The wheels of American military justice seem to be turning as they should in Iraq, particularly given the extreme difficulties of urban combat against tough and sometimes suicidal insurgents blending in with the general population.
In a series of cases involving the unlawful killing and abuse of Iraqi civilians, officers as well as enlisted soldiers and marines are being prosecuted and punished. The need to follow the Uniformed Code of Military Justice and the laws of war is being reemphasized in combat training down to the individual platoon level.
But the improvements in military justice come with some worrisome caveats as well, experts say: It took the highly publicized abuses at the Abu Ghraib prison to get the military's attention. The severity of punishment has been mixed, raising questions about the sympathy of military juries made up of fellow Iraq combat vets. And the length of the war, including multiple combat tours, plus the lowering of recruiting standards to meet manpower shortages, is adding to the stress and discipline problems that can lead to abuses.
"Based on a very incomplete picture of what's happening day to day in Iraq, it appears that there's much more attention to human rights and to the laws of war than, for example, in Vietnam or Korea," says military analyst Loren Thompson of the Lexington Institute in Arlington, Va.
At Camp Pendleton, Calif., on Friday, Marine Corps Sgt. Lawrence Hutchins III was sentenced to 15 years in prison and given a dishonorable discharge for organizing the kidnapping and killing of an Iraqi man in Hamdaniya last year. Six junior marines and a Navy petty officer involved in the case received lesser punishments.
On Saturday, one of the soldiers convicted of rape and murder in an attack on a 14-year-old Iraqi girl and her family in Mahmudiyah, about 20 miles south of Baghdad, was sentenced to 110 years in prison with parole possible after 10 years.
The case of 24 Iraqi civilians killed at Haditha in 2005 is approaching the court martial phase for a Marine staff sergeant and two lance corporals charged with murder. In that case, four officers, including the battalion commander, also are accused of failure to fully investigate the killings. The military equivalent of a grand jury proceeding this week will consider charges of dereliction of duty and violation of a lawful order against Lt. Col Jeffrey Chessani.
Later in the month, Army Lt. Col. Steven Jordan faces a general court-martial on charges that he failed to stop soldiers from abusing prisoners at Abu Ghraib. Meanwhile, a retired US Army lieutenant general has been censured in the friendly fire killing of Army Ranger Pat Tillman, and he could be demoted to two-star rank.
"In a perverse way, these courts martials are a sign of the vitality of the military justice system, the fact that it's working," says Gary Solis, a Vietnam combat veteran who went on to spend 20 years as a judge advocate and military judge in the Marine Corps before teaching laws of war at the US Military Academy at West Point. Abu Ghraib, he says, was an impetus to cracking down on the abuse of civilians. "All of the armed services, it seems to me, are facing the music and saying, 'Hey, if we're a nation of laws, if we're the good guys, we've got to take action.' "
Especially important, says Mr. Solis, is the prosecution and punishment of officers.
"Haditha for the Marine Corps is sending a ... message for battalion commanders that they cannot turn a blind eye for what may be war crimes," says Solis, who now teaches at Georgetown University. "You're not going to get attention paid until you start trying officers."
"I only wish it went higher," he adds.
Do veterans make for lenient jurors?
The Hamdaniya case, in which marines killed an Iraqi man and then made it look as if he had been an insurgent planting a roadside bomb, has raised questions about the appropriateness of punishment. Four of the seven men convicted were sentenced only to the time they had already served in the brig.
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."