Of course there’s a problem with the US being the sole judge of whether its forces have violated international law on human rights, or on the conduct of war.
My point is that the US takes international legal standards seriously enough to build them into its own domestic military justice system, and to enforce them at least selectively. That, I suspect, is rather more than many other states do.
But it’s clearly not as much as could be done. To take an uncontroversial example, whether and to what extent the use of anti-personnel weapons such as cluster bombs is in breach of international law is a matter of dispute. The US takes a particular view; some of its allies take a different view. The result is that the US uses cluster bombs in circumstances in which other states, including allies of the US, consider their use to be illegal.
Clearly, nobody is ever going to be prosecuted under the UCMJ for a use of cluster bombs in circumstances which the US considers lawful. Equally clearly, there’s no particular reason why the opinion of one state on what is or is not lawful under international law should be the last, definitive word.
It’s not, I think, unduly cynical to suggest that the view taken by the US may have been coloured by a desire on the part of the US to maintain its tactical freedom of action.
In other words, the system the US has established for enforcing international legal norms through its domestic justice system, while good, useful and admirable, is not perfect and is demonstrably open to political manipulation. At best, the US is enforcing its own view of what international law requires (and of course it may not always do even this consistently). We wouldn’t consider that the optimal system of justice in any other area of law.
Good points, USD. I hadn’t considered it from that perspective to be honest. I’m not sure though what could be done. Your cluster bomb is a good example. Who WOULD make a ruling on such a thing and when its use is legal or illegal? Would it be the UN? In which case, couldn’t the US block an unfavorable ruling…or any of the other on the SC block a ruling that was unfavorable to THEM? Or would such a ruling even go before the SC?
In theory I agree with you…but I have no idea, in practice, how such restraints would work or be arbitrated.
Ok xtisme, Airman Doors, USAF and all the other military personnel or ex-military personnel that participated to this thread. First, I respect that you’ve given part of your life to your country, whatever they are.
I’ve never been in the military (except for the Air Cadets when I was younger), I don’t have any family in the army and I have a single friend in the Canadian Navy (reserve). So really, I don’t know military life. And I’m sure you are all good guys, as you are also dopers here ;-).
Now, when I started this thread, I was sincerely interested in knowing if cases of military personnel in Iraq were being court martialed for crimes again Iraqis at this time and how many. And if, in the last case I mentionned, the unit commander was really the colonel or not.
I don’t have any kind of proof, articles, etc and I certainly did not do much research. Frankly, I don’t think the journalists can/will do that kind of job in Iraq. These links I provided, I stumbled on them while surfing - I just find them quite disturbing and signs that something is going wrong and needs to be corrected.
Now, please, answer these questions so I can see where I’m going wrong in my reasoning:
Was there in the history of conflicts that the US military was involved in, cases of actual cover-up of crimes against civilians or other soldiers?
I answer yes, example My Lai.
Is it possible that some of those cover-up were successful and we never heard about them?
I answer yes again because of how far some of the cases that were found covered-up went pretty high up or were in a situation where there was insufficient monitoring.
Is it possible, that in the 100,000 to 200,000 troops in Iraq, that a small but significant percentage are racists and/or hotheads and/or sadists and/or psychos as in the general population?
I answer yes again, this is inevitable.
Is it possible that in policing and country building, a job they are NOT trained to do, that a minority has grown to hate the Iraqis?
Yes again.
Is it possible that some of those dangerous individuals that hate Iraqis have committed crimes in Iraq by taking advantage of a poorly controlled situation?
Inevitably and statistically speaking, the answer must be yes for me.
So where are the court martials? Where are the investigations? Where are cases being made?
That I don’t know. Does anyone of you, military or ex-military know where I could find a reference online?
Where are the complaints being forwarded to? To the unit commanders that command the same troops that are accused?
Again, I’d like clarification on this.
Does an Iraqi thas has been wronged (and they will be wronged some times as per #5) can and will see justice?
Is the US Military repeating the same mistakes as in the past (Vietnam)?
Frankly, I agree that military justice is harsh when it happens. But does it happen often enough when the victim is a non-American?
Another biased link (sorry, that’s the only kind that Google will spit out to me):
Well, the cluster bomb isn’t really the best example, since it is more about state policy than the acts of an individual soldier, but it does serve illustrate the problems here.
If we look at the legal question in isolation, it is more of a judicial question than a political one. The International Court of Justice, based in the Hague, exists to arbitrtate legal disputes between States and the US does participate in it. Given the right fact situation, the question could come before that court. For example, if – following the restoration of independence – the Iraqi government wished to seek compensation from the US for the alleged illegal use of cluster bombs against civilians, that is the kind of dispute that could end up before the ICJ. In this hypothetical case the US would probably challenge the jurisdiction of the ICJ to try the issue and for various reasons that challenge might succeed. But the point is that the court exists, and it can deal with issues of this kind.
If the US wanted to clarify the general question of the legality of cluster bombs it could probably (with other states) seek a declaratory ruling from the ICJ on the general question. This has been done on other issues. But, for reasons I’ll come to in a moment, I don’t think the US wants the issue clarified.
But the question of whether to punish an individual solider for (say) shooting a prisoner isn’t the kind of thing that comes before the Security Council or the International Court of Justice (which deals with cases involving states, not individuals).
Up to recently the only international tribunals which could deal with cases involving individuals have been established after the event, and have been limited to crimes alleged in the context of a specific conflict – Nuremburg, Tokyo, the Hague trials dealing with events in the Balkans, the Rwanda tribunal, and so on.
The International Criminal Court has recently been established. It is intended to be a standing tribunal which can deal with all such crimes. The idea is that states, and individuals, will know that the tribunal exists at the time the conflict is ongoing, and that prosecution and punishment does not depend on ending up on the losing side, and on the scale of abuses being so notorious that a specific tribunal is established.
Even with the ICC, in the first instance war crimes will normally come before a domestic court. Only if the domestic system doesn’t exist, or doesn’t deal with the charge, or is perceived to have failed to deal with it adequately, could the ICC try the matter.
The US opposes the ICC because, briefly, it is concerned that there’s an awful lot of anti-American sentiment out there, and the processes of the ICC (and conceivably its decisions) might be abused to attack the US or its officers. That’s obviously a possibility, although the corresponding risk of other forms of prejudice has deterred the US from establishing and participating in tribunals which prosecute the soldiers of other states.
There’s also a suspicion that the US likes the facts that the requirements of international law are uncertain, and its enforcement is patchy. This maximises the freedom of military action of the US (e.g. it can deploy cluster bombs against civilian targets without any serious risk that it, or its soliders, will be subject to sanctions for doing so). As the US is extremely powerful militarily, economically and diplomatically, it is less dependent on international law to protect its interests than other states. It is not, for instance, at any serious risk of having cluster bombs deployed against its civilians, or an any rate not such a risk as could be reduced by a definitive statement of the illegality of such a use. Consequently its happy to see international law remain in a relatively weak state and its own military freedom of action maintained.
Great post again USD. I hadn’t realized there WAS a standing tribunal to be honest. How long has it been in effect and has anyone as yet used it for war crimes?
The rest jive with my own impression that generally (at least in the past) nation states policed their own militarys, resorting to special trials in certain circumstances…and then for the LOSING side.
On an unrelated subject (well, not sure if it is unrelated or not) couldn’t International Court of Justice at the Hague look at the broader question of whether or not the Iraqi war itself was illegal? If so, is this being done? If not, why not, as there seems to be some debate (to say the least) of whether or not the entire conflict itself was illegal for the US from an international perspective (I know it was legal from our own perspective as the president had congressional approval)? If the ICJ CAN look at such a deep and broad issue, and if they in fact ruled against the US that the Iraq war was in fact illegal, what could they do? Could they rule for sanctions or other reprisals? Even if they could…would they? SOrry to pile all this on you, but you seem to be fairly well versed about this and I’m curious. If its too much of a hijack, I’ll withdraw the question(s).
Why are the requirements enforced ‘patchy’? Is it because the organization is so new? Why uncertain? Same? I can understand why a powerful state like the US would want to keep its options open, of course…I’m sure its not alone in this, though as its probably THE most powerful (atm) I’m sure other states are (or would be I suppose) willing to forgo some of their capabilities in a bid to make sure the US was ALSO limited.
It’s pretty recent. The treaty establishing it only entered into force in July 2002, and of course many states (including the US) have not ratified the treaty, and are not bound by it. I don’t think there have been any trials yet.
Well, generally, yes. Which, being realistic, isn’t very surprising.
Like other courts, the ICJ can’t decide itself what to investigate and rule on. States have to bring disputes before it, and they have to show that the court is competent to hear the dispute.
The jurisdiction of the ICJ rests on the agreement of states. A state cannot be brought before the court unless it accepts the jurisdiction of the court. States can do this in (at least) three ways.
They can lodge a declaration accepting ICJ jurisdiction in general terms.
They can accept ICJ jurisdiction for a limited range of disputes. Often, for instance, a treaty will specify that disputes arising under the treaty will be adjudicated by the ICJ, and that all states who ratify the treaty accept the jurisdiction of the ICJ for that purpose.
They can bring a single case before the ICJ, with the agreement of all the states involved.
The US hasn’t accepted the general jurisdiction of the ICJ, so anyone wanting to bring this issue before the ICJ would have to frame their complaint so that it fell into some catgory of disputes for which the US has accepted jurisdiction, or would have to get the agreement of the US.
The ICJ can and in suitable cases does order states to alter their behaviour, to give undertakings as to future behaviour, to pay compensation, to make reparations. It has no mechanism for compelling states to obey (i.e. it has no bailiffs) but states may consider that it is in their best interests to obey, or international diplomatic pressure may compel them to obey, or other states may take or threaten to take reprisals against them for not obeying.
Uncertain rules and patchy enforcement are because international law is at a relatively early stage of development (especially in the area of humanitarian law) and the processes by which it is developed are fairly slow. And because the subjects of international law – states – are fairly powerful in their own right and it is often in their interests to impede development or enforcement.
Given that those entering the military are subject to varying degrees of screening, you will have less undesirables than in the general population. But sure, you’ll get at least a few, I guess. The UCMJ can deal with those that can’t keep their peccadillos to themselves.
‘NOT’? Wow, we must untrain what little our troops know about policing and ‘country building’ to rate a ‘NOT’. :rolleyes:
That US forces are somehow untrained to deal with policing and ‘nation building’ is a misconception, at best. There seems to be an attitude of, “Well, if they are good at warfighting, they can’t be good at anything else!” Simply untrue, from (West) Germany and Japan on.
And this beast rises again, I see. You are presuming guilt. Among the very foundations of Western law: Innocent until proven guilty, and you (poorly) rationalize that away. You simply won’t be happy until American soldiers are put on trial, regardless of the fact that you don’t actually have any crimes to put them on trial for. They are guilty, and we should put 'em on trial to find out what they are guilty of! :rolleyes:
Mentalities such as yours, by the way, are a great reason that we have not, and will not, subject our troops to whatever the ‘court of the month’ at the UN is.
No, he’s calling for investigations and trials, so at most he’s assuming that accusations will be made, that some of them will be sufficiently credible to warrant investigation, and that some of the investigations will show a prima facie case requiring trial. He’s not assuming any conviction, or any guilt.
At the risk of being smart, if mentalities such as yours, which believe investigation is warranted only where guilt has already been established, dominated in the US military justice system, that would be a compelling reason why the enforcement of human rights norms should not be left to that system.
Incidentally, it is the US which favours a “court of the month” approach to the international enforcement of human rights, with the establishment of a piecemeal series of ad hoc tribunals to investigate acts alleged to have been committed during a limited time in a limited place. It opposes the establishment of a permanent court with a standing jurisdiction.
With all due respect, he is presuming guilt. At least, he is presuming that since there are X soldiers there, and Y are social deviants, then Z warcrimes must be commited, and that the lack of prosecutions for said supposed crimes is evidence that the Army is covering up something.
No, I believe that investigations are warranted when reasonable cause for an investigation exists. I have not said otherwise. Also, the lack of reported crimes is not reasonable cause, in my book. (And in the UCMJ as well, I bet.)
Poor choice of words on my part. I simply see no valid reason that America should subject her soldiers to the whim of ‘international justice’, when there is no evidence that the UCMJ/American legal system cannot do the job. If other countries do not trust themselves enough, and feel the need to join the ICC, so be it.
Regardless, American sovereignty is hardly served by allowing those with an axe to grind with America to prosecute our troops. The US Army CID, US Navy CIS, etc, are more than suitable for the task, should the need arise.
So why weren't the Nazi leaders judged by the German Justice ? This common notion of US purity and better than thou attitude stinks of double standard. Other countries might be the "losers"... but the "winner" surely seems above the same "laws".
Other trials like Milosovich (Yugoslavia) and his goons sound now empty due to the US not entering the ICJ. Serbian war crimes were just as bad as Saddam's.
Also I agree that the number of soldiers being judged by the US itself is very low... when there are many reports of abuse. (Don't have the link showing the video of a wanton shooting of a bystander) The soldiers are having too much liberty and too little oversight, especially considering the number of soldiers active in Iraq...
Exactly. If your first priority, to which you subordinate all other objectives, is the preservation of US sovereignty, then a domestic US system is certainly what you want.
On the other hand, if your first priority is to uphold humanitarian standards, relying exclusively on a domestic system is, for reasons already pointed out, probably not the optimal approach.
[QUOTE=Brutus]
With all due respect, he is presuming guilt. At least, he is presuming that since there are X soldiers there, and Y are social deviants, then Z warcrimes must be commited, and that the lack of prosecutions for said supposed crimes is evidence that the Army is covering up something.
[/QUOTE=Brutus]
Yes, that is my statistical/mathematical explanation for it. For a particular individual, you cannot presume guilt. But for a large population, statistics have been a good predictor of what will happen and currently, I haven’t seen any facts that would lead me to believe that what’s happening in Iraq can fit even low-end statistical estimates.
A good example where statistics are used, this time in the other direction:
I’ll be happy to correct my view on this if I see a list of investigations and cases in court that would fit what can be expected crime-wise in a place where the military are in constant contact with the general population. Please understand that when I say that SOME must have committed crimes, not all of them are.
[QUOTE=Brutus]
No, I believe that investigations are warranted when reasonable cause for an investigation exists. I have not said otherwise. Also, the lack of reported crimes is not reasonable cause, in my book. (And in the UCMJ as well, I bet.)
[/QUOTE=Brutus]
Yes, but it is certainly reasonable cause to review the current policies and HOW and WHEN the possible UCMJ infractions are investigated, no? Sure, the UCMJ is quite strict, but is it really being applied? How do we know if there are no organization separate from the military that monitors this?
US forces are being trained in policing, nation building, diplomacy, law and other things like that? Sure, they are not inexperienced, but I really think that we are far from having a ideal solution when military forces do those kind of job… Or am I missing something? Is this part of basic training?
And as for West Germany and Japan… Well, I think they are quite different from Iraq… They didn’t have that many racial, tribals and religious conflicts in the same country after all!
