Adjudication Deferred: Command Responsibility for War Crimes and US Military Justice from My Lai to Haditha and Beyond

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Notes

One foremost US law of war scholar identifies this indirect liability with traditional legal analysis as grounded in accomplice theory and respondeat superior. See Solis, The Law of Armed Conflict, Chapter 10.

Parks, “Command Responsibility for War Crimes,” 1.

For a sampling of the literature see Anderson, Facing My Lai; Belknap, The Vietnam War on Trial; Bilton and Sim, Four Hours in My Lai; Hammer, The Court-Martial of Lt. Calley; Hersh, My Lai 4; idem, Cover-Up; Oliver, The My Lai Massacre in American History and Memory; Peers, The My Lai Inquiry; Addicott and Hudson, “The Twenty-Fifth Anniversary of My Lai”; Eckhardt, “My Lai”; Paust, “My Lai and Vietnam”; Smidt, “Yamashita, Medina, and Beyond.”

Congress bears ultimate responsibility for the oversight of US military justice. US Constitution, Art. I, Sect. 8 cl. 14. “Congress shall have Power … To make Rules for the Government and Regulation of the land and naval Forces.”

10 United States Code 801 et seq.

See Cohen, “A Court for a New America.” See also American Society of International Law Task Force Recommendations on US Policy Toward the International Criminal Court.

Rome Statute of the International Criminal Court, articles 1 and 20.3.

Kahl, “How We Fight,” 83.

“Get some new lawyers” is a remark attributed to US Secretary of State Madeline Albright in 1999 when told by Foreign Secretary Robin Cook that British legal advisors could not support the air war against Yugoslavia absent a UN Security Council resolution. Byers, War Law, 47.

Shaw, International Law, 70–71.

Despite distinctions in convention-based law between international and non-international armed conflicts, this article treats “the law of war” and “the law of armed conflict” as synonymous. “International humanitarian law,” an expansive term of more recent development, is integral to the law of war, given its focus on the protection of noncombatant victims of war.

Bantekas, Principles of Direct and Superior Responsibility in International Humanitarian Law, 67.

Sun Tzu, The Art of War, 9, qtd. in Parks, “Command Responsibility,” 4.

Martinez, “Understanding Mens Rea in Command Responsibility,” 661–62.

Green, “Command Responsibility in International Humanitarian Law,” 321.

Ibid.

Articles of War, Provisional Congress of Massachusetts Bay, 5 April 1775, reprinted in Parks, “Command Responsibility,” 5. See also Bantekas, Principles of Direct and Superior Responsibility, 68. For an early US Supreme Court decision on the legal liability of military commanders for misapplying existing law, regardless of superior orders, see Little v. Barreme (the Flying Fish), 1804.

Instructions for the Government of Armies of the United States in the Field, 24 April 1863.

Ibid., article 156, emphasis added.

Hague Convention No. IV, Annex, article 1.

Commission on Responsibility of Authors of War, qtd. in Lippman, “Humanitarian Law,” 5.

Lippman, ibid., 7.

Shaw, International Law, 234. The Kaiser avoided trial by taking up residence in the Netherlands, which declined extradition.

US Army Pamphlet, International Law, 221–22, reprinted in Parks, “Command Responsibility,” 13.

Walzer, Just and Unjust Wars, 322. The quotation regarding the soldier's responsibility to protect the “weak and unarmed” is from General Douglas MacArthur's order affirming the death sentence of Japanese General Tomoyuki Yamashita who was executed by the US Army for war crimes in February 1946. Ibid., 317.

Abbaye Ardenne Case (1945). Unpublished trial transcript, reproduced in Green, Essays on the Modern Law of War, 226–27.

In Re Yamashita (1946).

Landrum, “The Yamashita War Crimes Trial,” 294–95, citing Lael, The Yamashita Precedent.

In Re Yamashita, 17. While the Supreme Court highlighted the defendant's breach of duty to control his forces, one law of war scholar finds Yamashita directly culpable for the execution of at least 2,000 suspected Filipino guerillas. See Parks, “Command Responsibility,” 27–31.

The preamble to Control Council Law No. 10 put forth its purpose to give effect to the Moscow Declaration of 1943, the London Agreement of 1945, and the Charter of the IMT so as “to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal …” (The German “High Command Case,” 59).

U.S. v. Wilhelm von Leeb, et al. 1948.

U.S. v. Wilhelm List, et al. 1948.

U.S. v. Wilhelm von Leeb, et al., 67.

Ibid., 76.

U.S. v. Wilhelm List, et al., 69–70.

Department of the Army, Field Manual, 27-10, 178–79.

Additional Protocol I, article 86.2. The United States signed the convention, although the Senate has still to provide its advice and consent. However, as to its binding effect, the command responsibility standards it imposes have been judged to be customary international law. See Prosecutor v. Delalić, paragraph 343.

Sandoz et al., Commentary to the Additional Protocols, paragraph 3524.

Statute of the ICTY article 7.3, statute of the ICTR article 6.3.

Prosecutor v. Jean-Paul Akeyesu, ICTR No. IT-96-4-T.

Prosecutor v. Delalić, ICTY, No. IT-96-21-T. As to Delalić, it should be noted that the Trial Chamber concluded that he lacked a position of command such that he could be held culpable even if actual knowledge of subordinate criminality were proven. Ibid., paragraphs 718–20.

Prosecutor v. Blaškić, ICTY, No. IT-95-14-T.

Ibid., paragraph 307.

See Prosecutor v. Blaškić, paragraph 322.

Rome Statute of the International Criminal Court, article 28.1(b), emphasis added.

Bilton and Sim, Four Hours in My Lai, 9.

Ibid., 9–10.

Goldstein et al., Peers Commission Report, 314, 322.

In Vietnam Studies Law at War Vietnam 1964–1973, then Judge Advocate General of the US Army Major General George Prugh argued, as an aside, that the atrocities committed by US forces at My Lai did not meet the definition of a “war crime” because the victims were South Vietnamese nationals. South Vietnam being allied with the United States, the victims were not protected persons under the Geneva Conventions and thus no grave breach of the Law of War could be inflicted upon them. Ibid., 102. This view of what constitutes war crimes is an exceedingly narrow one but his point is valid in that, when committed, the crimes were violations of South Vietnamese and US domestic law rather than convention-based international law. His discussion did not assess whether mass murder of civilian noncombatants or insurgents hors de combat during a period of non-international armed conflict is a war crime under principles of customary international law.

Goldstein et al., Peers Commission Report, 315.

Peers, The My Lai Inquiry, 217. By 1975, the massacre that was a “tragedy” later became in official Department of the Army publications an “occurrence,” “aberration,” and an “incident.” Prugh, Vietnam Studies Law at War Vietnam 1964–1973, 113, 114, 158.

See, for example, n. 3 above.

10 U.S. Code 822.

Manual for Courts-Martial, United States, Rules 604, 401, and 407.

Goldstein et al., Peers Commission Report, 465–68.

Bigart, “Medina Found Not Guilty of All Charges on My Lai.”

Henderson was tried on charges of dereliction of duty for failing to properly investigate the massacre, disobeying lawful regulations which required he report the commission of war crimes of which he had knowledge, and lying under oath to the Board of Inquiry that investigated the matter. In 1979, General Peers said of the verdict absolving Henderson of criminal accountability, “[i]f his actions are judged as acceptable standards for an officer in his position, the Army is indeed in deep trouble.” Peers, The My Lai Inquiry, 226.

Ibid., 222.

Goldstein et al., Peers Commission Report, 236, 211–26.

Ibid., 258.

Beecher, “General, Ex-Aide Accused of Murdering Vietnamese.” Lieutenant Colonel William J. McCloskey was charged along with Donaldson for two additional killings. See also Time Magazine, “Charge of a General.”

Robinson, “Army Drops Charges against General Accused of Killing 6 South Vietnamese Civilians.”

Herbert, Soldier, 426. See also Time Magazine, “Colonel Herbert v. the Army.” Colonel J. Ross Franklin, the deputy commander that Lieutenant Colonel Herbert accused of indirect command responsibility in war crimes, served as a member of Lieutenant General Peers’ commission that investigated My Lai. Goldstein et al., Peers Commission Report, 366.

Nelson and Turse, “A Tortured Past.”

Herbert, Soldier, 434.

Hersh, “Lieutenant Accused of Murdering 109 Civilians.”

Hersh, “Torture at Abu Ghraib,” 47.

For a compilation of detainee deaths while being held in the custody of US forces, see Shamsi and Pearlstein, Command's Responsibility.

Schmidt and Priest, “Civilian Charged in Beating Death of Afghan Detainee.”

Carlson, “The John McCain of Bagram Prison.”. See also Lasseter, “Day 2.”

See Department of Defense form 458, Beiring's charge sheet of offenses.

Golden, “Years After 2 Afghans Died, Abuse Case Falters”; Lasseter, “Abuse Worse before Guantanamo.”

Manual for Courts-Martial, article 92c(3).

Golden, “Years After 2 Afghans Died, Abuse Case Falters.”

Greenberg and Dratel, The Torture Papers, 384.

Ibid., 393.

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV), articles 3 and 37.

Bremer, My Year in Iraq, 133–34.

Taguba Report, reprinted in Danner, Torture and Truth, 283.

Jones/Fay Report, reprinted in ibid., 411.

Greenberg and Dratel, The Torture Papers, 543–44.

Ibid., 529–52.

Taguba Report, reprinted in Danner, Torture and Truth, 319. Cruel and degrading treatment inflicted upon detainees at Abu Ghraib included:

[p]unching, slapping, and kicking detainees; jumping on their naked feet; … [f]orcibly arranging detainees in various sexually explicit positions for photographing; … [f]orcing naked male detainees to wear women's underwear; … [f]orcing groups of male detainees to masturbate themselves while being photographed … [p]ositioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture; … [p]lacing a dog chain or strap around a naked detainee's neck and having a female Soldier [sic] pose for a picture … (Ibid., 292)

Ibid., 324.

Jones/Fay Report, reprinted in Danner, Torture and Truth, 559.

Ibid.

Schlesinger Report, reprinted in Danner, Torture and Truth, 351–52 (emphasis added).

See Smith, “A Few Good Scapegoats.”

“Officer to Face Court-Martial on 8 Charges in Abu Ghraib Abuse.”

Pelton, “Strife at Prison is Shown.” So too, Major General Geoffry Miller, a military police officer from Guantanamo, Cuba, who advised the Iraqi theater senior command on how best to obtain “actionable intelligence,” invoked his right to remain silent under article 31 of the UCMJ rather than testify in the court-martial of a junior enlisted soldier who was prosecuted for executing Army policies “at the tip of the spear.”

White, “Army Officer is Cleared in Abu Ghraib Scandal.”

Hersh, “The General's Report,” 58, 59.

Shamsi and Pearlstein, Command's Responsibility, 3.

Bargewell Report, 7.

Ibid., 92.

Kluger, “How Haditha Came to Light,” 29.

Watt Report, 6, 5.

Ibid., 7.

Bargewell Report, 92.

Ibid., 23.

Ibid., 93.

Perry, “Haditha Killings Detailed in Hearing.”

Ibid.

Perry, “Charges against Marine Dropped.”

Unlawful command influence is prohibited by article 37 of the UCMJ (10 USC 837) which provides in pertinent part:

No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial … or any member thereof, in reaching the findings or sentence in any case, or action of any convening authority, approving, or reviewing authority with respect to his judicial acts.

Perry, “Charges against Marine Dropped.”

Ibid.

Worth, “Sergeant Tells of Plot to Kill Iraqi Detainees.”

Ibid. See also Hall, “Accused Soldier Wants Colonel to Testify.”

von Zielbauer, “Army Says Improper Orders by Colonel Led to 4 Deaths.”

Ibid.

Hansen, “Creating and Improving Legal Incentives for Law of War Compliance,” 272; idem, “What's Good for the Goose is Good for the Gander,” 412.

Hansen, “Creating and Improving Legal Incentives for Law of War Compliance,” 248.

Smith, “A Few Good Scapegoats,” 702.

Ibid. See Manual for Courts-Martial, United States, Rule 307.

5 U.S. Code 552(b)(5).

Martinez, “Understanding Mens Rea in Command Responsibility,” 660–64.

Sengheiser, “Command Responsibility for Omissions and Detainee Abuse in the ‘War on Terror,’” 719.

10 U.S. Code 822(4). The Department of Defense Directive on law of war expressly calls for secretaries of the military departments to provide “for disposition, under Reference (g) [the Uniform Code of Military Justice], of cases involving alleged violations of the law of war …,” DOD Directive No. 2311.01E, Subject: DoD Law of War Program at 5.8.4.

Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 238.