Warfare changed, but laws did not

The court-martial of Marine Staff Sgt. Frank Wuterich at Camp Pendleton for his role in two dozen civilian deaths in the Iraqi village of Haditha has highlighted a legal peril for modern military personnel: determining who is the enemy.

Troops these days fight in tense, foreign enclaves where terrorists wear no uniforms and take cover among women and children. They are on a mission to engage the enemy but are expected to hold their fire against civilians, a sacred tenet of international law.

Military and international law experts say the case against Wuterich has shown that some troops have little understanding of the laws of war and nagging mistrust of local townfolk on dusty streets and courtyards that quickly ignite into battlefields.

Although the venues of armed combat have changed dramatically since the world wars, the international covenants governing warfare have not. And, legal analysts say, there is little support for changing them and little need to do so.

Commanders, however, need to do a better job of translating the rules for modern circumstances, experts say. Haditha is not Normandy. It’s small-squad fighting in tight quarters with sudden surprises demanding quick reactions.

“I don’t think the rules are likely to change, but one would hope this incident highlights to military leaders that they need to do a better job of rules-of-engagement training,” said David Glazier, a career Navy surface warfare officer now teaching national security and international law at Loyola Law School.

Wuterich, charged with manslaughter, assault and dereliction of duty, is said by military prosecutors to have blasted at the Haditha civilians in an uncontrolled rage after a fellow Marine was killed by a roadside bomb in 2005. Defense attorneys contend that the senior Marine on the scene, who was 25 at the time, was following orders by higher-ups to “clear” the houses where insurgents were suspected of taking cover.

A key problem, Glazier said, is that many preparing for deployment get scant training about their responsibilities under international law. A PowerPoint lecture and a “pocket card” synopsizing the Geneva Conventions is often the extent of their instruction, he said.

Relying on junior military personnel to make high-stakes decisions in remote foreign clashes can have grave consequences for U.S. foreign policy, said Capt. Glenn Sulmasy, a judge advocate and national security law professor at the U.S. Coast Guard Academy in New Haven, Conn. He pointed to the international outrage stirred by the images of U.S. soldiers abusing prisoners at Iraq’s Abu Ghraib prison.

Holding inexperienced enlisted personnel accountable for deadly errors may seem like making scapegoats of those at the lower end of the command chain, he said, but it is essential to maintain discipline and ensure that those given illegal orders know they can’t escape responsibility by simply saying they were told to shoot.

That defense of command responsibility failed 40 years ago when Army 2nd Lt. William Calley invoked it at his court-martial for leading his men in the 1968 massacre of civilians in the Vietnamese village of My Lai. Calley claimed that superiors ordered him to “kill the enemy,” which he interpreted to mean everyone in the village.

“The black letter is that you are only to obey lawful orders. My Lai was clearly not lawful, but in the heat of the moment, if your commander says ‘shoot ‘em,’ it’s not always clear whether that is a lawful order,” Sulmasy said.

The International Committee of the Red Cross has identified the need to more closely evaluate whether civilians have directly participated in hostilities and thus lost their protection under international law.

Civilian international law experts, however, say the answer isn’t to change the law to indemnify soldiers who, even mistakenly, fire on civilians.

“I don’t see a legal change that’s going to fix this problem,” Allen S. Weiner, a professor of international law at Stanford, said of the difficulty of distinguishing innocent civilians from similarly clad insurgents like Al Qaeda militants fighting on ideological or religious grounds rather than on behalf of a nation.

“If you want to say let’s make it easier for soldiers to kill civilians, that’s inconceivable. The whole point of the law of war is to protect civilians,” said Weiner, a former State Department official who represented the United States in litigation at the International Criminal Tribunal for the former Yugoslavia and the International Court of Justice.

Amos Guiora, former commander of the Israeli Defense Forces’ law school now teaching international and counterterrorism law at the University of Utah, says adherence to the law of war’s foundational value of protecting civilians succeeds or fails on the unit commander’s commitment.

“If you’ve got a commander who is a wink-and-nod sort of fellow, who says that bad things are gonna happen in war, then bad things are gonna happen in that unit,” said Guiora. “Rules of engagement are fine; they’re something somebody wrote and distributed and lectured on. But rules of engagement aren’t going to be consistently and religiously adhered to unless the commander clearly articulates unequivocally that the rules will be followed.”

It’s to the U.S. forces’ own benefit to strictly abide by the laws of war, say the legal experts, because of perceptions that they don’t expose troops to retaliation.

“In the post-9/11 context, the U.S. armed forces are under constant need to demonstrate professionalism and push back against allegations that they are not adhering to the law of war,” said Diane Marie Amann, a professor of international law and human rights at the University of Georgia.

[email protected]