Friday, June 3, 2016

The benefit of the doubt

Writing in their personal capacities, two West Point professors--Lieut. Col. Shane R. Reeves and Capt. Matthew Milkowsky--have written this Lawfare post about U.S. investigation and prosecution of war crimes. They conclude:
The great unknown, of course, is the total number of war crimes committed. How many times do violations go unreported? Critics allege these prosecutions simply punish a few bad apples from an otherwise rotten bushel. But this is highly unlikely, because even an allegation of a law of armed conflict violation triggers a mandatory investigation in the United States military. Further, the most common way that illegal behavior is uncovered is through the reporting by soldiers. The heavy emphasis placed on uncovering war crimes coupled with the willingness of soldiers to police their own ranks indicates that the United States military takes seriously, and addresses, law of armed conflict violations.
This is not to say the United States military’s internal accountability process is beyond reproach. Clearly the American military—similar to any other armed force—has a natural prejudice in favor of its own soldiers. But internal investigations, in and of themselves, are not insufficient simply because they are internal. Thus, the relevant question is not whether the American system is perfect but whether an ostensibly “impartial” third-party investigation would be better. Given both the American military’s historic tradition of continually increasing internal accountability and the evidence of persistent willingness to conduct war crimes investigations in contemporary conflicts, finding a more objective or rigorous investigative body seems unlikely. Precisely because no military does more to hold its soldiers accountable, the U.S. military should get the benefit of the doubt when investigating itself for alleged war crimes.
One wonders about "the willingness of soldiers to police their own ranks." According to the May 30, 2013 report of the Subcommittee on Military Justice in Combat Zones of the now-defunct Defense Legal Policy Board (the Editor was a member) on "Military Justice in cases of U.S. Service members alleged to have caused the death, injury or abuse of non-combatants in Iraq or Afghanistan" (p. 58):
Evidence exists that Service members at the point of contact or their leaders have been reluctant to inform the command of reportable incidents. This reluctance may be attributed to any number of potential factors including a feeling of justification in connection with the actions taken, fear of career repercussions, loyalty to fellow Service members or the unit, or ignorance. One survey of Marines and soldiers in Iraq reported that that only 40% of Marines and 55% of soldiers indicated they would report a unit member for injuring or killing an innocent non-combatant. [Footnote omitted; emphasis added.]

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