A video went viral on January 11 portraying four United States marines urinating on the bodies of killed Afghanis. The Navy quickly assured criminal investigation, and the story dropped out of the news cycle, ensuring that the American public would forget it as well. Avoiding critical reflection on something a nation has done wrong is all too easy, like the child who avoids giving an apology.
As with any country involved in violent trauma, critically reflecting upon the crimes' occurrence, causes, and prevention is a necessary process for the sake of the population's own mental well-being, spiritual wholeness and public perception from abroad. An example of how to do this might be South Africa; an example of how not to is Rwanda. After 9/11, America replaced self-reflection with going to war.
The Law of War
We live in a world where war is not illegal (although the United Nations Charter creates a presumption against its legality). Once a nation or a military group is engaged in armed conflict, however, we do live in a world that regulates conflict. This law is called jus in bello, or the law of war.
Law of war is defined by custom, treaties and interpretations by international tribunals, such as the International Criminal Court (ICC). The USA has ratified the Geneva Conventions, acknowledged that Additional Protocol I is part of binding customary international law, and participated in the UN tribunals in Yugoslavia and Rwanda. The U.S. Armed Forces are, in fact, staunch supporters of the law of war, quizzing service members on its applicability and requiring all soldiers to carry Rules of Engagement (RoE) cards.
Desecrating bodies of the fallen enemy is no doubt a war crime and a violation of both U.S. treaty obligations and customary international law, forbidden by the First and Second Geneva Conventions, the 1907 Hague Convention X and the Additional Protocol I to the Geneva Conventions. Often seen as the starting point for modern international criminal law, the post-World War II Nuremberg tribunals convicted former Nazis for desecration of bodies ranging from the removal gold teeth from the dead to harvesting fat for soap production. While the marines' actions do not reach this level of virulent criminality, they could nonetheless constitute crimes in the same vein.
How surprised should we be?
There was immediately talk of the inevitability of young people misbehaving when placed in combat situations and the impossibility of moral behavior in an "immoral war." These comments, however, are missing the point.
The young men in the video have been deployed for years in theaters as varied as Guantanamo, Iraq, Afghanistan, even Idaho's wildfire-prone forests. They have been placed in a situation foreign to their upbringings, handed unwinnable missions in countries broiling with turmoil and have witnessed, committed and endured acts of unspeakable violence. For that, the collective society recognizes their sacrifice -- rightly so. The problem arises, however, when their title excuses their behavior, an excuse handed to them by military superiors, civilian commanders and by the general public.
This is not the first instance of war crimes recently committed by U.S. troops -- just look at the Abu Ghraib prison scandal or the depraved "kill team" in Afghanistan.
But who's really to blame?
Soldiers do not operate in a vacuum. Their behavior is strictly regimented by training, superior orders and the atmosphere promulgated by commanding officers. Because of this, both U.S. and international law recognize the doctrine of "command responsibility," wherein a commander can be held responsible for the actions of his subordinates. This practice dates back to at least 1439, when Charles VII of Orleans promulgated an ordinance punishing captains and lieutenants for offenses committed by officers of his company.
Fast forward to 1968, when the Charlie Company of the U.S. Army murdered at least 300 Vietnamese civilians in under three hours in the town of My Lai. The Company's Captain, Ernest Medina, was acquitted at his court martial for not having "actual knowledge" of the atrocities, although there was "clear evidence that he was in fields adjacent to My Lai while his subordinates' heavy firing was going on" and he has since admitted that he knew exactly what was going on.
Since the Medina trial the U.S. standard for a commander to be liable for the actions of his inferiors has been "actual knowledge," a standard out of line with international law and U.S. Military law. The proper standard, as applied to Japanese General Tomoyuki Yamashita (tried and executed in Tokyo after World War II) is that the commander "knew or had reason to know that a crime had been or was about to be committed." This standard has been upheld by the UN tribunal set up after the Balkan war (ICTY), the UN tribunal set up after the genocide in Rwanda (ICTR) and the ICC itself. The international standard conforms to the Geneva Conventions and customary international law, which hold military commanders affirmatively responsible for preventing the commission of war crimes and seeking out and prosecuting those who commit them.
Evading Responsibility
In the modern world, following orders is never an excuse for committing a war crime; this excuse was done away with by the Nuremberg trials of the Nazis. Those who gave the criminal orders are equally as culpable as the one with blood on his hands. Unfortunately, the U.S. interpretation of command responsibility refuses to acknowledge this principle, creating an atmosphere that is so permissive of war crimes that they keep happening again and again.
Captain Medina was responsible for his troops' actions in My Lai, as was the commander who gave him his orders. As long as the U.S. requires proof of "actual knowledge" to determine command responsibility, however, justice will never be done for war crimes and impunity will reign. This is not the way to heal a country after trauma and this is not the way to a just and moral nation.
While there are many schisms within American society, there is at least one other worth mentioning -- the division between those who would urinate on a dead body and those who would not. The latter group must then ask itself a question: how responsible are they for those who would?
Robert Koehler: The Dignity of Corpses
Christopher Holshek: War and Peace With a Human Face
Michael Shaw: Reading the Pictures: Take-Aways on the Video Showing Marines Urinating on Taliban
Indeed, the real "urination" is upon the Constitution by the author who would use the incident as an excuse to advance the notion that we must submit to the jurisdiction of a judicial system, unanswerable to us and over which we have no control, even to the vetting of its judges for competence and bias. [The Rome Treaty eliminates trial by jury, which further exacerbates issues of competence and cultural and nationality bias.]
As such the author's claim that an officer is criminally liable for crimes under his command, not known to him, violates the law of "Medina" and vitiates the Constitutional requirement of Due Process by subjecting a citizen to laws "enacted" by tribunals, unaccountable to anyone, much less the American people. [cf. The Rome Treaty which endows the ICC with a "legal personality"]
The author's arbitrary pronouncement that our law is "wrong" suggests an allegiance to a rule of law superior to our Constitution. Anyone is free to kneel before any altar they choose, but before they do they might look at the denigration of the rights protected by our Constitution, including freedom of speech & opinion [ http://en.wikipedia.org/wiki/Freedom_of_speech_by_country] as well as others, that are increasingly becoming the norm in countries such as Canada and throughout the EU.
I would disagree, obviously, and also add that you should double-check your Constitutional provisions - international treaties join federal law as the "supreme law of the land." The US has ratified the Geneva Conventions.
Also, the Court Martial finding in the Medina case actually cuts against commander responsibility, unfortunately. My argument is that the Medina decision transgressed the Geneva Conventions as well as US Military law (see the US Army Field Manual I link to in the article), acting as one of many triggers for a permissive attitude in the current wars towards war crimes.
Additional Protocol I to the Geneva Conventions (1977), article 87
"1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.
2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.
3. The High Contracting Parties and Parties to the conflict shall REQUIRE ANY COMMANDER WHO IS AWARE [emphasis mine]that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof."
Thus: Military commanders may be held criminally responsible for the unlawful conduct of their subordinates, OF WHICH THEY ARE AWARE. To hold otherwise denies the Due Process Clause upon which the Supreme Court often reverses convictions for vagueness.
As such your assertion that Medina transgresses The Convention is a contrivance.
No they're not, this is what they're doing the majority of the time.
Half a million lives weren't lost because of "bad intel". They were lost because of bad intent.
Fighting for their country? what country are you saying Iraq attacked America? I wonder why people say always that our men and women who are fighting for their country invading other countries is nor the same as fighting for your country?
It is propaganda to say that .you are fighting for your country. In reality you are fighting to keep the imperialist to keep going!,
Make the rich, richer by securing other countries oil for them and as boor american to fight for that is not only stupid it is sleep working in a daylight.!!
And our government, whether it is incompetent, corrupt, incompetent, or downright evil, is still our government. It sent the troops to war. If different people get elected with a different view, they will send them back home. Either way, it does not change the fact that the troops fight for the U.S. It is not their decision whether fighting or staying home is better policy.
It is not propaganda to say they are fighting for their country, even if they were fighting an "imperialistic" war. If our duly elected government decided that is U.S. policy, and sends the troops, then the troops are fighting for their country just as much as if they were defending our shores.