Derrick Miller, Martin Hyde pointed out above.
Another ex-military was killed for killing civilians: Nathan Gale and (ex-military) Timothy McVeigh was executed for killing citizens. Nidal Malik Hasan may be convicted for killing soldiers on his own side.
More interesting is what law military contractors are governed by.
Additionally in the Mahmudiyah killings, Steven Green was sentenced to life, and three of the others received sentences that could effectively be life (90 years and 100 years, and 100 years with parole options.)
If that were true, then the US Army is guilty of the murder of those 16 civilians. In particular, his commanding officer should be held responsible – after all, he had “physical control … and physical possession” of him.
(In this particular case, why was the sergeant allowed to walk off the base at 3 am to carry out his own private mission? Are individual soldiers allowed to wander off the base in the middle of the night without anyone checking if they are on an authorised mission?)
I think it’s fine if he’s tried by the military, but I think they should make provision for a civilian (Iraqi) prosecutor at the trial as well.
What provisions in particular should be made?
How would that work? (I’m assuming you mean Afghan, and not Iraqi.) The law would be the UCMJ, and any lawyer appearing at a courts-martial needs to be competent to practice law in American court, meaning they have passed the bar for the relevant court system. An Afghan prosecutor is competent at Afghan law, not American law, how would they effectively function in an American courtroom? What purpose would their presence serve? How would their presence not raise serious constitutional issues?
If that were true, then every murder committed in any jurisdiction makes the state guilty of the murder. So Klebold and Harris didn’t kill 25 at Columbine, the State of Colorado did?
I think you miss my point. With a U.S. soldier who commits a war crime, we have possession of the defendant and we have relevant law covering the crime. The act is criminal, and the act was committed in a place considered to be our jurisdiction. We essentially have to try cases like that, just like State courts have to try murderers who commit murders in their State. If a Mexican kills 4 people in Virginia and I’m a Commonwealth Prosecutor, I’m not sending him to Mexico to be tried for his crimes.
With the U.S. military, the jurisdiction is broader than the borders of a State, but the principle is the same. The soldier committed the crime in our jurisdiction and we have possession of the soldier.
My apologies - thanks for your link.
(I was upset by the recurring nature of the problem.)
I just got this from a friend of mine, a former Marine who served in Afghanistan and is now home:
No – the state does not control individual civilians, but an army controls its soldiers while they are on active duty.
So, if a Mexican soldier on active duty kills 4 people in Virginia, he should be tried by the Commonwealth of Virginia and not by the Mexican Army and its laws? (And there could be a Mexican soldier on active duty in Virginia: he might be attached to the Mexican Embassy in Washington DC, or might be on some mission with counterparts at the Pentagon.) Why does Virginia get him in court, but Afghanistan not get the US soldier in court?
That’s the whole point of the fallacy. Authority over does not = control. There is no criminal culpability of COs for their subordinates in a situation like this. The only way there would be is if you showed the CO was committing some dereliction of duty by failing in some way, or if the CO issued an illegal order and the soldier followed it.
I imagine he’d be tried by whoever had first possession of him. If he was arrested by Virginia police I have a feeling he’d stay in the Virginia court system. But if he went back to his embassy and turned himself in, I suspect he’d be tried in Mexico.
This is a very specific legal question that you’ll probably want to ask a lawyer about.
Note that my point was we had both jurisdiction and possession of the soldier in this matter, he returned to his base and turned himself in. Given we had jurisdiction over the crime itself and he was in our custody, I don’t know under what legal principle we’d even be allowed to send him to a foreign court to stand trial that happened in an American jurisdiction. I assume that would violate his basic Constitutional rights to a fair trial under the American legal system, but again, I’m not a lawyer and you’re getting into specific legal questions here.
Mind the point about the CO being criminally liable came up in response to my point that we had jurisdiction and possession. That just means the crime happened in our jurisdiction, in response to this it was said that means the CO would also be criminally liable.
That is nonsense, jurisdiction does not work that way and never has. “Happens in your jurisdiction” just means your jurisdiction’s legal system handles the case, it doesn’t mean that the authority of that jurisdiction is also criminally liable for the crime itself, to be honest this is a “nonsense” sidetrack and I consider further talk on it irrelevant and pointless.
I have to disagree with the above. In virtually any country where the US has a significant military presence, we have a Status of Forces Agreement (SOFA) with the host nation where issues regarding legal jurisdiction are outlined in advance. Under those treaties, there are certainly cases in which the US military is required to hand over its soldiers (and other base personnel) to local authorities, and it does so frequently.
Generally speaking, SOFA agreements usually give the US military jurisdiction over crimes committed by service personnel during the course of their duties or on US military installations and the host nation jurisdiction over all other crimes, with the authorities able to waive jurisdiction if they so choose. I think that’s fair enough.
In the case of the US and Afghanistan, however, the SOFA apparently grants all criminal jurisdiction to the US.
I am not intimately familiar with SOFAs, when I was in Germany for many years we had lots of soldiers on base get in legal trouble with the locals, and anytime they ended up in German court (very rarely) it was after we approved it.
In any case, the situation in Afghanistan isn’t really that atypical of war zones. How many war zones in history have you given the locals jurisdiction over your soldiers?
Even European countries don’t go that route, when Germany investigated some of their pilots that killed civilians in a bombing it was a German prosecutor that did the investigation and cleared the pilot of wrongdoing.
The problem is especially murky because most first world countries have strong constitutional rights sort of things for criminal defendants, that would make it difficult to hand them over to some third world country for trial.
With European countries, as signatories of the ICC, then if there was some evidence the defendant’s government just white washed something I think you could theoretically take them before the ICC–but that still isn’t the same as trying them in the country where the war zone is.
It would depend on the specific wording of the SOFA treaty. Usually they include language to the effect that even if one side has clear jurisdiction they can choose to waive that jurisdiction.
The Supreme Court held in Girard v. Wilson (1957) that waiving jurisdiction and handing a soldier over to foreign authorities did not violate his civil rights.
Right, well like I said we handed people over to German courts, so I know that it happens. I just wasn’t aware that we were required to necessarily.
The cases I’m thinking about here were extremely rare though, ones in which a crime was committed off base and then investigated and a soldier on base was the criminal.
Most actual crimes that happened the soldier was dealt with by whoever arrested them. Most soldiers arrested by the Germans it was for very minor issues (theft, fighting, criminal driving offenses, drug offenses, etc) and not murder investigations which is more what I was thinking of.
However, the SCOTUS ruling sort of confirms my thoughts on the matter. It’s one thing to hand someone over to Germany or Japan or even South Korea, but I think a soldier’s lawyer would have a good case if we tried to hand someone over to say, Iran, for trial.
Just to clarify: in the Haditha case, as has already been linked to, eight soldiers were charged with murdering twenty-four Iraqi civilians. One was acquitted, charges were dropped or dismissed for six, and one was convicted just of dereliction of duty. In short, we have a case of mass-murder where none of the perpetrators faced anything approaching just consequences. That being the case, why should the world ever trust the American military justice system? Sure, Obama has to respect the sentence; but the rest of the world does not.
To clarify: “civilians” = mostly women and children.
Maybe I missed something; were there any legal consequnces for any of them, period?
Since the primary actors in international public law are states, rather than individuals, that means the rest of the world should tell their respective governments to stop letting American servicemen into their borders. Tricky to avoid being invaded, of course.
Frank Wuterich was demoted and fined, and some of the officers were told they would be in trouble if the covered things up again. That’s about it. Hard to make any of the charges stick because no Iraqi witness came to the US to testify. That’s one of the dirty little secrets of prosecutions under the UCMJ for crimes against foreign nationals: they are horribly impractical.
The Afghan justice system, of course, is well known worldwide for its fairness, recititude and progressivism. The OP is right that this is a difficult situation- it’s a terrible crime against Afghan civilians, and there’s reason to think the trial could be a joke no matter who handles it.