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The town of Haditha, Iraq, where Marines killed 24 Iraqi civilians on Nov. 19, 2005. The incident sparked a protracted investigation and series of courts martial, but resulted in only one conviction for dereliction of duty.

The town of Haditha, Iraq, where Marines killed 24 Iraqi civilians on Nov. 19, 2005. The incident sparked a protracted investigation and series of courts martial, but resulted in only one conviction for dereliction of duty. (Leila Fadel/MCT file photo)

WASHINGTON — In the wake of scandals over civilian deaths in Iraq and Afghanistan, a Defense Department board is poised to recommend substantial changes in how the military carries out investigations and prosecutions in war zones, including stripping the service branches of responsibility for military justice in the theater of operations and putting the joint war zone commander in charge.

Former Defense Secretary Leon Panetta established the Defense Legal Policy Board last year to examine, among other things, how the military justice system handles crimes against civilians like the Haditha massacre in Iraq, in which Marines killed 24 men, women and children. That incident sparked a protracted investigation and series of courts martial, but resulted in only one conviction for dereliction of duty.

In its report released Thursday, the board’s subcommittee charged with studying war zone justice argued that joint combat commanders are better able to enforce standards of discipline — especially during missions that depend on interaction with local populations — than officials at a service branch headquarters.

“A breakdown of good order and discipline while deployed, especially in a COIN mission, can have devastating effects on mission effectiveness,” the committee report said. “The Joint Commander is ultimately responsible for the conduct of his force.”

However, the report recommended leaving the joint commander the option of delegating cases that arise in war zones to the services.

The report also argued that all reports of civilian casualties be documented and investigated, regardless of how credible the commander on the ground judged the source.

“Senior commanders provided testimony to the Subcommittee indicating that unlikely sources of information concerning alleged civilian casualties frequently proved correct,” the report said. “Their experience indicated that even allegations from questionable sources often had some basis in fact. As one commander noted, it became apparent to him that he couldn’t rely only on ‘sensors wearing my uniform.’”

And decisions about whether civilian casualty incidents should be reported as possible war crimes violations should be made not by small unit commanders, but “at no lower level than an 0-6 commander with a judge advocate on his or her staff,” the subcommittee recommended.

Noting that small unit loyalties can be a powerful inducement not to report incidents, the report stressed better training and discipline in units.

“Commanders at every level must clearly establish reporting requirements and enforce them,” it said. “Service members must be required and willing to report, even when doing so may adversely implicate a comrade.”

The report also recommended making U.S. government contractors operating in military zones subject to the Uniform Code of Military Justice. Contractors have been accused, and in a number of cases convicted, of the killings of noncombatants in Iraq and Afghanistan. Commanders who testified to the board said controlling contractors could be a problem.

“Several commanders detailed instances when, unknown to them, contractors travelled through their battlespace, and allegedly committed criminal offenses or ROE [rules of engagement] violations, including civilian casualties, and then left the battlespace,” the report said. “The commanders were left to deal with the collateral consequences of the contractor’s activity, primarily an angry and injured civilian local population.”

Among the subcommittee members who prepared the report were Judith A. Miller, former DOD general counsel; retired Maj. Gen. Walter B. Huffman, the former Army judge advocate general; and retired Gen. Peter Chiarelli, former Army vice chief of staff.

The full Defense Legal Policy Board is expected to endorse the subcommittee’s report next week and forward it to Pentagon leaders, including Defense Secretary Chuck Hagel. Some of the recommendations that require modifications to the Uniform Code of Military Justice would require congressional approval.

carroll.chris@stripes.com Twitter: @ChrisCarroll_


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