Military Justice and the Punishment of Atrocity Crimes in Afghanistan and Iraq

White, Nigel D.

Abstract

The adjective ‘atrocity’ reflects the uniqueness of atrocity crimes and their separateness from normal criminal conduct. This chapter examines the distinction between ‘ordinary’ crimes and ‘atrocity crimes’ to provide a critical framework for the evaluation of the operation of the military justice systems of three states (Australia, the UK and US) in relation to the criminal conduct of their own troops in the conflicts in Afghanistan and Iraq. It is shown that the practice of categorising such conduct as domestic crimes as opposed to atrocity crimes is not only conceptually flawed but may have certain practical consequences leading to impunity for soldiers in some cases, inconsistent forms and lengths of punishment in other instances, while, in others, not giving accused soldiers the protections provided by the law of armed conflict (LOAC) for lawful acts of war. The barriers to effective punishment of atrocity crimes by courts martial are considered, and the chapter concludes by considering ways in which accountability for atrocity crimes committed by state’s own troops can be improved. During this chapter there is a discussion of key cases in which conduct amounting to war crimes is prosecuted and punished within the domestic military justice systems of the three chosen states, and the types of punishment are evaluated. However, the argument of this chapter is that if atrocity crimes committed by ‘our own’ soldiers are to be punished, then there must be fundamental changes in the processes and practices of national military justice systems.

Citation

White, N. D. (2024). Military Justice and the Punishment of Atrocity Crimes in Afghanistan and Iraq. In R. Mulgrew, & M. J. Christensen (Eds.), Research Handbook on the Punishment of Atrocity Crimes (387-406). Edward Elgar Publishing. https://doi.org/10.4337/9781035312917.00028

• Online Publication Date: Nov 7, 2024
• Publication Date: 2024
• Deposit Date: Sep 29, 2023
• Publicly Available Date: Nov 8, 2025
• Publisher: Edward Elgar Publishing
• Pages: 387-406
• Book Title: Research Handbook on the Punishment of Atrocity Crimes
• Chapter Number: 18
• ISBN: 9781035312900
• DOI: https://doi.org/10.4337/9781035312917.00028
• Public URL: https://nottingham-repository.worktribe.com/output/25391195
• Publisher URL: https://www.elgaronline.com/edcollchap/book/9781035312917/chapter18.xml
• Contract Date: Aug 9, 2023