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Is military justice in Iraq changing for the better?

High-profile cases reveal both new emphasis on laws of war and the shortfalls of military justice.

from the August 7, 2007 edition

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Some observers wonder whether that was because the jurors in those cases were made up largely (in some cases exclusively) of Iraq war veterans who had experienced first-hand the same kind of hostile environment.

"One person's jury that understands what it's like in Iraq is another person's jury that's too friendly," says Eugene Fidell, president of the National Institute of Military Justice.

"There is a tension there," says Mr. Fidell, a former Coast Guard lawyer. "No one seems to think that it makes no difference that the jury has had something of the same experience. No one seems to think that that's a neutral factor."

Just as the Vietnam war did a generation ago, the Iraq War is teaching a new cohort of military men and women hard lessons about fighting an enemy that doesn't hold to traditional means of combat in which soldiers in uniform primarily attacked one another. In particular, commanders of combat units are reexamining the "rules of engagement" – what to expect on a combat mission and what violent responses are permissible, especially in an urban setting.

Here, retired Army Col. Dan Smith sees a common thread to most of the abuse cases: the killing and wounding of US troops by roadside bombs, the greatest single cause of American casualties in Iraq.

"There is pure frustration, pure anger, pure rage because there is no one who is the obvious perpetrator," says Colonel Smith, a military analyst with the Friends Committee on National Legislation who fought in Vietnam and later taught philosophy at West Point.

"Soldiers soon decide they can trust no one except their comrades … and quickly the indigenous people – all of them – become inferiors," he says. "Being inferior, they are less than human and deserve less respect, at which point one has entered the slippery slope that can end with a war crime."

To reduce combat stress, the Army now gives combat soldiers a break after 90 days. But that may not be enough, some experts say, especially for those on their second, third, or fourth tour in Iraq.

Experts point to relaxed standards

While military units are reemphasizing the importance of the laws of war and rules of engagement, some relaxed recruiting standards may cause other problems.

"Waiving rules against recruiting men and women with criminal records is leading to a substantial rise in the number of gang members wearing uniforms and getting trained to use military weapons," says Smith. "Put them in a war zone where death is common and life cheap – that's a real recipe for wanton killing."

Solis, the former Marine Corp judge advocate, agrees. "When enlistment qualifications go down, that means discipline rates go up."

As the nature of modern war changes to become less "conventional," it may be that the Uniform Code of Military Justice (passed by Congress in 1950) and the laws of war will need to be reexamined, some experts suggest.

"If what we're seeing in Afghanistan and Iraq is a harbinger of future conflicts, then there's going to have to be some change in the rather old-fashioned and conventional concepts of behavior in the battle space," says Dr. Thompson, whose work puts him in close contact with military officers and Pentagon officials.

"We are now deep into an era when combatants do everything they can to seem like they're not combatants until the last moment when they kill you," he says. "That's about as far as you can get from the [British] red coats when the laws of war first began to be formulated."

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