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Conduct in War

This is a discussion on Conduct in War within the Military History forums, part of the China Defense & Military category; I found this book review in Asia Times on line just before the weekend : Asia Times Online :: Southeast ...

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    Conduct in War

    I found this book review in Asia Times on line just before the weekend :
    Asia Times Online :: Southeast Asia news and business from Indonesia, Philippines, Thailand, Malaysia and Vietnam
    I think its fascinating and I think its wrong. It says that the US military misbehaved in Vietnam because they didn't understand the background of the people and the war in the field as well as in Washington and in the levels in between.
    In a book review I read in my Dutch newspaper several months ago reviewing the translation of an American book ( I've forgotten the title ) it said that the attitude to the of the US military to the Japanese was very disrespectful and contrasted to their attitude to the Germans. They used the head of a Kamikaze pilot as a football, sent parts of killed Japanese home, ect. It showed the same attitude to the Koreans, Vietnamese, Afghans and Iraqi during the wars in those countries. I remember reading in the International Herald Tribune in the late '90's that an American division had killed nearly a thousand South Korean refugees from the fighting because its commander was afraid there were North Korean spies among them. This was in 1950 shortly after the division had arrived in the country. We all remember the attitude shown by some of the US military towards Afghan and Iraqi civilians and combatants.
    I'm sure this attitude is not limited to the US military. When The Netherlands decided after WWII that it needed the profits from its former colony, now Indonesia, to have the money to rebuild itself, it sent 150 000 soldiers to suppress the "rebels" and in the process behaved just as badly as described in the book review below and with hardly any prosecution for war crimes. And the Dutch had trading posts there since about 1600 and from 1815 fought to control all of it. The French, who occupied Algeria from 1830, also acted horribly against the Algerian population during the liberation war of 1954-62.
    Such war crimes are of little import if the intent is not to control the population afterwards. Think of the German genocidal policies against the Herero in South West Africa before WWI or against the Slavs in Eastern Europe and the Jews in all their occupied territories during WWII or of Julius Caesar's extermination of some Belgian tribes described in the Bello Gallica. However it is another matter if the occupying power wants to install a state after its own specification. As an extreme example it took the US from 1945 to 1987 before South Korea started on the road from a dependent dictatorship, first under Singh Man Rhee then under military dictators, most of the time General Park ( father of the present president ), to an independent political life and even now the South Korean armed forces are under the supervision of the US.

    Here is the review of "Kill Anything that Moves":

    How did the Gates of Hell open in Vietnam?
    By Jonathan Schell

    For half a century we have been arguing about “the Vietnam War.” Is it possible that we didn't know what we were talking about? After all that has been written (some 30,000 books and counting), it scarcely seems possible, but such, it turns out, has literally been the case.

    Now, in Kill Anything that Moves, Nick Turse has for the first time put together a comprehensive picture, written with mastery and dignity, of what American forces actually were doing in Vietnam. The findings disclose an almost unspeakable truth.

    Meticulously piecing together newly released classified information, court-martial records, Pentagon reports, and first-hand interviews in Vietnam and the United States, as well as contemporaneous press accounts and secondary literature, Turse discovers that episodes of devastation, murder, massacre, rape, and torture once considered isolated atrocities were in fact the norm, adding up to a continuous stream of atrocity, unfolding, year after year, throughout that country.

    It has been Turse's great achievement to see that, thanks to the special character of the war, its prime reality - an accurate overall picture of what physically was occurring on the ground - had never been assembled; that with imagination and years of dogged work this could be done; and that even a half-century after the beginning of the war it still should be done.

    Turse acknowledges that, even now, not enough is known to present this picture in statistical terms. To be sure, he offers plenty of numbers - for instance the mind-boggling estimates that during the war there were some 2 million civilians killed and some 5 million wounded, that the United States flew 3.4 million aircraft sorties, and that it expended 30 billion pounds of munitions, releasing the equivalent in explosive force of 640 Hiroshima bombs.

    Yet it would not have been enough to simply accumulate anecdotal evidence of abuses. Therefore, while providing an abundance of firsthand accounts, he has supplemented this approach. Like a fabric, a social reality - a town, a university, a revolution, a war - has a pattern and a texture. No fact is an island. Each one is rich in implications, which, so to speak, reach out toward the wider area of the surrounding facts. When some of these other facts are confirmed, they begin to reveal the pattern and texture in question.

    Turse repeatedly invites us to ask what sort of larger picture each story implies. For example, he writes:
    If one man and his tiny team could claim more KIAs [killed in action] than an entire battalion without raising red flags among superiors; if a brigade commander could up the body count by picking off civilians from his helicopter with impunity; if a top general could institutionalize atrocities through the profligate use of heavy firepower in areas packed with civilians - then what could be expected down the line, especially among heavily armed young infantrymen operating in the field for weeks, angry, tired, and scared, often unable to locate the enemy and yet relentlessly pressed for kills?
    Like a tightening net, the web of stories and reports drawn from myriad sources coalesces into a convincing, inescapable portrait of this war - a portrait that, as an American, you do not wish to see; that, having seen, you wish you could forget, but that you should not forget; and that the facts force you to see and remember and take into account when you ask yourself what the United States has done and been in the last half century, and what it still is doing and still is.

    Scorched earth in I Corps
    My angle of vision on these matters is a highly particular one. In early August 1967, I arrived in I Corps, the northernmost district of American military operations in what was then South Vietnam. I was there to report for the New Yorker on the "air war". The phrase was a misnomer. The Vietnamese foe, of course, had no assets in the air in the South, and so there was no "war" of that description.

    There was only the unilateral bombardment of the land and people by the fantastic array of aircraft assembled by the United States in Vietnam. These ranged from the B-52, which laid down a pattern of destruction a mile long and several football fields wide; to fighter bombers capable of dropping, along with much else, 500-pound bombs and canisters of napalm; to the reconfigured DC-3 equipped with a cannon capable of firing 100 rounds per second; to the ubiquitous fleets of helicopters, large and small, that crowded the skies.

    All this was abetted by continuous artillery fire into "free-fire" zones and naval bombardment from ships just off the coast.

    By the time I arrived, the destruction of the villages in the region and the removal of their people to squalid refugee camps was approaching completion. (However, they often returned to their blasted villages, now subject to indiscriminate artillery fire.) Only a few pockets of villages survived. I witnessed the destruction of many of these in Quang Ngai and Quang Tinh provinces from the back seat of small Cessnas called Forward Air Control planes.

    As we floated overhead day after day, I would watch long lines of houses burst into flames one after another as troops moved through the area of operation. In the meantime, the Forward Air Controllers were calling in air strikes as requested by radio from troops on the ground. In past operations, the villagers had been herded out of the area into the camps. But this time, no evacuation had been ordered, and the population was being subjected to the full fury of a ground and air assault. A rural society was being torn to pieces before my eyes.

    The broad results of American actions in I Corps were thus visible and measurable from the air. No scorched earth policy had been announced but scorched earth had been the result.

    Still, a huge piece was missing from the puzzle. I was not able to witness most of the significant operations on the ground firsthand. I sought to interview some soldiers but they would not talk, though one did hint at dark deeds. "You wouldn't believe it, so I'm not going to tell you," he said to me. "No one's ever going to find out about some things, and after this war is over, and we've all gone home, no one is ever going to know."

    In other words, like so many reporters in Vietnam, I saw mainly one aspect of one corner of the war. What I had seen was ghastly, but it was not enough to serve as a basis for generalizations about the conduct of the war as a whole. Just a few years later, in 1969, thanks to the determined efforts of a courageous soldier, Ron Ridenhour, and the persistence of a reporter, Seymour Hersh, one piece of the hidden truth about ground operations in I Corp came to light.

    It was the My Lai massacre, in which more than 500 civilians were murdered in cold blood by Charlie Company, 1st Battalion, 20th Infantry, of the Americal Division. In subsequent years, news of other atrocities in the area filtered into the press, often many years after the fact. For example, in 2003 the Toledo Blade disclosed a campaign of torture and murder over a period of months, including the summary execution of two blind men by a "reconnaissance" squad called Tiger Force. Still, no comprehensive picture of the generality of ground operations in the area emerged.

    It has not been until the publication of Turse's book that the everyday reality of which these atrocities were a part has been brought so fully to light. Almost immediately after the American troops arrived in I Corps, a pattern of savagery was established. My Lai, it turns out, was exceptional only in the numbers killed.

    Turse offers a massacre at a village called Trieu Ai in October 1967 as a paradigm. A marine company suffered the loss of a man to a booby trap near the village, which had in fact had been mostly burned down by other American forces a few days earlier. Some villagers had, however, returned for their belongings. Now, the Marine company, enraged by its loss but unable to find the enemy, entered the village firing their M-16s, setting fire to any intact houses, and tossing grenades into bomb shelters.

    A Marine marched a woman into a field and shot her. Another reported that there were children in the shelters that were being blown up. His superior replied, "Tough shit, they grow up to be VC [Vietcong]." Five or 10 people rushed out of a shelter when a grenade was thrown into it. They were cut down in a hail of fire. Turse comments:
    In the story of Trieu Ai one can see virtually the entire war writ small. Here was the repeated aerial bombing and artillery fire... Here was the deliberate burning of peasant homes and the relocation of villagers to refugee camps... Angry troops primed to lash out, often following losses within the unit; civilians trapped in their paths; and officers in the field issuing ambiguous or illegal orders to young men conditioned to obey - that was the basic recipe for many of the mass killings carried out by army soldiers and marines over the years.
    The savagery often extended to the utmost depravity: gratuitous torture, killing for target practice, slaughter of children and babies, gang rape. Consider the following all-too-typical actions of Company B, 1st Battalion, 35th infantry beginning in October 1967:
    The company stumbled upon an unarmed young boy. "Someone caught him up on a hill, and they brought him down and the lieutenant asked who wanted to kill him... " medic Jamie Henry later told army investigators. A radioman and another medic volunteered for the job. The radioman ... "kicked the boy in the stomach and the medic took him around behind a rock and I heard one magazine go off complete on automatic... "

    A few days after this incident, members of that same unit brutalized an elderly man to the point of collapse and then threw him off a cliff without even knowing whether he was dead or alive...

    A couple of days after that, they used an unarmed man for target practice...

    And less than two weeks later, members of Company B reportedly killed five unarmed women...

    Unit members rattled off a litany of other brutal acts committed by the company... [including] a living woman who had an ear cut off while her baby was thrown to the ground and stomped on...

    Pumping up the body count
    Turse's findings completed the picture of the war in I Corps for me. Whatever the policy might have been in theory, the reality, on the ground as in the air, was the scorched earth I had witnessed from the Forward Air Control planes. Whatever the United States thought it was doing in I Corps, it was actually waging systematic war against the people of the region.

    And so it was, as Turse voluminously documents, throughout the country. Details differed from area to area, but the broad picture was the same as the one in I Corps. A case in point is the war in the Mekong Delta, home to some 5 to 6 million people in an area of less than 15,000 square miles (39,000 square kilometers) laced with rivers and canals. In February 1968, General Julian Ewell, soon to be known by Vietnamese and Americans alike as "the Butcher of the Delta", was placed in charge of the 9th Infantry Division.

    In December 1968, he launched Operation Speedy Express. His specialty, amounting to obsession, was increasing "the body count", ordained by the high command as the key measure of progress in defeating the enemy.

    Theoretically, only slain soldiers were to be included in that count but - as anyone, soldier or reporter, who spent a half-hour in the field quickly learned - virtually all slain Vietnamese, most of them clearly civilians, were included in the total. The higher an officer's body count, the more likely his promotion. Privates who turned in high counts were rewarded with mini-vacations. Ewell set out to increase the ratio of supposed enemy soldiers killed to American soldiers killed. Pressure to do so was ratcheted up at all levels in the 9th Division. One of his chiefs of staff "went berserk", in the words of a later chief of staff.

    The means were simple: immensely increase the already staggering firepower being used and loosen the already highly permissive "rules of engagement" by, for example, ordering more night raids. In a typical night episode, Cobra gunships strafed a herd of water buffalo and seven children tending them. All died, and the children were reported as enemy soldiers killed in action.

    The kill ratios duly rose from an already suspiciously high 24 "Vietcong" for every dead American to a completely surreal 134 Vietcong per American. The unreality, however, did not simply lie in the inflated kill numbers but in the identities of the corpses. Overwhelmingly, they were not enemy soldiers but civilians. A "Concerned Sergeant" who protested the operation in an anonymous letter to the high command at the time described the results as he witnessed them:
    A battalion would kill maybe 15 to 20 a day. With 4 battalions in the Brigade that would be maybe 40 to 50 a day or 1200 a month 1500, easy. (One battalion claimed almost 1,000 body counts one month!) If I am only 10% right, and believe me its lots more, then I am trying to tell you about 120-150 murders, or a My Lay [My Lai] each month for over a year.
    This range of estimates was confirmed in later analyses. Operations in I Corp perhaps depended more on infantry attacks supported by air strikes, while Speedy Express depended more on helicopter raids and demands for high body counts, but the results were the same: indiscriminate warfare, unrestrained by calculation or humanity, on the population of South Vietnam.

    Turse reminds us that off the battlefield, too, casual violence - such as the use of military trucks to run over Vietnamese on the roads, seemingly for entertainment - was widespread. The commonest terms for Vietnamese were the racist epithets "gooks", "dinks", and "slopes". And the US military machine was supplemented by an equally brutal American-South Vietnamese prison system in which torture was standard procedure and extrajudicial executions common.

    How did it happen? How did a country that believes itself to be guided by principles of decency permit such savagery to break out and then allow it to continue for more than a decade?

    Why, when the first Marines arrived in I Corps in early 1965, did so many of them almost immediately cast aside the rules of war as well as all ordinary scruples and sink to the lowest levels of barbarism? What chains of cause and effect linked "the best and the brightest" of America's top universities and corporations who were running the war with the murder of those buffalo boys in the Mekong Delta?

    How did the gates of hell open? This is a different question from the often-asked one of how the United States got into the war. I cannot pretend to begin to do it justice here. The moral and cognitive seasickness that has attended the Vietnam War from the beginning afflicts us still. Yet Kill Anything that Moves permits us, finally, to at least formulate the question in light of the actual facts of the case.

    Reflections would certainly seem in order for a country that, since Vietnam, has done its best to unlearn even such lessons as were learned from that debacle in preparation for other misbegotten wars like those in Iraq and Afghanistan. Here, however, are a few thoughts, offered in a spirit of thinking aloud.

    The fictitious war and the real one
    Roughly since the massacre at My Lai was revealed, people have debated whether the atrocities of the war were the product of decisions by troops on the ground or of high policy, of orders issued from above - whether they were "aberrations" or "operations". The first school obviously lends itself to bad-apple-in-a-healthy-barrel thinking, blaming individual units for unacceptable behavior while exonerating the higher ups; the second tends to exonerate the troops while pinning the blame on their superiors.

    Turse's book shows that the barrel was rotten through and through. It discredits the "aberration" school once and for all. Yet it does not exactly offer support for the orders-from-the-top school either. Perhaps the problem always was that these alternatives framed the situation inaccurately. The relationship between policy and practice in Vietnam was, it turns out, far more peculiar than the two choices suggest.

    It's often said that truth is the first casualty of war. In Vietnam, however, it was not just that the United States was doing one thing while saying another (for example, destroying villages while claiming to protect them), true as that was. Rather, from its inception the war's structure was shaped by an attempt to superimpose a false official narrative on a reality of a wholly different character.

    In the official war, the people of South Vietnam were resisting the attempts of the North Vietnamese to conquer them in the name of world communism. The United States was simply assisting them in their patriotic resistance.

    In reality, most people in South Vietnam, insofar as they were politically minded, were nationalists who sought to push out foreign conquerors: first, the French, then the Japanese, and next the Americans, along with their client state, the South Vietnamese government which was never able to develop any independent strength in a land supposedly its own. This fictitious official narrative was not added on later to disguise unpalatable facts; it was baked into the enterprise from the outset.

    Accordingly, the collision of policy and reality first took place on the ground in Trieu Ai village and its like. The American forces, including their local commanders, were confronted with a reality that the policymakers had not faced and would not face for many long years. Expecting to be welcomed as saviors, the troops found themselves in a sea of nearly universal hostility.

    No manual was handed out in Washington to deal with the unexpected situation. It was left to the soldiers to decide what to do. Throughout the country, they started to improvise. To this extent, policy was indeed being made in the field. Yet it was not within the troops' power to reverse basic policy; they could not, for instance, have withdrawn themselves from the whole misconceived exercise. They could only respond to the unexpected circumstances in which they found themselves.

    The result would combine an incomprehensible and impossible mission dictated from above (to win the "hearts and minds" of a population already overwhelmingly hostile, while pulverizing their society) and locally conceived illegal but sometimes vague orders that left plenty of room for spontaneous, rage-driven improvisation on the ground. In this gap between the fiction of high policy and the actuality of the real war was born the futile, abhorrent assault on the people of Vietnam.

    The improvisatory character of all this, as Turse emphasizes, can be seen in the fact that while the abuses of civilians were pervasive they were not consistent. As he summarizes what a villager in one brutalized area told him decades later, "Sometimes US troops handed out candies. Sometimes they shot at people. Sometimes they passed through a village hardly touching a thing. Sometimes they burned all the homes. 'We didn't understand the reasons why the acted in the way they did.'"

    Alongside the imaginary official war, then, there grew up the real war on the ground, the one that Turse has, for the first time, adequately described. It is no defense of what happened to point out that, for the troops, it was not so much their orders from on high as their circumstances - what Robert J Lifton has called "atrocity-producing situations" - that generated their degraded behavior. Neither does such an account provide escape from accountability for the war's architects without whose blind and misguided policies these infernal situations never would have arisen.

    In one further bitter irony, this real war came at a certain point to be partially codified at ever higher levels of command into policies that did translate into orders from the top. In effect, the generals gradually - if absurdly, in light of the supposed goals of the war - sanctioned and promoted the de facto war on the population. Enter General Ewell and his body counts.

    In other words, the improvising moved up the chain of command until the soldiers were following orders when they killed civilians, though, as in the case of Ewell, those orders rarely took exactly that form. Nonetheless, the generals sometimes went quite far in formulating these new rules, even when they flagrantly contradicted official policies.

    To give one example supplied by Turse, in 1965, General William Westmoreland, who was made commander of US forces in Vietnam in 1964, implicitly declared war on the peasantry of South Vietnam. He said:
    Until now the war has been characterized by a substantial majority of the population remaining neutral. In the past year we have seen an escalation to a higher intensity in the war. This will bring about a moment of decision for the peasant farmer. He will have to choose if he stays alive.
    Like his underlings, Westmoreland, was improvising. This new policy of, in effect, terrorizing the peasantry into submission was utterly inconsistent with the Washington narrative of winning hearts and minds, but it was fully consistent with everything his forces were actually doing and about to do in I Corps and throughout the country.

    A skyscraper of lies
    One more level of the conflict needs to be mentioned in this context. Documents show that, as early as the mid-1960s, the key mistaken assumptions of the war - that the Vietnamese foe was a tentacle of world communism, that the war was a front in the Cold War rather than an episode in the long decolonization movement of the 20th century, that the South Vietnamese were eager for rescue by the United States - were widely suspected to be mistaken in official Washington. But one other assumption was not found to be mistaken: that whichever administration "lost" Vietnam would likely lose the next election.

    Rightly or wrongly, presidents lived in terror of losing the war and so being politically destroyed by a movement of the kind Senator Joe McCarthy launched after the American "loss" of China in 1949. Later, McGeorge Bundy, Lyndon Johnson's national security advisor, would describe his understanding of the president's frame of mind at the time this way:
    LBJ isn't deeply concerned about who governs Laos, or who governs South Vietnam - he's deeply concerned with what the average American voter is going to think about how he did in the ball game of the Cold War. The great Cold War championship gets played in the largest stadium in the United States and he, Lyndon Johnson, is the quarterback, and if he loses, how does he do in the next election? So don't lose. Now that's too simple, but it's where he is. He's living with his own political survival every time he looks at these questions.


    In this context, domestic political considerations trumped the substantive reasoning that, once the futility and horror of the enterprise had been revealed, might have led to an end to the war. More and more it was understood to be a murderous farce, but politics dictated that it must continue. As long as this remained the case, no news from Vietnam could lead to a reversal of the war policies.

    This was the top floor of the skyscraper of lies that was the Vietnam War. Domestic politics was the largest and most fact-proof of the atrocity-producing situations. Do we imagine that this has changed?

    Jonathan Schell is a Fellow at The Nation Institute, and the peace and disarmament correspondent for the Nation magazine. Among many other works, he is the author of The Real War, a collection of his New Yorker reportage on the Vietnam War.

    Kill Anything that Moves: The Real American War in Vietnam, by Nick Turse. Metropolitan Books, 2013. ISBN-10: 0805086919. Price US$30, 384 pages.

    Jonathan Schell's classic Vietnam books, The Village of Ben Suc and The Military Half, are now collected in The Real War (Da Capo Press).

    This is a joint TomDispatch/Nation article and appears in print in the Nation magazine.

    Used with permission TomDispatch.

    (Copyright 2013 Jonathan Schell)
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    Re: Conduct in War

    Here's an article from Time Magazine on who can or should be held responsible for war crimes.

    Lawbreakers at War: How Responsible Are They?

    Anybody around here remember Tomoyuki Yamashita?

    He was an Imperial Japanese Army general during World War II. In terms of battles he was most famous for conquering the British colonies of Malaya and Singapore.

    But his historical legacy comes from being tried in late 1945 by an American military tribunal in Manila for war crimes relating to the massacre of civilians in Manila, and atrocities in Singapore against civilians and prisoners of war, such as the Sook Ching massacre.

    Even though the massacre in the Philippines was carried out by a subordinate commander, Imperial Japanese Navy Rear Admiral Sanji Iwabuchi, against Yamashita’s specific order – and without his knowledge or approval – a U.S. military tribunal held Yamashita responsible for the conduct of his troops. He was executed on February 23, 1946.

    Nowadays most legal scholars acknowledge that Yamashita’s execution was a case of victor’s, not legal, justice. Nevertheless his case become a precedent regarding the command responsibility for war crimes and is known as the Yamashita Standard.

    An interesting tidbit of history, you’re thinking, but what’s its relevance to today’s U.S. military?

    The exercise of authority by military superiors over their subordinates in wars or stability operations, as some like to euphemistically call them, is an essential tool to ensure respect of international humanitarian law, and to prevent the commission of serious crimes.

    Thus, for starters, those serving in the regular military, whether active or reserve, understand that they are all part of a strict chain of accountability and that people at the top can suffer severe consequences for the actions of those beneath them. Thus, people in leadership positions have an understandable interest in ensuring people at the bottom of the combat food chain act properly, so the people at the top don’t suffer Yamashita’s fate.

    Admittedly, nowadays a general or admiral would be more likely to be demoted and reduced in rank than face a gallows or firing squad. Certainly, there have been cases since then, from My Lai and numerous other barbarities during the Vietnam War, to Abu Ghraib in Iraq, where atrocities took place and those in command suffered no consequences. Nevertheless the principle is established, understood, and accepted.

    However, when you add in the secret sauce of today’s modern U.S. military establishment, private military and security contractors (PMSC) that bright, shining principle becomes murky.

    Regardless of what side you are on in the eternal PMSC debate, everyone agrees that private contractors are not state officials or employees. That can make it difficult to prosecute and punish their acts, especially when committed on foreign soil.

    Despite attempted workarounds — changes to the Uniform Code of Military Justice, modifications to the Military Extraterritorial Jurisdiction Act, criminal prosecutions of PMSCs for alleged wrongdoing are scant.

    Micaela Frulli, Aggregate Professor of International Law, University of Florence, Italy, wrote in a 2010 article in the Journal of Conflict and Security Law:

    Accordingly, it has for the moment proven impossible to punish those ′in command′ (whether high-ranking State officials or PMSCs ′ managers or senior employees acting in the field) for not preventing the commission of grave crimes by their privately contracted subordinates nor punishing them.

    Although it dates back centuries, the concept of command responsibility was firmly established following World War II, when the process of criminalizing the most serious violations of international humanitarian law gained momentum.

    According to Frulli, there may be may be a way to make the command/superior responsibility doctrine relevant to PMSC use.

    Skipping over the legalese, the debate rages on among international criminal lawyers as to “whether command/superior responsibility may be considered as a form of imputed liability for the crimes of the subordinates or as a separate and distinct responsibility by omission, which renders superiors liable for failure to perform a given act, that is, for violating the obligation to prevent or punish crimes committed by their subordinates.” [emphasis added].

    He continues:

    It is here submitted that the latter interpretation is to be preferred for a number of reasons. First of all, it seems that the dereliction of duty approach allows for a more flexible interpretation of the effective control test and may render the doctrine a useful legal and prosecutorial tool to enforce responsible command in its modern multi-faceted aspects. In fact, if one follows this orientation, it is easier to exclude the need to prove a causal link between the crimes and the omission: if liability is limited to omission it is not to be proven that the crimes would not have been committed but for the failure to control.

    He also notes that “command responsibility as a form of responsibility by omission seems more appropriate also in light of the fact that there may be more than one superior having the material ability to control a group of subordinates and each superior could be held liable for failure to prevent or punish the crimes committed by such subordinates.” When you consider how often PMSCs are the last link in a lengthy contracting chain, you can see the obvious appeal of that point.

    To those that argue that PMSC are civilians, and as such are outside the concept of command responsibility, Frulli notes that Geneva Convention Protocol I “establishes that the duty to prevent and repress the breaches of the Conventions and the Protocol itself is incumbent upon military commanders ′with respect to members of the armed forces under their command and other persons under their control′ and leaves room for a flexible interpretation.”

    For example:

    One may quote, for instance, the Memorandum issued by the US Secretary of Defense in March 2008, which clearly gives authority to military commanders over the civilian contractors in their areas of operation, thus spelling out some of the possible ambiguities as to the ′chain of command′. The Memorandum sketches out how commanders should respond to civilian contractors who break federal laws, including granting jurisdiction to courts-martial, although only in cases in which the Department of Justice decides that it will not initiate criminal proceedings. This authority seems to be limited to Department of Defense (DoD) contractors and is not extended to include Department of State contractors, such as were, for instance, the notorious Blackwater employees in Iraq at the time of the 2004 Fallujah incident. However, it is expressly stated in the Memorandum that ′Commanders possess significant authority to act whenever criminal activity may relate to or affect the commander′s responsibilities, including situation in which the alleged offenders′ precise identity or actual affiliation is to that point undetermined.′ In a case like this, it is made clear through the issuance of domestic guidelines that commanders are supposed to exercise control and possess a sufficient degree of authority over private contractors as well as precisely defined duties to supervise and to report the crimes committed by private subordinates.
    The same guidelines should apply, in this author′s opinion, to senior private contractors acting as superiors in the field and exercising their actual authority over lower ranking PMSCs employees. It may be recalled, as stressed by several authors, that PMSCs have often a hierarchical structure bearing a strong resemblance to military structures, more than any other private company, not to mention that they are frequently staffed by former military officers. In situations where senior private contractors work in close cooperation with the military, the supervisory and disciplinary authority of senior PMSC contractors operating in the field is comparable-if not equivalent-to the authority exercised in the same context by military commanders. In cases such as those supposed above, at least some sort of expectation of obedience, a criterion suggested as relevant by a distinguished author should be satisfied. Military officers and PMSCs employees work closely and do not respond, while acting in the field, to different and separate structures or hierarchies. It seems that often even a more stringent condition, as for instance the existence of an organizational structure within which the contractor personnel is operating, could be satisfied in similar situations.

    In some respects, the Pentagon already has parts of the legal framework in place to make this work.

    In recent years, it has issued official documents outlining certain duties of private contractors as to the prevention of violations of the laws of war and/or duty to report alleged violations of the laws of war.

    U.S. DoD Directive 2311.01E (2006), containing the DoD Law of War Program, states that Pentagon superiors must ensure, among other things, that contract work statements for contractors comply with the policies contained in the Directive itself. Additionally, they are to require contractors to institute and implement effective programs to prevent violations of the laws of war by their employees and subcontractors, including laws of war training and dissemination. It establishes for commanders in the field, as well as for contractor personnel, the duty to report any alleged violation of the laws of war to the competent authorities, which must include the duty to report crimes committed by de jure or de facto subordinates.

    In Frulli’s view, recent practice has shown that there has been a decline in the use of the doctrine of superior responsibility However, he concludes:

    Building on past episodes and drawing some hypothetical cases, it is possible to argue that there may often be sufficient basis to prove that those in command — whether State officials or PMSCs employees — at least failed to duly supervise their subordinates who committed serious crimes or failed to report them to competent judicial authorities. As far as PMSCs managers are concerned, it could also be contended that they may be responsible for failure to prevent the commission of serious violations of international humanitarian law by not providing adequate training for their employees to whom delicate tasks are assigned, and for failure to report in cases where they did not provide for a functioning and effective reporting system. Indeed, recent domestic guidelines clearly establish precise duties of training, supervision and monitoring that are incumbent not only upon State officials but also upon private contractors.

    Bottom line for contractors: better be careful out there.

    Read more: Lawbreakers at War: How Responsible Are They? | TIME.com
    Lawbreakers at War: How Responsible Are They? | TIME.com
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  3. #3
    delft is offline Senior Member
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    Re: Conduct in War

    From the Time article :
    Nevertheless the principle is established, understood, and accepted.
    Apparently not. The US seldom tries to prosecute its war criminals and only when they cause an international scandal. And they promise to invade The Netherlands if one or more of their war criminals were to be presented to the International Court of Criminal Justice in The Hague.
    But when a former Dutch military officer wrote in the 1990's in the Dutch newspaper I subscribe to that he, in command of a patrol sent out to retrieve the administration of a Dutch company in Indonesia during the Dutch war against that country in the 1940's, took prisoner a number of Indonesian soldiers which he had then killed because he could not take them with him, there was no action from the Dutch authorities with respect to what was clearly a war crime. Another well know case was the murder of some 600 Egyptian PoW's by the Israeli army in the Sinai during the six day war. I think not prosecuting war crimes is common practice.
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    ahadicow is offline Member
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    Re: Conduct in War

    The word "war crime" to me is a oxymoron.

    A war is a crime. Wars are not compatible with the moral views held by the majority of humanity. You achieve political goals by killing people who otherwise led ordnary lives and just happen to be the subject of the regime you oppose and lived in an unlucky region of the world, how could that not be a crime?

    Ofc, we the sheeple have to be sold a better story of wars that is simpler to understand and compatible to our moral view and real life interest. This story is the oxymoron war fantacies of crusade, good war, just war and humane war. The so called "war crimes" are happenstance common place in real wars but exposed to the view of general public which found them repulsive. "war crimes" are damaging to the war fantacies of people and that is the real reason they want those prosecuted.

    I'm in no way suggesting war criminals are innocent. Only that they are small flies in "crime against humanity" than those who normally wear ties and signed the lives of thousands of people away in a clean and bright office.
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    delft is offline Senior Member
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    Re: Conduct in War

    Quote Originally Posted by ahadicow View Post
    The word "war crime" to me is a oxymoron.

    A war is a crime. Wars are not compatible with the moral views held by the majority of humanity. You achieve political goals by killing people who otherwise led ordnary lives and just happen to be the subject of the regime you oppose and lived in an unlucky region of the world, how could that not be a crime?

    Ofc, we the sheeple have to be sold a better story of wars that is simpler to understand and compatible to our moral view and real life interest. This story is the oxymoron war fantacies of crusade, good war, just war and humane war. The so called "war crimes" are happenstance common place in real wars but exposed to the view of general public which found them repulsive. "war crimes" are damaging to the war fantacies of people and that is the real reason they want those prosecuted.

    I'm in no way suggesting war criminals are innocent. Only that they are small flies in "crime against humanity" than those who normally wear ties and signed the lives of thousands of people away in a clean and bright office.
    An understandable attitude. But around 1900 many were concerned that war couldn't be abolished but that the conduct of wars was more terrible than necessary and that something should be done. But the history of what was done is very enlightening. To give a single example: at a conference in Geneva around 1930 the parties agreed that the bombing of civilians should be outlawed. But Great Britain wanted an exemption for the bombing of wild tribes as those in Iraq and especially in the Frontier Provinces of India with Afghanistan where nothing else worked. I read about it in Flight magazine of that time.
    Last edited by delft; 02-12-2013 at 04:09 PM.
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  6. #6
    ahadicow is offline Member
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    Re: Conduct in War

    Quote Originally Posted by delft View Post
    An understandable attitude. But around 1900 many were concerned that war couldn't be abolished but that the conduct of wars was more terrible than necessary and that something should be done. But the history of what was done is very enlightening. To give a single example: at a conference in Geneva around 1930 the parties agreed that the bombing of civilians should be outlawed. But Great Britain wanted an exemption for the bombing of wild tribes as those in Iraq and especially in the Frontier Provinces of India with Afghanistan where nothing else worked. I read about it in Flight magazine of that time.
    It is amazing, Human moral intuition is a force to be recon with. I still wonder how we get rid of slavery when it was so ingrained in culture and the enslaved so disenfrenchised as to not put up much of a fight.

    I don't know if war are abolishible, only that we are not even close. As to the conduct of the war, I think there is somewhat a gradiant if you want to put the most inhuman and vile action on one end and more decent and sporty behavior on the other even though the most decent act in war are sill barbaric by the standard of civilized people. In war, it's either you want to be apathic and cruel or you want to be a corpse. In short, war dehumanizes you.

    The problem with getting wars under control wasn't much of a problem of determining war is morally wrong, that is very easy. the big problem is to be honest. we are so good at transforming facts with words, rhetorics and entertainment, that our image of wars are destorted more than ever. People don't watch realitic war movies, so hollywood stop shooting them. We are left with a notion of war that's riddled with heroism, technology, achievement, ideology and prospect of sex. There are so few people who has memory of real wars and how terrible they are, what we get are Amercian/Canadian soldiers come back from Iraq and Afghanistan telling people stories of success, of achievement, of honor, of recognation and of duty. Just imagine what these stories would do to young people who are so pressured to succeed and in the middle of masculinity crisis...../facepalm
    Last edited by ahadicow; 02-12-2013 at 05:51 PM.
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    Re: Conduct in War

    U.S. Army Captain Paul Chappell(Ret.) talks to students at American University about war and human nature. He hits on a lot of factors that effect conduct in war and combat.

    http://www.c-spanvideo.org/program/WillWa

    http://www.c-spanvideo.org/program/Peacefu

  8. #8
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    Re: Conduct in War

    If history has taught us anything, it is that wars are inevitable.

    Civilizations that have experienced long periods of peace invariably falls into one of two traps:

    1- It becomes powerful and thus arrogant. Eventually, the temptation to use force to solve its problems become too strong to resist, and it goes to war.

    2- Without any external threats, the society turns on itself. It becomes ever more corrupted, and this corruption becomes the fatal weakness that eventually leads to it being attacked by other civilizations.

    The only exceptions are states that are surrounded by more powerful nations, who are forced into a constant vigilance.

    So if war is inevitable, then the real crime is to let it drag on unnecessarily.

    Take the Sri Lanka civil war, for example. Which is the greater evil: the 3 decades of failed negotiations and constant violence, or the 1 year of brutal warfare that ended the stalemate once and for all?

    Collateral damage is inevitable in airstrikes. Atrocities are inevitable in prolonged infantry deployments. Human nature will trump any kind of moralizing, especially in high-stress situations like the front lines. Failing to take that into account is as foolish as failing to take into account the physics of dropping explosive ordinance from high altitudes.

    Atrocity is not to be condoned, but the idea that a war can somehow separate the combatants from the non-combatants is just laughable, on multiple levels.

    Decisions in war need to be made with the objective of ending the war as quickly as possible, because that is often synonym with minimizing casualties for soldiers and civilians alike.
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    Re: Conduct in War

    Quote Originally Posted by solarz View Post
    If history has taught us anything, it is that wars are inevitable.

    Civilizations that have experienced long periods of peace invariably falls into one of two traps:

    1- It becomes powerful and thus arrogant. Eventually, the temptation to use force to solve its problems become too strong to resist, and it goes to war.

    2- Without any external threats, the society turns on itself. It becomes ever more corrupted, and this corruption becomes the fatal weakness that eventually leads to it being attacked by other civilizations.

    The only exceptions are states that are surrounded by more powerful nations, who are forced into a constant vigilance.

    So if war is inevitable, then the real crime is to let it drag on unnecessarily.

    Take the Sri Lanka civil war, for example. Which is the greater evil: the 3 decades of failed negotiations and constant violence, or the 1 year of brutal warfare that ended the stalemate once and for all?

    Collateral damage is inevitable in airstrikes. Atrocities are inevitable in prolonged infantry deployments. Human nature will trump any kind of moralizing, especially in high-stress situations like the front lines. Failing to take that into account is as foolish as failing to take into account the physics of dropping explosive ordinance from high altitudes.

    Atrocity is not to be condoned, but the idea that a war can somehow separate the combatants from the non-combatants is just laughable, on multiple levels.

    Decisions in war need to be made with the objective of ending the war as quickly as possible, because that is often synonym with minimizing casualties for soldiers and civilians alike.
    A good summary of the Chinese experience. Will it be possible to invent a conflict resolution that works better?
    I read several scientific studies about tribal wars. It seems that mankind does make progress in having these violent clashes become an increasingly lesser toll on human life within a timeframe - short intense bursts of violence with long peace, but even here less and less humans are on the frontlines.

  10. #10
    ABC78's Avatar
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    Re: Conduct in War

    A documentary on the Wikileaks film that showed US forces killing Iraqi civilians in 2007 counter-insurgency operations.

    Witness on Al Jazeera

    Permission to Engage

    Victims' families and an ex-US soldier unpick the Wikileaks film that showed US forces killing Iraqi civilians in 2007.

    Witness

    Permission to Engage

    Victims' families and an ex-US soldier unpick the Wikileaks film that showed US forces killing Iraqi civilians in 2007.

    Filmmaker: Shuchen Tan

    On July 12, 2007, the US military shot several Iraqi civilians in Baghdad, an event that shocked the world when footage of the attack was later released by Wikileaks.

    "The attack took place on a Thursday, when residents of the area had gone to a local market," explains filmmaker Shuchen Tan. "When they saw helicopters hovering over, they ran to their houses, thinking they'd be safe in there but it was those very houses that were blown up."

    Permission to Engage traces the people involved in that fateful day and hears their versions of what happened.

    Those killed included a young Iraqi photojournalist and his assistant, a father out with his children and some neighbours who were caught in the attack while trying to help the wounded.

    "It was quite challenging to track down the victims and their families. We didn't have names, didn't have addresses, we didn't have anything," explains Tan.

    "And when we found them, most of them didn't want to share their stories. They felt they had been left by the West and not treated well."

    The families of the victims and a disillusioned former US soldier who was serving in Iraq around that time unpick the footage in forensic detail and relate their accounts of what happened.
    Permission to Engage - Witness - Al Jazeera English

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