Sunday, June 14, 2009

Casualties of War and Law

Soldiers face numerous challenges uncommon to the average civilian. Apart from the demanding physical and mental stresses inherent to soldiering, soldiers face a multitude of legal and/or moral issues. These issues may involve nuanced questions in determining whether a perceived opponent is an enemy combatant(s) or is/are people protected under international humanitarian law. Yet, even in cases when a person is clearly a non-combatant, and where an order to inflict pain or death on such person is manifestly illegal, a soldier’s decision whether to refuse to comply with the order or to actively stop the order from being executed also involves serious challenges. To illustrate these complexities and the collision of multiple legal orders on the moral soldier, I shall use the example of the film, Casualties of War (COW), starring Michael J. Fox (Private First Class Eriksson) and Sean Penn (Sergeant Meserve).

Set during the Vietnam War and based on true events, the film depicts the brutal actions of a group of American soldiers who kidnap, rape, and finally murder a Vietnamese village woman, Thị Oanh Thân. More fundamentally however, the story explores one character, PFC Max Eriksson’s refusal to take part in Thân’s rape and murder as ordered by his immediate superior, Sgt. Tony Meserve. In addition, it explores the tremendous challenges he faces in seeking to have an investigation initiated into the rape and murder.

The acts of kidnapping a villager/non-combatant in the middle of the night, followed by her rape and murder are obviously illegal under both international law and U.S. military law. The film is not so much about the finer points of law, but just how the proper application of clear law is avoided, ignored and/or subverted by the stated exigencies of war and other competing normative frameworks.

Competing Legal Normativities

Eriksson’s firm stance in refusing to rape and murder Thân as well as his conviction in pressing criminal action against Meserve and the three other soldiers who participated in the illegal acts is situated in at least three normative frameworks. International and domestic humanitarian law provides the first and perhaps obvious framework. The Geneva Conventions and U.S. federal law prohibits, amongst other things the kidnapping, rape, and murder of non-combatants. Eriksson’s refusal to take part in Thân’s rape and murder is commensurate with certain prescribed duties incumbent on soldiers. Yet, there are other non-state based "legal codes" that arguably regulate Eriksson's actions perhaps just as much. As Mark Osiel has written and notwithstanding a certain degree cynicism one may have about the concept, there exists a sense of chivalry about the proper role of a soldier to not take action that is in essence unbecoming and violative of this code/sense of chivalry – particularly attacking individuals who are non-combatants. Intertwined is, of course, a sense of morality about taking a young woman in the dead of night, from her family, and dragging her away to eventually be used as a plaything, all the while taunted and abused along the way. These legal and moral codes are not mutually exclusive, but all combined to help govern one’s actions. Eriksson's feeling of pain at seeing a defenceless Thân being raped and essentially unable to stop it (without great risk to himself) is not triggered by the fact that Geneva law is being infringed, but arguably by the violations of the other normative frameworks in play.

Competing against these normative values are those that animate Meserve – that in essence, war is about brutalization – one that centers on dominating and devastating both the civilian and the combatant. Laws that attempt to limit brutality committed during war seem contrary to the very purpose of warfare and moreover may prolong the suffering that war inflicts. These notions are of course not new and go back decades in debates about the nature and effectiveness of humanitarian law. This is illustrated in the following ways in COW. When Meserve instructs his men about their mission, he advises that their orders are that they may only return fire in self-defence. He however specifically instructs them that if they see any Vietnamese out in the open, regardless of their combatant status, they are to be terminated. He also forewarns them that they will be kidnapping and raping a villager of their choosing along their march to be used for their own amusement. Eriksson at first believes that Meserve was not serious and discovers his misapprehension when Meserve and Corporal Clark conduct the kidnapping of Thân while callously pushing aside her mother and sister. After the kidnapping, Eriksson approaches another private in their unit, Hatcher, about the kidnapping. To Eriksson’s astonishment, Hatcher extols and approvingly likens Meserve to Genghis Khan, noted historically for his ability to demolish and devastate opponents without a hint of restraint.

There is a further normative framework in play that legitimizes Meserve and the unit’s manifest illegality. Notwithstanding the code of chivalry previously mentioned, COW also demonstrates that whatever illegality or un-chivalric acts are committed ought to be kept under wraps - a code of silence. One rationale advanced is that prosecuting Meserve and revealing the details of the crimes would create an international incident and impact upon the U.S. government’s reputation. The laws of armed conflict endorsed and ratified by the state are purposely ignored by its agents charged with enforcing these very norms.

What COW illustrates is that while national military law and international law are binding and (are supposed to) govern the conduct of soldiers, ultimately these state-based normative frameworks are undermined by other non-state normative frameworks that value alternative operating principles than those that the officers are obliged to follow. Ultimately, a trial takes place at the end of the film, resulting in convictions for Meserve and the other members of the unit. International and military U.S. law wins out but only with a significant degree of perseverance by Eriksson, despite open hostility and attempts on his life in order to silence him from allowing the truth to be revealed.

Resistance and Law

Eriksson’s resistance does not take place in a vacuum but within the context of the clashing normative structures I discussed above. Clearly, Eriksson’s actions demonstrate a fidelity to international and national laws governing military conduct, as well as notions of chivalry and basic morality and human decency. Yet it is the other normative principles at play which control the actions of his superiors. Yet, as the work of radical geographers has postulated, power is not confined to dominant authorities, but also resides in those resisting the exercise of dominant power. Eriksson’s resistance is manifested in numerous ways. This ranges from confronting Meserve about kidnapping Thân as well as the plan to rape her. Eriksson refuses Meserve’s illegal order to rape Thân, thus incurring his wrath and marginalization within the unit. There are of course different degrees of resistance exercised. While Eriksson was firm about refusing to take part in the rape, his conscience and sense of duty was patently triggered when trying to help Thân escape while others in the unit are away observing enemy movements. Brutalized and raped, Thân is incapable of escaping on her own. Eriksson realizes that if he were to take her away from where they were situated, he would be deemed a deserter, a status that weighs heavily on him and his sense of duty as a soldier. When he decides to take her back to her village and risk being marked a deserter, he is discovered by Corporal Clark who orders Eriksson and the villager to join the others. The consequence is that ultimately Thân is killed by members of the unit in the midst of a gun fight with actual enemy combatants. When Eriksson realizes that Meserve and the others are about to kill Thân, he tries to stop them but is immobilized by Meserve. Eriksson's reluctance to desert may have cost Thân an opportunity to escape death after her already traumatic ordeal. He failed to sufficiently exercise his own "resisting" power early enough to effect a result commensurable with the principles he believes in.

Tremendously burdened by the weight of what he witnessed and his inability to save Thân, Eriksson wages an effort to move two key superior officers to have Meserve and the others prosecuted. Both superiors, Lt. Reilly and Captain Hill (also Meserve's superiors), however are reluctant to push Eriksson’s agenda forward and encourage him to drop the matter. Ultimately, given Eriksson’s revelations, an investigation leads to the discovery of Thân’s body and evidence of her murder and rape become evident. In this scene, Eriksson stands next to Capt. Hill, who chides him for not letting the matter go and for pursuing it. Eriksson, through an act of clear insubordination, tells Captain Hill “to go to hell”. Meserve and the remaining soldiers are court-martialed and sentenced to various terms in prison. It is Eriksson’s whistleblowing as an act of defiance that causes an investigation and the prosecution of Meserve et al.

Reflecting Realities

Although set during the Vietnam era and filmed and released in the late 1980s, the story nevertheless has resonance in modern-day armed conflicts. There are many ways that soldiers have sought to resist participation in illegal acts ordered by superiors. One example is to desert and seek asylum from a neutral third party rather than to participate or be associated in military or police operations that violate the basic norms of human conduct. Another example is to directly confront the illegality by challenging the orders themselves. This can lead to perilous consequences requiring one to potentially desert and seek refuge elsewhere. In other circumstances however (such as Warrant Officer Hugh Thompson, Jr. who along with two others saved villagers from being massacred at My Lai), the act of confronting illegality, while not received well at first, may garner affirmation at a later date, and thus legitimized.

COW affirms the difficulties inherent in a soldier's disobedience of manifestly illegal orders. A soldier is required to obey orders unless manifestly illegal. Yet as COW demonstrates, where an individual soldier is severely outnumbered and threatened with death by "friendly fire", disobedience presents its own set of dangers. Indeed, in a context where superiors (may) seek to turn a blind eye to atrocities, and indeed discourage or punish those who wish to bring information to light, a soldier's duty to refuse compliance with a manifestly illegal order becomes that much more difficult. They risk severe ostracism for breaking ranks, which apart from effecting a social death, may lead to an actual fatality by friendly fire.

Sources Consulted

Casualties of War, 1989, DVD (Culver City, Calif.: Columbia TriStar Home Entertainment, 2004).

Key v. Canada, 2008 F.C. 838, (2008), 331 F.T.R. 137.

Joshua Key, with Lawrence Hill, The Deserter's Tale: The Story of an Ordinary Soldier Who Walked Away from the War in Iraq (Toronto: House of Anansi Press, 2008).

Martha-Marie Kleinhans & Roderick A MacDonald, "What is a Critical Legal Pluralism?" (1997) 12 Canadian Journal of Law and Society 25.

Mark J. Osiel, Obeying Orders : Atrocity, Military Discipline, and the Law of War (New Brunswick, N.J.: Transaction Publishers, 1999).

Re ZH, Refugee Appeal No. 2248/94, 7 December 1995, Refugee Status Appeals Authority, New Zealand.

Joanne P. Sharp et al. Entanglements of Power: Geographies of Domination/Resistance (London: Routledge, 2000).

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