Accountability for War Crimes
Laws with no consequences when they are violated are essentially useless. The law of war is no exception. There must be some mechanism in place that provides a credible venue to hold violators accountable and prevent impunity. War crime prosecutions are not routine, but they occur from time to time and have become more common over the past 10 to 20 years.
Acts that violate the law of war may be subject to prosecution under the domestic law of the perpetrator’s country or the country where the acts occurred. For the United States, the most likely scenario is an alleged war crime offense committed by a U.S. service member and the most likely domestic forum for such is a military court-martial conducted under the Uniform Code of Military Justice.
The most infamous case in modern American history was the trial of Army Lieutenant William Calley. In March 1968, Lieutenant Calley was in command of Charlie Company on foot patrol through remote villages in Vietnam. Calley ordered his men to round up and execute more than 300 Vietnamese men, women, and children in what became known as the My Lai Massacre. Lieutenant Calley was charged with murder and tried by court-martial at Fort Benning, Georgia. In March 1971, he was convicted and sentenced to confinement for life.
The American public had grown tired of the Vietnam War and a significant majority thought Lieutenant Calley was a scapegoat caught up in the fervor over an unpopular war. The day after he was sent to the confinement facility at Fort Leavenworth, President Richard Nixon ordered him released to house arrest. His case wound a tortuous course through the military and civilian courts as well as the Pentagon and the White House. Ultimately, Calley’s conviction was upheld, but his sentence was reduced, and in 1974, after serving a little more than three years of what was a life sentence, he was paroled.
More recent cases include a group of soldiers that formed a self-described “kill team” to shoot unarmed Afghan civilians for entertainment, often posing for photographs with the bodies, in the summer of 2010. One member of the group, Private Jeremy Morlock, pleaded guilty to three murder charges at Joint Base Lewis-McChord, Washington, and was sentenced to confinement for 24 years in return for his cooperation in as many as 11 additional cases. Eight Marines were charged in connection with “the Hadditha Massacre” where 24 Iraqi men, women, and children were killed in 2005 in alleged retaliation for an explosion that killed a Marine a short time before. Charges against seven of the Marines were dropped and the court-martial of the remaining Marine is delayed indefinitely.
The iconic photographs made in the Abu Ghraib prison in Baghdad that documented the abuse of detainees by U.S. military personnel in 2003-2004 created enormous hatred in the Muslim world and embarrassment for the United States. The acts depicted in the photographs resulted in 11 members of the armed forces facing courts-martial. The ring leader of the group, Specialist Charles Grainer, was sentenced to confinement for 10 years and his girlfriend, Private First Class Lynndie England, received a three-year sentence.
For individuals alleged to have committed war crimes while engaged in armed conflict against the United States,. there is a decade-long debate over the propriety of a military or civilian forum.
Military commissions at Guantanamo Bay, Cuba, were authorized in November 2001 in the wake of the 9/11 attacks, but few cases have been done – six as of August 2011 – and the process remains controversial. (Note: the author of this guide is former chief prosecutor for the military commissions at Guantanamo Bay). After initially signing an order to close Guantanamo and suspending military commissions, President Obama, under great pressure from Democrat and Republican members of Congress alike, ordered military commissions to resume.
The most infamous Guantanamo detainee, alleged 9/11 mastermind Khalid Sheikh Mohammed, has been charged and is slated to be tried before a military commission. Hundreds of similar cases have been successfully completed in federal court trials convened under domestic criminal law, including convictions in the case of the Shoe Bomber (Richard Reed), the Time Square Bomber (Faisal Shahzad), and East Africa Embassies Bomber (Ahmed Ghailani) that resulted in life sentences.
Most countries have domestic laws that address what would be considered war crimes and many have specific laws applicable to their armed forces similar to our Uniform Code of Military Justice. Bangladesh created a domestic tribunal especially for war crimes. The International Crimes (Tribunal) Act of 1973 was enacted to hold individuals accountable for atrocities committed during the war for liberation from Pakistan in 1971 that left as many as three million dead and created as ten millions refugees. Trials begin in 2011, nearly 40 years after the war ended.
Next: International Tribunals