Command Responsibility and War Crimes: general discussion

[Steve Blair]

I would be interested to see a serious study comparing attitudes toward these matters in "peer conflicts" such as the civil war and in wars fought against "savages", widely viewed at the time as being essentially members of another species. From the US perspective that would mean the Native American wars and the Philippine-American War... maybe Steve Blair could provide some cases from he former. Certainly any such examination could also look at Europe, and compare attitudes and practices prevalent in conflicts among Europeans with those pitting Europeans against Kipling's "lesser breeds without the law".

You can also find some examples from the U.S. interventions in the Caribbean during the inter-war period. Haiti springs most quickly to mind, but there are others.

Dealing with the Indian Wars, there are a number of factors that come into play. Chivington was never held to account for a number of reasons, one of which was his status as an officer of volunteers (putting him beyond the reach of military justice). That was actually one of the arguments against using those troops on the frontier (made before the Civil War, so it wasn't a result of post-War second thoughts). The Marias River massacre in 1870 was another example...one that effectively destroyed the plan to shift control of the reservations to the Army and led to Grant's "Peace Policy." Major Baker, commander of the forces that attacked a Piegan band camped near the river, was a known drunkard but was never charged. There is also the strong possibility that the camp he attacked was intentionally misidentified as hostile by a scout who had connections to the band Baker was supposed to be hunting. A final example is the Camp Grant Massacre, carried out by both natives and citizens in 1871 near Tucson, AZ. No real charges resulted from Camp Grant, even though it sparked a major Indian war in the area. Territorial politics played a role, of course, but it should also stand as a stain on George Crook (often proclaimed as the Indian's one true friend) that he did nothing to bring the perpetrators of the attack to justice and instead worked indirectly with them to discredit the officer (a Lieutenant Whitman) who had established the camp and was trying desperately to keep the peace in the area.

The attitudes of Army officers towards the Indians is a fairly complex question, and varies greatly depending on which officer you're considering. Some were realistic enough to understand what was happening, some hated the Indians, others were indifferent. Many blamed the Indian Bureau and local civilians for Indian troubles. I don't know that there was one overall "view" held by Army officers of their opponents.

An interesting point of comparison might come from looking at the conduct of volunteer forces in places like Eastern Kentucky or the Kansas-Missouri border region during the Civil War. Clearly peer-on-peer, and at times kin-on-kin, but the fighting there was often far more ruthless than that encountered on the plains. Some of the Indian conflicts (such as the Army's prolonged pursuit of the Nez Perce in 1877) were almost conventional affairs, and certainly more "civilized" than what went on in western Missouri and parts of Eastern Kansas during the Civil War and before.

[jmm99]

The following excerpt is lovely, ironic black humor (to my now admittedly warped sensibilities):

p.131, fn 170

One issue that the Subcommittee discussed was whether the Article 32 investigating officer should be a judge advocate or other officer. ... GEN Chiarelli referenced investigative efforts after Haditha: “in order to understand why we shot and why we didn’t shoot, you got to have somebody down there to understand what it’s like to have to make those decisions, and not all our lawyers have had to make those decisions, but I think it was absolutely critical that that individual ha[s] a bevy of lawyers that he could call on to give him recommendations and make sure he was straight.” DLPB Public Meeting, 15 February 2013, Transcript, at 183.

Thus, GEN Chiarelli, I'm sure that you'll recommend that each Marine "Strategic Corporal", who has to make the actual command decision to order "the shoot" and probably do some of the actual shooting, shall have his own "bevy of lawyers". And, also that bevy will covey and come up not only with the appropriate weaselly, lawyerly language for the order, but also the appropriate weaselly, lawyerly language for his after-action report to render him impervious to prosecution. Ah, yes, Gen. Large Rhetoric; what is sauce for the goose is sauce for the gander.

Now, I'm warmed up for the 36-page critique.

You could send it email; or if you think it's fit for publication, save it as a .pdf file and attach it to a post here.

Regards

Mike

[TheCurmudgeon]

An Oklahoma Army lieutenant has been found guilty of two counts of murder in connection with a series of shootings in Afghanistan.

A jury at Fort Bragg delivered the verdict against Clint Lorance, an 82nd Airborne Division lieutenant, on Thursday evening and he was sentenced to 20 years in prison, forfeiture of all pay and dismissal from the U.S. Army. Lorance, 28, was found not guilty of making a false official statement.

Prosecutors said Lorance recklessly ordered his men to open fire immediately, after three men on a motorcycle approached his patrol in southern Afghanistan in July 2012. They said this was in violation of the military's rules of engagement, which requires soldiers to hold fire unless they have evidence of hostile action or hostile intent.

...The two soldiers who fired the shots have been reprimanded but won't have to go through a full court martial.


One of them, Private David Shilo, testified at Lorance's court martial: 'I was given a lawful order. My life wasn't threatened at the time.'

http://www.dailymail.co.uk/news/arti...fghan-men.html

[Polarbear1605]

We found out about the Defense Legal Policy Board as they concluded their investigation public hearings on the SECNAV questions from a press story. We missed the hearings but we were able to submit the "critique" and have it entered as part of the record. Needless to say, we were pressed for time and "way behind", hence, the heavy use of enclosures. When I tried to upload I got this message: "Your file of 533.0 KB bytes exceeds the forum's limit of 195.3 KB for this filetype." I will have to email it to you. ...maybe the SWJ will publish it...ewwww...I like that idea.

[jmm99]

Any errors in translating from Arctic Ursian to English are mine.

Two attachments to the Critical Critique were image files which I couldn't convert. One of them is a letter re: 1stLt. Andrew Grayson (one of the Haditha Marines - acquitted), which exists somewhere in Defend Our Marines. The other is the "Flag Officer Amici Brief" filed in the SCOTUS Behenna case (docket record).

01 Bear is the Critical Critique; 02 & 03 Bear are the Attachments.

Regards

Mike

[jmm99]

From 01 Bear, p.3:

We were also surprised that the panel did nothing to address or even discuss the issue often called the “double standard” (See Attachment 3: Double Standard). This ad hoc standard can be viewed in two different perspectives. The first situation is we seem to be holding our infantry small unit leaders [to] a very tight standard when compared to strategic military operations. Civilian casualties due to air, drone, and Special Forces strikes seem to be easily accepted, yet small unit actions causing fewer casualties can easily result in a court martial action. In addition, we now have a public relations situation with something called the “Leavenworth Ten”. These are Soldiers and Marines serving lengthy sentences when enemy terrorist[s] convicted of murdering US Service Men in Iraq and Afghanistan have longed been turned over to the host nation and released (See Attachment 4: “Heroes, Shame and Tarnish Brass”).

Another concern is expressed in the following questions. Who on the panel represents the enlisted Marines and Soldiers? Was there someone specifically appointed to look out for the best interest of the military enlisted personnel and junior officers? Do any of the panel’s recommendations impede a combat Marine’s or Soldier’s right to self-defense? Do any of the panel’s recommendations disrupt or impede the combat trust relationship between military leaders and their subordinates that is considered essential for successful combat operations?

We would expect to see a number of Sergeant Majors and Master Chiefs and a set of former civilian defense councils as panel participants. The pool of experienced civilian defense councils in this country, dealing with these high profile cases, has certainly grown since the beginning of Operation Iraqi Freedom. The expansion of experienced civilian defense councils can partially be attributed to the accused and their families who have absolutely no trust and confidence in the military court martial system. The distrust, in part, comes from the military persecutors and service chiefs manipulations; both fair and unfair, and both perceived and real.

This complex of issues has little to do with bevies of lawyers. It has a great deal to do with Command Responsibility and Responsible Command. What do others feel about these issues ?

Regards

Mike

[wm]

This complex of issues has little to do with bevies of lawyers. It has a great deal to do with Command Responsibility and Responsible Command. What do others feel about these issues ?

I suspect it has as much to do with personal risk aversion and personnel risk aversion.

By this, I mean we tend to use stand off weaponry to lessen the risk of having to put troops in direct combat (personnel risk aversion). However, when we are required, for whatever reason, to get up close and personnel with enemy combatants, we must take significant personal risk to protect those who have not given up their privilege not to be killed without good reason (the innocent civilians). Commanders should have high levels of personnel risk aversion and so tend to use stand off weapons. Since using these kinds of weapons reduces the risk to the troops, folks are probably more likely to look the other way when collateral damage (not the kind excusable under the doctrine of double effect by the way) occurs. When troops do have to get involved directly, the personnel risk aversion is still there and is compounded by personal risk aversion. But, to outsiders, personal risk aversion is not permissible; for them a "you knew the job was dangerous when you took it" attitude prevails. Thus, collateral damage that occurs as a result of limiting personal risk (I'll just pick off the guy on the motorcycle from here rather than put myself at more risk by getting close enough to a see if he is armed) is just not as acceptable.

BTW dealing with personnel risk aversion instantiates aspects of both Command Responsibility and Responsible Command while personal risk aversion relates almost exclusively to Command Responsibility in my view.

[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.