Not Just a Few Bad Apples: The Prosecution of Collective Violence

Washington University Global Studies Law Review, Dec 2006

By Damien S. Donnelly-Cole, Published on 01/01/06

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Not Just a Few Bad Apples: The Prosecution of Collective Violence

Not Just a Few Bad Apples: The P rosecution of Collective Violence Damien S. Donnelly-Cole 0 1 0 Damien S. Donnelly-Cole, Not Just a Few Bad Apples: Th e Prosecution of Collective Violence, 5 Wash. U. Global Stud. L. Rev. 159 (2006), https://openscholarship.wustl.edu/law_globalstudies/vol5/iss1/7 1 Thi s Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authoirzed administrator of Washington University Open Scholarship. For more information , please , USA Part of theHuman Rights Law Commons; and theInternational Law Commons - The manifestation of mass atrocities throughout the world requires that their collective nature be understood and that criminal jurisprudence evolve to recognize the criminal accountability of groups as well as the individual perpetrators.1 Collective violence is especially problematic when it involves government and military leaders; thus, “leaders and those in superior positions in the chain of command are, owing to their positive governance obligations, more deserving of prosecution and weightier punishment for their involvement in mass atrocity.”2 International criminal law has begun to develop methods of accounting for collective liability by utilizing the theories of command responsibility and joint criminal enterprise—theories that prove beneficial when attempting to prosecute crimes involving “difficulties in establishing precise facts and evidentiary linkages . . . [and a] complex sequencing of administrative directives. . . .”3 The recent atrocities that have occurred in U.S. detention facilities in Guantanamo, Afghanistan, and Iraq provide a situation in which the theories of command responsibility and joint criminal enterprise could be utilized to achieve convictions not possible with more traditional theories of liability—convictions that are necessary to counter the rise of collective violence in the world.4 Many allegations, ranging from inhumane treatment to torture, have arisen from the U.S. detainee operations following “Operation Enduring 1. For an excellent discussion, see generally Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 NW. U. L. REV. 539 (2005). 2. Id. at 568 (citing Richard J. Goldstone, The International Tribunal for the Former Yugoslavia: A Case Study in Security Council Action, 6 DUKE J. COMP. & INT’L L. 5, 7 (1995)). 3. Id. at 574. 4. Leaders hold a power of persuasion over lower ranking members of the military hierarchy. It is necessary to hold them accountable for their actions so that this power of persuasion is limited to the appropriate use of the military. In the words of one commentator: Just as dynamic military commanders can induce their subordinates to accomplish heroic acts beyond the pale of traditional human limitations, they also, unfortunately, possess the power and means of ordering, encouraging, or acquiescing to, acts that are inhuman in the extreme. Through an abuse of legitimate military leadership and authority, a commander may condone, or even direct, conduct that goes far beyond even the relaxed standards of acceptable violence associated with warfare. Under the direction of persuasive leadership, soldiers have committed acts so atrocious as to exceed any possible rational application of military force. Major Michael L. Smidt, Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations, 164 MIL. L. REV. 155, 157–58 (2000). 160 Freedom” in Afghanistan and “Operation Iraqi Freedom.”5 Distinguishing between torture and inhuman treatment is a matter of degree6 and much of the existing body of law applies to both. This Note does not discuss the distinction between torture and inhuman treatment; rather, it assumes that U.S. practice during detainee interrogations has, on occasion, risen to the level of torture.7 While the policy of President Bush to hold disciplinary proceedings for the “aberrant individuals” who participated in flagrant violations of international law is commendable, liability extends far beyond the low-ranking personnel working the late-shift at Abu Ghraib prison.8 In fact, the individual actions were sponsored, condoned, acquiesced to, or ignored by high-ranking members of the U.S. military and government.9 Such activity cannot be ignored. This Note first focuses upon the international and domestic prohibitions on torture. A discussion of the use of torture and attempted justifications for such use will then follow. This Note will conclude with 5. See generally REED BRODY, HUMAN RIGHTS WATCH, THE ROAD TO ABU GHRAIB (June 2004), http://www.hrw.org/reports/2004/usa0604/usa0604.pdf (last visited Jan. 26, 2006) [hereinafter “ROAD TO ABU GHRAIB”]; JOHN SIFTON, HUMAN RIGHTS WATCH, ENDURING FREEDOM: ABUSES BY U.S. FORCES IN AFGHANISTAN (Mar. 2004), http://www.hrw.org/reports/200 (...truncated)


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Damien S. Donnelly-Cole. Not Just a Few Bad Apples: The Prosecution of Collective Violence, Washington University Global Studies Law Review, 2006, Volume 5, Issue 1,