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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.

 

 

 

 

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