came dangerously close. I only once refrained from shooting a German I saw, and that was at Cuinchy, about three weeks after this. While sniping from a knoll in the support line, where we had a concealed loop-hole, I saw a German, about seven hundred yards away, through my telescopic sights. He was taking a bath in the German third line. I disliked the idea of shooting a naked man, so I handed the rifle to the sergeant with me, 'Here, take this. You're a better shot than I am.' He got him; but I had not stayed to watch.

Whatever this might be, humanitarianism it was not.

Graves was one of four Royal Welch Fusilers who wrote WWI memoirs of note. The others were Siegfried Sassoon (3 vols.), Frank Richards (2 vols.) and J.C. Dunn (a thick Bn history). The last includes extensive excerpts by Clifton Stockwell aka "Buffalo Bill", who was the "officer in charge" of the RWF's segment of the 1914 "Christmas Truce". Stockwell was a fine soldier (a coy, bn and bde commander), who went to bat for his men with higher commands; but who had an abrasive personality - e.g., "I never remember him having any favorites: he treated all the men the same way - like dirt"; and "... an absolute pig if you got the wrong side of him."

Regards

Mike

[wm]

Some (Gabriella Blum not among them) cite the following incident (mentioned in Blum's 2009 article as quoted below) as evidence of an enemy spared by the humanitarian instincts of the poet and mythologist Robert Graves (one of my favorite authors on myths)

I had forgotten about Walzer's Naked Soldier. Thanks for reminding me. The key difference in the account you then quoted from Good-Bye to All That is that Graves refers to the target as a naked man, not a naked soldier. The passage in Walzer is meant, I think to highlight the tension thast exists in the fact that a soldier is also a human being. Some of us (Americans at least) are stuck with words from the Declaration of Independence (all men are created equal) that make it hard for us to separate the soldier from the human being. I do not think that Graves had the same problem, as you note by saying the act was less than humanitarian--the sergeant was a better shot after all.

[jmm99]

My dad was nailed by a German mortar while traveling between the latrine slit trench and his foxhole. He thought the Germans showed decency in not nailing him while he was astraddle the slit trench.

Regards

Mike

[wm]

My dad was nailed by a German mortar while traveling between the latrine slit trench and his foxhole. He thought the Germans showed decency in not nailing him while he was astraddle the slit trench.

Regards

Mike

In a prior post you mentioned memoirs from Welch Fusiliers. With the German Guns by Herbert Sulzbach is also a rather genteel WWI memoir. For an interesting German counterpoint to Graves, Sulzbach, Sasson et.al., you might take a peek at Ernest Junger's Storm of Steel

BTW Sulzbach also served in the British Army, eventually getting a commission during WWII.

[jmm99]

which exceeds those I mentioned in a number of respects. I've not got into the WWI Germans very much (just Junger and Rommel). Sulzbach looks interesting and sounds a bit like Col. Blimp's German friend.

But, I have to embark on reading (studying ?) a pair of WWI vets in tandem: Collingwood (Idea, Principles) and Wittgenstein (Investigations) - they seem to go together. I can't promise they will occupy me enough to shut me up; but they seem a good start.

Regards

Mike

[Polarbear1605]

Bear, You may be right that no deliberate application of risk analysis is being applied. However, I am not so sure that what is happening is dogmatic. I believe (and am supported by a fair amount of research reported in the safety engineering literature) that each individual has a different level of risk tolerance/risk aversion. (I do not really want to get sidetracked into a nature/nurture argument and discuss whether this is innate or acquired.) Having differing levels of risk tolerance suggests we also have different needs and, therefore, techniques for risk mitigation. Compare, for example, Montgomery's and Patton's campaigns in N. Africa and the WWII ETO. I submit the action to mitigate risk occurs almost reflexively rather than deliberately and, therefore, is not dogmatic.

Thanks for the clarification. I understand now you were looking at this from a different view point and agree with your example that it is reflexive vs deliberate. When I refer to dogma my “vs” is as in “dogma vs doctrine”.
http://www.youtube.com/watch?v=i5c3yMy-llA dogma vs doctrine starts at about 2:07
In my mind, doctrine is a teaching, it is written down and can be read and learned. Dogma is an opinion. For example, in many general officer speeches, especially when talking about counter insurgency or counter terrorism, they use the terms Laws of War and Rule of Law interchangeably when they are separate and very different (at least in my opinion). For example: In both below cases these general officers are talking about war and combat and they can’t resist tying it back to the Rule of Law.
http://www.humanrightsfirst.org/wp-c...2009-09-11.pdf
http://www.hughhewitt.com/the-haditha-investigation/
Soldiers and Marines are governed by their Rules of Engagement on the battlefield and ROEs are based on the Laws of War. In COIN operations, one of the reasons combat troops are present is that there is no rule of law. For a military general officer to think (and apply) the Rule of Law and the Law of War is the same thing...is dogma. In almost every one of the US “war crime” cases, US servicemen are not charged with violating their Rules of Engagement; they are charged with murder and the elements of proof that they must defend against, are for the same elements of proof used in the Rule of Law charges of murder.
http://warchronicle.com/DefendOurMar...ar_6SEPT10.htm
Is this a reflex reaction to the loss of strategic legitimacy (Abu Grab)? Probably. Is it the right reflexive reaction…No… but it is an indicator of bad strategy.

[wm]

I honestly do not believe that our general officers are applying any type of risk analysis or matrix to these situations. I do believe that the “double standard” is now dogma and an indicator of bad strategy.

Bear,
You may be right that no deliberate application of risk analysis is being applied. However,I am not so sure that what is happening is dogmatic. I believe (and am supported by a fair amount of research reported in the safety engineering literature) that each individual has a different level of risk tolerance/risk aversion. (I do not really want to get sidetracked into a nature/nurture argument and discuss whether this is innate or acquired.) Having differing levels of risk tolerance suggests we also have different needs and, therefore, techniques for risk mitigation. Compare, for example, Montgomery's and Patton's campaigns in N. Africa and the WWII ETO. I submit the action to mitigate risk occurs almost reflexively rather than deliberately and, therefore, is not dogmatic.

I'd suggest a distinction between "personal risk aversion" and "unit risk aversion" (which I'd distinguish from "personnel risk aversion").

Works for me. I was trying to make a distinction between the individual (a natural person, by the way) and the collective (an artificial person). However, I do have some qualms about what to make of the status of that artificial person. I find it hard to cash out exactly what those qualms are and why they bother me, but for starters, I question the applicability of the analogy found in St. Augustine that takes the acceptability of personal self defense and maps it to national self defense. I think that much of my concern stems from two sources: the concept of a moral agent and the notion that praiseworthiness/blameworthiness requires some ability to act after deliberation. Artificial persons are not able to deliberate in my worldview and are not "really" moral agents as a result.

On a different tack, I think the distinction between command responsibility and responsible command is tied to the difference between positional (public) rights/duties/morality and personal (or private) rights/duties/morality.

[ganulv]

On a different tack, I think the distinction between command responsibility and responsible command is tied to the difference between positional (public) rights/duties/morality and personal (or private) rights/duties/morality.

Every subject’s duty is the king’s but every subject’s soul is his own?