Washington Post
Wanted: a new way to judge the crimes of war

Peter Charles Choharis

Sunday, July 23, 2000

In recent months, both the media and human rights advocates have raised questions about the legality of U.S. military conduct overseas. U.S. forces stand accused of shooting hundreds of civilians at No Gun Ri during the chaotic retreats early in the Korean War. A recent New Yorker article charged that then-Maj. Gen. Barry McCaffrey and the U.S. Army's 24th Infantry Division attacked Iraqi soldiers while they were retreating after the cease-fire at the end of the Persian Gulf War. A few weeks ago, Amnesty International alleged that NATO's air campaign over Kosovo (conducted overwhelmingly by the United States) included war crimes against the civilian population. That accusation was reinforced by the British Parliament's Foreign Affairs Committee, which said NATO's actions were of "dubious legality," though morally justified.

Despite their gravity, there is no independent forum to investigate most of these charges and make its findings public. The former Yugoslavia has an international criminal tribunal, whose chief prosecutor recently concluded that "although some mistakes were made," NATO was innocent of war crimes. But that tribunal's jurisdiction is limited to events in that part of the Balkans. What of Korea and the Gulf War, and future U.S. military actions that will undoubtedly generate new allegations?

Currently, the U.S. military investigates itself. That is what is happening with the charges of atrocities at No Gun Ri. And shortly after the Gulf War, U.S. military investigators cleared McCaffrey--now director of the White House Office of National Drug Control Policy--and the 24th Division of war crimes allegations.

The U.S. military has a strong record of investigating itself. The Army's criminal investigations division, for example, interviewed hundreds of people and produced a lengthy analysis of the charges made against McCaffrey. But the existence of such investigations and the results are rarely made public. Moreover, the conclusions of such investigations are often received skeptically by the international community.

One possible solution would be for the United States to subject itself to the jurisdiction of the new International Criminal Court (ICC), which will adjudicate grave violations of international criminal law, including war crimes. Indeed, it was international doubt about the ability of nations to police their own armed forces that prompted 120 countries to vote for a permanent ICC two years ago. Once 60 countries ratify the treaty that created the ICC, those countries' nationals--including members of their militaries--will be subject to the jurisdiction of the court. The United States, however, continues to oppose such a tribunal.

The U.S. opposition is not without merit. First, the world's only superpower might constantly have to defend itself against politically motivated charges. Second, the permanent tribunal may actually end up undermining the cause of human rights by diverting resources from those nations trying to confront past abuses or prevent new ones. For example, since its founding five years ago, the United Nations' internationally funded Rwandan tribunal has completed eight cases out of a mere 44 arrests. Meanwhile, without appreciable financial or legal support from the outside world, Rwanda is struggling to prosecute more than 125,000 prisoners charged with human rights abuses. Moreover, the money spent by the U.N. tribunal won't help modernize Rwanda's judiciary or contribute to the development of civil society within Rwanda.

If an international criminal court is not the answer, how should serious charges leveled against U.S. military forces be resolved?

Technically, the Department of Justice could investigate and prosecute alleged war crimes under the War Crimes Act of 1996. The department also has the expertise to conduct such criminal investigations. But in practice the department has always deferred to the military to investigate itself. Moreover, it is highly unlikely that the international community could be convinced that U.S. federal prosecutors--any more than their military counterparts--would act independently. And, like the military, the department does not publicly reveal its investigations or conclusions unless it decides to prosecute.

Congress, through its oversight function, can, in theory, act as an independent body with subpoena power. But there are few issues more politically sensitive than the conduct of the U.S. military. Absent a public outcry, few politicians would be eager to undertake a war crimes investigation of U.S. troops.

If the United States is not willing to have its armed forces subjected to the jurisdiction of an international criminal court, then it should attempt to establish a permanent independent review process. One solution may be to create a permanent civilian War Crimes Commission in our country. From New York's Civilian Complaint Review Board to the Los Angeles Board of Police Commissioners, many cities have civilian review boards to monitor police abuse so that they do not have to rely exclusively upon internal investigations. Similarly, a nonpartisan war crimes commission might be composed of former armed service members, academics, retired judges, clergy, doctors, scientists, lawyers and former journalists. Armed with the power to subpoena witnesses and documents, the commission's mandate would be to investigate allegations of war crimes and other human rights abuses by the U.S. military.

In order to maximize their independence and minimize partisanship, commission members could be appointed by a panel of federal judges to staggered, five-year terms. The military would still retain the right under military law to try its own personnel for criminal conduct, thereby continuing to subject U.S. troops to a true jury of their peers. Although the commission would not conduct trials, it would publish its nonbinding findings of fact and recommendations of law, and could refer cases to the military for further action if warranted.

Such a commission applying the laws of war--which originated centuries ago and are still evolving--would not pose a threat to the ability of the United States to wage war or conduct other military operations. Just as civilian review boards give broad deference to police, who must function under stressful and chaotic circumstances, so, too, the laws of war accord great deference to military conduct. U.S. armed forces already must adhere to international legal standards governing warfare, and every U.S. service member receives rudimentary training on the law of war.

Indeed, the existence of such a commission would actually enhance the ability of the U.S. military to act, especially in nontraditional military roles. U.S. military forces will increasingly be called upon to conduct a broad range of operations--from peacekeeping, as in Somalia; to nation building, as in Kosovo and Haiti; to the traditional warfare we waged in Kuwait. As formidable as these tasks are operationally, they will be even more difficult if charges of human rights abuses undermine America's military standing. Not only will opponents of the United States exploit past war crimes charges to undermine American credibility and future military operations, but even U.S. allies will find it difficult to support already politically sensitive missions if there is no independent resolution of such charges.

Whether or not a civilian commission is the answer, in order to build international coalitions and deploy troops effectively, the United States must have credibility as a protector of human rights. In matters as grave as war crimes, investigators must not only act independently, they must also appear independent. An independent body capable of publishing its findings would bolster U.S. credibility and would provide those such as McCaffrey and his troops a means to exonerate themselves publicly. The American military, the American people and victims of oppression who need the U.S. military's help deserve this opportunity.

Original article