Article on Nangarhar Incident

[marct]

Hi Hostagecow,

Le me toss on a third area to the two Cori listed: the military justice system. I note that on the second page of your article, you say:

Among many troops I have spoken to about U.S. atrocities, there is a sense of rank unfairness about the military justice system. With few notable exceptions, it is always lower-ranking enlisted men and most often infantrymen who stand accused. Pilots, artillerymen and officers above the rank of captain are almost never charged with war crimes -- never mind civilian leaders at the Pentagon, elected officials or members of the foreign policy establishment who advocated the wars in the first place. "#### runs downhill," the saying goes, and as a rule in the military, it's true. To be sure, the commander and senior enlisted man of the Marine unit at Nangarhar were relieved of their command positions, but, as of yet, no charges have been filed against them.

This, to my mind, raises some really interesting problems in a number of areas. First, there does not appear, although I could be wrong, to be a unified military justice system that operates across the coalitions. Right now, I'm thinking back to the dual investigations of the friendly-fire deaths of Canadian soldiers by US pilots some years ago as an exemplar of this problem. While there are international "laws" governing conflicts, these will be interpreted differently on the ground by different national troops, which would also cause frictions of the "hey, why can they do this and we can't?" type.

Second, it strikes me that if "justice" is going to be applied to incidents, then from a purely IO+PSYOPs stance, it should be applied to the Taliban and AQ as well. Now, that probably sounds somewhat wacky, but I suspect that some of the tensions are coming from that "hey, why can they do this and we can't?" feeling relating to the enemy. If the laws of war are supposed to "govern" conduct in the field, holding a double standard, whether it be from nation to nation or force to force will inevitably create resentments.

Marc

[wm]

[I]t strikes me that if "justice" is going to be applied to incidents, then from a purely IO+PSYOPs stance, it should be applied to the Taliban and AQ as well. Now, that probably sounds somewhat wacky, but I suspect that some of the tensions are coming from that "hey, why can they do this and we can't?" feeling relating to the enemy. If the laws of war are supposed to "govern" conduct in the field, holding a double standard, whether it be from nation to nation or force to force will inevitably create resentments.

Marc,
Back when I taught just war theory issues at a small military leadership academy on the banks of the Hudson River in New York, my students would routinely ask me the same question. We discussed it, for example, with regards to differing application of standards in regards to POW abuse by our opponents in WWII, Korea, and Viet Nam. My response was and will always be along the lines that we, as the military representatives of a civilized nation, need to take the moral high ground, that we cannot apply a consequentialist approach (the end justifies the means). Our only recourse is to be moral absolutists in our conduct on the battlefield simply because that is the right thing for civilized folks to do.

More to the point of your post though is the following. How do you propose to apply the same standard to the other side in the GWOT? By classifying them as terrorists, we have already placed them outside the bounds of the law of armed conflict (LOAC). We cannot expect them to conform to the rules because of how we have labeled them. All we can really do is try to show how morally bankrupt the opponents are and use the court of public opinion to try to undermine their popular support. The bad news is that fear and coercion seem to be much more effective for garnering support in the short term. Additionally, every time our side slips from the moral high ground, those we are trying to convince lose a little more faith in the truth of our proclamations about our noble motives.

[marct]

Hi WM,

Back when I taught just war theory issues at a small military leadership academy on the banks of the Hudson River in New York, my students would routinely ask me the same question. We discussed it, for example, with regards to differing application of standards in regards to POW abuse by our opponents in WWII, Korea, and Viet Nam. My response was and will always be along the lines that we, as the military representatives of a civilized nation, need to take the moral high ground, that we cannot apply a consequentialist approach (the end justifies the means). Our only recourse is to be moral absolutists in our conduct on the battlefield simply because that is the right thing for civilized folks to do.

I do agree with that, although I would point out that, operationally, there are some differences in application between coalition forces. For example, the Canadian Minister of Defense just announced that the Canadian government and military will be monitoring all captives in Afghanistan that are turned over to Afghan forces.

More to the point of your post though is the following. How do you propose to apply the same standard to the other side in the GWOT? By classifying them as terrorists, we have already placed them outside the bounds of the law of armed conflict (LOAC). We cannot expect them to conform to the rules because of how we have labeled them.

I agree that this is problematic, and for the very reasons you list. On a purely pragmatic level, I would argue that we should generally adopt a tactic that has been used with some success in Iraq,namely, after ever atrocity committed by the Taliban and AQ in an AO, flyers should be put up listing all of the specific war crimes that have been committed. At the same time, I would also suggest that they be sen to be investigated as war crimes. In other words, exactly the same investigative, and more importantly semantic, standard should be applied to AQ and Taliban ops as are applied to coalition troops.

The problem as I see it stems from the us of the concept of "unlawful combatant". As you note, they have been automatically defined as "criminals" by the very semantic constructions we have used. This, however, creates a situation where on the ground and n the eyes of the people, we have automatically created a double standard. I think the we should stop that. Purely on a personal level, believe that the Taliban should be granted "limited belligerent" status, but I doubt that will happen.

All we can really do is try to show how morally bankrupt the opponents are and use the court of public opinion to try to undermine their popular support. The bad news is that fear and coercion seem to be much more effective for garnering support in the short term. Additionally, every time our side slips from the moral high ground, those we are trying to convince lose a little more faith in the truth of our proclamations about our noble motives.

I think we can do more than show how "morally bankrupt" they are - I think we have the potential to "convict" them, albeit in absentia, of war crimes.

Honestly, I am by no means an expert in the legal side of the system (maybe LawVol cold comment?), but from a symbolic angle, I think that a "justice system" that meets both international and host country legal requirements would help to strengthen our ongoing symbolic war.

Marc

[Merv Benson]

If I sound like a broken record on this point it is because the media still does not get it.

The reasons civilians are at great risk in this war is because of the enemy's violation of the Geneva Conventions requirement of wearing an identifiable uniform. Any story that claims to be about civilian casualties should start with that premise. When the enemy camouflages himself as a civilian, he puts all civilians at risk. None of the incidents in Haditha or other locations would have happened if the enemy did not camouflage himself as a civilian and use civilians as human shields when he is not deliberately targeting them.

That is what makes these prosecutions so dubious. If they are being done to make a political point that is even worse. If they are going to be done at all the enemy troops who precipitated the events should at least be indicted as war criminals.

I also agree with Cori's comments.