Command Responsibility and War Crimes: general discussion

[Polarbear1605]

A war crime is a direct command responsibility. Sadly, the country that is best at deflecting that responsibility is the US and its military, specifically its general officers. Was Abu Grab really the responsibility of seven junior Army reservist NCOs? US general officers confuse the LOW (Laws of War) with the ROL (Rule of Law) and they do it for political purposes. The sad part is it undermines their chances for strategic success. The US Marine Corps Commandant is in all kinds of hot water because he did not follow the UCMJ nor the LOW. Instead he went the political route.

http://www.marinecorpstimes.com/arti...d-IG-complaint

The senior US military leadership is running a political cover up for bad military strategic policy and thinking. Here is yet another example:

http://www.fayobserver.com/articles/...1?sac=fo.local

For any military officer, former, active or retired to place blame on the “lawyers” demonstrates a failure in leadership.

[davidbfpo]

I am not sure what happened in a number of recent posts, but we meandered away from our normal high standards of respect for each other.
Thank you, now please carry on.

[jmm99]

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".

If I were a member of the court, I would have taken this statement of Lorance very negatively to him (via a number of possible meanings hidden in its ambiguity):

Before he was sentenced, Lorance told the jury he respected the verdict.

"I take full responsibility for the actions of my men on 2 July, 2012," Lorance said.

What the hell does that really mean ? I suspect it was simply a version of the non-apology apology so popular today - and, of which I am growing tired.

In any event, one can't evaluate the Lorance case without the type of data you hooked me up with in the Haditha and Behenna cases - two different results as to "war crimes" - and, of which (the topic of international laws of war) I am also growing very tired.

I guess it gets down to whether international laws of war posts have any value added at all (the higher purpose) and any fun had (the lower purpose). I'll have to ponder that for a bit.

Meanwhile, I've one more set of blackletter rules to put together - Chapter 44 on War Crimes themselves, since I said I'd do that.

Regards

Mike

[jmm99]

ICRC Customary IHL, Chapter 44. War Crimes.

Same drill as before: link, blackletter rule, commentary; except the first commentary is much longer (28pp.). They all have to be read to understand the rules' applications.

156. Definition of War Crimes

Rule 156. Serious violations of international humanitarian law constitute war crimes.

157. Jurisdiction over War Crimes

Rule 157. States have the right to vest universal jurisdiction in their national courts over war crimes.

158. Prosecution of War Crimes

Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.

159. Amnesty

Rule 159. At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.

160. Statutes of Limitation

Rule 160. Statutes of limitation may not apply to war crimes.

161. International Cooperation in Criminal Proceedings

Rule 161. States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects.

So much for black-letter rules.

-------------------------------------------
What follows is a more important issue to me, which I have mulled over the last two years; and which I will address candidly.

James Spaight contended in 1911 that:

[T]he International Law of War ... is a quasi-military subject in which no one, in the army or out of it, is very deeply interested, which everyone very contentedly takes on trust, and which may be written about without one person in ten thousand being able to tell whether the writing is adequate or not.

My conclusion is that nothing has changed in a century; the international laws of war are a minimal topic with little value added for most people; and that topic is probably better left to specialized sites such as Lawfare and Opinio Juris, where there is peer review. If I'm wrong, please tell me why.

Regards

Mike

[wm]

My conclusion is that nothing has changed in a century; the international laws of war are a minimal topic with little value added for most people; and that topic is probably better left to specialized sites such as Lawfare and Opinio Juris, where there is peer review. If I'm wrong, please tell me why.

Mike,

I'll not tell you that you are wrong.
However, I will suggest (as I climb upon my soapbox) that the international laws of war are not a minimal topic. Instead, this a topic that I believe is minimalized by many so that they do not have to deal with the very ugly thing that war is. Perhaps if we were to bring it out into the open even more, people might be less inclined to allow a bunch of jingoist rhetoric or drum-thumping politicians to influence them and allow the Executive to put people (both those in uniform and the innocent civilians that are supposedly being protected) into harm's way without very good reasons. (Maybe such discussion will even raise the standards for what count as very good reasons.) If nothing else, such discussions might be less likely to become exercises in causistry, with many people responding in a way similar to how Dayuhan did earlier in this thread to torque you and Polar Bear 1605 off. (Off my soapbox now, back to re-reading Kant's Perpetual Peace).

[jmm99]

Kant's Perpetual Peace - better watch it; when you get to "Heaven", Lieber will nip at your ankles for being a "closet pacifist".

Regards

Mike

[wm]

Kant's Perpetual Peace - better watch it; when you get to "Heaven", Lieber will nip at your ankles for being a "closet pacifist".

Regards

Mike

I acknowledge the strength of your title's "perhaps"
As to Kant and Perpetual Peace:
One thing in Kant that I like a lot is his notion of a regulative ideal. It is something we probably cannot attain, but ought to strive for anyway. I think Perpetual Peace is such a regulative ideal.
And my reason for posting my comment may well be summed up in the following short poem from the Danish polymath who was the inventor of the SOMA Cube

Only hoping

Only hoping isn't what
Gives us strength to cope
Let us only hope; but not
only only hope.

[Polarbear1605]

James Spaight contended in 1911 that:

My conclusion is that nothing has changed in a century; the international laws of war are a minimal topic with little value added for most people; and that topic is probably better left to specialized sites such as Lawfare and Opinio Juris, where there is peer review. If I'm wrong, please tell me why.

Regards

Mike

Could not agree more...SECDEF recently ask the Defense Legal Policy Board for an investigation into six questions:

http://www.caaflog.com/wp-content/up...1-May-13-2.pdf

An unsolicited critique recommending that Combat Commanders should follow the LOW vs whatever they are doing now starts with:

"One flaw that manifests itself early in the investigation is the board’s definition of “civilian casualties” defined as “the death, serious injury or abuse of a local national civilian due to the action of US or Coalition forces in a combat environment”. We believe that this definition is entirely too broad and distracts from the LOW (Laws of War) protected status of combatants and noncombatants. In addition, this definition entirely ignores non-combatant casualties caused by enemy actions. Because the SECDEF specifically establishes the scope of this investigation to “military justice in combat zones” that should immediately mean that all definitions should be based on the LOW.
The LOW presents a number of rules and definitions for personnel present in a combat zone. The two main categories are combatants and non-combatants with categories defined for prisoners of war, wounded, spies and others. We must remember that the LOW state:
“Civilian immunity carries with a strict obligation on the part of civilians not to take a direct part in hostilities--they must not become combatants. Taking a direct part in hostilities means engaging in acts of war directed toward enemy personnel or materiel. Civilians who take part in fighting (whether singly or as a member of a group) become combatants and lose their personal immunity.”
The panel’s definition of civilian casualties, therefore, actually extends civilian immunity to enemy combatants (and terrorist) and, as the panel repeatedly states, “especially in COIN operations”. We believe that much of the controversy ricocheting from many of these high profile combat operational death cases is rooted in DOD’s non-adherence to the LOW definitions."

[jmm99]

no one in this thread has the slightest reason to apologize or make nice for anything. Repeat: no one in this thread has the slightest reason to apologize or make nice for anything.

Bear Post 2: Response (if any) only after reading the 217 page report - and you gripe about me giving you long assignments. But first I have to look at a 2-hour movie on Waterloo - "pitched battles" and all that, old boy.

Regards

Mike

[Polarbear1605]

no one in this thread has the slightest reason to apologize or make nice for anything. Repeat: no one in this thread has the slightest reason to apologize or make nice for anything.

Bear Post 2: Response (if any) only after reading the 217 page report - and you gripe about me giving you long assignments. But first I have to look at a 2-hour movie on Waterloo - "pitched battles" and all that, old boy.

Regards

Mike

and when you get done with that I will send you our 36 page critique

[Polarbear1605]

I am not sure what happened in a number of recent posts, but we meandered away from our normal high standards of respect for each other.
Thank you, now please carry on.

Standard US Civil War Tactics…find a good piece of high ground (terrain or moral; either works), dig in and let’em come (Fredericksburg, Gettysburg). It is one of those wait until you see the whites of their eyes things.