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?