Haditha and My Lai: Lessons from the Law of War

JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the killings of Iraqi civilians at Haditha, like the My Lai massacre during the Vietnam War, illustrate critical aspects of the law of war even as they ostensibly manifest its failure....



Is Haditha the My Lai of the war in Iraq? The question is not at all surprising. The thought of warriors wearing the uniform of the United States killing unarmed men, women, and children is perhaps even more shocking today than it was in 1969. Of course, debate has already commenced on whether any comparison between the incidents is valid considering the disparate number of killings - some 500 - that occurred at My Lai. But this quantitative focus misses the point. It is the qualitative aspect of both these sad incidents that serves as a profound reminder that, as I have stated previously on JURIST, the law of war is as much about war as it is about law.

Let me state at the outset that I write this editorial based on the assumption that the initial reports of unjustified killing at Haditha are in fact accurate. Like any investigation, this certainly involves a degree of speculation. However, even if the facts ultimately lead to a contrary conclusion, the mere suspicion of such unjustified killings serves as a reminder that the law of war and the discipline essential to a morally sound military force are inevitably connected.

If these killings were not justified by the exigencies of war, they fall outside the scope of what is known as combatant immunity. Whether characterized as war crimes or as criminal homicides in violation of the Uniform Code of Military Justice, the underlying premise is the same: even in war there are limits on when it is permissible to kill. This premise was eloquently expressed by Telford Taylor in his seminal work on the Vietnam conflict, Vietnam, an American Tragedy:
War does not confer a license to kill for personal reasons — to gratify perverse impulses, or to put out of the way anyone who appears obnoxious, or to whose welfare the soldier is indifferent. War is not a license at all, but an obligation to kill for reasons of state; it does not countenance the infliction of suffering for its own sake or for revenge.
This quote provides insight into the first qualitative similarity between Haditha and My Lai. The law of war lies as the very core of military discipline, for it provides the barrier between killing required on behalf of the strategic interests of the state and the instinct of revenge and retribution so routinely aroused in the hearts and minds of young warriors. Haditha, like My Lai, involved a group of warriors who had been subjected to countless "faceless" attacks by remotely detonated explosives. In My Lai, these took the form of landmines. In fact, the My Lai district was one of the most heavily mined areas in all of South Vietnam. In Haditha, they took the form of improvised explosive devices (IEDs).

In both conflicts, these enemy weapons extracted a devastating toll on U.S. forces. Their inability to identify and respond to an enemy associated with these attacks invariably led to tremendous frustration, and almost certainly rage. The most profound lesson from My Lai for members of the profession of arms was that at no other time is the law of war more important than when this sense of frustration triggers the instinct of revenge. It is at this point when the existence of "rules", and the commitment to respect for these rules, must operate to preserve the line between killing for justifiable reasons of state and killing for the illicit purpose of revenge or retribution.

Both My Lai and Haditha also demonstrate another critical component of the law of war: the relationship between the law and leadership. Upon hearing the news reports of the Haditha killings, international lawyers began to use the term war crime. Upon hearing the same news, military professionals almost certainly contemplated the breakdown in discipline that must have facilitated the killings. This reveals the simple truth that it is discipline, implemented by competent leadership, that must be relied upon to ensure warriors embrace the logic of the law of war and comply with its mandates during the most stressful moments of combat. As one former colleague was apt to remind his students at the Army Judge Advocate General's School, "the troops need to understand why this law matters, because you can't ask for a recess in war." If the initial reports coming from Haditha are confirmed, it will, like My Lai, be as representative of a failure of leadership and discipline as it is of a violation of the law of war. More importantly, it will also once again confirm that effective leaders must truly understand the relationship between the law of war and a morally sound force.

This reveals another critical aspect of implementation of the law of war: the need to ensure that warriors understand the logic of the rules more in terms of war and less in terms of law. Warriors must be taught that respect for these rules will ultimately contribute to the achievement of the strategic objectives for which they place their lives at risk. They must understand that like any other aspect of their duties, their may be times when this compliance might result short term sacrifice, but that this sacrifice will contribute to long term benefit. They must also be taught that these rules were developed over the centuries primarily by military leaders who understood the negative consequences of a lawless battlefield. Only by embracing this logic will the law of war provide an effective shield between the warriors and their darker instincts, for as history has demonstrated time and again, during the extremes of mortal combat, the deterrent influence of potential criminal sanction is of limited utility. Thus, Haditha once again reminds us that the law of war must be understood not primarily in terms of legal consequences, but in how it impacts the accomplishment of the military mission.

In this regard, it is therefore not surprising that the Commandant of the Marine Corps recently went to Iraq to emphasize to his Corps the relationship between the moralities reflected in the law of war and the profession of arms. He, like so many other leaders of that fine force, must certainly understand that compliance with the law of war is essential to achieve the strategic goals of the nation. Indeed, President Bush is no doubt correct that members of the Marine Corps itself are as troubled by these revelations as anyone else, for these professionals understand better than most the strategic consequences of failing to comply with this law.

This leads to perhaps most unfortunate similarity between My Lai and Haditha: how the exception of non-compliance swallows the rule of compliance. Perhaps no single event from the Vietnam War became more symbolic of the conduct of American warriors than My Lai. This is almost certainly a reflection of the validity of the other comment made by President Bush: that American warriors are held to the highest standard. But it is truly tragic that the faithful, moral, and admirable service of hundreds of thousands of Americans in Vietnam was overshadowed by the deplorable conduct of one platoon of soldiers and their substandard leader. Indeed, it is the name of Lieutenant Calley, and not that of Captain Hugh Thompson - the true hero of My Lai who threatened to fire on members of Calley's platoon from his helicopter in order to shield civilians from harm — that is etched in the American memory. A force held to the highest standard of professionalism and morality should not be surprised by such an illogical disparity.

As in Vietnam, hundreds of thousands of American warriors have served in Iraq with great distinction. They have endured the harrows of war, and the frustrations of constant attacks by an elusive enemy that seeks to exploit their compliance with the law of war to gain tactical advantage. The vast majority of these warriors have not wavered in their commitment to the moral principles at the core of both the law of war and the profession of arms. It will indeed be unfortunate if like My Lai, Haditha improperly becomes the event that defines the character of their service.

More importantly, it should be a reminder to every leader in the U.S. military that these highest standards must be enforced. Haditha, like My Lai, validates once again the concept of the "strategic private" — that the actions of an 18-year old private can have strategic consequences in the time it takes for news to travel the internet. It is therefore incumbent on the armed forces to conduct a legitimate, thorough, and transparent investigation of these killings. If this investigation establishes a basis for prosecutions, they must be pursued without delay, and reach all those responsible for both the killings and any subsequent failure to make an immediate and legitimate investigation into the incident. The military justice system is fully capable of dealing with any allegation of criminal misconduct. If Marines are prosecuted, fellow members of the profession of arms will judge them. While critics will no doubt question the legitimacy of this process, there is truly logic in allowing members of the profession of arms sit in judgment on those accused of breaching the law so central to their profession.

It is equally incumbent on the American public to allow this process to work, and to place this incident into proper context. It is an unfortunate reality that the brutality of war will almost always lead warriors to cross the barrier between justified and unjustified killings. What is important, however, is that this truly does represent an exception and not the rule.

The law of war has endured over centuries not because it never fails, but because it works most of the time. What the Haditha incident must come to stand for is a renewed commitment to making this law work better in the future. Accordingly, every leader who wears the uniform of the United States must once again consider the lessons so painfully learned over three decades ago at My Lai, remaining vigilant in order to prevent the warriors entrusted by the nation to their charge from transforming war from an ugly necessity of state to a personal vendetta.


Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters


--------

JURIST Swag

Support JURIST

We rely on our readers to keep JURIST running


 Donate now!
 

About Academic Commentary

Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

© Copyright JURIST Legal News and Research Services, Inc., 2013.