War Crimes and Military Justice

I wrote a long time ago that soldiers are almost never punished severely for war crimes against the enemy. During the past three years, I haven’t seen any evidence to the contrary.

A review of the Iraq War by the Washington Post last year showed that:

The majority of U.S. service members charged in the unlawful deaths of Iraqi civilians have been acquitted, found guilty of relatively minor offenses or given administrative punishments without trials, according to a Washington Post review of concluded military cases. Charges against some of the troops were dropped completely.

Though experts estimate that thousands of Iraqi civilians have died at the hands of U.S. forces, only 39 service members were formally accused in connection with the deaths of 20 Iraqis from 2003 to early this year [2006 — ZA]. Twenty-six of the 39 troops were initially charged with murder, negligent homicide or manslaughter; 12 of them ultimately served prison time for any offense.

Some military officials and analysts say the small numbers reflect the caution and professionalism exercised by U.S. forces on an urban battlefield where it is often difficult to distinguish combatants from civilians. Others argue the statistics illustrate commanders’ reluctance to investigate and hold troops accountable when they take the lives of civilians.

[…] The harshest penalty, meted out to two soldiers in separate murder cases in 2004, was 25 years in prison — one of the convicted shot an Iraqi soldier, and the other shot an Iraqi man in his house. Two others convicted in what was called a mercy killing of an Iraqi each received one year in jail.

Solis, who has studied civilian homicides from the Vietnam War, said there were 27 Marines and 95 Army soldiers convicted of murder and manslaughter in that conflict, which lasted much longer and produced many more casualties than the Iraq war has so far.

According to The Post’s review of publicly reported cases from Iraq, 39 U.S. service members were charged with crimes in connection with the deaths of Iraqi civilians or for allegedly covering them up, from the start of the war in March 2003 through early 2006.

Twenty-four Army personnel were charged in connection with civilian deaths. Twelve were convicted of crimes and received jail sentences that ranged from 45 days to 25 years. Four others were tried at courts-martial, resulting in one acquittal and three convictions with no confinement.

Charges against two others were dropped. Six received administrative punishments, including four who cooperated with government prosecutions of their superiors. In administrative cases, no trial is held and the charges and penalties are not made public.

Going back to the Vietnam War, the Los Angeles Times had this to report:

The files are part of a once-secret archive, assembled by a Pentagon task force in the early 1970s, that shows that confirmed atrocities by U.S. forces in Vietnam were more extensive than was previously known.

The documents detail 320 alleged incidents that were substantiated by Army investigators — not including the most notorious U.S. atrocity, the 1968 My Lai massacre.

Though not a complete accounting of Vietnam war crimes, the archive is the largest such collection to surface to date. About 9,000 pages, it includes investigative files, sworn statements by witnesses and status reports for top military brass.

The records describe recurrent attacks on ordinary Vietnamese — families in their homes, farmers in rice paddies, teenagers out fishing. Hundreds of soldiers, in interviews with investigators and letters to commanders, described a violent minority who murdered, raped and tortured with impunity.

Abuses were not confined to a few rogue units, a Times review of the files found. They were uncovered in every Army division that operated in Vietnam.

[…] Among the substantiated cases in the archive:

• Seven massacres from 1967 through 1971 in which at least 137 civilians died.
• Seventy-eight other attacks on noncombatants in which at least 57 were killed, 56 wounded and 15 sexually assaulted.
• One hundred forty-one instances in which U.S. soldiers tortured civilian detainees or prisoners of war with fists, sticks, bats, water or electric shock.

Investigators determined that evidence against 203 soldiers accused of harming Vietnamese civilians or prisoners was strong enough to warrant formal charges. These “founded” cases were referred to the soldiers’ superiors for action.

Ultimately, 57 of them were court-martialed and just 23 convicted, the records show.

Fourteen received prison sentences ranging from six months to 20 years, but most won significant reductions on appeal. The stiffest sentence went to a military intelligence interrogator convicted of committing indecent acts on a 13-year-old girl in an interrogation hut in 1967.

He served seven months of a 20-year term, the records show.

Many substantiated cases were closed with a letter of reprimand, a fine or, in more than half the cases, no action at all.

You can read the documents and more reports related to war crimes in Vietnam at the LA Times website.

Then there is the case of Sergeant Joseph Darby.

In January 2004, Darby provided a compact disc of photographs and an anonymous note to Special Agent Tyler Pieron of the US Army Criminal Investigation Command, who was stationed at Abu Ghraib Prison, triggering an investigation which led to the implication of several soldiers violating the Geneva Convention. Darby initially wanted to remain anonymous — he and those implicated all served in the 372nd Military Police Company, but became known after Donald Rumsfeld publicly named him during a Senate hearing. Darby had agonized for a month beforehand, but finally decided to blow the whistle on his former friends explaining “It violated everything I personally believed in and all I’d been taught about the rules of war.” He had known Lynndie England, one of the most well-known suspects, since basic training. He testified that he had received the photos from Charles Graner, another soldier in the photographs.

The Joe Darby came home and was reviled in his hometown for ratting out fellow soldiers.

“If I were [Darby], I’d be sneaking in through the back door at midnight,” says Janette Jones, who lives just across the border in Pennsylvania and stopped here at midday with her daughter for a Pepsi and a smoke.

[…]

“They can call him what they want,” says Mike Simico, a veteran visiting relatives in Cresaptown. “I call him a rat.”

And so Joe Darby had to leave his hometown and move.

If you have read this far and are thinking that these war crimes and the lack of punishment is only the United States’ fault, think again. War crimes happen in all wars and are rarely punished or even seen as wrong. Take Israeli occupation of Palestine or the Pakistani army’s actions in Bangladesh/East Pakistan in 1971. Or any other example from history. And you’ll see the same thing being repeated again and again.

The problem is actually structural. First, when we are at war, we consider the enemy to be subhuman. The job is to kill the enemy and to defeat it. The soldiers need to muster up the courage to be able to kill on the battlefield. The psychological defenses they put up to justify all the mayhem around them creates a black and white world with no gray. When a war crime is committed, it is difficult to get it reported. If the enemy nationals are the ones complaining, it is easy to dismiss it as enemy propaganda. At a trial, the jury and judge belong to the same side as the accused soldiers and the victims are in general seen as part of the other. The military justice system in a good country like the US gives a lot of the benefit of doubt to the accused, which is as it should be. However, in a war situation and in the case of crimes against enemy nationals this makes the task of proving guilt very difficult.

And that’s why it is imperative that we do not go to war unless it really is absolutely necessary. As Matthew Yglesias notes:

I don’t think ordinary people can read Sydney Freedberg’s excellent cover story in the new National Journal but the teaser text explains the basic dilemma well:

Sometimes U.S. troops kill Iraqis in self-defense. Sometimes they kill them for other reasons. And sometimes it’s hard to tell the difference.

The crux of the matter is that soldiers in ambiguous situations understandably tend to err on the side of their own personal safety and that of their fellow soldiers. Likewise, officers faced with ambiguous situations tend to err on the side of giving the soldiers under their command the benefit of the doubt. And courts-martial, likewise, err on the side of taking a favorable view of American soldiers.

All of which is fine. Unless you happen to be an Iraqi. Which is precisely why people tend not to enjoy being under foreign military occupation.