JURIST Contributing Editor
Geoffrey S. Corn, Lt. Col. US Army (Ret.)
and former Special Assistant to the Judge Advocate General for
Law of War Matters, now a professor at South Texas College of
Law, says that the killings of Iraqi civilians at Haditha,
like the My Lai massacre during the Vietnam War, illustrate
critical aspects of the law of war even as they ostensibly
manifest its failure....
Is Haditha the My Lai of the war in Iraq?
The question is not at all surprising. The thought of warriors
wearing the uniform of the United States killing unarmed men,
women, and children is perhaps even more shocking today than
it was in 1969. Of course, debate has already commenced on
whether any comparison between the incidents is valid
considering the disparate number of killings - some 500 - that
occurred at My Lai. But this quantitative focus misses the
point. It is the qualitative aspect of both these sad
incidents that serves as a profound reminder that, as I have
stated previously on JURIST, the law of war is as much about
war as it is about law.
Let me state at the outset that
I write this editorial based on the assumption that the
initial reports of unjustified killing at Haditha are in fact
accurate. Like any investigation, this certainly involves a
degree of speculation. However, even if the facts ultimately
lead to a contrary conclusion, the mere suspicion of such
unjustified killings serves as a reminder that the law of war
and the discipline essential to a morally sound military force
are inevitably connected.
If these killings were not
justified by the exigencies of war, they fall outside the
scope of what is known as combatant immunity. Whether
characterized as war crimes or as criminal homicides in
violation of the Uniform Code of Military Justice, the
underlying premise is the same: even in war there are limits
on when it is permissible to kill. This premise was eloquently
expressed by Telford Taylor in his seminal work on the Vietnam
conflict,
Vietnam, an American Tragedy:
War does not confer a license to kill for
personal reasons – to gratify perverse impulses, or to put
out of the way anyone who appears obnoxious, or to whose
welfare the soldier is indifferent. War is not a license at
all, but an obligation to kill for reasons of state; it does
not countenance the infliction of suffering for its own sake
or for revenge.
This quote provides insight into
the first qualitative similarity between Haditha and My Lai.
The law of war lies as the very core of military discipline,
for it provides the barrier between killing required on behalf
of the strategic interests of the state and the instinct of
revenge and retribution so routinely aroused in the hearts and
minds of young warriors. Haditha, like My Lai, involved a
group of warriors who had been subjected to countless
“faceless” attacks by remotely detonated explosives. In My
Lai, these took the form of landmines. In fact, the My Lai
district was one of the most heavily mined areas in all of
South Vietnam. In Haditha, they took the form of improvised
explosive devices (IEDs).
In both conflicts, these
enemy weapons extracted a devastating toll on U.S. forces.
Their inability to identify and respond to an enemy associated
with these attacks invariably led to tremendous frustration,
and almost certainly rage. The most profound lesson from My
Lai for members of the profession of arms was that at no other
time is the law of war more important than when this sense of
frustration triggers the instinct of revenge. It is at this
point when the existence of “rules”, and the commitment to
respect for these rules, must operate to preserve the line
between killing for justifiable reasons of state and killing
for the illicit purpose of revenge or retribution.
Both My Lai and Haditha also demonstrate another
critical component of the law of war: the relationship between
the law and leadership. Upon hearing the news reports of the
Haditha killings, international lawyers began to use the term
war crime. Upon hearing the same news, military professionals
almost certainly contemplated the breakdown in discipline that
must have facilitated the killings. This reveals the simple
truth that it is discipline, implemented by competent
leadership, that must be relied upon to ensure warriors
embrace the logic of the law of war and comply with its
mandates during the most stressful moments of combat. As one
former colleague was apt to remind his students at the Army
Judge Advocate General’s School, “the troops need to
understand why this law matters, because you can’t ask for a
recess in war.” If the initial reports coming from Haditha are
confirmed, it will, like My Lai, be as representative of a
failure of leadership and discipline as it is of a violation
of the law of war. More importantly, it will also once again
confirm that effective leaders must truly understand the
relationship between the law of war and a morally sound
force.
This reveals another critical aspect of
implementation of the law of war: the need to ensure that
warriors understand the logic of the rules more in terms of
war and less in terms of law. Warriors must be taught that
respect for these rules will ultimately contribute to the
achievement of the strategic objectives for which they place
their lives at risk. They must understand that like any other
aspect of their duties, their may be times when this
compliance might result short term sacrifice, but that this
sacrifice will contribute to long term benefit. They must also
be taught that these rules were developed over the centuries
primarily by military leaders who understood the negative
consequences of a lawless battlefield. Only by embracing this
logic will the law of war provide an effective shield between
the warriors and their darker instincts, for as history has
demonstrated time and again, during the extremes of mortal
combat, the deterrent influence of potential criminal sanction
is of limited utility. Thus, Haditha once again reminds us
that the law of war must be understood not primarily in terms
of legal consequences, but in how it impacts the
accomplishment of the military mission.
In this regard,
it is therefore not surprising that the Commandant of the
Marine Corps recently went to Iraq to emphasize to his Corps
the relationship between the moralities reflected in the law
of war and the profession of arms. He, like so many other
leaders of that fine force, must certainly understand that
compliance with the law of war is essential to achieve the
strategic goals of the nation. Indeed, President Bush is no
doubt correct that members of the Marine Corps itself are as
troubled by these revelations as anyone else, for these
professionals understand better than most the strategic
consequences of failing to comply with this law.
This
leads to perhaps most unfortunate similarity between My Lai
and Haditha: how the exception of non-compliance swallows the
rule of compliance. Perhaps no single event from the Vietnam
War became more symbolic of the conduct of American warriors
than My Lai. This is almost certainly a reflection of the
validity of the other comment made by President Bush: that
American warriors are held to the highest standard. But it is
truly tragic that the faithful, moral, and admirable service
of hundreds of thousands of Americans in Vietnam was
overshadowed by the deplorable conduct of one platoon of
soldiers and their substandard leader. Indeed, it is the name
of Lieutenant Calley, and not that of
Captain
Hugh Thompson - the true hero of My Lai who threatened to
fire on members of Calley’s platoon from his helicopter in
order to shield civilians from harm – that is etched in the
American memory. A force held to the highest standard of
professionalism and morality should not be surprised by such
an illogical disparity.
As in Vietnam, hundreds of
thousands of American warriors have served in Iraq with great
distinction. They have endured the harrows of war, and the
frustrations of constant attacks by an elusive enemy that
seeks to exploit their compliance with the law of war to gain
tactical advantage. The vast majority of these warriors have
not wavered in their commitment to the moral principles at the
core of both the law of war and the profession of arms. It
will indeed be unfortunate if like My Lai, Haditha improperly
becomes the event that defines the character of their service.
More importantly, it should be a reminder to every
leader in the U.S. military that these highest standards must
be enforced. Haditha, like My Lai, validates once again the
concept of the “strategic private” – that the actions of an
18-year old private can have strategic consequences in the
time it takes for news to travel the internet. It is therefore
incumbent on the armed forces to conduct a legitimate,
thorough, and transparent investigation of these killings. If
this investigation establishes a basis for prosecutions, they
must be pursued without delay, and reach all those responsible
for both the killings and any subsequent failure to make an
immediate and legitimate investigation into the incident. The
military justice system is fully capable of dealing with any
allegation of criminal misconduct. If Marines are prosecuted,
fellow members of the profession of arms will judge them.
While critics will no doubt question the legitimacy of this
process, there is truly logic in allowing members of the
profession of arms sit in judgment on those accused of
breaching the law so central to their profession.
It
is equally incumbent on the American public to allow this
process to work, and to place this incident into proper
context. It is an unfortunate reality that the brutality of
war will almost always lead warriors to cross the barrier
between justified and unjustified killings. What is important,
however, is that this truly does represent an exception and
not the rule.
The law of war has endured over
centuries not because it never fails, but because it works
most of the time. What the Haditha incident must come to stand
for is a renewed commitment to making this law work better in
the future. Accordingly, every leader who wears the uniform of
the United States must once again consider the lessons so
painfully learned over three decades ago at My Lai, remaining
vigilant in order to prevent the warriors entrusted by the
nation to their charge from transforming war from an ugly
necessity of state to a personal vendetta.
Geoffrey S. Corn is a Professor at South Texas
College of Law in Houston. He is also a retired LTC from the
Army JAG Corps. His last assignment was as Special Assistant
to The Judge Advocate General for Law of War
Matters
