Professor Eugene R. Fidell

Dereliction of Duty

Download audio file  26 January 2012, 18:08

Interview with Mr. Eugene R. Fidell, a teacher of military justice, a Senior Research Scholar in Law and a Florence Rogatz Visiting Lecturer at Yale Law School

I’d like to get your reaction to the Haditha ruling, please.

I hate to fall back on the phrase that it’s complicated. It is complicated, but let me say a few words about where we are and where we should be going from here because that may be constructive. The US military is a very well disciplined, law abiding military force. Nevertheless in any military force of this size there are going to be some incidents that happen that clearly cross the line. In this case, the case did not even get to the jury, instead it was aborted by the commanding general, who made a deal with the defendant, that the defendant would plead guilty to only a minor charge of dereliction of duty and would receive no time in jail.

Why was that?

We don’t know the exact reason why the General made that decision. It’s not a decision made by the central authorities, and the position that I have taken on this matter is that the Government owes the American public, as well as people around the world, an explanation for why this deal was made and why the case did not continue through the trial process. It is the last in a series of cases that have fizzled, and I think people in Iraq are entitled to an explanation. And frankly, I think people in the United States are entitled to an explanation. Maybe there is one, but so far it hasn’t become public.

Let’s just look at the military cases. Now, it is a fact that many of the results of these cases that have arisen in Iraq and to some extent in Afghanistan have been very surprising. We are dealing in the United States right now with the chapter that is only now closing in Iraq. And I think before that chapter closes the American people and people around the world have a right to an explanation and an accounting of how disciplinary issues have come out. Particularly because the United States has elected not to be party to the Rome Statute, the created the International Criminal Court, and that means we have to rely on our own courts to dispense justice. So, I think people, even though it may be an unpopular position, I think people in the United States should be wanting, and I hope many of us do want, an accounting, so, that this is quite surprising outcome can be explained, if it is possible to explain.

This is a good chance to maybe prevent, if we can, some backlash, I mean a lot of people in the world would say that apparently the United States thinks that an Iraqi life is not worth anything.

Look, there is no question that the Iraqi people have a great deal to complain about. The United States has tried to underscore the importance of justice, so that this won’t happen again and so the people who are guilty of war crimes will pay an appropriate penalty.

Ok, sir, you’ve mentioned the word “war crime”, would you qualify this as a war crime?

If civilians who are unarmed died in this conflict, in this particular incident, then it certainly would be a war crime. We don’t prosecute war crimes as such, what we do is prosecute them as whether it’s murder or manslaughter, we don’t use the construct of “war crime”, but I’m using that for this purpose because that’s the common understanding. The defendant here at least complained or contended that the circumstances were sufficiently unclear, that he and the other people who participated in these fatalities should not be punished. I think that’s a hard case to make, given the number of fatalities and unfortunately because of the way the case has unfolded, and the deal that was made between the defendant and the commanding general, we are never going to get a solid answer to that. And that, I think, is going to leave the Iraqi people extremely unnourished and extremely disappointed.

Apparently one of the victims was an old man in a wheelchair, there were women and children, they were in bed. It’s hard for people to find some justification in that.

Right, I have no brief for the people who were charged in this case, none whatever. However I will simply report that their contention has been that they were taking fire from a house or houses in which these deaths occurred, their instructions were to clear the houses and the events moved so quickly that they didn’t have time to ask a lot of questions, they just had to fire. I’m not here to defend that, I’m simply reporting. I think it’s in a way unfortunate that the world has been deprived of a trial at which these matters could be fully ventilated.

In the last ten years and especially since 9\11 the US has moved away from the Geneva Conventions.

There was time under the prior Administration that that contention could be made, however the incumbent President, Barak Obama has made it perfectly clear that the policy of his Administration is to adhere closely to the Geneva Conventions, and I think that but for some frustrations that have been imposed by Congress, which does not do everything that he wants done, such as closing Guantanamo, he has been steadfast in that and his preference indeed has been to try terrorism cases, at least domestic terrorism cases, in the civilian courts rather than through military commissions.

So, you believe he is sincere in his desire to close Guantanamo?

I believe he is absolutely sincere, it’s unfortunate that he hasn’t had the kind of working majority even in the Senate where the Democrats have a technical majority to do what he wants done.

What would you say to critics that say that the US has isolated themselves from the international community, that this case should have been tried in the Hague for example?

No, there is no substantial body of opinion in the United States that this case should have been tried in Hague.

Of course in the United States, there is not going to be any opinion of that.

Well, it’s true that we’ve been quite resistant to that, but I have to point out that under the Rome Statute that governs the International Criminal Court, there is a doctrine of complementarity, which relies on national authorities in the first instance to investigate and prosecute war crimes and we, I think would argue that our military justice system is robust and fair. Whether it has functioned properly in this particular case is a question on which opinions will likely vary.

So, you don’t see the US ever becoming a signatory to the International Court, do you?

At this point I don’t see that happening as a political matter and we’ve been very jealously guarding our sovereignty with respect to war crimes. So, perhaps the next Administration or the one after that there will be some progress but at the moment I think this is an area, where we going to have to be responsible for our own fate.


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