JURIST Contributing Editor Amos Guiora of the University of Utah SJ Quinney College of Law says that the lack of serious punishment for US troops involved in the 2005 killing of 24 innocent Iraqi civilians at Haditha requires immediate and constant training in international law and morality for US troops to preserve the integrity of American foreign policy...
here appears to be a powerful disconnect between the acts committed in Haditha
and the punishment
meted. In the context of crime versus punishment, the perception is that justice was not served.
The Article 32 charges [PDF] are extraordinarily distressing; however, because of the plea bargain there is no final, thorough adjudication of the facts. This in direct contrast to the My Lai massacre during the Vietnam War as Lieutenant Calley was convicted by a Court Martial. Undoubtedly, the failure to have closure with respect to the facts alleged in the charge will haunt the victims' families, their community, and the Iraqi government for years to come. The ramifications of this, from both a human and geopolitical level, must not be minimized.
As the charge makes crystal clear, and as those who have "been there" fully understand and appreciate, the technology and military fire-power at the ready disposal of young enlisted soldiers is both a blessing, it protects them, and a curse, it has possible disastrous consequences.
I come to this essay from three distinct perspectives: as the former commander of the Israel Defense Forces School of Military Law (IDF SML), as the father of a soldier and as someone who was not at Haditha. The last point is particularly important: my comments, and those of the vast majority of other commentators, are based on second and third-hand information. Although some have criticized the plea bargain, I am hesitant to do so; as a former prosecutor I know that what seems "obvious" from the outside is not always the reality of the evidence available. In addition, witnesses may be deemed unreliable, and may pose more harm than good to the prosecutor's case. For these reasons, among others, prosecutorial discretion is an integral part of the process.
With respect to the second perspective, on the day of his induction I wished for my son the following: commanders who understand command; a unit that becomes a "band of brothers"; his ability to take care of himself and a moral compass he would never lose. That moral compass forms the philosophical and practical essence of this article.
The concept of morality in armed conflict lies at the heart of my perspective as a former commander of the IDF SML. In the face of unrelenting criticism by Israeli and international human rights organizations, sometimes justified and sometimes unjustified, regarding the conduct of Israeli soldiers at checkpoints in the West Bank, the IDF SML created an interactive video teaching codes of conduct, working in close cooperation with junior and senior commanders. Our underlying premises: morality is "teachable"; morality and international law must and can be taught in a pedagogically engaging and challenging manner; we needed to proactively and creatively address this issue; and command presence and influence is the determining factor in the conduct of a military unit. Notwithstanding much skepticism about the pedagogy of morality, I was and remain convinced that it can, indeed, be taught.
Haditha, both the events at the time and the conclusion of criminal proceedings last week, reinforce this conviction. The facts on the ground are distressing: US soldiers killed 24 innocent Iraqi civilians on November 19, 2005 without any apparent cause or justification. Although the number of innocent casualties does not (thankfully) recall My Lai, the seeming actions of the Haditha soldiers is eerily reminiscent.
Evidentiary issues may have been the immediate reason for the Haditha plea bargain, but the larger message is troubling on two levels: "How did we get here?" and "How we do go forward?"
The answer to both is training, re-training and additional training, specifically on morality in armed conflict. Simply put, Haditha presents a unique teaching moment for the US military. The takeaways are clear: soldiers must be trained intensively, continuously and repeatedly to distinguish between friend and foe. Easier said than done, particularly in the amorphousness inherent to a non-traditional war paradigm. Frankly, however, there is no choice but to impose this burden on soldiers regardless of the military circumstances confronting them. Otherwise, justice can never be served either in the zone of combat or in a court of law.
The single most important factor here is the commander. He or she is the linchpin; if a commander discusses rules of engagement and international law obligations while "rolling his eyes" the inevitable misconduct is, literally, around the corner. I know; I have seen it. Conversely, a commander who unambiguously demands that his soldiers conduct themselves morally will, in the overwhelming majority of cases, command an operationally effective unit that conducts itself in accordance with the rule of law. The two are not mutually exclusive from an operational perspective. Quite the opposite, a direct, causal relationship exists between morality in armed conflict, the rule of law and operational effectiveness. That, too, I have seen.
Commanders must establish strict guidelines and criteria in accordance with the rule of law and morality in armed conflict; the responsibility on commanders is thus constant, difficult and burdensome. Imposing on commanders the responsibility to both train and discipline their forces in accordance with rule of law principles predicated on morality in armed conflict is the reality of contemporary warfare.
Both issues may have been given lip service in the traditional war paradigm, but their importance is significantly magnified in today's armed conflict scenarios. After all, the zone of combat is ever changing, roving from one village to another, with civilians constantly intermingled with combatants; this poses extraordinary challenges for commanders and soldiers alike. However, that burden cannot and must not be used to justify lax standards and soft criteria in determining whether an individual poses a danger or not.
An approach lacking criteria to determine legitimate targets all but guarantees additional My Lais and Hadithas. Precisely for that reason, the answer is simple: commanders must directly confront the question of "who is a legitimate target" by imposing narrow definitions. Otherwise, their soldiers will, perhaps understandably, take a broad view of "legitimate target" with tomorrow's headlines the inevitable result.
Haditha is thus a powerful reminder that the limits of power predicated on morality and the rule of law must be taught, re-taught and taught again. Not in a one hour, snap shot, "let's move on" paradigm, but in a consistent, systematic and systemic manner. Training hours may be limited and subject to innumerable pulls and tugs, but the requirement that morality instruction be at the core of military training cannot be overstated. When told by soldiers that their training included a brief discussion regarding morality and international law, I shudder; giving these two extraordinarily important issues short shrift is a sure-fire recipe for disaster.
This is not simply an internal military or US issue. The anger, frustration and resentment articulated by Iraqi political leadership in the aftermath of the plea bargain was understandable. No explanation regarding evidentiary weakness and flawed witnesses will convince nor mollify. The perceived reality is that the lives of non-Americans are not valued, and that US military commanders, prosecutors and judges tolerate killing innocent (fill in the blank regarding which country) citizens. The killing of host nation civilians raises, naturally and understandably, profound questions among individuals and government alike regarding who the US perceives as legitimate targets. In other words, "who is the enemy?" If the enemy is the Taliban and al-Qaeda, then killing them, subject to rules of engagement, is lawful and perhaps welcomed by the local population who in, many cases, suffer terribly from the presence of both on their soil.
However, if the US is perceived through the lens of the local population as tolerating the deliberate killing of 24 innocent civilians, then probing questions are necessarily posed. Responding that the prosecutor's considerations were exclusively founded on legal analysis and evidentiary weakness misses the point and relies on narrow intellectual point-making rather than an understanding of human sensitivity and anger. Arguing semantics in the face of deep-rooted emotions is extremely difficult. Skepticism can quickly turn to anger that has a powerful, deleterious affect on both US soldiers and US policy.
The plea bargain therefore has enormous geopolitical ramifications. Host nations will rightly ask significant questions regarding how the US trains and prepares for armed conflict. American diplomats and military officials must highlight that Haditha's lessons are being implemented in US commanders' and soldiers' trainings. Although that does not mitigate the deep resentment that naturally emanates from the plea bargain, it suggests an appropriate operational response to ensure that Haditha does not occur again.
The most effective response is what occurs in the zone of combat; the US Army had much to learn from My Lai and the same holds true regarding Haditha. While, fortunately, the numbers are different, the results are the same: US forces killed innocent civilians of the host country on whose behalf we were fighting. That grim reality can only be addressed by commanders in how they train and lead their soldiers, in how they instill a moral compass even in the throes of combat.
Failure to address these lessons will inevitably raise consequential questions about the true mission of the US throughout the world. If host nations come to believe that their civilian population are considered as tolerable, if not legitimate, targets by the US military, then US foreign policy is both deeply flawed and profoundly endangered. When viewed from neither an American nor a legal lens, that is the true challenge Haditha and the court martial pose. US commanders and government leaders do not have the luxury of time. The former must ensure the implementation of vigorous and robust morality training subject to rigorous standards, assessment models and performance scales; the latter must ensure host nations that their civilians are not our enemies.
Amos Guiora is a Professor of Law at the University of Utah SJ Quinney College of Law. He is the author of numerous books dealing with military law and national security including Freedom from Religion: Rights and National Security. He is also a former commander of the Israel Defense Forces School of Military Law, where he had command responsibility for the development of an interactive video teaching soldiers a 10 point code of conduct for interaction with civilians.
Suggested citation: Amos Guiora, Teaching Morality: Haditha and the Future of the US Military, JURIST - Forum, Feb. 3, 2012, http://jurist.org/forum/2012/02/amos-guiora-haditha.php.
This article was prepared for publication by Zach Gordon, an assistant editor of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org.