JURIST Guest Columnist Victor Hansen of New England School of Law says the disparate charges brought against US Marine Corps officers and enlisted men in connection with the killings of Iraqi civilians at Haditha manifest a double standard of criminal liability that should not and need not exist...
The disparity in the charges that the enlisted soldiers are facing as compared to the charges which the four officers in the chain of command face is nothing new, and once again raises the question of whether the U.S. military has a double standard in the way it treats its officers in comparison with its treatment of enlisted personnel. It also points to the double standard that the U.S. has in how it holds its own commanders criminally responsible for wrongful acts as compared to the standard the U.S. applies to military leaders of other forces.
In Haditha, the Marines on the scene who are charged with negligent homicide and murder can face potential punishments which include many years of confinement and quite possibly life sentences. In contrast, the officers charged with dereliction of duty face a maximum of 6 months confinement, and this only if the prosecution can prove willful dereliction. If the officer's dereliction was only culpably inefficient, the maximum sentence is three months confinement. In the case of obstruction of justice, that officer faces a maximum punishment of 5 years confinement. Significantly, in order for prosecutors to prove this offence they must show that the charged officer took some wrongful affirmative actions with the specific intent of influencing or impeding criminal proceedings. Given these actus reus and mens rea requirements, proving obstruction charges against is likely to be very difficult. The practical consequence in Haditha, like so many cases before, is that the enlisted soldiers are the only ones in the chain of command to face serious criminal liability.
This double standard need not exist. There is a well established doctrine of command responsibility under international law and the law of armed conflict which allows military leaders to face serious criminal sanctions if these leaders failed to prevent, stop, or punish war crimes that are committed by the forces under their command and control. When it is established that military leaders failed in their duty to properly control their forces, these leaders can face the same criminal liability as their forces who actually committed the crimes.
This concept of command responsibility is nothing new. In fact, it was due in large part to the efforts of the United States in the war crimes tribunals following World War II that the doctrine of command responsibility fully emerged as a basis of establishing criminal liability. Since that time the United States has continued to be a proponent of this doctrine in the international context. The doctrine has been codified in Articles 86 and 87 of Protocol I to the Geneva Conventions. A form of the doctrine has also been codified in the statutes authorizing the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC), and elsewhere.
Inexplicably, this doctrine has never been codified under U.S. domestic law. Under the Uniformed Code of Military Justice the doctrine of command responsibility does not exist as a basis for holding commanders of our own forces criminally liable for their command failings. One of the most well known prosecutions of a commander for his failings was the court-martial of Captain Ernest Medina following the Mai Lai massacre. In that case prosecutors were repeatedly frustrated by the lack of a codified legal mechanism to hold Captain Medina accountable for his failings. In the end, Captain Medina was acquitted of the charges against him.
Nothing has changed in the UCMJ since the Vietnam era that would provide a better mechanism from holding military commanders criminally liable when their failings contribute to law of war violations committed by the forces under their command. As a result, we continue to see the double standard in cases like Haditha.
This double standard has no place in our military system. When only lower enlisted servicemembers face criminal liability for law of war violations, confidence and trust within the ranks and by the public at large suffers. In addition, the United States' stature on the world stage suffers when we apply one standard of command responsibility to the military leaders of other countries, but no similar standard to our own military leaders.
Congress has expressed an interest in the Haditha cases. The Senate Armed Services Committee has requested copies of the investigations conducted on Haditha and the alleged cover-up by officers in the chain of command. It is likely that Congress will conduct its own inquiry into these matters. In doing so, Congress needs to look beyond the narrow facts of this case. They need to ask broader questions. Why does there exists such disparate treatment of enlisted servicemembers in comparison to the criminal liability faced by commanders? What standards currently exist under the UCMJ to incorporate the doctrine of command responsibility? Finally, Congress needs, at long last, to codify a standard of command responsibility under the UCMJ that ensures equal treatment of all our forces and shows to the world that we apply the same standards to our own military leaders that we apply to others.
Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law