The Pentagon was rocked recently when video surfaced of U.S. Marines urinating on the dead bodies of Afghan fighters. Jordan J. Paust, the Mike and Teresa Baker Law Center Professor of International Law at the University of Houston Law Center, is a recognized expert in the field as well as military law. He is a prolific writer and perennially one of the most cited law professors in the nation. Paust was a young Army JAG officer in 1969 during the Vietnam War when the horrors of the massacre at My Lai by U.S. soldiers became known. He personally wrestled with the question of how and why such atrocities occurred as he continued to train Army JAG officers on how to abide by the laws of war. With this background, Paust took a few minutes to answer a few questions about the latest revelation.
Q: Professor Paust, do the allegations indicate a violation of international law?
A: Yes, and what is alleged is actually a war crime.
Q: Why is it a war crime when the Afghan soldiers are dead?
A: It has been well recognized for many decades that maltreatment of the dead body of an enemy soldier within the theater of war is a war crime. Specifically, the 1956 U.S. Army Field Manual 27-10, The Law of Land Warfare, expressly notes that among a number of listed war crimes under customary and treaty-based laws of war is “Maltreatment of dead bodies.” The 2004 UK Ministry of Defense Manual of the Law of Armed Conflict affirms: “The dead must be protected against pillage and maltreatment. The … mutilation of their bodies are war crimes.” The UK Manual also refers to a 1948 conviction for maltreatment in the Schmidt Trial.
Q: Do other instances of dead body mutilation come to mind?
A. Yes, during the Vietnam War there was at least one conviction in 1968 of a soldier for “cutting off an ear from the body of an unknown Viet Cong soldier, which conduct was of a nature of being discredit upon the Armed Forces of the United States as a violation of the Law of War.”
Q: Do you see potential problems with respect to proper military training?
A: Yes. When I was on active duty, we geared up law of war training for the 2,000 JAG officers in the Army after My Lai became known. It seems that there may be problems regarding Marine Corps training of Marines with respect to the laws of war. It may be useful to know how many hours a year are required for training in the laws of war of each Marine, and whether there is training when they are “in country,” such as Afghanistan.
Q: Gov. Rick Perry stated recently that the alleged perpetrators should not be prosecuted. Is this correct?
A: No, and he should know better. The United States has an obligation under customary and treaty-based laws of war to either initiate prosecution or to extradite a person who is reasonably accused of having committed or aided and abetted a war crime. It seems that the Obama Administration is aware of this obligation and is conducting a normal criminal investigation after such an incident comes to light. Ignorance of the law might be excusable if he were not running for president and commander in chief.
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