Thought Piece: Is it a war crime?

[DA SWO]

To show Maj. Hassan’s crimes are in fact “war crimes” we only need to prove the following:

· That the acts he carried out were against the laws of war.
Murder is the easiest one to prove.
· He was bound by the laws of war.
All US Military personnel are bound by the laws of war.
· He was fully aware of the laws of war.
He was trained annually on the laws of war, as required by all US Army personnel.
· That he was free of any mental defect.
The hardest IMHO to prove at this point without knowing the particulars to the evidence being used in his trial. However, many mental health professionals have stated on the record that he was carrying out a radical Islamic attack and that was not due to his mental health.
· That he made a clear minded decision to break the laws of war.
I think the fact that he was observed by many as he gave away his furniture, took time to go pray and stroll on up to FT Hood. And that the people who all observed him and all agreed that he looked calm and collected, even some stated he seemed totally relaxed, proves that he was in fact. Clear headed and fully aware of the crimes he was about to commit.

They are not war crimes, because it was carried out against a legitimate Military Target (uniformed personnel), by an individual who was in uniform at the time.

They US Military has a history of Blue on Blue attacks (generally referred to as fraging) and has never charged those individuals as war criminals, to do so in this case would be a violation of precedent.

 

[Diamondback 2/2]

They are not war crimes, because it was carried out against a legitimate Military Target (uniformed personnel), by an individual who was in uniform at the time.

They US Military has a history of Blue on Blue attacks (generally referred to as fraging) and has never charged those individuals as war criminals, to do so in this case would be a violation of precedent.

First, not fair, you have a JAG LTC to gain advice. Second I can still argue the issue.

It was my understanding that he wore an Islamic white robe (man-dress).

But regardless: Lawful conduct of belligerent actors
Modern laws of war regarding conduct during war (jus in bello), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other distinctive signs visible at a distance, and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy’s uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages.

He attacked a Soldier Readiness Center that has the primary function of medically screening soldier prior to deployment. This would be covered under:

Red Cross, Red Crescent and the white flag
Modern laws of war, such as the 1949 Geneva Conventions, also include prohibitions on attacking doctors, ambulances or hospital ships displaying a Red Cross, a Red Crescent or other emblem related to the International Red Cross and Red Crescent Movement. It is also prohibited to fire at a person or vehicle bearing a white flag, since that indicates an intent to surrender or a desire to communicate.

In either case, persons protected by the Red Cross/Crescent or white flag are expected to maintain neutrality, and may not engage in warlike acts; in fact, engaging in war activities under a protected symbol is itself a violation of the laws of war known as perfidy. Failure to follow these requirements can result in the loss of protected status and make the individual violating the requirements a lawful military target.

Going back to the he is a terrorist argument as well.

On September 10, 2010, the Bipartisan Policy Center released the report "Assessing the Terrorist Threat" which concluded that "in 2009 at least 43 American citizens or residents aligned with Sunni militant groups or their ideology were charged or convicted of terrorism crimes in the U.S. or elsewhere, the highest number in any year since 9/11". They included Fort Hood and the 2009 Little Rock recruiting office shooting as the two successful terrorist attacks, even though neither case has been prosecuted as such.[168

As of 2012, the Department of Defense continues to classify the attack as an act of workplace violence, despite the suspect's ties to Al Qaeda, based on the need to "maintain the integrity of the legal case against Mr. Hasan."[12]

 

[HoosierAnnie]

JAB - You keep citing "rules of war". Now granted, I'm just a civilian, but to me, rules of war pertain only while the involved persons are "in theatre". I conceed that Texas does get a might crazy on a Saturday night, but I do not believe that it has become a battlezone. The acts of Maj Hasan occurred neither in theatre nor in a recognized POW detention facility (per the war crimes definition I quoted in the section pertaining to violations of the Geneva Convention). As such, I continue to maintain these are not war crimes. But, rather vicious acts of home grown terriorism against his fellow soldiers.Going back to the he is a terrorist argument as well.

On September 10, 2010, the Bipartisan Policy Center released the report "Assessing the Terrorist Threat" which concluded that "in 2009 at least 43 American citizens or residents aligned with Sunni militant groups or their ideology were charged or convicted of terrorism crimes in the U.S. or elsewhere, the highest number in any year since 9/11". They included Fort Hood and the 2009 Little Rock recruiting office shooting as the two successful terrorist attacks, even though neither case has been prosecuted as such.[168

As of 2012, the Department of Defense continues to classify the attack as an act of workplace violence, despite the suspect's ties to Al Qaeda, based on the need to "maintain the integrity of the legal case against Mr. Hasan."[12]​

You realise that these arguments strengthen MY side of the case.

 

[Diamondback 2/2]

HA, if the rules of war only applied to a theater of war (forgetting that this is a defined as a global war) why would we be engaging combatants outside of the theater of war. Furthermore, why would we afford captured combatants outside of the theater of war, protected status under the rules of war. The laws of war apply, regardless of the geographical location.

The key here is the defining of the attack (where most political and governmental officials agree it was an attack of terrorism through Islamic means) it is clear to me that the reason it is not officially being declared a terror attack, is due to the current prosecution attempt to keep it within the current military court frame work.

It also supports my own. ;)

 

[HoosierAnnie]

HA, if the rules of war only applied to a theater of war (forgetting that this is a defined as a global war) why would we be engaging combatants outside of the theater of war. ;)

Please cite an example. And remember, I grew up during the VietNam Era.

 

[Diamondback 2/2]

Example: OBL was engaged in Pakistan (not Afghanistan); he was killed, and then given proper burial at sea.

Again this is the GLOBAL WAR ON TERRORISM meaning that the theater of war is “Global” and not defined by a geographical location. The initial attack Sep 11, 2001 was on US Soil, as was the Maj. Hassan attack.

I am not going to list every incident, but Kill/Capture has been going on globally since the war began. Also, we have afforded captured combatants, which were captured outside of the defined theater of war, protected status under the laws of war.

The rules of war are consistently being reevaluated and redefined due to the type of warfare we currently are engaged in. I have been using simple open source Wikipedia info b/c I am lazy in my argument, but at the end of the day, the rules of war argument is an ongoing battle for the US Military as a whole. I personally believe that the rules need to be re-written, as they are limited in context to begin with. The argument that I can make that Maj. Hassan was covered and bound by the rules of war, is left open for argument because of the lack of context in defining the current combatant, or actors.

That said, it is clear that CONUS has been under constant attack since 9-11-01, by the Islamic radical actors, with the sole purpose of mass killing of American citizens. I really can’t see how the argument can be made that Maj. Hassan’s attack does not fall into this exact picture of the current battlefield.

 

[dirtmover]

Did Hasan kill soldiers yes but if you look at International Humanitarian Law (IHL) which the stipulations for war crimes is derived from you would find the following:
Art. 23. Besides the prohibitions provided by special Conventions, it is especially prohibited
(a) To employ poison or poisoned arms;
(b) To kill or wound treacherously individuals belonging to the hostile nation or army;
(c) To kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion;
(d) To declare that no quarter will be given;
(e) To employ arms, projectiles, or material of a nature to cause superfluous injury;
(f) To make improper use of a flag of truce, the national flag or military ensigns and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;
(g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war.
(Bolding is my addition)
http://www.icrc.org/ihl.nsf/FULL/150
So obliviously he was/is not on our side so that makes him our enemy and he killed and maimed unarmed “enemy” which is a direct violation of ART 23 of the IHL. Being unable to find any accounts of what he was wearing; one could safely assume that he was wearing his uniform while committing his heinous act.

Now that we have established that he is in violation of the IHL which meets the criteria of a war crime, one must differentiate his act from normal work place violence. Hasan has been in contact with a know terrorist in Anwar al-Awlaki. By not notifying his chain of command or counter intelligence personnel, he was aiding a terrorist and by proxy aiding a terrorist organization, which would classify him as an enemy combatant.

 

[HoosierAnnie]

But dirtmover, at the time he did it, he was an active duty American soldier. How can you then designate other American soldiers, in a legal sense, as the enemy??

 

[Marauder06]

OK- tomorrow night we'll ENDEX the closed discussions and open it up to a free-for-all. This has been a very good discussion so far, and I'm interested to hear (after ENDEX) what the participants really think.

So, if you wanted to participate in this exercise, or if you are a participant and wanted to get a couple of last shots in, do so in the next 24 hours.

 

[dirtmover]

Based on the information in my post, Hasan could now be classified as an enemy combatant due to his relationship with al-Awlaki, which would make the American soldiers his enemy.

 

[CDG]

But dirtmover, at the time he did it, he was an active duty American soldier. How can you then designate other American soldiers, in a legal sense, as the enemy??

Hasan provided ipso facto evidence of his defection to Al-Qaeda through the nature of his relationship with al-Awlaki and his pre-meditated plan to kill US soldiers in the name of Allah.

 

[HoosierAnnie]

I have noticed that none of us have touched the obvious mental instability this man exhibited over months if not years before the incident.

 

[DA SWO]

First, not fair, you have a JAG LTC to gain advice. Second I can still argue the issue.

It was my understanding that he wore an Islamic white robe (man-dress).




He attacked a Soldier Readiness Center that has the primary function of medically screening soldier prior to deployment. This would be covered under:



Going back to the he is a terrorist argument as well.

She is on your side.

You are close with your second bullet, go a little deeper.

Man-dress is not prohibited on Ft Hoodlum. There are no provisions against wearing non-uniforms when off duty.

 

[Marauder06]

OK- I'm calling ENDEX on this exercise, my gratitude to the participants for some very thoughtful posts. Participants are invited to share their true feelings on the POVs in this thread (if they differ from the one to which they were assigned) and it is now "open discussion" for all site members.

 

[Diamondback 2/2]

Okay I am going to re-post my original post to the thread before it was changed to a Mara-learning topic.

You could argue that Maj. Hassan was an AQ operative through his religious connections to al-Awlaki. You could then argue that b/c he was an operative of AQ, and he joined the US Army with the intent to kill American Soldiers, that it was a war crime. But I think the amount of investigation, the amount of money spent to connect all of those dots, would be better spent elsewhere. Either way you look at it, Maj. Hassan committed a terrorist attack on US soil, on a military installation, and he deserves to die a trader’s death, at a minimum.

Personally, I wish they would drag that son-of-a-bitch out of his wheelchair into street down on Battalion Rd in FT Hood, and publicly execute him with an M9 to the back of the head, while the entire Three Corps & subordinate units are watching. Then hook his worthless body to the back of a track and drag it all the way to North FT Hood, on every single tank chewed up road they can find. After which they should string his sorry ass crippled, dead, dragged body on a M1 Abrams target and use him for target practice until there is nothing left.

I will stick by my original post and it is my opinion on how Maj. Hassan should be handled. Was his actions a war crime? Yes I do think the argument can be made. Do I think it matters? NO. He is a trader, a terrorist and a mass murder. There is no question to his guilt, not question of evidence in these actions. He does not deserve to drag our court systems down (be it military, civilian or international). He is guilty, his punishment should be swift and the punishment should fit the crime….period.

That all said, I enjoyed the debate and I do agree with several of you on your stances as well. I just simply think they really don’t matter at this point. It’s time to bring this tragic incident to a close, as a country and a military force; it’s time to move on. Burn this shit-bag at the stake, and let’s get back to life.

Respectfully,

 

[CDG]

I actually do not think what he did can be considered a war crime. I had a difficult time coming up with a cogent argument for his actions being a war crime and the one short post I made was really reaching, IMO. An act of treason and terrorism that deserves the death penalty? Absolutely. But under the legal definition of "War Crimes", I do not think this classifies as one.

 

[Marauder06]

I think it could be considered a war crime. Here is my reasoning: Hasan was acting as a soldier of Al Qaeda, an organization known to be at war with the United States. However, he was simultaneously in the employ of the US Army. He did not declare himself as a combatant of Al Qaeda (well, I suppose when he yelled "Allahu Akbar" and starting shooting people, it was implied), did not carry arms openly, and exercised perfidy in order to "treacherously kill or wound" others. Committing perfidy while acting as an unlawful combatant on behalf of a terrorist organization not bound by nor protected by the Geneva Protocols or the Law of Armed Conflict make be believe that what he did could in fact be considered a war crime.

Having read through the well-researched and well-worded posts of other members, I now recognize that there is a hole in my logic; if Hasan did not commit his crimes while dressed in a US Army uniform, then I might have to revisit some fundamental aspects of my rationale.

At any rate, below is an excerpt from a paper I handed a week or so ago, this paper on war crimes is what made me think about Hasan.

/////


In November of 2009, US Army major Nidal Hasan, a Muslim chaplain, allegedly opened fire on a group of fellow Soldiers gathered at Fort Hood, Texas, killing 13 and wounding 32 before himself being shot and disabled by responding military police.[1] Hasan’s attack against his fellow Soldiers was characterized as a “lone wolf attack” in a special report prepared by a US Senate committee. Hasan had made the decision to conduct an act of mass murder through a combination of self-radicalization and through a series of sermons made by, and later direct communication with, Anwar al-Awlaki. Awlaki was an American-born terrorist leader within Al Qaeda’s franchise in Yemen, and had conspired with Hasan and others to attack Americans and American interests.[2] Hasan was charged by the Uniform Court of Military Justice with 13 counts of pre-meditated murder and 32 counts of attempted pre-meditated murder for his alleged crimes. Charges of war crimes were not pursued. But, could they have been?

At first blush, it would seem obvious that what happened at Fort Hood was not a war crime. It was carried out by a US Soldier, on US soil, and was conducted against US citizens. But let’s take a closer look at the situation. Al Qaeda declared war on the United States in August of 1996, and in case we didn’t get the message the first time, they declared war again in 1998.[3] Both the US and Al Qaeda see their conflict as a “global war,”[4] and attacks can and have taken place in a variety of locations, including the US. In allegedly carrying out attacks against his fellow Soldiers, Hasan was acting as a soldier for Al Qaeda. The Geneva Conventions generally allow targeting of hostile military personnel wherever they are found, and whether they are armed or not (none of the Soldiers shot by Hasan were armed). However, the Conventions only apply to legitimate combatants. As a terrorist organization, Al Qaeda does not follow the Conventions or the Law of War in general, and their fighters are therefore considered unlawful enemy combatants.[5] Therefore, the act itself was a crime. But does it rise to the level of a war crime?

Hasan carried out his attacks dressed as a US Soldier while he was actually acting as a soldier of Al Qaeda, in effect wearing the uniform of the adversary (i.e. the US), which is a specifically prohibited act.[6] By disguising himself as a US Soldier when in fact he had gone over to the enemy allowed Hasan to kill and wound “treacherously a combatant adversary” (i.e. US Soldiers). This sort of act is specifically numerated in the Rome Statute as one of the “serious violations of the laws and customs applicable in armed conflicts” which constitutes a war crime.[7] Given the state of war that existed between Al Qaeda and the US, the fact that Hasan acted treacherously, and that he killed and maimed in the commission of an act specifically designated as a war crime, it seems that upon further examination that a war crime was, in fact, committed.

[1] http://topics.nytimes.com/top/reference/timestopics/people/h/nidal_malik_hasan/index.html
[2] http://topics.nytimes.com/topics/reference/timestopics/people/a/anwar_al_awlaki/index.html
[3] http://www.heritage.org/research/projects/enemy-detention/al-qaeda-declarations
[4] http://www.strategicstudiesinstitute.army.mil/pdffiles/pub207.pdf
[5] http://www.juridicainternational.eu/index.php?id=12632
[6] http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule62
[7] http://untreaty.un.org/cod/icc/statute/romefra.htm

 

[Teufel]

I think that he is guilty of murder, not war crimes. He may have been working for Al Qaeda, but he was still an American soldier at the time. He wasn't wearing the "enemy's uniform", he was wearing his own uniform. That makes him a traitor and a murderer, not a war criminal. I think you would also have to prove that he was working for Al Qaeda and not just communicating with Al Qaeda to make a case for war crimes.

For a parallel example, Aldrich Ames was convicted as a traitor for selling secrets to the Russians, not as a Russian spy conducting illegal espionage in our country. I agree with SOWT. I think this has to be treated as a internal criminal act and not a case of illegal warfare. There are legal ramifications to both charges as well. A murderer and traitor goes to prison for a long time. I'm not sure what you would do with a war criminal other than send him to Guantanamo. I don't think you can send a war criminal to a normal American prison.

 

[Marauder06]

I think that he is guilty of murder, not war crimes. He may have been working for Al Qaeda, but he was still an American soldier at the time. He wasn't wearing the "enemy's uniform", he was wearing his own uniform. That makes him a traitor and a murderer, not a war criminal. I think you would also have to prove that he was working for Al Qaeda and not just communicating with Al Qaeda to make a case for war crimes.

For a parallel example, Aldrich Ames was convicted as a traitor for selling secrets to the Russians, not as a Russian spy conducting illegal espionage in our country. I agree with SOWT. I think this has to be treated as a internal criminal act and not a case of illegal warfare. There are legal ramifications to both charges as well. A murderer and traitor goes to prison for a long time. I'm not sure what you would do with a war criminal other than send him to Guantanamo. I don't think you can send a war criminal to a normal American prison.

The difference in the Ames case is that espionage AFAIK isn't considered a war crime by anyone. It is still a crime to the country it is committed against, but it's not a war crime.

I think the evidence linking Hasan to AQ is pretty clear, and that the "reasonable person" standard would indicate beyond a reasonable doubt that he was acting on behalf of AQ.

All of that said, while I do think that what he did could be considered a war crime, I think the USG made the right call in prosecuting him under the UCMJ and not referring him to the Hague to be charged for war crimes. So I don't have to type it all out again, here's a cut/paste from my paper:

Having explained why I think Hasan committed by a war crime, I am now going to state why I think he should not be handed over to the ICC for prosecution. My reasons are political, professional, and pragmatic. To begin with, as previously established the US is not a signatory to the Rome Statute and does not hand its citizens over to the ICC to be tried for war crimes in the first place, even those troops suspected of killing other soldiers. Politically, it would be an insufferable impingement on our national sovereignty and our Constitution to recognize an authority higher than our Constitution, which in effect is what we would be doing if we agreed to hand over our citizens for trial. Professionally, having the threat of an ICC subpoena hanging over the heads of troops deployed to support US or UN-led missions abroad would be damaging to morale and would limit the initiative, and therefore effectiveness of, our men and women in uniform. Finally, there is the aspect of pragmatism. For all its flaws, the US justice system and the military’s UCMJ work. Americans tend to have a dim view of the UN and all of its attendant bodies, and the US justice system is sufficient to preserve discipline, punish transgressors, and provide deterrence without the “meddling” of the UN, an organization that of which nearly half of Americans have a negative opinion.[1] Simply put, it is simply not necessary for the US to hand over accused war criminals; we can do an ample and perhaps even better job of handling it on our own.

[1] Rasmussen reports that at least 49% of Americans have a “negative view of the United Nations. Source: http://www.rasmussenreports.com/public_content/politics/current_events/united_nations/49_view_united_nations_unfavorably

 

[Teufel]

That's true with regards to espionage. I guess I meant to make a similar point you did; you can make a case for war crimes but it's best to charge him under the UCMJ.