Command Responsibility and War Crimes: general discussion

[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.

[jmm99]

from my post #57:

Still, the Clint Lorance case was probably not as simple as the newspaper makes it (Lorance being painted as something of a mini-Lt. Calley). I did a bit of Googling and read other accounts of the events which paint quite a different picture. Of course, there may well have been two or more divergent factual accounts before the court members - not unusual in these cases where we have civilians and "civilians", combatants and "combatants".

That's why we have "jurors" (court members).

As to the real Lt. Calley, I thought he was a twit based on the media coverage - and the Peers Report; but I never met the man himself.

I did meet Ernest Medina, in a non-adversarial, strictly-business setting, when he worked for Enstrom Helicopter. From that meeting alone, I'd say he was a competent middle-level manager with a good personality. Of course, My Lai was not discussed; nor the fact that one of my early mentors (a person to be greatly respected) had signed off on the Peers Report which was damning to Medina, but who was acquitted in his court-martial.

All that is to illustrate that variant factual sets arise (here, three sets as to Ernest Medina: JMM personal meeting, the Peers Report and Medina's court members). As to Lorance, the two newspaper articles present the factual view that the court members apparently accepted - a mini-Lt. Calley. I'm not going to argue that apparent factual finding was not supported by evidence.

But, Lorance (like Snowden) is not the issue for what lessons might be learned from this and like incidents. Polarbear1605 has provided us with some examples of what is materially at issue.

IMO: These questions, asked as a consequence of My Lai (with the last one updated to Abu Graib), are still the material issues:

1. Should we apply legal rules to incidents arising out of warfare? What is the purpose of developing and applying such rules? Have such rules changed the nature of warfare, or prevented more or worse wartime atrocities from occurring?

2. What should the rules of warfare be with respect to treatment of civilians? Who should be considered a civilian (or a non-combatant)? Should there be special rules governing the treatment of women or children?

3. What is the defense of superior orders? Why have such a defense? When should the defense be available? What should be done in the case of ambiguous orders or when oral commands contradict written directives? Must the belief that a superior order is lawful be reasonable? Should different standards apply to privates than to persons higher up the chain of command? What should a soldier do when he is given an order that he thinks is unlawful?

4. How do you explain what happened at My Lai? What can be done to prevent such tragedies from happening again? What does My Lai teach us about the nature of evil? Was Calley evil, or was he a more-or-less “normal person in abnormal circumstances”? Would Calley have acted differently had he received more training in the rules of warfare?

5. Was Calley simply following orders? What had he been told? What did he reasonably infer? Did he believe that his superiors were aware of his orders? Did he try to hide his actions from his superiors?

6. If Calley had been ordered to “waste” civilians, was he obligated to disobey such an order because it was clearly illegal?

7. When Medina said that he gave no order to kill the residents of My Lai, was he being completely truthful? Was Medina aware of what was happening at My Lai when there was still time to do something about it? Should sins of omission be treated the same as sins of commission?

8. Which was worse—the massacre or the cover-up?

9. What relevance was it that atrocities had been committed against U.S. servicemen in the area in the days immediately preceding the My Lai operation?

10. Were there any heroes at My Lai? What makes a hero able to act heroically? How can we make more people likely to act heroically?

11. Was justice done in the court martial of Calley? In the court martial of Captain Medina?

12. How much influence did politics and politicians have on the outcomes? Should we try harder to insulate courts martial from political influence?

13. What role did the media play in exposing the My Lai massacre and explaining its significance?

14. What was the public reaction to these courts martial? How do you explain this reaction?

15. What is the lasting significance of My Lai? Did it substantially change public attitudes toward the Viet Nam War? Has it changed how we prepare our soldiers for war?

16. What comparisons can you draw between My Lai and the prisoner torture and abuse scandal at Abu Ghraib prison in Iraq? What are some of the key differences? Who was most responsible for what happened at Abu Ghraib? Does Abu Graib, as well as incidents involving the rape and killing of civilians in Iraq, suggest that we haven't learned well the lessons of My Lai? What needs to be done to prevent these gross affronts to human dignity during the stress of war?

Regards

Mike

[TheCurmudgeon]

I hesitantly offer this into your question on what causes incidents like Mai Lai and Abu Gharib. It is from a paper defining war from a motivational perspective. Starting with the assumption that war is a natural act for human beings (with some evidence to that effect) I define war as “deadly or potentially deadly organized violence committed by a subset of one group, whose actions are morally sanctioned by that group, against a discrete and identifiable other group with a specific objective or goal.” One of the key motivational components is the us-versus-them characteristic – there has to be two sides otherwise it is not war, it is just murder. I identify two types of “sides”, one based on traditional distinctions like ethnicity or religion, another based on individual characteristics like ideology. The last part discusses what I argue can happen when you start with a designation based on individual attributes (like a hostile act or intent) and leave a person in that environment long enough – they begin to adapt the traditional distinction of all people of a type being the enemy regardless of individual characteristics. I am not sure that has anything to do with the LT Lorance, but it does offer a different way to look at your question.

Interstate conflicts can also be based on Individual Identity. Although generally not seen as such, the first interstate conflict that had the characteristics of Individual Identity was the Napoleonic Wars. France had just passed through the first stages of its revolution and the ideals of freedom and liberty were part of the recruiting propaganda for the war effort. The military had been restructured based on individual merit not birthright and the new systems allowed for national mobilization. The wars were viewed as being a fight for the liberation of Europe from kings and tyrants. That same idea holds true in modern wars. When America chose to act against Saddam Hussein it portrayed the action as a war of liberation. We were not there to fight the Iraqi citizens; we were there to topple an oppressive regime. The “us” was all freedom loving people (including Iraqis); the “them” were all the oppressors.

Three points are worth noting regarding interstate wars based on Individual Identity. First, certain historically acceptable tactics may no longer be viable. If country A is basing its distinction on Individual Identity then attacks that disproportionally affect the civilian population are not going to be acceptable to the civilians of country A. Salting the earth or laying siege on a city kills the individuals who are not the target of the war. It is no longer war, it is simply murder. This is not to say that the civilians of country A are not willing to accept collateral deaths, but these deaths have to be “collateral” not intentional. Second, even though the civilian population may see the war that way, the participants may not. Autonomy is an anxiety-free motivation where there is nothing anxiety-free about combat. It is conceivable that the psychological dynamics will shift a Soldier’s mindset towards Collective Identity and viewing the enemy, including civilians, as a homogonous group. At the extreme this will allow Soldier’s to commit acts that they would otherwise not engage in, like the Mai Lai Massacre or Abu Ghraib. Third, it would be difficult, if not impossible, to have two countries use Individual Identity against each other. If both see the citizen’s of the other country as “just like me” then it is difficult distinguish who I am fighting against. There is no “us-versus-them”; there is only “us”. Any Country whose political system is built on popular sovereignty with a representative form of government is going to fall into this category. This could, in part, account for what is known as the Democratic or Liberal Peace. This does not mean that these countries cannot go to war with each other. It means that the nature of the events must be such that the other side can be characterized as somehow repressive, unjust, illegal, or otherwise clearly “not like us”.

[jmm99]

He who hesitates is lost.

I define war as “deadly or potentially deadly organized violence committed by a subset of one group, whose actions are morally sanctioned by that group, against a discrete and identifiable other group with a specific objective or goal.”

As you say, a "we-they" thing, with which I have some agreement:

post #74

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.

but, as to which, wm raises a concern:

post #76

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.

That concern is well-founded because there has been an on-going debate, cutting across cognitive science and philosophy, concerning "group selection" and its associated issues. This has primarily focused on religious groups as examples of "group moral psychology". But, the general concepts could apply to any well-defined subgroup - e.g., military forces, especially when at war. Generally, one could vulgarly speak of a "meme" (realizing some hucksterism associated with "memetics") - using the accepted genetic "deme" as an analogy (e.g., polarbears ).

See generally, Group selection; Altruism and Group Selection; Beyond Belief: Enlightenment 2.0; and Beyond Belief: Candles in the Dark.

In any event, here are two persons who accept "group selection":

David Sloan Wilson, Professor in the Biology and Anthropology Departments at Binghamton University - video

Jonathan Haidt, an Associate Professor of Psychology at the University of Virginia - video 1, video 2

Jonathan Haidt (a secular liberal), in 2006, published When morality opposes justice: Conservatives have moral intuitions that liberals may not recognize

Conclusion

To summarize, we have argued for three main points: 1) Human morality consists of more than what is covered by the traditional Kohlberg/Gilligan domains of justice and care. 2) Liberal morality rests primarily on these two foundations (we call them reciprocity and harm), but conservative morality rests on five foundations, including ingroup, hierarchy, and purity concerns as well. 3) Recognizing these latter foundations as moral (instead of amoral, or immoral, or just plain stupid) can open up a door in the wall that separates liberals and conservatives when they try to discuss moral issues.

and one who doesn't (with 23 comments, many mini-articles, to Pinker's article):

Steven Pinker, The False Allure of Group Selection.

Jonathan Haidt, To See Group Selection, Look at Groupishness during Intergroup Competition, Not Altruism during Interpersonal Competition (a comment on Steven Pinker; first example by Haidt):

One of the few social psychological studies that actually put real, ongoing groups into real and protracted conflict was the famous "summer camp" study carried out by Muzafar Sherif [1], who brought two groups of twelve-year-old boys to a summer camp in a state park in Oklahoma in 1954. At first, the two groups did not even know of each others' existence, yet even so, each group started marking territory and creating a tribal identify for itself. Both groups engaged in some mild tribal behaviors that would be useful if the group were to encounter a rival group that claimed the same territory. That is what happened on day 6 when the "Rattlers" discovered that the "Eagles" were playing baseball on what the Rattlers took to be "their" ball-field. The Rattlers then challenged the Eagles to a game, which initiated a weeklong series of competitions that Sherif had planned from the start.

Once the competition began, it was as though a switch was flipped in each boy's head. As Sherif described it: "performance in all activities which might now become competitive (tent pitching, baseball, etc.) was entered into with more zest and also with more efficiency." Tribal behaviors increased dramatically. Both sides created flags and hung them in contested territories. They raided each others' bunks, called each other names, and even made weapons (socks filled with rocks.)

Were these acts altruistic? Technically yes, because each tribal behavior had some cost for the individual, and it benefitted the group's cohesiveness or effectiveness. But I think the opposite of selfishness in evolutionary terms should not always be altruism. For the purposes of the present debate, things get clearer if we contrast selfishness with groupishness. The hand of group-level selection is most vividly seen when we look at behaviors that impose some cost on the individual, but that do not transfer that cost as a benefit to one or several specific other group member (which would help the selfish individualists prosper in a multi-level analysis). Rather, mental mechanisms that encourage individuals to do things that help their team succeed, despite some cost to the self, are the most likely candidates for having come down to us by a path in which group-selection played a part.
...
[1] Sherif, M., Harvey, O. J., White, B. J., Hood, W., & Sherif, C. [1961/1954]. Intergroup conflict and cooperation: The Robbers Cave experiment Norman, OK: University of Oklahoma Institute of Group Relations.
...
In sum, most of our social psychology, and even most of our moral psychology, was shaped by individual-level selection. There has always been competition among individuals within groups, competing for status, mates, and the trust of potential partners for cooperation. But if you examine the psychological traits that motivate and enable cohesion, trust, and effective coordination, and if you do this during times of intergroup conflict, you will find many behaviors and mental mechanisms that are much harder to explain using only individual-level mechanisms. You will find yourself swimming among group-selected traits.

So, Haidt's theories are much along the lines that TheCurmudgeon wrote.

Regards

Mike

wm: my answer (probably too simplistic) re: artificial persons (military units, corporations, limited liability companies, etc.) and deliberation - moral agency, is that natural persons are appointed or elected to deliberate. Perhaps, some day, machines will take over as moral agents - the Universal Truth Machine - and those then living will see Kurt Godel disproved. So far, Godel has held up.

[TheCurmudgeon]

I hesitate because I am not really a philosopher. I stay away from WM, he knows way too much for me.

If I were going to argue with him I would say that St Augustine was schooled in Roman teachings of Cicero and their legal doctrine which did not have any doctrine of individual rights, only duties. So if St Augustine built his arguments on self-preservation on duty to the group then it makes perfect sense.

In any case I try to base my ideas on anthropology not philosophy. That is because I will lose to WM in philosophy arguments.

[jmm99]

Patricia Smith Churchland, UC President's Professor of Philosophy, UC San Diego, hits "we-they" conflicts spot on in this panel from Panel: This is Your Brain on Morality - Beyond Belief 2008, starting at 15:45 (about 5 min. of Churchland). She concludes: "It's part of the package, as crappy as it is."

For more of Pat Churchland:

Patricia Churchland - Beyond Belief 2008 (16 min. short course; biochemistry and philosophy, "... choice, responsibility and the basis of moral norms in terms of brain function, evolution and brain-culture interactions ..." !!)

Lectures (about 1 hour+ each; ~ a week of her classes):

Patricia Churchland - Morality and the Mammalian Brain.

Patricia Churchland - Braintrust: What Neuroscience Tells Us About Morality 01.

Patricia Churchland - Braintrust: What Neuroscience Tells Us About Morality 02.

Decisions Responsibility and the Brain.

Getting to the meat of it (says the ancien biochemist ); it's indeed surprising what connections ensue from Collingwood's Principles of History (Human Nature and Human History ).

Regards

Mike

[TheCurmudgeon]

JMM, thanks for all the material. I will look it over.

One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable.

I am curious if Soldiers who kill an person who is not in uniform have a harder time dealing with that then a if they had killed the same person in a clearly identifiable enemy uniform.

But we are getting off topic.

[davidbfpo]

One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable.

I am curious if Soldiers who kill an person who is not in uniform have a harder time dealing with that then a if they had killed the same person in a clearly identifiable enemy uniform.

But we are getting off topic.

Ah, don't worry that can be a SWC way of making progress There is a thread 'How Soldiers deal with the job of killing':http://council.smallwarsjournal.com/...ad.php?t=13523

There's also, now slightly off topic, a parallel one on how LE deals with killing.

[wm]

One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable.

Emphasis added.

I'm not so sure that categorizing is something humans like. It may well be, especially if you agree with folks like Immanuel Kant, that we must categorize. Categorizing allows us to bring order to all the stuff that bombards our senses--if nothing else, a filing system for sorting/storing the sensory inputs. If this is true, then saying we like to do it seems rather silly to me. If we have choices about how we categorize, then maybe we could say that we have chosen one method over another because we liked it better.

[wm]

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”.

My thanks right back at you for your clarification. Good thing we are able to clarify terms used.
As to the distinction between Law of War and Rule of Law, I would assert that in the domain of "Legal Processes" the former is a subset of the latter. In other words, it really makes no sense to talk about the Law of War unless an environment exists in which some fair/objective process (or perhaps "due process" is a better word choice) exists to examine whether aspects of the Law of War have been followed or breached.
This last may seem to be at variance with your points about an absence of the rule of law, but I took your point to be that this absence is found in the area of operations, not in the organization conducting COIN. The deployed force has a goal (perhaps) of installing or restoring the rule of law to that place where the COIN mission is being conducted; that deployed force also operates internally under the Rule of Law. In the case at hand, the UCMJ/MCM is a significant part of the Rule of Law specification but is not the whole story.