War crimes and the limits of combatant immunity

Geoffrey S. Corn [South Texas College of Law]: "Media attention is once again focusing on the laws of war. Recent reports indicate that a criminal investigation is underway to determine whether members of a U.S. Marine unit should be prosecuted for "war crimes" in Iraq. The incident under investigation allegedly involved what some have characterized as a series of "revenge killings" immediately after the Marine unit suffered casualties from an improvised explosive device. Information made public to date indicates that in response to the IED attack, the Marines went through nearby homes and killed a number of unarmed civilians who posed no immediate threat to the unit.

As with any criminal investigation it is inappropriate to speculate on exactly what occurred during the incident without the benefit of all the relevant facts. However, some initial observations seem in order.

First, it is important to understand how the U.S. military prosecutes individuals suspected of violating the laws of war. It is 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). 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. 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-establishes principles of military criminal law derived from the Code.

Second, regardless of the nature of a potential charges, the underlying principle is clear: not all killings in war are lawful. Some commentators have already raised the question of whether killings in the "fog of war" should ever be considered illegal. The answer to that question is emphatically yes. War certainly provides a "blanket of immunity" for warriors, an immunity derived from the laws and customs of war. This law essentially "legalizes" conduct that would be illegal in peacetime. Warriors engaged in armed conflicts are required to take those measures necessary to defeat their enemies, including killing members of that enemy force. They do so as agents of their respective states, and so long as their destructive activities comply with the laws of war, they are immune from any criminal sanction.

However, this immunity is far from absolute. The "blanket of immunity" is essentially co-extensive with the laws of war. Therefore, killings or other destructive actions not authorized by the laws of war fall outside this immunity. In short, when a warrior inflicts harm or destruction that is not authorized by the laws of war, the warrior derives no "immunity" from this law, and the conduct is therefore unlawful. In this regard, as Telford Taylor noted, the term "war crime" is actually a misnomer, for a "war crime" is simply an act that was criminal in peacetime, and remains criminal even if committed by a warrior in wartime. Thus, a killing that is murder in peacetime is also murder in wartime if it is not justified by the authority derived from the laws of war.

Nothing in the laws and customs of war permits the killing of unarmed civilians who pose no immediate threat to an armed force, even if the force suspects them of supporting the enemy. On the contrary, it is a fundamental principle of this law that combatants must always distinguish between the lawful objects of attack and all other individuals, and any person not taking an active part in hostilities falls into the latter category. The "fog of war" provides no exception to this cardinal principle, nor does rage, anger, frustration, or suspicion of enemy sympathies. Thus, if these victims posed no immediate threat to the Marines who killed them, the laws of war provide no immunity for the killings, and prosecution for criminal homicide would clearly be an appropriate sanction."

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