Saturday, May 01, 2004
Abu Gharaib and Command Responsibility under the Law of Land Warfare
Phil Carter at the Intel Dump agrees with me: what happened at Abu Gharaib was a failure of the entire chain of command, amounting to nothing less than criminal negligence.
The right answer here is to slam the book at the MP chain of command responsible for this action -- especially the colonels, captains and lieutenants who failed to properly train their soldiers on the laws of war, failed to supervise them in the running of this prison, and failed to set the proper climate for the dignified treatment of these prisoners. Administrative punishment for many of these officers is insufficient, in my opinion. They deserve a general court-martial for these actions. I think the American military command in Baghdad must take a hard line on this reprehensible conduct, and that it must prosecute these officers and NCOs to the fullest extent of the law.
The Law of Land Warfare (and yes, I'm drawing on my own formal training as an officer, both in ROTC, the Infantry Officer Basic Course, and a required module in the Armor Officer Advanced Course) not only holds commanders responsible for actions within their unit they have personal knowledge of; it also holds them responsible for actions a commander should reasonably have expected to know about.
It's called "Command Responsibility," and has been sufficient to convict negligent commanders of war crimes in the past.
The most common cite is the prosecution of General Tomoyuki Yamashita, the commander of the Japanese garrison in the Philippines in WWII.
Japanese troops under his command had massacred some 25,000 Philipino civilians, systematically mistreated and starved allied prisoners of war. Yamashita did not personally issue an order to do so, nor did he personally witness the crimes. Nor, apparently, did he have any personal knowledge about what was happening under his command.
He was specifically charged with 'failing to exercise control over his command.'
Yamashita's defense before the tribunal was that he was cut off from part of his command, and that he was unfamiliar with the quality of the troops under his command. Another argument was that some of the Japanese troops were actually naval troops, and were prone to disregarding his orders anyway.
He also argued that all his time was devoted to planning the defense against the U.S. invasion.
The Tribunal held that the atrocities under his command were so widespread that he must have known about them, and if he did not, then he must have taken positive measures to avoid being confronted with such knowledge. A commander does not have the option of avoiding responsibility by playing the ostrich and sticking his head in the sand. Yamashita was also charged with failing to punish those responsible for the atrocities after the fact.
Yamashita was convicted, and sentenced to death. His lawyer appealed the decision all the way to SCOTUS.
You can read some of the details, including part of Justice Murphy's dissenting opinion here.
The point: I am just a lowly lieutenant. An infantry lieutenant at that. I'm not a lawyer or even a military police officer. I've got no special background or training, other than generally I try to remain awake through briefings.
And even I had received enough instruction on the Geneva and Hague conventions to be able to look up a specific case, and to be aware of the doctrine of command responsibility.
I expect captains and colonels and generals to be aware of it, too, and therefore to exercise oversight over their subordinates and set an appropriate professional climate.
I particularly expect such knowledge in members of units whose mission it is to safeguard prisoners of war.
In addition, every soldier in the Army has memorized the "Five S's."
"Search, Silence, Segregate, Separate, Safeguard, and Speed to the Rear."
Yes, 'safeguard' is still one of them.
Their failure to do so in Abu Gharaib, and the failure of the chain of command to correct these abuses, is mindbending to this officer.
Carter's right: an administrative punishment is not sufficient here.
The soldiers involved should see time in Leavenworth. And that's not just the soldiers in the photos. We need to look very hard at whether and which members of the chain of command ought to see prison time, too.
Splash, out
Jason
The right answer here is to slam the book at the MP chain of command responsible for this action -- especially the colonels, captains and lieutenants who failed to properly train their soldiers on the laws of war, failed to supervise them in the running of this prison, and failed to set the proper climate for the dignified treatment of these prisoners. Administrative punishment for many of these officers is insufficient, in my opinion. They deserve a general court-martial for these actions. I think the American military command in Baghdad must take a hard line on this reprehensible conduct, and that it must prosecute these officers and NCOs to the fullest extent of the law.
The Law of Land Warfare (and yes, I'm drawing on my own formal training as an officer, both in ROTC, the Infantry Officer Basic Course, and a required module in the Armor Officer Advanced Course) not only holds commanders responsible for actions within their unit they have personal knowledge of; it also holds them responsible for actions a commander should reasonably have expected to know about.
It's called "Command Responsibility," and has been sufficient to convict negligent commanders of war crimes in the past.
The most common cite is the prosecution of General Tomoyuki Yamashita, the commander of the Japanese garrison in the Philippines in WWII.
Japanese troops under his command had massacred some 25,000 Philipino civilians, systematically mistreated and starved allied prisoners of war. Yamashita did not personally issue an order to do so, nor did he personally witness the crimes. Nor, apparently, did he have any personal knowledge about what was happening under his command.
He was specifically charged with 'failing to exercise control over his command.'
Yamashita's defense before the tribunal was that he was cut off from part of his command, and that he was unfamiliar with the quality of the troops under his command. Another argument was that some of the Japanese troops were actually naval troops, and were prone to disregarding his orders anyway.
He also argued that all his time was devoted to planning the defense against the U.S. invasion.
The Tribunal held that the atrocities under his command were so widespread that he must have known about them, and if he did not, then he must have taken positive measures to avoid being confronted with such knowledge. A commander does not have the option of avoiding responsibility by playing the ostrich and sticking his head in the sand. Yamashita was also charged with failing to punish those responsible for the atrocities after the fact.
Yamashita was convicted, and sentenced to death. His lawyer appealed the decision all the way to SCOTUS.
You can read some of the details, including part of Justice Murphy's dissenting opinion here.
The point: I am just a lowly lieutenant. An infantry lieutenant at that. I'm not a lawyer or even a military police officer. I've got no special background or training, other than generally I try to remain awake through briefings.
And even I had received enough instruction on the Geneva and Hague conventions to be able to look up a specific case, and to be aware of the doctrine of command responsibility.
I expect captains and colonels and generals to be aware of it, too, and therefore to exercise oversight over their subordinates and set an appropriate professional climate.
I particularly expect such knowledge in members of units whose mission it is to safeguard prisoners of war.
In addition, every soldier in the Army has memorized the "Five S's."
"Search, Silence, Segregate, Separate, Safeguard, and Speed to the Rear."
Yes, 'safeguard' is still one of them.
Their failure to do so in Abu Gharaib, and the failure of the chain of command to correct these abuses, is mindbending to this officer.
Carter's right: an administrative punishment is not sufficient here.
The soldiers involved should see time in Leavenworth. And that's not just the soldiers in the photos. We need to look very hard at whether and which members of the chain of command ought to see prison time, too.
Splash, out
Jason
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