FacebookTwitterGoogle+RedditEmail

The Face of the Modern War Criminal

I read with interest Ron Jacobs’ recent piece in CouterPunch, A Conspiracy to Kill Iraqis?  His analysis of modern warfare and the near inevitability of civilian casualties for some reason dragged my memory back to my first year of law school, and the famous battery case, Garrett vs. Dailey, 279 P.2d 1091 (Wash. 1955), a standard included in virtually all first-year torts casebooks.  In Garrett, a five-year-old boy (Dailey) pulled a chair away from Garrett, and elderly, arthritic woman, just before she sat down.  Garrett fell and suffered injuries, including a broken hip.  Garrett sued Dailey for battery, and the case eventually found its way to the Supreme Court of Washington.

The court in Garrett grappled with the definition of battery and how that definition would apply to these facts.  Essentially, battery is defined as any intentional harmful or offensive contact for which there is no consent or other legally recognized justification.  The court focused in the issue of intent, holding that a person is liable for battery if he or she knows with substantial certainty that his or her actions will produce a harmful or offensive contact.  The Supreme Court of Washington remanded the matter to the trial court for review based on its guidance, and the trial court subsequently awarded damages for the plaintiff, Garrett.   The approach to civil battery utilized by the court in Garrett is almost universally applied in U.S. jurisdictions today.

Garrett was a civil case, though criminal law provides an analogous analysis.  The American Law Institute’s Model Penal Code (MPC) offers four levels of mens rea, or mental culpability, to analyze potential crimes:  purposely, knowingly, recklessly, and negligently (there is also a fifth level, strict liability, which requires no guilty mental state).  The MPC is not itself law, but is offered as a model to states.  Many states have adopted provisions of the MPC.  As an example of how this mental culpability analysis works, the MPC provides

§ 210.2. Murder.

Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary,  kidnapping or felonious escape.

MPC § 210.2.

Under the MPC one acts purposely when one acts desiring a particular outcome.  One acts knowingly when one acts knowing with practical certainty that a particular outcome will result (it is not necessary to desire or hope for the particular result – knowledge with practical certainty is enough).

How does this analysis relate to Ron Jacobs’ Conspiracy to Kill Iraqis?  Paraphrasing Howard Zinn from his book, Vietnam: The Logic of Withdrawal, Jacobs writes:

Since killing civilians is inevitable in modern warfare it cannot be called an accident.  Bombers and helicopter pilots don’t necessarily intend to kill civilians, but when they attack villages and crowded city streets they know that civilians will be killed. When soldiers and Marines on the ground cannot tell the difference between a civilian and an insurgent and are told to clear an area, they will kill civilians. This killing may not be deliberate, but it is not an accident.

The civil and criminal legal analysis almost begs to be applied here.  Clearly, under the tort (civil) standard, bombers and pilots act with substantial certainty that their actions will cause the death of civilians.  Similarly, in the criminal context, under the MPC, these actions are taken with practical certainty that civilians will die.

Naturally, those who attempt to justify modern wars will proudly assert the righteousness of the cause and the great intentions of those prosecuting the wars.  Yet, when wars are justified by trumped up charges, bogus claims, and fabricated evidence, this line falls to the ground like poor Ms. Garrett, her chair pulled unceremoniously from under her.

Not so incidentally, the MPC defines criminal conspiracy as follows:

§ 5.03. Criminal Conspiracy.

(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

MPC § 5.03.

I wonder who might fall into the category of co-conspirator for the murder of civilians in this context?    Who has agreed with others to commit such crimes, or solicited others to commit such crimes?  Just off the top of my head, a few names come to mind….

DAVID W. REMINGTON, J.D., a former law professor, works as legal counsel in private industry in the Eastern Province of Saudi Arabia.

 

 

 

 

More articles by:

Weekend Edition
January 18, 2019
Friday - Sunday
Melvin Goodman
Star Wars Revisited: One More Nightmare From Trump
John Davis
“Weather Terrorism:” a National Emergency
Jeffrey St. Clair
Roaming Charges: Sometimes an Establishment Hack is Just What You Need
Joshua Frank
Montana Public Schools Block Pro-LGBTQ Websites
Louisa Willcox
Sky Bears, Earth Bears: Finding and Losing True North
Robert Fisk
Bernie Sanders, Israel and the Middle East
Robert Fantina
Pompeo, the U.S. and Iran
David Rosen
The Biden Band-Aid: Will Democrats Contain the Insurgency?
Nick Pemberton
Human Trafficking Should Be Illegal
Steve Early - Suzanne Gordon
Did Donald Get The Memo? Trump’s VA Secretary Denounces ‘Veteran as Victim’ Stereotyping
Andrew Levine
The Tulsi Gabbard Factor
John W. Whitehead
The Danger Within: Border Patrol is Turning America into a Constitution-Free Zone
Dana E. Abizaid
Kafka’s Grave: a Pilgrimage in Prague
Rebecca Lee
Punishment Through Humiliation: Justice For Sexual Assault Survivors
Dahr Jamail
A Planet in Crisis: The Heat’s On Us
John Feffer
Trump Punts on Syria: The Forever War is Far From Over
Dave Lindorff
Shut Down the War Machine!
Glenn Sacks
LA Teachers’ Strike: Student Voices of the Los Angeles Education Revolt  
Mark Ashwill
The Metamorphosis of International Students Into Honorary US Nationalists: a View from Viet Nam
Ramzy Baroud
The Moral Travesty of Israel Seeking Arab, Iranian Money for its Alleged Nakba
Ron Jacobs
Allen Ginsberg Takes a Trip
Jake Johnston
Haiti by the Numbers
Binoy Kampmark
No-Confidence Survivor: Theresa May and Brexit
Victor Grossman
Red Flowers for Rosa and Karl
Cesar Chelala
President Donald Trump’s “Magical Realism”
Christopher Brauchli
An Education in Fraud
Paul Bentley
The Death Penalty for Canada’s Foreign Policy?
David Swanson
Top 10 Reasons Not to Love NATO
Louis Proyect
Breaking the Left’s Gay Taboo
Kani Xulam
A Saudi Teen and Freedom’s Shining Moment
Ralph Nader
Bar Barr or Regret this Dictatorial Attorney General
Jessicah Pierre
A Dream Deferred: MLK’s Dream of Economic Justice is Far From Reality
Edward J. Martin
Glossip v. Gross, the Eighth Amendment and the Torture Court of the United States
Chuck Collins
Shutdown Expands the Ranks of the “Underwater Nation”
Paul Edwards
War Whores
Peter Crowley
Outsourcing Still Affects Us: This and AI Worker Displacement Need Not be Inevitable
Alycee Lane
Trump’s Federal Government Shutdown and Unpaid Dishwashers
Martha Rosenberg
New Questions About Ritual Slaughter as Belgium Bans the Practice
Wim Laven
The Annual Whitewashing of Martin Luther King Jr.
Nicky Reid
Panarchy as Full Spectrum Intersectionality
Jill Richardson
Hollywood’s Fat Shaming is Getting Old
Nyla Ali Khan
A Woman’s Wide Sphere of Influence Within Folklore and Social Practices
Richard Klin
Dial Israel: Amos Oz, 1939-2018
David Rovics
Of Triggers and Bullets
David Yearsley
Bass on Top: the Genius of Paul Chambers
FacebookTwitterGoogle+RedditEmail