Aspects concerning the criminal case against Eric O.

INTRODUCTION

The face of global warfare is changing rapidly. Since the fall of the Berlin wall, which in turn led to the collapse of communism, the scope and gravity of international conflict has shifted from the perspective of two superpowers, assured of their mutually destructive capabilities, to regional, mostly ethnic conflicts in which the United Nations took on a leading role as peacekeeper, and finally, to the perhaps unavoidable unilateralism of the United States in response to the terrorist attacks of September 11th [1].

Historically, sovereign states have claimed monopoly of the rightful exercise of violence. This claim can be regarded both in view of interstate-violence and the law of armed conflict, as well as in regard to the use of violence by any citizen of the state against any other.

In the changing global theatre, the legal and philosophical aspects of this monopoly of violence change accordingly. No longer is war defined as armed conflict between two or more sovereign nations, preceded by an official declaration of a state of war; not since World War II has the only remaining superpower in the world, the United States, officially declared a state of war against another nation. The justification of the use of force is no longer sought in the legal doctrine of the ius ad bellum.

After a ‘wave’ of peacekeeping missions in the early nineties, the shortcomings of the new philosophies on the use of violence in international conflict became painfully clear. The peace keeping missions in Somalia, Rwanda and Bosnia are now considered at least to some extent failures from both political and military perspective. Studies and evaluations of these interventions all speak of inadequate mandates, unspecific military objectives, and incapacitating limitations on the use of force.

The authorization of the United Nations Security Council to intervene on behalf of world peace, turned out to be too restricted an authorization to achieve the political and military goals derived from a desire to maintain world peace.

The lessons learned from forementioned missions led UN member states to become hesitant to commit themselves to peacekeeping missions around the world.

The terrorist attacks of September 11th have once again changed the face of global combat. The United States’ intrusion in Iraq was not in any way approved by the UN Security Council, nor can the intrusion be considered as rightfully based on the inherent right to self-defence embedded in the United Nations’ Charter, article 51. Nevertheless a coalition of countries led by the U.S. conquered and occupied the state of Iraq, instated a provisional authority, and held the conquered territory for over a year and a half until the elections of last January when a new sovereign government was chosen by the Iraqis. Though the ‘occupation’of Iraq was confirmed by a Security Council resolution two months after the invasion, it can no longer be held that the United Nations hold the monopoly on rightful violence or on the justification of armed conflict on a global level.

The justification of the use of force is passed down and limited accordingly from the almost abstract level of nations to the more tangible level of the individual soldier entrusted with military duties. It speaks for itself that any number of complications may occur when the authorization to use force is passed down from state to individual. In light of the justification of the use of force, it is then when the dilemma occurs which is referred to as the ‘Arendt’ [2]-dilemma by the Bureau for Ethics and Armed Force.

The responsibility for the use of force lies with some democratically elected body in any given democratic society; the armed forces are an instrument of policy made by this body. When the justification for the use of force is passed down along the chain of command, political leaders remain responsible; therefore they will define the circumstances under which they allow for the use of force. The unique perspective of the individual however, might lead to a different assessment of what is justified based on such circumstances. A soldier now faces the dilemma of following procedure, or breaking the rules, both of which may prove to be unjustifiable. [3]

This matter becomes ever more pressing in the new information age, in which the impact and ramifications of most military actions are brought under to the attention of the public at large by different forms of media. Infamous incidents such as the My Lai incident live on in the collective consciousness of the American people partly because the incident was covered so extensively by the media. Technology enables society to spread news and information faster and more efficiently than ever before in human history, and this so-called ‘CNN-effect’ puts even more stress on the mechanisms of responsibility described above. The justification of violence is taken into the court of public opinion on a daily basis, a court that does not necessarily reach an impartial verdict. Politicians, in reaction, have become even less willing to assume responsibility for military failures or unjustifiable decisions by those in the lower ranks of the military machinery. The Arendt-dilemma arises out of this complex process.

From the monopoly of violence springs the criminal charge; in a way the two relate to one another as light relates to darkness. If violence is unjustifiable because it stems in no way from a nation’s monopoly to use force, a criminal charge will be pressed against the perpetrator. If the author of the use of force is not to blame however, the violence was in some way justifiable, either because force was used in self-defence, or because violence was use in accordance with the monopoly.

The case againt Eric O., a soldier stationed in Iraq during the second Gulf War, is a criminal case; it addresses all the legal issues described in this introduction; it is the case of a soldier charged with the unauthorized use of force.

The case stirred up great debate among politicians about the mandate given to soldiers, the role of criminal law in these matters and the responsibility of political leaders. In this essay the case will be reviewed from a factual, legal and political point of view. Main points of attention will be the way in which the justification of the use of force is transferred from the top to the bottom of a military organization, and how a soldier’s actions should be weighed in a criminal case.

Table of contents

INTRODUCTION 3

PART I - FACTS 6

1. Introduction 6

2. Events leading to the Dutch participation in the war in Iraq 7

3. The commitment of Dutch troops to Iraq 9

3.1. The ‘Toetsingskader’ 9

3.2. The decision of June 6th, 2003 9

3.3. The decision of November 28th, 2003 14

3.4. The decision of June 11th, 2004 16

4. The shooting incident 17

PART II - LAW 23

1. Introduction 23

2. Applicable law 24

2.2. Dutch law 27

2.3. Military law 28

3. Charges brought against Eric O. 31

4. The use of force 32

4.1 The use of force for mission accomplishment 33

4.1.1 The mandate 33

4.1.2 The Rules of Engagement 36

4.1.3 The ‘Geweldsinstructie’ 37

4.2 The use of force in self-defence 38

4.2.1 Situations that call for self-defence; hostile intent, hostile act 41

4.2.2 Proportionality and subsidiarity of the use of force 43

5. The initial ruling 44

5.1 The legal status of the ROE and the ‘Geweldsinstructie’ 44

5.2 The burdon of proof 45

5.3 The situation 45

5.4 The ‘Geweldsinstructie’ did not authorize a warning shot under circumstances 46

5.5 The ROE did authorize warning shots under circumstances 46

5.6 Acquittal 47

6. Appeal 47

7. The ruling on appeal by the Military Chamber of the Arnhem Court of Appeal 48

7.1 The legal status of the ROE and the ‘Geweldsinstructie’ 48

7.2 The situation 49

7.3 Acquittal 50

7.4 Additional considerations 50

PART III - Political Aspects 52

1. Introduction 52

2. Reactions to the incident 52

3. The ‘Openbaar Ministerie’ 59

3.1 The relationship between the Department of Defence and the OM 60

4. The military judicial system 61

5. The trial of Eric O. 62

6. The ‘Geweldsinstructie’ / ROE 62

7. The second leak 63

CONCLUSION 65

List of references 67

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