The reports of unjustified killings of Iraqi civilians in Haditha have brought into sharp focus the challenge created by the intersection of fundamental principles of the law of war and the reality of asymmetrical warfare.  Regardless of the outcome of the investigation that triggered these reports, the reality of the nature of the armed conflict raging in Iraq will continue to test the ability, and in some unfortunate situations the willingness, of professional armed forces to comply with the fundamental principle of distinction.

Not all killing in warfare is lawful.  This article of faith is at the very core of the regulation of armed conflict, and is codified in a number of treaty provisions.  Most prominent among these are the articles of the Additional Protocols to the Geneva Conventions that define lawful military objectives.  Other related provisions of these treaties set out the basic framework for determining when an individual may be made the object of attack.  The equation is clear:  First, members of the enemy armed forces are presumed to be lawful targets.  Second, all other individuals are presumed to be civilians and therefore immune from attack.  Both presumptions, however, may be rebutted by specific facts.  Thus, when a member of the enemy armed forces is placed “out of combat” by surrender, wounds, or sickness, he ceases to be a lawful object of attack.  And, when a civilian takes a direct part in hostilities by engaging in conduct that will cause actual harm to a combatant, there is a resulting loss of immunity from attack.

This framework is unremarkable, and reflects the historic practice of warriors that has ripened into customary norms of international law.  The fundamental norm is clear: even in war there are limits on when it is permissible to kill.  This principle 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.

The Challenge of Asymmetric War

It seems fitting to emphasize this basic tenet of the law of war by reference to a book written about the conflict in Vietnam.  That conflict, like the conflict in Iraq, placed members of an armed force committed to compliance with the law of war in the difficult position of fighting an enemy who exploited this commitment for tactical advantage - a quintessential example of what is today referred to in the lexicon of military theory as “asymmetric warfare.”  In essence, in Iraq the coalition armed forces confront an enemy determined to exploit the asymmetry between coalition compliance with the law of war and their own willingness to disregard the law.

In the context of Iraq, the asymmetry has been manifested in the tactics used by insurgents to attack coalition forces with remotely detonated explosives and other “stand off” tactics while seeking the cover of apparent civilian status.  As a result, coalition forces not only suffer substantial casualties to a “faceless” enemy, but also inevitably come to regard as suspect the entire civilian population.  This places tremendous stress on the ability of coalition combatants to preserve the distinction between enemy personnel and civilians.

There is, however, no “asymmetrical warfare” exception to the lawful killing framework outlined above.  No amount of frustration, anger, rage, or suspicion justifies the killing of an individual presumed to be immune from attack unless that individual represents an immediate threat to the armed forces.  Of course, in the extremity of mortal combat, this “threat determination” must often be made in a split second, and warriors are trained to understand that hesitation may very well be fatal for them or others in their unit.  However, even though such judgments must be critiqued prospectively, and not retrospectively, the law of war remains the fulcrum on which such a critique must rely. 

Haditha shows the immense challenge imposed upon members of the armed forces to preserve the line between lawful and unlawful killings against an enemy determined to degrade the ability to make such judgments effectively.  But, if the reports of unjustified killings are accurate, it also shows how easily even the best trained and disciplined warriors can descend into the abyss of revenge and retribution.  At no time is commitment to the rules that distinguish between lawful and unlawful killing in war more essential than when the conditions of asymmetrical warfare create a crescendo of frustration that triggers the instinct of revenge. 

The Importance of Responsible Command

Time and again history has demonstrated that responsible leadership is essential to ensure such commitment.  From the reports released thus far, it appears Haditha will be added to the list of historic illustrations of this truism.  Upon hearing the news reports of the Haditha killings, the first reaction of international lawyers was no doubt to raise the specter of war crimes; however, the initial reaction of military professionals was most probably to contemplate the breakdown in discipline that must have facilitated the killings.  This reveals the simple truth that it is discipline, instilled 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. 

Discipline alone, however, is not sufficient to ensure respect for the law of war.  Indeed, history is also replete with examples of highly disciplined warriors engaging in unlawful killings.  The key, therefore, is morally grounded leadership – an implied aspect of responsible command.  In fact, the requirement that warriors operate within the structure of responsible military command and control is established in both the Geneva Prisoner of War Convention and Additional Protocol I as a condition for the grant of prisoner of war status.  Thus, the law of war is based on a simple but historically validated premise: the ability of the law to effectively limit the brutality of warfare is contingent upon the appreciation by de jure and de facto commanders of the critical relationship between compliance with the law and a morally sound force.

Responsible command therefore involves ensuring subordinates 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.  This is particularly critical in the context of asymmetrical warfare precisely because the enemy hopes to exploit non-compliance not only for tactical advantage, but to further his strategic aims by discrediting coalition efforts. 

As a result, every soldier must understand that like any other aspect of their duties, there 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.

Actions and Omissions of Officers

In response to the reports from Haditha, the Commandant of the Marine Corps recently visited his forces in Iraq to emphasize the relationship between the moralities reflected in the law of war and the strategic goal of gaining the support of the local population – a critical component in prevailing in any counter-insurgency.  However, the Commandant has also indicated that the investigation into the alleged unlawful killings will reach as high in the chain of command as the evidence supports.  These two responses reflect the intuitive understanding that all military leaders should possess of the importance of fidelity to the law of war and the role of leadership in fostering such fidelity.  

Because of the critical role of leadership in promoting compliance with the law of war, any investigation into the killings at Haditha should justifiably focus not only on the actions of the Marine platoon at the scene, but also the actions or omissions of the unit leadership.  Of course, if the evidence establishes that any leader in the chain of command ordered or encouraged the killings, and that they were unjustified, these leaders would be culpable as principals to the crime.  This, however, is an unlikely outcome assuming the initial reports of a “rampage” are corroborated. 

The more likely outcome of the ongoing investigation is that it might reveal that in the effort to cultivate a warrior instinct among subordinates, leaders in the organization created an atmosphere of non-compliance with the law.  However, this is also a difficult line to define.  Commanders must walk a proverbial tightrope in order to develop this instinct without manifesting a dismissive attitude towards the lines of distinction established by the law of war.  Commanders faced with this challenge are taught that an aspect of cultivating this warrior instinct is the dehumanization of the enemy, considered essential to enable warriors to overcome their ingrained moral revulsion to killing another human being. 

Distinguishing between the cultivation of this necessary instinct and implied disregard for the law of war can only be done on a case by case basis.  What invariably becomes critical in making this determination is the record of response by commanders to earlier allegations of combatant misconduct or minor infractions of the law of war.  This record provides the most objective indicator of the “message” being sent to subordinates regarding commitment to the principles of the law of war.  If it is revealed that prior incidents of misconduct were ignored or dismissed at any level of the chain of command, an inference will be created that this failure to take meaningful remedial measures suggested to subordinates that compliance to the law was merely situational.

What Charges Could Be Brought?

Any such determination would could trigger the “should have known” basis for criminal liability under the doctrine of command responsibility, even if the evidence cannot support a finding of principal liability.  It is unlikely, however, that any individual implicated in an unlawful killing will face “war crimes” charges.  This is not because such killings do not violate the law of war.  Instead, it is the result of the longstanding practice of the Department of Defense to charge "war crimes" as violations of the punitive articles of the Uniform Code of Military Justice (UCMJ). This policy in no way diminishes the character of the underlying misconduct, but instead reflects the pragmatic reality that efficient criminal disposition is facilitated by relying on the well-established principles of military criminal law derived from the Code.

These articles include statutory prohibitions against murder, manslaughter, and many other "common law" criminal offenses. Accordingly, if the military authorities determine that these killings were unlawful, the likely charges will not be "war crimes", but instead murder, manslaughter, or any other violation of the UCMJ supported by the evidence. If the evidence points to command complicity as the result of creating a climate of non-compliance with the law, the most likely charge would be a dereliction.  However, it is conceivable that because such a charge carries a very limited maximum punishment, prosecutors may seek to allege a violation of the law of war under the doctrine of command responsibility.  Efforts to conceal the incident might also lead to charges as accessories after the fact.  Finally, even the omission to launch a prompt and thorough investigation of the incident would almost certainly be considered dereliction of duty because it violates the express DoD mandate to investigate and report all possible war crimes.

Can something good come from this incident?  Regardless of the outcome of the ongoing investigation and any prosecutions that may result, the answer can be yes only if Haditha serves to remind every member of the profession of arms that responsible command, discipline, and moral legitimacy are indelibly linked to respect for the law of war.  Anyone who doubts this linkage need only consider how 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 – is profoundly manifested by the actions of the Marines at Haditha. 

The law of war has endured over centuries not because it never fails, but because it works most of the time.  What this incident must come to stand for is a renewed commitment to making this law more effective in the future.  If military leaders entrusted with the duty to cultivate morally sound warriors remain vigilant in preventing their subordinates from transforming war from an ugly necessity of state to a personal vendetta, perhaps this goal may be achieved.

Geoffrey Corn, Lt. Col U.S. Army (ret.), is an Assistant Professor of Law at South Texas College of Law and was formerly Special Assistant to the US Army Judge Advocate General for Law of War Matters. 

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