Military misconduct during international armed operations: 'Bad apples' or systemic failure?

Journal of Conflict and Security Law

Volumn 13, Issue 2, 2008, Pages 165-189

  Rowe, Peter ^a  

^a LANCASTER UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 67449089660     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krn024     Document Type: Article

References (161)

1. In R v Brocklebank (1996) 134 DLR (4th) 377 J. A. Decary described military discipline as the 'linchpin of the hierarchical command structure... insubordination attracts the harshest censure,' para. 18 and went on to say that 'discipline, obedience efficiency and morale are the core values, which prescribe the conduct of members of the Armed Forces,' para. 30.
2. It justifies separate military tribunals, R v Genereaux (1992) 88 DLR (4th) 110, 135
3. Engel v The Netherlands (1976) 1 EHRR 647 even where a soldier is on leave in a foreign country, Re Aird and Others; Ex Parte Alpert (2004), 220 CLR 308, in which J. McHugh commented that 'it is central to a disciplined defence force that its members are not persons who engage in uncontrolled violence,' p. 323.
4. See, for example, the Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (1997) chapter 40, Annexes A and B. Available at (accessed 7 September 2008).
5. Such as misconduct in action type of offences, Armed Forces Act 2006 (UK), Ss. 1-5 or 'friendly fire' incidents.
6. See, for example, R v Foxford (1974) NI 181 ('firing a rifle at night without proper aim, where members of the public had been constituted gross negligence').
7. Performing a military (or other duty) negligently (or dereliction in the performance of duties) is a disciplinary offence in many armed forces. For an example, see R v Brocklebank (1996) 134 DLR (4th) 377 (not guilty when Brocklebank failed to prevent another soldier beating a captured Somali boy since no specific military duty could be shown).
8. For a view that the Geneva Conventions 1949 had created a military duty on Brocklebank, see K. Boustany, 'Brocklebank: A Questionable Decision of the Court Martial Appeal Court of Canada', (1998) 1 Yearbook of International Humanitarian Law, p. 371.
9. See also R v Payne (2007), unreported British court-martial, where two officers and one warrant officer were found not guilty of negligently performing a duty under the Army Act 1955, s.29A.
10. In relation to the United States, see V. Hansen, 'Creating and Improving Legal Incentives for Law of War Compliance', (2008) 42 New England Law Review 247, 254-258.
11. See The Aitken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004 (UK Ministry of Defence, 2008), para. 39
12. statement by the Secretary of State for Defence, Hansard, House of Commons, vol. 470, col. 65WS (25 January 2008)
13. the letters of censure against three senior officers for 'failing to follow-up adequately, on reports of the November 2005 killings of twenty-four civilians by (US) marines at Haditha, (2007) 101 AJIL 893.
14. An inquiry may lead to public criticism of junior and senior officers. See, for example, Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, fn. 2, chapters 34 and 36.
15. Two major inquiries are being held in the UK concerning the actions of British soldiers in Iraq, see fn. 7.
16. There can be lack of clarity as to which body of law is to apply to the soldier's actions - the law of armed conflict or that relating to law enforcement. See generally, C. Garraway, 'The "War on Terror": Do the Rules Need Changing?', Chatham House Briefing Paper (2006) IL BP 06/02, 10
17. Promoting Impunity: The Israeli Military's Failure to Investigate Wrongdoing (Human Rights Watch, 2005) available at (accessed 7 September 2008).
18. The principal reasons for the acceptance by the Judge Advocate of submissions of no case to answer in respect of a number of defendants in Payne et al., fn. 4, were the fact that a prosecution witness was 'incapable of belief', the inability of the prosecution to show that the crime (or disciplinary offence) charged could be proved and its inability to establish sufficient evidence that two of the defendants were the assailants; see his Rulings on the Submission of No Case to Answer of 13 February 2007.
19. A public inquiry under the Inquiries Act 2005 is to be conducted into 'the circumstances surrounding the death of Baha Mousa (the Iraqi national whose death formed part of the Crown case in Payne (above)), Hansard, House of Commons, vol. 475, col. 60WS (14 May 2008).
20. See also the Decision Following Submissions of No Case to Answer (OJAG Case Reference 2005/59, 3 November 2005) in the court-martial of seven British soldiers in respect of the death of Nadhem Abdullah in Iraq. In the UK there have been four trials (between 2004-2008) by court-martial for alleged misconduct committed by British soldiers in Iraq, The Aitken Report, loc. cit., fn. 5, 3
21. K. Laue and A. Lang, UK Army in Iraq: Time to Come Clean on Civilian Torture (2007) 8-16.
22. In three of these trials all defendants were acquitted and in another, six of seven defendants were acquitted. One other case (not referred to in the Aitken Report), that of Trooper Williams, was dismissed by his commanding officer (thus preventing any further proceedings under the Army Act 1955) but was referred by the Attorney General to the civilian courts, where Trooper Williams was, subsequently, acquitted. For the background, see Lord Goldsmith (Attorney General), Hansard House of Lords, vol. 685, col. 317 (11 October 2006).
23. In a number of other cases a senior officer had decided that a soldier had complied with his rules of engagement (RoE) and had, therefore, acted within the law. For instances see The Queen (on the Application of Al-Skeini and others) v Secretary of State for Defence (2005) EWCA Civ 1609, Brooke LJ at paras 23-31.
24. Where a trial does take place it should also be recognised that a military court, like a jury, does not give reasons for its decision and it is, perhaps, a fact of life that it may be sympathetic to a soldier placed in great difficulty by the situation he faced. For some analysis of this phenomenon see G. Solis, Son Thang: An American War Crime (1997) 256-258.
25. The Joint Committee on Human Rights (UK Parliament) is, at the date of writing, conducting an inquiry into 'allegations of torture and inhuman treatment carried out by British troops in Iraq' under the UN Convention Against Torture (UNCAT). Its earlier report (HL 185/HC 701 of 2005-06) on UNCAT deals with the training of soldiers deployed to guard and to interrogate detainees in Iraq and Afghanistan. See especially, paras 74-77. The Government's response is at HL 276/HC 1714 (2005-06). The Committee has called for an explanation from the Secretary of State for Defence of discrepancies in earlier evidence to the Committee, HL157/ HC527, 2007-08. For proceedings under the US Code of Military Justice relating to civilian deaths in Iraq and Afghanistan where military investigations have been started, see (2007) 101 AJIL 215, 494, 663, 893 and in relation to Canadian forces in Afghanistan, see (accessed 7 September 2008).
26. For discussion of the difficulties involved in holding members of the Israeli Defence Force to account for actions against Palestinian civilians, see Promoting Impunity: The Israeli Military's Failure to Investigate Wrongdoing, fn. 6, pp. 98-107.
27. See, for example, Command's Responsibility. Detainee Deaths in US Custody in Iraq and Afghanistan (Human Rights First Report, 2006). Available at (accessed 7 September 2008)
28. Human Rights Council, 'Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution S-2/1', A/HRC/3/2, 23 November 2006.
29. See, for example, para. 107; Promoting Impunity: The Israeli Military's Failure to Investigate Wrongdoing, fn. 6
30. K. Cavanaugh, 'The Israeli Military Court System in the Westbank and Gaza,' (2007) 12 JCSL 197.
31. See, example, the incidents at My Lai 1968 and the subsequent trial of Lieut. Calley, The My Lai Massacre and its Cover-up; Beyond the Reach of Law? The Peers Commission Report (US Dept. of the Army, 1976), chapter 12. The case of Lieutenant Calley is also discussed below.
32. See, for example, Isayeva v Russia (2005) 41 EHRR 38
33. and generally, P. Rowe, 'Non-International Armed Conflict and the European Court of Human Rights: Chechnya from 1999', (2007) New Zealand Yearbook of International Law 205.
34. Apart from the case of Trooper Williams, fn. 7, who was acquitted, there has been no court-martial case involving a firing incident by a British soldier in Iraq or Afghanistan.
35. Compare the position in US and Israeli military courts, (2007) 101 AJIL 893-895; (2008) 102 AJIL 185-16.
36. and Promoting Impunity: The Israeli Military's Failure to Investigate Wrongdoing, op. cit., fn. 6, pp. 1, 36, 50, 113, 115, respectively.
37. In respect of the 'troubles' in Northern Ireland, see R. Spjut, 'The "Official" use of deadly force by the security forces against suspected terrorists: Some lessons from Northern Ireland', (1986) Public Law 38; McCann v United Kingdom (1995) 21 EHRR 97.
38. A number of civil actions were brought against the Ministry of Defence for the acts of soldiers in shooting at individuals during the 'troubles' in Northern Ireland. See, for example, Kelly and Others v Ministry of Defence [1989] NI 341.
39. A public inquiry into the so-called 'Bloody Sunday' incident in which the actions of British soldiers in Northern Ireland are being investigated has, to date, cost some £182m, Hansard, House of Commons, vol. 475, col. 1371 (14 May 2008).
40. For a civil action being brought in Queensland, Australia, by the family of a civilian allegedly shot by an Australian soldier in Iraq, see The Australian, 28 February 2008. Available at accessed 7 September 2008).
41. Allegations of misconduct against UN peacekeeping soldiers have become common but they depend on their own armed forces for any disciplinary procedures. Not all acts of 'misconduct' as seen by the UN Secretary-General will, however, be capable of being mapped onto disciplinary offences. See UN Security Council Resolutions 1781 (2007) para. 18; 1769 (2007) para. 16; 1648 (2005) para. 2; 1590 (2005), para. 14 (setting out the need for pre-deployment training and 'urging States to take disciplinary or other action'); 'Public Information Guidelines for Allegations of Misconduct Committed by Personnel of United Nations Peacekeeping and other Field Missions' DPKO/MD/03/00996; DPKO/CPD/DPIG/ 2003/001. Compare ST/SGB/2003/13 with ST/SGB/1999/13 in respect of UN forces. SC Res. 1820 (2008), para. 7 requests the Secretary-General 'to continue and strengthen efforts to implement the policy of zero tolerance of sexual exploitation and abuse in United Nations peacekeeping operations...to ensure full accountability.' For the conviction of a US soldier for the 'gang rape and murder of a 14 year old Iraqi girl' see The Times, 24 February 2007, p. 50.
42. The term 'bad apples' suggests not only that the individual is, in this context, to be punished and dismissed from the armed forces because of his individual criminality but also because, like a bad apple, he may turn his fellow soldiers 'bad'.
43. It would not be difficult for a court to determine that a guard who forces detainees to assume simulated homosexual activity belongs to the 'ordinary criminal activity' category despite the defence argument that his actions were directed to 'softening up' detainees in order to make them amenable to military intelligence gathering. See S. Sivakumaran, 'Sexual Violence against Men in Armed Conflict', (2007) 253 EJIL 274.
44. 'In conflicts of an ethnic, racial or religious character, sexual violence is often targeted against individuals belonging to particular ethnic, racial or religious groups rather than being sporadic or opportunistic in nature in order to symbolically dominate that ethnic group.' In relation to 'waterboarding' see 'White House authorised torture, CIA agent claims', The Times, 12 December 2007, 38; (2008) 102 AJIL 177-179.
45. In Bici v Ministry of Defence (2004) EWHC 786 (QB) Elias J commented 'the Queen's uniform is not a licence to commit wrongdoing,' para. 113.
46. See S. Milgram, Obedience to Authority: An Experimental View (1975) 188: 'when he merges his person into an organisational structure, a new creature replaces autonomous man, unhindered by the limitations of individual morality, freed of humane inhibition, mindful only of the sanctions of authority.'
47. 'Milgram's work and the implications of his findings are studied by cadets at the United States Military Academy,' T. Blass, The Man Who Shocked the World. The Life and Legacy of Stanley Milgram (2004) 278.
48. See also T. Blass, Obedience to Authority: Current Perspectives on the Milgram Paradigm (2000) 206: 'Human nature can be transformed within certain powerful social settings in ways as dramatic as the chemical transformation in the captivating fable of Dr. Jekyll and Mr. Hyde,';
49. R. Collins, Violence: A Micro-sociological Theory (2008) 29, concludes that 'military organisation is the easiest place to trace the social techniques for overcoming our biological propensity not to be violent.'
50. For an example see the transcript of the court-martial of Major Seward, following the deployment of Canadian Forces to Somalia in 1992-93, vol. 2, p. 355, where a platoon commander (a captain) asked Major Seward for clarification of his order about infiltrators to the camp to be 'abused'. Compare the court-martial transcript of the trial of Sergeant Boland, relating to the same incident. The sergeant was asked by the prosecution advocate 'should you have sought clarification of it' to which he replied, 'yes, sir, probably yes,' vol. 2, p. 300, Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Information Legacy, CD-ROM).
51. See the court-martial of Major Seward, fn. 16, vol. 1, p. 618
52. The Aitken Report, loc. cit., fn. 5, at para. 25.
53. See the comments of Capt. Medina at the court-martial of Lieutenant Calley that 'it was really difficult to establish a training cycle ... new men were coming in constantly', M. Belknap, The Vietnam War on Trial. The My Lai Massacre and the Court-Martial of Lieutenant Calley (2002) 40
54. the Peers Commission Report, loc. cit, fn. 9, chapter 4, p. 79.
55. See the 'direct examination by George Latimer' at (accessed 7 September 2008). General Westmoreland stated that 'all soldiers were required to receive 1 hour training in the Geneva and Hague Conventions during basic training. In addition, Army regulations require that qualified legal officers conduct refresher training in this subject once a year,' testimony before a Congressional Committee in 1970 set out in J. Olson and R. Roberts, My Lai. A Brief History with Documents (1998) 36.
56. See also the Peers Commission, loc. cit., fn. 9, chapter 4, 77-82.
57. For a detailed description of the effectiveness of the training on the laws of war offered to soldiers during the Vietnam War period, see K. Oliver, The My Lai Massacre in American History and Memory (2006) 240-248. Oliver commented that 'though honest and innovative in his efforts to communicate a difficult subject, the instructor was simply asking his students to process too much material far too quickly, and so it was impossible to be certain what they had, or had not, taken in,' 247.
58. There may be some argument over whether preventable uncertainty existed at a particular time. An argument presented by the British Army to justify a decision to retain two soldiers convicted of murder whilst engaged on military operations in Northern Ireland was that 'the army had been responsible for training the soldiers but could not prepare them for every eventuality,' McBride v United Kingdom (2006), Application No. 1396/06, Admissibility Decision, 9May 2006.
59. For uncertainty caused by lack of guidance for detaining civilians in Iraq, see The Aitken Report, loc. cit., fn. 5, paras 10, 15, 20, 25.
60. For a similar situation in relation to Canadian forces in Somalia, see R v Brocklebank, fn. 1, Decary JA, para. 5
61. Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, loc. cit., fn. 2, chapter 38 and for uncertainty over the interpretation of the RoE, ibid., chapter 22.
62. For a recommendation as to 'the necessity for teaching tolerance to military personnel engaged abroad', see N. Lupi, 'Report by the Enquiry Commission on the Behaviour of Italian Peace-Keeping Troops in Somalia', (1998) 1 Yearbook of International Humanitarian Law 375, 379.
63. See also the Taguba Report (2004) concerning Abu Ghraib in K. Greenberg and J. Dratel, The Torture Papers: The Road to Abu Ghraib (2005) 405, 421, para. 8.
64. See R v MacNaughton (1995) NI 203, 206 (Lowry CJ). For the ' aide mémoire cards' issued to all troops before deployment in Iraq [about the treatment of detainees]' see the Joint Committee on Human Rights (UK Parliament) HL 185/HC 701 (2005-06) para. 79.
65. Army Basic Skills Provision (the Basic Skills Agency, UK, 2007) (accessed 7 September 2008). 'Field Army' recruits can be distinguished from those recruited to the technical arms. It is likely that in some armed forces literacy levels are improved through educational provision. For a comment on the educational level and whether certain soldiers in Lieut. Calley's company 'were less trainable than the average', see the Peers Commission Report, loc. cit., fn. 9, chapter 4, p. 82.
66. He is also likely to fail in essential purely military tasks, such as learning to operate new equipment, see ibid. at p. 25.
67. See Lord Bramall (a former Chief of the Defence Staff) 'soldiers have become vulnerable to prosecution and will not always be backed up higher up the chain of command,' Hansard, House of Lords, vol. 673 col. 1226 (14 July 2005). Compare the Attorney General (Lord Goldsmith, QC) who commented that 'I, above all people, have been more criticised for allowing these prosecutions to take place than anybody else in this country. I have allowed these prosecutions to take place precisely because my view is that the rule of law does need to be complied with,' Joint Committee on Human Rights, Session 2006-07, Evidence, 26 June 2007, Q220.
68. For decisions not to prosecute see The Queen (on the Application of Al-Skeini and others) v Secretary of State for Defence (note 7) Brooke LJ at para. 23-31.
69. A failure to act when required to do so may also be described as misconduct since it is likely to amount to a military discipline offence. It cannot, however, be assumed that any failure to fire is the result of a deliberate decision not to do so, see R. Collins, op. cit., fn. 15, 50.
70. See F. Neubacher, 'How Can It Happen That Horrendous State Crimes Are Perpetrated? An Overview of Criminological Theories', (2006) Journal of International Criminal Justice 787
71. S. Milgram, op. cit., fn. 15, 5-6
72. T. Blass (ed.), Obedience to Authority; Current Perspectives on the Milgram Paradigm (2000) 791.
73. For examples, see the courtmartial of Sergeant Boland of the Canadian Forces who was alleged to have told a corporal, 'I don't care what you do, just don't kill him,' fn. 16, vol. 1, p. 38, para. 18, and the 'Camp Breadbasket' British court-martial (unreported, 2005) where British soldiers claimed that superiors had said that infiltrators to the camp should be 'worked hard'.
74. See generally, M. Belknap, op. cit., fn. 18, and for Capt. Medina's defence, p. 231
75. N. Bleszynski, Shoot Straight, You Bastards! The Truth Behind the Killing of 'Breaker' Morant (2002), where the superior officer had been killed prior to the incident carried out allegedly on his orders. In this case Bleszynski reports that the court-martial had made a recommendation to mercy.
76. Osiel draws attention to the fact that 'the subordinate can claim to have acted pursuant to what he believed to be orders, while the superior can claim never to have issued them,' M. Osiel, Obeying Orders: Atrocity, Military Discipline & the Law of War (1998) 189.
77. See R v Fisher and Wright, Northern Ireland unreported Judgement, 10 February 1995 (accessed at Lexis/Nexis), Kelly LJ (sitting without a jury) 65-67. The sergeant who gave an order to the accused was not called as a witness. In R v Thain [1985] NI 457 the trial judge (who was also the trier of fact) outlined the evidence of the accused and stated that 'the accused heard a soldier [the trial judge seems to have accepted that this order came from a corporal, p. 467] shout "Get him", which he understood meant "Catch him", "Stop him", "Keep him in the area",' p. 460.
78. See also Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, loc. cit., fn. 2, where the commander is stated to have shouted "Get him", following which two soldiers 'dropped to their knees, and each fired an aimed shot at Mr Aruush,' chapter 38.
79. Cf. Memorandum from Mr Seamus Mallon MP, (dealing with the Ulster Defence Regiment), House of Commons Select Committee on the Armed Forces Bill 1985-86, HC 170, p. 255, 257 (para. 12(a)).
80. In his judgment in R v Fisher and Wright, fn. 27, the trial judge concentrated on showing how he reached his decision that the two soldiers had no honest belief that they were justified in law at shooting an unarmed man. His Lordship did not answer the question of why would the two accused soldiers shoot the man who was running away from them? Was it because they were unsure of what they should do on hearing the order from the sergeant or was it simply that when one soldier fires others are trained to back him up instinctively?
81. See also R v Thain, fn. 27, where the trial judge also concluded that the accused had no honest belief that he was about to be fired upon by a running man. Again, there is no satisfactory answer as to why the accused opened fire and, in this case, the prosecution evidence was to the effect that only Private Thain opened fire.
82. See also the later incidents in Son Thang described by G. Solis, op. cit., fn. 7
83. G. Solis, 'Obedience to Orders: History and Abuses at Abu Ghraib', (2004) Journal of International Criminal Justice 988, 995, discussing possible orders such as "work 'em over" or "soften up" detainees.'
84. The Calley case can, however, hardly be equated with that of the defendant soldiers in R v Fisher and Wright, fn. 27, since in the former case the killing involved women and children. Calley, in turn, passed his perception of his orders on to his subordinates.
85. It is interesting to speculate why two of his men did not obey his orders to open fire when the others did, J. Olson and R. Roberts, op. cit., fn. 19, p 205
86. the Son Thang case of USA v Herrod, discussed in G. Solis, op. cit., fn. 7, chapter 7 displayed very similar facts, as did 'Captain Griffiths and the Killing of Mau Mau in Kenya, 1953-54' in G. Rubin, Murder, Mutiny and the Military: British Court Martial Cases, 1940-1966 (2005) chapter 12.
87. Quaere where the order was not manifestly unlawful. See the Rome Statute of the International Criminal Court, 1998, Art. 33 and compare it with English law where the non-applicability of superior orders as a defence is more strict in the absence of any implementation of Art. 33 into English law. For the position in the United States, see G. Solis, loc. cit., fn. 30, 996.
88. A superior order may, however, show that a commander has not negligently performed a duty, see, for example, the Rulings on the Submission of No Case in R v Payne et al., fn. 7 at para. 60.
89. See for example, 'Captain Griffiths and the Killing of Mau Mau, Kenya 1953-54' in G. Rubin, op. cit. fn. 31, p. 260
90. 'Driver Robert Fargie, Royal Army Service Corps and the Killing of a South Korean Civilian (Korea, 1950-51)' ibid, chapter 11, p. 243.
91. Colonel Tim Collins, Rules of Engagement (2005) concludes that the incidents at Abu Ghraib showed that 'it was clear that something in the command and control system had failed,' p. 355.
92. See, in particular, the Fay-Jones Report (2004) relating to the failings of superiors responsible for Abu Ghraib in K. Greenberg and J. Dratel, op. cit. fn. 20, p. 987
93. and for those who have been 'reprimanded/disciplined for misconduct during this period,' see The Taguba Report (2004), ibid. p. 405.
94. In relation to the My Lai killings, J. Olson and R. Roberts, op. cit. fn. 19, conclude that 'the officers who should have set a better example and held their men to a higher code of conduct did not,' p. 17.
95. The problem lies not only in relation to officers. Corporals, as commanders, may also fail to prevent misconduct when they are at the scene, the basis of one of the charges laid against a corporal in the Camp Breadbasket court-martial, fn. 25.
96. Captain Medina is recorded as stating under examination at the trial of Lt Calley that he failed to report the My Lai incidents because of 'seeing what had happened, I realized exactly the disgrace that was being brought upon the Army uniform that I am very proud to wear... I also realized the repercussions that it would have against the United States of America... my family ... and lastly, myself...', p. 6/6 (accessed 7 September 2008).
97. Command's Responsibility, loc. cit., fn. 8, p. 13, failure to report deaths in custody, p. 3.
98. A commanding officer who ordered an investigation into the activities of some soldiers under his command who had detained Iraqi citizens in a military detention facility found himself charged before a court-martial, as to which see R (on the Application of Al-Skeini and others) v Secretary of State for Defence, fn. 7, per Brooke LJ at para. 31.
99. Under English law a commander who is shown to have been in breach of his command responsibility under the Rome Statute 1998, Art. 28 is regarded as a secondary party to the offence committed by the principal offender, International Criminal Court Act 2001, s.65(4).
100. See generally, M. Friedland, Controlling Misconduct in the Military: A Study Prepared for the Commission of Inquiry into the Deployment of Canadian Forces in Somalia (Public Works and Government Services Canada-Publishing, Ottawa, 1997) chapter 3.
101. See M. Minow, 'Living up to Rules: Holding Soldiers Responsible for Abusive Conduct and the Dilemma of the Superior Orders Defence', (2007) 52 McGill Law Journal 1, 14.
102. For an example, see Bici v Ministry of Defence (2004) EWHC 786 (QB), an allegation made by counsel for the claimants, see para. 49.
103. Which might be measured through a poor disciplinary record while a soldier or evidence of criminal convictions prior to his recruitment. For the link between predisposition and opportunity see The Taguba Report (2004), fn. 20, p. 449
104. The Times, 24 February 2007, fn. 11, which referred to the ringleader of the gang rape having been 'discharged from the Army for a "personality disorder" before the atrocity came to light.'
105. R. Collins, op. cit., fn. 15, draws attention to the fact that background factors affecting an individual 'are certainly not sufficient; situational conditions are always necessary,' p. 20. He comments further that 'not violent individuals, but violent situations-this is what a micro-sociological theory is about...it is a false lead to look for types of violent individuals,' p. 1. Both 'background' and 'situational conditions' came together in the gang rape case referred to above.
106. In R v Fisher and Wright, fn. 27, each defendant stated that he gave supporting fire to the other; Bici v Ministry of Defence, fn. 14, Elias J, para. 27
107. R v Clegg (1995) 1 AC 482 (four members of the patrol opened fire simultaneously at a car which had failed to stop at a vehicle road check)
108. Kelly v Ministry of Defence, fn. 10, ('the sergeant opened fire and the other members of patrol followed suit, firing in all over 20 rounds') p. 343; the actions of two Canadian soldiers in Somalia, fn, 27. Compare R v Thain, fn. 27,
109. and R v MacNaughton, fn. 21, where only one soldier opened fire. In relation to the treatment of detainees the Camp Breadbasket court-martial, fn. 25, showed a number of soldiers acting in a similar way.
110. Either a denial, or uncertainty over whether, detainees are protected by the Geneva Conventions 1949 can contribute to this situation since it may convey to soldiers the mistaken impression that they are not protected by any law to which the soldiers are liable. See generally, the Schlesinger Report. Final Report of the Independent Panel to Review DoD Detention Operations (2004) recommendation 1. The Report is included in K. Greenberg and J. Dratel (eds), op. cit., fn. 20, 908, 952
111. R v Brocklebank, fn. 1, Decary JA, para. 54.
112. The dominant members may or may not be those superior in rank to others in the group. See H. Kelman, 'Violence Without Moral Restraint: Reflections on the Dehumanization of Victims and Victimizers', (1973) 29 Journal of Social Issues 25 38, who comments that 'to the extent that the victims are dehumanized, principles of morality no longer apply to them and moral restraints against killing are more readily overcome...the use of labels helps to deprive the victims of identity and community.' In these circumstances sadistic treatment of detainees becomes 'an inevitable outcome;'
113. R. Persaud, 'One Court Martial Won't Stop all this Brutality', The Independent, 22 January 2005. Available at (accessed 7 September 2008).
114. In Vietnam, US soldiers used disparaging terms for the Vietnamese (see G. Solis, fn. 7, p. 258)
115. in Rwanda by the perpetrators of individual killings against their victims, Prosecutor v Akayesu, (1998) ICTR-96-4-T, para. 156.
116. The use of 'body counts' leads to a similar dehumanisation process. In addition to the My Lai and the Son Thang cases in Vietnam, see 'Captain Griffiths and the Killing of Mau Mau, Kenya 1953' in G. Rubin, op. cit., fn. 31, pp. 253, 268
117. 'pressures by snipers' senior officers to increase the number of "kills"' in Iraq, (2008) 102 AJIL 185.
118. S. Milgram, op. cit., fn. 15, at p. 115.
119. See C. Moskos, J. Williams, D. Segal (eds), The Postmodern Military: Armed Forces After the Cold War (2000).
120. Compare, for instance the treatment of General Noriega as a prisoner of war in the United States (1994) 99 ILR 143 with that of General Mowhoush held by US forces in Iraq, Command's Responsibility, loc. cit., fn. 8, p. 6.
121. A Chief Warrant Officer stood trial by court-martial for the treatment of the latter, see (accessed 7 September 2008).
122. R. Collins, op. cit., fn. 15, p. 95, draws attention to the difference between the point of surrender and after the 'danger moment' when prisoners of war are 'treated in a comradely fashion by their captors.'
123. It may be formulated such as 'negligent performance of a military duty', see R v Brocklebank, fn. 1, or as conduct or omission to the prejudice of good order and military discipline, as to which see the 'Camp Breadbasket' court-martial, unreported, 2005 in respect of one of the charges against a corporal.
124. See R v Brocklebank, fn. 1, who was acquitted, which decision was confirmed on appeal.
125. See Bici v Ministry of Defence, fn. 14, para. 49
126. R v Clegg, fn. 39, p. 490, (stamping on Private A's leg to make it look as if he had been struck by the car). Private A was convicted of perverting the course of justice, ibid.
127. For a conclusion by the trial judge that he did not believe the evidence of a soldier-witness see R v Thain, fn. 27, p. 476.
128. In R v Payne et al., fn. 7, the Judge Advocate commented in his Rulings on the Submission of No Case that 'none of these soldiers [others guarding the detainees] has been charged with any offence simply because there is no evidence against them as a result of a more or less
129. Report of the Somalia Commission of Inquiry (1997), loc. cit. fn. 2, chapter 40 ('Military Police met a "wall of silence" that seriously hindered their investigations'). Compare R v MacNaughton fn 21, p. 206, where the trial judge drew attention to the fact that the accused had made a statement to the military police consistent with his later testimony a few hours after the incident;
130. Kelly and Others v Ministry of Defence, fn. 10, p. 343.
131. The Aitken Report, loc. cit., fn. 5, summed up the issue well when it concluded that 'the challenge is to educate our people to understand that lying to the Service Police, or having "selective memory loss" in court, in order to protect other members of their unit, are not forms of loyalty, but rather a lack of integrity,' para. 41
132. 'loyalty among soldiers is important but misguided loyalty is dangerous and erodes discipline,' Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, loc. cit., fn. 2, chapter 18.
133. The situation can be contrasted with that where a number of soldiers are interviewed under caution and they point the finger at other soldiers in order to deflect charges which might be laid against them, or where it is alleged that a soldier giving evidence for the prosecution has a private grudge against the accused soldier, see R v Payne et al., fn. 5, defence (of Corporal Payne) and prosecution opening statements respectively.
134. See the Armed Forces Act 2006 (UK) s. 237. Compare M. Minow, loc. cit., fn. 36, who argues that 'the deterrent and pedagogical signals from punishments are insufficient to prevent future abuses,' p. 6.
135. See the Preamble to the Rome Statute of the International Criminal Court 1998.
136. See fn. 6 for the problem of determining whether soldiers are acting in a law of armed conflict or a law enforcement role.
137. The Aitken Report, loc. cit., fn. 5, suggests that acquittal rates in UK courts-martial are similar to those in the Crown Court, para. 29.
138. (2006) 43 EHRR SE 10. The case involved the two accused in R v Fisher & Wright, fn. 27.
139. Private Clegg, fn. 39, who also had been convicted of murder was retained in the Army, see In the Matter of an Application by Jean McBride for Judicial Review [2003] NICA 23(3), Nicholson LJ, para. 29.
140. 'No one could reasonably fear that Private Clegg would again kill unlawfully even if he were shown to have killed unlawfully once', speech of Lord Bingham, Lord Chief Justice of England and Wales in the Newsom Memorial Lecture: 'The Mandatory Life Sentence for Murder', (1998). Available at (accessed 7 September 2008). It is interesting to speculate whether the Army would have retained these convicted soldiers if they had been convicted by a jury (they were all convicted by a trial judge sitting alone).
141. See, for example, The Taguba Report (2004), loc. cit., fn. 20, at p. 448 (psychological assessment)
142. Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, loc. cit., fn. 2, chapter 38, relating to the effect of the unit investigation into the shooting of a Somali civilian on 4 March 1993 by members of that unit on 4 March 1993.
143. For the '"Lessons to be Learned" process since 2003' concerning prisoner and detainee handling see Joint Committee on Human Rights, 30th Report (2005-06), the Government's Response to para. 77.
144. See also fn. 18.
145. J.-J. Fresard, The Roots of Behaviour in War (2004) 102, who refers to 'education backed up by penalties [being] effective in changing behaviour'.
146. Argument of the UK Government in McBride v United Kingdom, fn. 20.
147. It is worth noting that no member of Lieut. Calley's platoon 'who refused Calley's orders to shoot civilians ever reported the incident to higher authorities, even though they believed that a war crime had occurred,' J. Olson and R. Roberts, op. cit., fn. 19, p. 205.
148. See also the comment in The Aitken Report, loc. cit., fn. 5.
149. A 'widespread failure to investigate and report' was shown in relation to the incident in Haditha, Iraq, fn. 5, (2007) 101 AJIL 893-894.
150. S. Milgram, op. cit., fn. 15, at p. 180. H. Kelman, loc. cit. fn. 41, concludes that 'there is no evidence to support the notion that the majority of those who participate in these killings, in one way or another, are sadistically inclined,' p. 35
151. H. Arendt, Eichmann in Jerusalem, A Report on the Banality of Evil (1994) indicated, at p. 25, that 'half a dozen psychiatrists had certified [Eichmann] as "normal"' and she went on to conclude that 'the trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal,' p. 276.
152. Compare R. Persaud, loc. cit., fn. 41.
153. Indeed, the threshold for proof before a court of command responsibility under Art. 28 of the Rome Statute 1998 and incorporated into English law by the International Criminal Court Act 2001, s.65, is a very high one. This perceived disparity of treatment may lead subordinates to believe that they are being put on trial unfairly compared with the position of their superior officers.
154. See fn. 4 and 5.
155. See, for example, the charge against the commanding officer in R v Payne et al., fn. 4, where the decisions at Brigade level were relevant. To some extent this will answer the criticism of J. Ross, 'Black letter abuse: The U.S. legal response to torture since 9/11', (2007) 89 IRRC 561, 564, who argues that by concentrating on disciplinary procedures against the soldiers directly involved others higher up the chain of command are protected. One effect, he argues is 'to shift the legal issues surrounding mistreatment from the executive branch of government to...the courts-and away from the accountability of the administration.'
156. This can take various forms, such as a public inquiry (see fn. 2 and 7), the publication of investigation reports by the state concerned (see fn. 20), by an NGO (see fn. 8) and the reporting by the press and broadcasting media of court proceedings.
157. Compare, however, P. Zimbardo, 'Our inner heroes could stop another Abu Ghraib', The Guardian, 29 February 2008, p. 37, who argues that 'legal theory must consider the extent to which powerful situational and systemic factors should be taken into account in punishing individuals.'
158. See generally, P. Zimbardo, The Lucifer Effect: How Good People Turn Evil (2007).
159. Described by R. Collins, op. cit., fn. 15, as 'a psychological condition of tunnel vision.' He goes on to say that 'fighting takes up the complete attention of those who are engaged in it; it overwhelms the senses and focuses the mind so that all else fades into invisibility,' p. 65.
160. The Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, loc. cit., fn. 2, concluded that 'although training could help give Canadian Forces members clear and practical directions on the use of force, by not providing for detailed mission-specific training on the RoE, our military leaders failed their soldiers,' chapter 22.
161. Compare The Mikolashek Report (2004) in K. Greenberg and J. Dratel (eds.), op. cit., fn. 20, which concludes 'based on this investigation, [relating to the US Army's 'conduct of detainee and interrogation operations'] we were unable to identify system failures that resulted in incidents of abuse,' pp. 631 and 640, para. 6.