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June 21, 2004

Press Contact: Kirston Fortune, UT Law Communications, (512) 471.7330

COMMENTARY

Ratner: Understanding and abiding by the rules of war

by Steven R. Ratner
Austin American-Statesman, June 19, 2004
Reprinted with the author's permission

As Congressional investigations and courts-martial continue to look into the mistreatment of Iraqi detainees, the responsibility of individuals from the lowest levels upward is now ardently discussed by amateur and professional spin doctors.

Families of the enlisted people tell us the GIs were only following orders; President Bush emphasizes that only a few bad apples are at stake; and some political appointee-lawyers in the administration have suggested that there really are no rules for this conflict. But when we cut through the self-serving rhetoric, it turns out the standard of responsibility is both clear and within the capacity of the Congress and the president to implement. Indeed, it's already in U.S. law.

The 1949 Geneva Conventions are not some foreign law; they are treaties to which the United States is a longtime and enthusiastic party, and their rules are part of U.S. military law. It shouldn't be surprising that protecting prisoners of war is something that the military with the most troops abroad cares about. The Army's regulations under the Conventions don't mince words either, identifying abuses of prisoners by their proper legal term: war crimes. That moniker, however, is politically radioactive for Congressional investigators and Bush administration officials. Some fear that it wrongly equates the acts in Iraq with larger-scale historical atrocities and tars the user as a left-wing ideologue.

But U.S. and Geneva law make clear that war crimes are not just about the Bataan Death March, My Lai or the Hanoi Hilton. As the Army's Field Manual puts it, "Every violation of the law of war is a war crime." Others fear that the term gives rhetorical ammunition to enemies of the United States. In that sense, they are right — however bad are the photos, the name for the acts is even worse.

But the law of war crimes also tells us who is responsible. First, the soldiers in the infamous Abu Ghraib photos. Put simply, following a patently illegal order is not a defense. What's patently illegal? Surely not every illegal order, for we don't expect our soldiers to be lawyers. But if you want to see a patently illegal order, just look at the photos; they show just the "inhuman treatment" deemed a crime under U.S. and Geneva law. If a superior issued an order to carry out those acts, U.S. soldiers are obliged not to obey it. We also need to put to rest some spin about the status of the Iraqi prisoners: it doesn't matter who they were — neither civilians nor combatants can be subject to inhuman treatment under U.S. and Geneva law.

Second, U.S. and Geneva law don't let the buck stop with the soldiers in the photos. Superiors are obviously guilty if they give illegal orders. Commanders are also criminally responsible — to again quote the Army's regulations — not only if they have "actual knowledge" of war crimes and fail to prevent or punish them, but if they "should have knowledge, through reports received by him or through other means."

Finding out what superiors should have known is no easy task — it requires an intensive investigation of the operations of a theater of war. The military's lawyers need to be allowed to make judgments on future indictments, and they'll need to overcome a historical reluctance to prosecute commanders for these failures.

Third, we must not forget that criminal guilt is only one form of responsibility. U.S. and Geneva law make the government as a whole accountable for violations of the law of war — in their words, the United States "shall take measures necessary for the suppression of all acts" that violate the law of war. For all the talk of "systemic problems," systems can be reformed in only two ways — replacement or redirection of personnel. The Bush administration will need to do both, and in a way visible to the rest of the world. This includes a final responsibility — to train personnel in the most basic laws of war. Whatever the soldiers' crimes, the failure or refusal of one of the world's best-trained armies to find guards and interrogators able to follow rules that most GIs obey without thinking is the greatest mystery here. The U.S. military has worked hard to comply with the law of war during combat, so the failure to treat those in custody according to those rules is all the more disturbing.

In the end, it really doesn't matter to the world if 99 percent of U.S. soldiers follow the rules of war. In the worldwide battle of ideas, the abuses of the strong will never be excused the way the abuses of the weak are. Of course, many of America's accusers are hypocrites, and most countries do a far worse job of following the rules of war. This is old news, and poor rhetoric; it is not a prescription for policy.

Responding to U.S. misdeeds by pointing out those of others not only flouts U.S. and Geneva law and ignores the basic moral postulate about two wrongs: it's also bad national security policy for a nation exposed abroad like never before.


Ratner is a professor of international law at UT and a former U.S. State Department lawyer.