If War Is Hell…

…the rules on dealing with troops who harm non-combatants in a war zone, without running afoul of the Uniform Code of Military Justice, is Hell’s next-door neighbor.

The Pentagon has just released a Defense Legal Policy Board panel report into that thorny subject.

Here’s the bottom line:

While the military justice processes have served the United States well, overall, regarding civilian casualty circumstances during the Iraq and Afghanistan wars, our experiences there have demonstrated areas of improvement over time, and significant areas that could yet be improved. The recommendations of this Subcommittee would strengthen commanders’ ability wage effective, ethical warfare through a disciplined fighting force and, in particular, to respond to civilian casualty events.

The 217-page report was written by a policy-board subcommittee chaired by Judith Miller, former general counsel of the Defense Department, and Walter Huffman, a retired major general who served as the Army’s judge advocate general.

It’s fascinating reading on a challenging topic. Here are some excerpts:

Why military claims that it was not responsible for civilian casualties sometimes isn’t true:

…first reports are not always accurate or self-evident and why thorough investigations are critical. [Army Brigadier General Gary] Volesky described an incident that occurred in Afghanistan in which Coalition forces legitimately and legally targeted an improvised explosive device (“IED”) emplacer who committed a hostile act. The IED emplacer was engaged, neutralized, and the operation was complete. Shortly after the incident, a local official told Coalition forces in the area that a civilian had been injured during the engagement. An initial review of the operations that day indicated that the coalition forces were not on the block where the civilian was injured – he was four blocks away – making the allegation improbable. In the immediate aftermath of the report, the command was skeptical that Coalition forces caused an injury four blocks away…Upon further review and walking the area, it was discovered that the round which impacted the IED had ricocheted four blocks to injure a non-combatant. It was only by digging deeper that the unit arrived at the true facts.

BG Volesky described another occasion when his forces engaged another IED emplacer with an aviation asset. Shortly after the engagement, a local official reported that a child had been killed in the strike. Again, the unit rejected the notion that they had killed the child because the IED emplacer was in an isolated area far away from town and they had assessed the potential for collateral damage before the engagement to be zero. They also watched as the target was engaged and believed they had hit the target directly. Again, upon further review, the command found that the IED emplacer had been engaged 45 seconds after the command had been given to engage. In that same 45 seconds, a child had ridden her bicycle into the blast radius of the munition and was killed. The unit had not been aware of the change in circumstances from decision to execution. In the aftermath of the investigation, the unit modified its procedures to minimize the possibility that such an event would be repeated. In both cases, the unit also provided the families immediate financial compensation for their losses.

What lessons can the U.S. military learn from the 2005 Haditha killings (a story first reported in Time, here) where a Marine unit killed 24 Iraqi civilians, including children, after a roadside bomb had killed a Marine nearby?

The Haditha cases serve not only as a reminder of the importance of reporting requirements, but also as an example that it is often a Service member’s or commander’s dereliction of duty that either results in civilian casualties or exacerbates their impact. In the Haditha cases, the squad leader ultimately pled guilty to negligent dereliction of duty. Similarly, the battalion commander failed to accurately and promptly report the events that transpired in Haditha, which the Government asserted he had a duty to do. The Government alleged that not only did the battalion commander fail to report the events, but he also failed to investigate the allegations that his Marines were responsible for unlawfully killing civilians. These allegations eventually led to the battalion commander’s involuntary retirement.

The events that transpired in Haditha caused a public outcry that called into question the legitimacy of U.S. armed forces’ actions in Iraq and negatively affected the COIN mission. Six years after the events, the squad leader pled guilty to negligent dereliction of duty and the battalion commander involuntarily retired without criminal sanction. While this body does not pass judgment on the outcome in the Haditha cases, the results did not serve to address public anger or provide a sense of justice to the local population. Haditha also provides a cautionary example that the underlying cause of civilian casualties, including deaths, may be a Service member’s dereliction of duty. Consequently, the maximum punishment permitted for dereliction of duty must be appropriate for the serious consequences that a Service member’s dereliction may have in the deployed environment.

Investigation and prosecution in the Haditha case and others also reflects the practical difficulty of holding commanders and supervisors accountable for the actions of subordinates, and failures to respond appropriately to them. The discussion above regarding the importance of establishing clear reporting and response requirements for civilian casualty cases has significant application here. If responsibilities to report and inquire into civilian casualties are not clear and unequivocal, it may be impossible to establish dereliction of duty.

Currently, the maximum punishment for negligent dereliction of duty consists of forfeiture of two-thirds pay per month for three months and confinement for three months. For willful dereliction, the maximum punishment increases to a bad conduct discharge, forfeiture of all pay and allowances, and confinement for six months. These maximum punishments are not commensurate with the potential consequences of dereliction resulting in civilian casualties. Nor do they make alternative dispositions to court-martial a practical option because there is little incentive for an accused to accept these alternatives, such as a discharge for the good of the Service.

Even if such a case is successfully prosecuted the current maximum punishment may do little to effectively deter similar misconduct or provide a sense of justice to the local population. Accordingly, the Subcommittee recommends increasing the maximum punishment for dereliction of duty to ensure appropriate sanctions in civilian casualty cases.

Who is more honest – Marines or soldiers?

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.

True, it’s only a single survey, but it reflects what some say is true about each service: Marines tend to place loyalty to fellow jarheads over fealty to their service, while soldiers are more loyal to the institution.