The number of alleged violations of the Geneva Conventions and their Protocols by U.S. soldiers and Marines continues to grow, reaching the threshold at which most of the U.S. public needs the proverbial “scorecard” to keep track of the different incidents. In addition to the trials of soldiers who perpetrated the abuses and caused the death of at least one detainee at Abu Ghraib, there were no fewer than five high-profile enquiries or formal investigations underway at the end of the first week in August:
* A Marine squad accused of killing 24 civilians and members of the chain-of-command falsifying or failing to investigate the incident (Haditha);
* Five soldiers accused of premeditated rape of an Iraqi teenager and murdering her and her family (Mahmoudiya);
* Marines accused of killing an Iraqi civilian and then planting an AK-47 beside his body (Ramadi);
* Marines accused of assaulting detainees during interrogation:
* Preliminary enquiries into an alleged order from an Army brigade commander to “kill all military aged males” and the subsequent deaths of three Iraqi men (Salahuddin).
Add to these a trial just beginning in North Carolina, under provisions of the USA PATRIOT Act, of a former CIA contractor accused of beating an Afghan detainee who later died, and the complications of who is subject to what provisions of which law is enough to give the non-lawyer a headache.
These possible violations of the laws of war and the Geneva Conventions are not unique to the war in Iraq (or in Afghanistan). Similar incidents have been documented in previous wars by different armies, and looking across the landscape at ongoing conflicts from Sri Lanka to Somalia to Israel-Hezbollah-Lebanon and Israel-Palestine-Gaza, the pattern of ill-treatment repeats itself. Is this something that simply “happens” in war regardless of policy and troop training, a “collateral feature” of war the “bleeding hearts” in the world simply must expect and accept because humans are prone to excessive brutality in wartime? Or can war’s brutality be moderated sufficiently by intensified training and, if needed, intense psychological counseling so that those trained by government to kill during combat develop an ability to control aggression when not in combat? Are there specific “triggers”–location or the habitual carrying of a loaded weapon–that might be identified with increased frequency of atrocities?
First, some background on the history–which is very short–of prosecuting individuals for war crimes.
Prior to the tribunals in Nuremberg and Tokyo following World War II, leaders of defeated governments (usually royalty) and military commanders were rarely held legally accountable for the policies of their governments or the actions of their armed forces in war. Certainly, when the victors happened to be in a vengeful mood, a formal legal trial was superfluous. But occasionally trials were held–for example, in 1648 parliament formally charged Charles I of England with treason for raising an army against parliament. He was tried, pronounced guilty on a vote of 68-67, and executed in 1649.
Conversely, the Soviet government representatives at Nuremberg thought that whole procedure a waste of time since–as was common in their “legal” system–anyone accused had to be guilty.
The Nuremberg and Tokyo trials broke new legal ground by holding individuals accountable to the international community for political-diplomatic-military policies and actions of a government. Prior to these tribunals, no comprehensive agreement existed that defined what constituted a “war crime” or what penalties could be levied on those convicted of committing “war crimes.” The Hague Conventions of 1899 and 1907 detailed how prisoners-of-war, other detainees, and non-combatants were to be treated during combat and under occupation and how civilians were to act when under occupation–the “customary laws of land warfare.” But the Hague Conventions provided no enforcement mechanism. By default, enforcement fell to the winner–and the winner was certainly not going to charge its “heroic” leaders or soldiers with war crimes even should an especially brutal atrocity have happened–as long as it could be subsumed in the larger “war.” In fact, the only mention of judicial proceedings in the Hague Conventions is the requirement to hold a trial for an accused spy.
(It’s important to note that the customary laws of land warfare were incorporated into the Uniform Code of Military Justice which became part of U.S. law in 1951, after the start of the Korean War. Moreover, in July 1950, General Douglas MacArthur announced that U.S. and UN forces in Korea would abide by the 1949 Geneva Conventions.)
As World War II drew to a close, the four major allies, determined to hold their enemies to account, agreed in the “London Charter” of August 1945 on three categories of offenses: violations of the customary laws of war, crimes against humanity (mistreatment , enslavement, murder of large groups with common characteristics such as ethnic origin), and crimes against peace (planning or implementing aggressive warfare). Under these categories, twelve high ranking Nazis and seven Japanese were tried, found guilty, and executed. Over the years, others deemed to have committed war crimes have been pursued and tried in national courts.
Article 147 of the Fourth Geneva Convention of 1949, which was being drafted at the same time as the war crime trials were being held, finally filled the definitional void. It defines war crimes as the “Willful killing, torture or inhuman treatment, including… willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or willfully depriving a protected person of the rights of fair and regular trial..taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
All too soon, the world was again embroiled in significant, extended combat. Although a mere five years had passed since the conclusion of World War II, in some aspects the Korean War would turn out to be a “transitional” conflict. In the early days of the war, and again–albeit less often–when the Chinese crossed the Yalu River into North Korea, U.S. (and UN) units often found themselves operating on their own, sometimes in quite perilous circumstances. (Eventually, battle lines were re-established, producing the familiar “front” of the two world wars, especially the trench warfare of World War I.) And it was during these periods, when individuals and units were under maximum stress and chaos and confusion reigned in headquarters and in the chain-of-command, that “battlefield exigencies” led to violations of Article 147.
For example, Far East Bomber Command, headed by the U.S. Air Force, routinely employed incendiary weapons against North Korean villages and towns. One unofficial source reports that more napalm was dropped in Korea than in Vietnam. Similarly, hydroelectric dams and irrigation reservoirs were targeted in an effort to impede industrial output, reduce agricultural production, and cause flooding. At the time, these incendiary weapons were not banned under any agreement nor were attacks on civilian infrastructure.
In fact, all parties in the conflict targeted civilians or mistreated POWs. North Korean and Chinese troops executed thousands of prisoners, both military and civilian, and South Koreans killed suspected “communist sympathizers.” Declassified Fifth U.S. Air Force records include a July 25, 1950 memo stating: “The army has requested we strafe all civilian refugee parties approaching our positions. To date, we have complied with the army request,” adding that “it is not understood why the army is not screening such personnel or shooting them as they come through if they desire such action.” The memo’s author recommends stopping the strafing, not because it might be wrong, but because “more suitable targets are available.”
The “fortunes of war” did find army units shooting at refugee columns believed to be infiltrated by North Korean fighters No Gun Ri has become synonymous with these actions in Korea during the North’s initial sweep south between June 26 and August 4, 1950, when the Pusan perimeter was finally established. However, to set up the perimeter, bridges over the Nakdong River were blown up–including at least one occasion with civilians still trying to get across despite warnings that the bridges were about to be destroyed.
During that first month, the chain of command was so desperate to slow the North Korean assault that discipline within the command structure itself broke down and corners were cut–widely cut. Moreover, the first U.S. troops sent into Korea had been plucked from occupation forces in Japan. Few had seen any combat, and occupation duty was not the sort of experience that promoted what we today term “unit cohesion.” This was the period when battle lines didn’t exist and units were not in contact with each other, which meant that flanks were unprotected from enemy attack. Under orders to stop at all costs the enemy’s momentum, and aware that North Korean soldiers were mixing with legitimate civilian refugees to get behind U.S. positions and attack from the rear, some troops took “at all costs” to include firing on groups of civilians trying to push into the rear areas. Possibly, had commanders accompanied the “at all costs” orders with explicit instructions to not fire on fleeing civilians, the number of “No Gun Ris” might have been fewer. But even spelling out the rules more plainly–e.g., “I was only following orders” no longer was a valid justification for an illegal act–could not guarantee that these minimally-trained soldiers would actually follow the Convention when confronted with “real life.”
By the time the Chinese entered the fray in November 1950, pushing the UN forces back from the Yalu to below the 38th parallel, U.S. and UN troops were better trained, battle hardened, and more disciplined–all of which would contribute to a reduction in Article 147 transgressions. Nonetheless, on the basis of the Fifth U.S. Air Force memorandum mentioned above, one can assume that Korea had its share of known violations of Article 147 of the Geneva Accords that were not investigated at the time or even after the 1953 armistice. Only when No Gun Ri re-surfaced along with “the war on terror” were further investigations made by South Korean and U.S. officials that identified some forty separate incidents contrary to the laws of land warfare.
Vietnam presented different political-military and operational parameters, some of which have only recently come to public knowledge through newspaper accounts of a once-classified 9,000 page Pentagon report on some 820 alleged war crimes committed between 1967-1971–of which 320 were confirmed. The Pentagon has moved to withdraw public access to the report on “privacy act” grounds. Withdrawing the entire report would protect the identities of those investigated in connection with unsubstantiated allegations, but it also allows the Pentagon to conceal the identities of those who failed to follow up on the substantiated crimes or whose actions might be deemed to be contributing causes to the specific violations.
Throughout its duration, the Vietnam War resembled Korea in that first month before the Pusan Perimeter finally produced a continuous line of battle for the U.S./UN forces. Isolated fire bases and Special Forces camps, division or brigade fortified bases, even Vietnamese province and district “seats” with their own military units and command structures, often were little more than islands of government control in a sea of passive or hostile influences. The predominate attitude among U.S. forces in-country was distrust of all Vietnamese–again because one could never be sure who was a real friend and who was a clandestine enemy. Intelligence was contaminated with personal rivalries, especially at the higher levels of the South Vietnamese government and military–reflected in the numerous coups staged after President Diem was assassinated. The practice of declaring “free fire zones” for both artillery and air power added to the number of incidents described in the report just made public. And to these must be added the public accounts in the last few years of SEAL and Special Forces raids in which non-combatants were deliberately targeted, as they were in My Lai.
As to the “why” these violations occurred, one can point to indiscipline, fear, and the use of a twelve month individual replacement system that limited trust and fostered the attitude that “I” would not be the last American killed in Vietnam. The constant psychological pressures added to the never-ending need to be on guard against both the known and the unknown enemy (which might even include the GI in the next “foxhole” with the urge to “frag” someone) could easily evolve into a murderous hatred of all things Vietnamese. And the actions of other nationalities fighting in Vietnam could be taken as “validation” of the U.S. soldiers’ outlook–one need only think of the South Korean “tiger cages.”
Iraq is quite similar to Vietnam in the conditions that can lead to atrocities. Until very recently, troops were not trained for counterinsurgency warfare let alone a sectarian-based civil war–a point made by LTGEN Peter Ciarelli about his own military training and experience. Constantly harassed, constantly on guard, not sure who is “with us or against us” or simply passive; improvised explosive devices randomly striking convoys at places that were “clear” the day before; sectarian strife bordering on civil war (compare Vietcong and “loyal” South Vietnamese); a political system that seems incapable of getting its act together–these are some of the factors creating the psychology of lawlessness in which atrocities occur.
There have probably been fewer incidents in Iraq given the length of time U.S. forces have been there, but another reason for fewer incidents may well be that the number of troops in Iraq has consistently been around one-quarter the total in Vietnam at any one time (Vietnam’s maximum was 550,000).
Here the “why” might better be posed as a “how”–how did this happen again?
The underlying problem is not new: the recurring belief that the world can be made to conform to the Pentagon’s preferred world “vision” rather than the Pentagon having to respond to the world as it is–in this instance, declaring after Vietnam that the U.S. was not going to get mixed up in any new long-term counterinsurgencies. Lack of military leadership, lack of experience with war among the civilian leaders in and outside the Pentagon, and an ideological bias devoid of realpolitik all contributed to a sense of total freedom of action in formulating and implementing policy.
At the individual soldier level, there is a failure in the training regimen which takes a young man or woman off the streets and tears down whatever sense of personal worth and dignity he or she has in the interest of rebuilding and reintegrating the “new” person into the military system. There used to be a military culture that accepted and integrated both enlisted personnel and officers into the military community, one that conditioned and regulated actions and attitudes. That structure is less pervasive, less influential–or perhaps already “missing in action”–as the compensating force restraining illegal behavior both in combat and back in the “safety” of U.S. territory. (An indication of this absence is the spate of homicides at military bases last year among returning troops.)
Put another way, the government trains men and women to kill and destroy, but then doesn’t provide the support and the tools to keep these proclivities under strict control when–as is the norm in life–they are inappropriate. So the liberator becomes the occupier, and necessary (though not morally “justified”) fighting undertaken to preserve the nation turns into revenge for the deaths of close comrades. Noncombatants become “collateral damage,” with images seared into memory, like a landmine waiting to be activated by some seemingly innocuous event sometime, somewhere, in the future when even greater destruction will be possible .
Yes, there are now war crimes and crimes against humanity that most nations acknowledge and instruct their militaries to avoid. But as Abu Ghraib and Guantanamo and the CIA’s secret global network of prisons attest–and now also the combat involving Israel, Hezbollah, Palestinians, and Lebanese–knowing is not the same as “no-doing.” This needs correcting, and the Middle East conflagration offers an opportunity to bring knowledge and action into alignment.
At the 1945 London negotiations, the four allied powers could not agree on a definition of aggressive warfare even though they did prosecute high ranking Nazis for crimes against peace. Today, many see war as nothing less than organized murder, crime on a massive scale. Combining this interpretation with the London conference’s concept of “crimes against peace” could be a useful next step by the international community in trying to reach consensus on a definition of aggression and aggressive war. Achieving this goal would complete the agenda of the London meeting, close a gap in the Treaty of Rome establishing the International Criminal Court, and move the world closer to eliminating the scourge of war.
Col. Dan Smith is a military affairs analyst for Foreign Policy In Focus, a retired U.S. Army colonel, and a senior fellow on military affairs at the Friends Committee on National Legislation. Email at dan@fcnl.org or blog “The Quakers’ Colonel.”
