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Law and Popular Culture$

Michael Freeman

Print publication date: 2005

Print ISBN-13: 9780199272235

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199272235.001.0001

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Film, Culture and Accountability for Human Rights Abuses

Film, Culture and Accountability for Human Rights Abuses

Chapter:
(p.504) Film, Culture and Accountability for Human Rights Abuses
Source:
Law and Popular Culture
Author(s):

Carolyn Patty Blum

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199272235.003.0029

Abstract and Keywords

This chapter gives an analysis on the relationship between film, culture, and accountability for human rights abuses. It examines the Florida trial of the case of four American churchwomen who were raped and murdered by National Guardsmen in El Salvador in 1980. It explores how popular Hollywood motion pictures reflect broader notions of responsibility and political accountability. It analyses how popular culture influence the relationship between the individual and the broader context of his actions.

Keywords:   human rights abuses, motion pictures, popular culture, political accountability, trials, murder, rape, churchwomen, National Guardsmen, Florida

Introduction: In a Florida Courtroom

The scene opens on a Florida courtroom. Inside, it is sweltering hot. A ceiling fan turns round and round. On one side of the courtroom sit two lawyers. Behind them, on a hard, wooden bench sit their clients, the plaintiffs in a civil lawsuit. They are the surviving brothers and sisters of four American churchwomen who were raped and murdered in El Salvador in December, 1980 by five National Guardsmen, during one of the most repressive years in El Salvador’s decade-long conflict.1

On the other side of the courtroom sit two elderly men and their lawyer. The defendants are General Jose Guillermo Garcia, the former Salvadoran Minister of Defence and General Eugenio Vides-Casanova, the former Director of the National Guard at the time of the murders. These men are being sued under a unique US statute, the Torture Victim Protection Act, which enables US citizens who are the surviving relatives of persons extra-judicially executed to sue the murderers or their commanders for these acts.2

The jury—ten men and women—listen as the lawyers summarize the evidence in the month-long trial. The judge, in a kindly manner, explains the law of command responsibility. This doctrine, which has its origins in the most fundamental concepts of the laws of war and the codes of military conduct, holds commanders responsible for the acts of their subordinates when they should have known of abuses subordinates were committing and failed to stop them or to punish them for the abuses.3

The audience, plaintiffs, and defendants wait three days for the jury to reach a decision. The deliberating jury’s questions to the judge reveal their confusion about the legal standard of command responsibility. The courtroom is gripped with anxiety as these questions are read, considered and answered by the judge.

(p.505) The last scene in this drama finally unfolds. The jury returns to the courtroom. The bailiff intones: is General Jose Guillermo Garcia, Minister of Defence, liable for the rape and murder of Maryknoll nun Ita Ford? No. Is Eugenio Vides-Casanova liable for the rape and murder of Maryknoll nun Ita Ford? No. And so it goes, as the bailiff enumerates the rest of the claims, the names of the other nuns who were murdered, and the finding that the defendants are not liable.4

The audience sits incredulous. How can this be? How could this jury have listened to a month of trial testimony from a variety of witnesses, including the Ambassador from the United States to El Salvador at the time and every leading expert from Amnesty International and Human Rights Watch who documented the methods of state terror and persecution targeting church workers? This jury had been taught about the historical and political context in El Salvador, demonstrating that the generals knew about the abuses that were occurring and did nothing to stop or deter them. If the men at the pinnacle of command were not ultimately responsible for the actions of their troops, then who were? Just the men who pulled the triggers? Not the men who created a climate of impunity where a soldier could rape and kill nuns and not be concerned about the consequences? How could it be that this jury did not feel persuaded by an avalanche of evidence? How could they not feel compelled to hold these commanders responsible for the acts of their subordinates?

Those of us working for the plaintiffs sensed the enormity of our legal and cultural challenge when the lawyer for the generals made a powerful argument that resonated deeply in American culture. In the United States, he said, we are responsible only for our own wilful, volitional actions. That is where accountability begins and ends. Lt William Calley directly ordered his men to commit murder at My Lai during the war in Vietnam, and he joined in the slaughter.5 The policemen who beat Rodney King were placed on trial for their behaviour. But mainstream American culture did not want to extend responsibility for My Lai to those who were above Calley in the chain of command nor to those who established or condoned the war norms that made My Lai predictable and a manifestation of similar atrocities, only on a larger scale. Likewise, there was no cry to investigate or charge those in the Los Angeles Police Department who supervised the police officers who beat King or who created and/or tolerated a police culture with a long history of police abuse. It seemed to us, by the end of the trial, that we were battling a deeply ingrained cultural and legal value that greatly circumscribed the nature of responsibility.

In the lexicon of law and morality, when analyzing responsibility for mass violence and human rights abuses, one distinguishes between individual/ personal (p.506) responsibility, command responsibility, political and collective responsibility, and the responsibility of those on the side lines, the bystanders.6 I will explore here how popular culture reflects broader notions of responsibility and political accountability. Further, I ask whether dominant cultural paradigms, over the past 40 years, have shifted how individual responsibility is conceptualized. In particular, I will examine the way in which popular culture examines the relationship between the individual and the broader context of his own actions.

My focus will be on Hollywood films of the past 40 years. And I want to argue that this period can be bifurcated. In the first two decades, 1960 to the early 1980s, some American films aggressively raised issues of individual and collective responsibility for human rights violations. But in the past two decades, films that touch on the venue of rights abuses have shied away from a deeper and more thoughtful analysis of responsibility. On the contrary, these more recent films reflect and reinforce a culture that assigns responsibility narrowly to those with visible blood on their hands.

Allocating Responsibility for Atrocities: The Seminal US Films

Judgment at Nuremberg

Judgment at Nuremberg 7 stands out as the seminal work of American film art that explores the theme of allocating responsibility in the wake of mass violence. Not coincidentally, it was produced at an important historical moment, 1961, during the struggle for civil rights. In an important sense, the film reminded the American people of the logical extension of racial superiority. It was also set on location in the city of Nuremberg, the locus of numerous Nazi rallies where Hitler addressed the multitudes of his supporters and whipped up sympathy for his radical, anti-Semitic ideology.

The focus of this film was not the major Nuremberg War Crimes Tribunal, but the subsidiary trials, of judges and prosecutors who enforced Nazi laws.8 Although about individual trials, the film, at its core, is about determining collective responsibility. The questions which truly haunt Judge Haywood, portrayed by Spencer (p.507) Tracy as the home-spun judge from Maine and the moral compass of the film, include: How could the Holocaust have happened? Where were the German people? How could they not have known what was going on? And if they knew, why did they not do something to stop it?

These questions are developed in a number of ways, such as Judge Haywood’s relationship with Madame Bertholt, the character played by Marlene Dietrich. The widow of a German military leader previously executed, she tells Haywood that she is on ‘a mission to convince (you) we’re not all monsters’. She takes him to beer halls where Germans longingly sing nostalgic songs. After the presentation in the courtroom of documentary footage of the concentration camps, a shortened version of the George Stevens-directed film actually used during the Nuremberg War Crimes Tribunal,9 Madame Bertholt cries out to Judge Haywood, ‘Do you think that’s who we are? That we wanted to murder women and children? We didn’t know!’ And Judge Haywood responds,‘As far as I can tell, no one knew!’

Other scenes in the film reveal the preoccupation with collective and personal responsibility for the crimes of the Holocaust. In informal discussions among the American judges and prosecutors, the hot-shot US prosecutor, Colonel Lawson, angrily says that many people think it is time that ‘we forgive and forget’. He vehemently resists the political pressure to stop the prosecutions because of new geo-political realities. It is now the beginning of the Cold War, and there is a perceived, over-riding necessity to solidify political alliances and to strengthen Germany against the Soviets. Thus, the need to mollify German dissatisfaction with the trials, it is argued, should outweigh any attempts to continue the judicial process.

Nowhere are these questions more explicitly expressed than in the defendants’ central arguments during the screen trial. Defence counsel, Hans Rolfe, brilliantly created by Maximilian Schell, urges that the indictments against the defendants are not ultimately directed against them personally but are a vehicle to indict the entire German people. The defence counsel raises a protest against the screening of the documentary footage and states that it is ‘unfair to show [it] in this court at this time against these defendants’ since ‘few knew; none of us knew’.

In the final scene of the film, Judge Haywood meets with one of the defendants, Dr Ernst Janning, in his cell. Janning tries to offer an apology and a reiteration of the position that he did not know of the Nazis’ ultimate goal of the annihilation of the Jews. But Judge Haywood reminds him that the first time he signed an order for a man’s execution, knowing that he was not guilty of the alleged crime, he knew that he was creating a legitimate front for the regime he was assisting.

This film confronts a complex range of questions about the allocation of responsibility. It does not try to answer all of these questions, but it is not afraid to pose them. Moreover, in using the venue of the trials of judges and prosecutors, the film examines how, under the guise of legality, heinous crimes are perpetrated for which (p.508) individuals can and must be held accountable. This was one of the most important principles to emerge from the major and subsidiary war crimes trials at the end of World War II.10 So while grappling with questions of political and collective responsibility, the film reinforces notions of individual/personal responsibility, especially of the leaders of the legal establishment.

Missing

In the 1970s, as dictatorships ruled in Central and South America and as a coup in Chile brought General Augusto Pinochet to power, films tried to address larger questions of political culpability. One important example is Missing,11 the 1982 Costa Gavras film set in the first weeks after the Chilean coup overthrowing the democratically-elected government.

The film focuses on the true story of an American.12 Charles Horman is drawn to Chile because of the idealism, reformism and energy of the Popular Unity government of Salvador Allende. Within days of the coup, Horman is arrested and murdered by the military. The story is an apt vehicle to address questions of culpability for the coup, because the quest to understand what happened to Horman necessarily reveals layers of US involvement in Chile.

Immediately before the 1973 military coup, Horman and a companion are unable to leave the coastal town of Vina del Mar where they had ventured on a day trip. They soon come to realize that the coup has occurred and that Vina is teeming with American military personnel. Horman’s hubris, in believing his American citizenship would protect him and his circle of ex-patriot friends, mirrors the hubris of the American military officers. As they arrogantly claim, they were sent to Chile ‘to get a job done and now she’s done’. And Horman’s hubris mirrors that of the American Embassy officials and business people who applaud the Chilean military troops as they pass under the US Embassy windows where a gala event is held within days of the coup. But Horman is not protected by his citizenship, as the movie frighteningly demonstrates. Horman is relegated to the position of thousands of other Chilean victims of the brutality of regime whose bodies we see floating in the rivers or stacked in the morgues or whom we see detained by the thousands in the National Stadium.

(p.509) Within this story, the movie’s fundamental preoccupation is with the role of the United States before, during and after the coup. This film came at a time when most of the information relevant to the US involvement was clouded by a haze of secrecy. In the film, as the Hormans, Charles’ father Ed, played by Jack Lemmon, and wife Beth, played by Sissy Spacek, try to locate him, they confront the prototypical lies, obfuscations and denials that characterize the rhetoric of authoritarian regimes and their collaborators. For the Hormans, and for many other victims of the Pinochet regime and their families, this was the beginning of a 30-year quest for the truth about what happened in Chile and the American role in encouraging, supporting, and assisting the regime. This search has spread from South America to Spain to England and throughout Europe and redounded back to Chile in re-invigorated investigations there.13

The quest for truth about the United States’ political responsibility for toppling Allende has been edified by the declassification of many crucial US government documents; yet, it is still an on-going investigation.14 Missing firmly locates the individual responsibility for Charles Horman’s assassination within a larger examination of political responsibility for the coup.

In short, some mainstream star-studded Hollywood films of the 1960 to early 1980s period tackled the issue of responsibility for human rights abuses in a deep way. They asserted that culpability had to extend beyond the soldier or policeman who pulled a trigger or wielded an instrument of torture. But this more soul-searching approach did not just disappear. More insidiously, it was replaced by a depiction which fairly explicitly articulates an ethic of responsibility which extends only to those who commit hands-on crime or who willingly admit their involvement.

Shirking the Issues of Responsibility: An Examination of Recent Films

Rules of Engagement

At the centre of the 2000 film, Rules of Engagement,15 is a massacre of civilians by US military forces. The subsequent trial of the commanding officer explicitly raises issues of personal and command culpability for mass violence. It also poses the question of the value placed on the lives of some (the members of the crowd) versus the lives of others (the US servicemen and the Embassy officials).

(p.510) Col Terry Childers, played smartly by Samuel Jackson, a career military officer who served in Vietnam, is ordered to direct an elite team of commandos to rescue the US Ambassador and his family in Yemen. A large crowd of protesters has gathered in front of the Embassy, evidently a regular occurrence. While some members of the commando team carry out the rescue, others are engaged in securing the area. In Childers’ view, the demonstrators pose a deadly threat to these troops and to the Ambassador. As an audience we are left with a somewhat ambiguous portrait of what is actually occurring outside the Embassy, although, like Childers, we believe that some members of the demonstration are using deadly force against the troops. In defence of his troops, Jackson ends up ordering them to open fire on all the demonstrators, and a wholesale massacre ensues.

The action of the film turns on the court martial of Childers as he tries to defend his actions as justified, given the circumstances. He is deftly assisted in this endeavour by Col Hayes ‘Hodge’ Hodges, played by Tommy Lee Jones, whose life Childers saved in Vietnam. The audience, however, is in on the secret of the film—Embassy security tapes exist which exonerate Childers but which have been suppressed by the National Security Advisor so that Childers can be the ‘fall guy’ for what has devolved into an international incident. This fact detracts from the impact of the film as the audience can by-pass the harder questions raised by the scenario. These questions should have included: Were there alternatives that could have avoided a deadly confrontation with the demonstrators? As he initially implied, did the Ambassador have means to address the situation diplomatically that were not utilized? What level of threat is necessary to justify the use of deadly force? Does a soldier’s training in violent response to confrontation necessarily colour his response? How do we calculate these trade-offs, as Jackson apparently did here, of killing some to save others?

During the course of the trial, a North Vietnamese officer, Col Binh Le Cao, is called to the witness stand. He recounts an incident that occurred during the war in Vietnam. Childers captured him and a fellow North Vietnamese soldier. Childers sought information from him about a potential Vietnamese ambush of American troops. Childers held a gun to the head of Col Binh’s comrade and threatened to kill him if Col Binh did not divulge the information about where the Vietnamese were hiding. He refused, and Childers shot the other soldier, fully disarmed and out of combat, in cold blood. When asked in court about this incident, Col Binh testifies that he would have done the same thing as Childers to obtain the information.

As he did with the attack on the civilians in Yemen, Childers again was confronted with using murderous tactics to save the greater number. This profoundly moral—as well as legal—dilemma is presented in the film as having an obvious answer. When Col Binh bonds with Childers through their shared language of the necessity of deadly force born of conflict, the film drains the scene of any space to consider seriously where culpability for Childer’s actions in Yemen should lie—much less, the justifiability of his earlier actions in Vietnam.

(p.511) Before a jury of military officers, Childers is exonerated because the jury understands his central argument that his own soldiers had to be protected at all costs, and that this is his primary duty as their commander. By so doing, the jury never seriously considers whether the taking of so many Yemeni lives is justified, just as Childers, while in Vietnam, never considered whether his killing a disarmed soldier, to extract information, was an act of unjustified torture and murder. Thus, the film squanders an opportunity to examine more closely the line between justifiable and unjustifiable acts in situations of conflict, a concern made all the more urgent for troops stationed in a variety of hot spots throughout the world today.

High Crimes

A massacre is also at the epicentre of the 2002 film, High Crimes.16 The question of individual responsibility for the massacre drives the arc of the film. At the outset, the film introduces the audience to a seemingly loving couple, Claire and Tom Kubik, actors Ashley Judd and James Caviezel. But this tranquil scenario is disrupted when Kubik is arrested and accused of committing a massacre in El Salvador in 1988 as a soldier named Ron Chapman. He is subject to a court martial for this crime. Claire Kubik decides to assume his defence herself, with the help of a once-successful military law specialist, Charlie Grimes, played expertly by Morgan Freeman. As the drama unfolds, the ‘top brass’ clearly do not want the full truth of what happened in El Salvador to emerge. In fact, the only person who seems to know the truth is an elusive Salvadoran, who seems to want to exact a revenge of his own. Ultimately, the court martial proceedings are terminated at the behest of the higher-ups who are afraid that the secret about the events that led to the massacre will be revealed. What the audience ultimately learns, uncovered in the most convoluted way, is that US soldiers accidentally killed three American students. To cover up this crime, or so it appears, they blamed the guerrillas and then had to massacre some Salvadorans to demonstrate the continued callousness of the guerrillas.

The film initially offers a version of what really happened that day in El Salvador that is so implausible in the context of what actually occurred in that country during its civil conflict as to make the entire film seem like a work of science fiction. But the film-makers depend on the audience’s ignorance and that the conflict in El Salvador has turned into ancient history. But its strained premise that guerrillas were somehow responsible for the massacre is contrary to what is publicly known about how the guerrillas operated, the level of abuses that were carried out by the military and right-wing paramilitary forces,17 and the role of the United States in bolstering the fortunes of the corrupt, oppressive Salvadoran military.18 Thus, any informed observer cannot accept the basic trajectory of the film.

(p.512) In the final moments of the film, Tom Kubik/Ron Chapman confesses to his wife that he did carry out the massacre. However, he claims that he was told by his superiors that the people he killed were terrorists. He explains, appropriating early twenty-first-century jargon, that he was trained to get the terrorists so that is what he did. In his mind, his actions were wholly justified.

Crucially, the film portrays crack US forces at work in El Salvador. But, supposedly, the US role in El Salvador was a more limited one, as military advisors only. The presence of elite units was not known to the American people. Was the film, then, trying to raise a larger question about the scope of US involvement in the Salvadoran conflict? Was it metaphorically raising the question by showing American troops actually engaged in abuses, instead of the Salvadoran military surrogates whom the US shored up with billions of dollars in economic and military aid? If it was trying to address these more profound questions, it failed to bring them to a conscious level of narrative exposition or dramatic conflict.

Further, the main protagonist’s own culpability, who should have known not to carry out the illegal order to kill unarmed civilians, was never fully examined. The only reason the film lets the audience find anyone responsible for this atrocity, an atrocity almost trivialized by the film, given the enormous scale of the massacres in El Salvador,19 is because the protagonist confesses to the crime. This gimmick obscures the larger questions of responsibility for the massacre portrayed in the film, a stand-in for the many massacres that occurred in El Salvador. The course of events in El Salvador, and the particular question of US involvement which, by contrast, was so well-engaged in Missing, is absent from this film treatment of the subject. The film makes no use of its setting in war-ravaged 1988 El Salvador to raise the broader themes of political and command culpability for the atrocities that were a routine part of that landscape.

Black Hawk Down

The Somalia-mission true story, Black Hawk Down 20 is a 2001 war-action film. Embedded within it, however, are concerns about mass violence, the changing nature of conflict, and the role of the military. The film is set in October, 1993 during the US mission to open supply lines for humanitarian assistance.21 But Somali war lords prevent the accomplishment of the mission as they routinely disrupt the equitable distribution of assistance from humanitarian organizations.

The US military mission determines that the arrest of several key members of the Somali war lord leadership would help cripple that organization. However, the (p.513) mission does not proceed as planned. A fierce battle ensues in the streets of Mogadishu. The ugliness and brutality of war are displayed in abundance. During the course of the operation, two US Black Hawk helicopters are shot down by the Somalis. They swarm over the helicopters; the body of one of the downed soldiers is removed from the helicopter and dragged through the streets of Mogadishu. Another soldier is captured. Others lie dead in the wreckage of the helicopters and the fighting. Ultimately, the United States pulls out of the country, and by all measures, the mission is a failure.

The film focuses on the transformation of one particular soldier, the idealistic Staff Sergeant Matt Eversmann (Josh Harnett), who came to Somalia ‘to make a difference’. By the end of the film, he is convinced by SFC ‘Hoot’ Gibson, the cynical, battle-hardened DELTA force warrior (Eric Bana), who tells him, ‘you can’t control who lives and dies and why it happens. It’s just war.’

Black Hawk Down has been criticized for being a racist and simplistic portrayal of Africans and a jingoistic celebration of‘our boys in uniform’. I do not want to take on these issues, which I think are more complex than the film’s fans or detractors suggest. But, in terms of themes of responsibility and guilt, I think the film can be criticized.

To be fair to the movie, it is much easier to raise these issues in films like Judgment at Nuremberg or Missing which are ‘talky’ dramas explicitly about issues of responsibility. Black Hawk Down is primarily a powerful, visceral action film. And in that genre, having a few talking heads articulate a ‘good’ message often feels didactic and something thrown in as a salve to the conscience of the film maker or to placate liberal critics.

That caveat notwithstanding, the film still fails, even in its own genre and message terms, to deal with the responsibility issues that are organic to it. Despite its cross-cutting subplots, that engender tremendous tension, the film never strays too far from its core character and his development. And Matt Eversmann needs to believe that his military career is more than an adventure and the jeopardy and deaths of his friends have some moral significance. And the film does raise issues of responsibility at two levels. It asks how this situation in Somalia got so bad that American involvement was necessary. And it focuses on the commander of the botched mission and his responsibility for the catastrophe.

However, here the film could have dug deeper. Director Ridley Scott never offers an explanation for how the situation in Somalia arose and the complicity of Westerners in the desecration and tribalization of modern Africa. Moreover, it never explores how a humanitarian mission, that has such limited objectives and eschews dealing with the underlying political realities, can possibly succeed. Given this vacuum of understanding at the film’s core, it becomes a tragedy of military hubris and a ratcheting down of military morality to have the mission simply be about watching the back of your brother soldier.

The film should be about the changing role of the military, in the post-Cold War world. It should address whether the military can accomplish humanitarian (p.514) purposes. It should ask what the preconditions are for such a role. It should provide something more than the most cursory of understandings of Somalia as a country. It should ask who should bear the moral, political and legal responsibility for the failures of the military mission in Somalia. But it does not do any of these things. Instead, it focuses on the individual soldier. Its commentary on the motives and responsibilities of a soldier are summed up in one soldier’s perspective, ‘it’s about the man next to you and that’s it, that’s all it is’.

The film is a missed opportunity. Its attempts to explain the political context of events in Somalia at the beginning and end of the film are just bookends to a narrative that—while showing the horrors of war in its graphic violence—ends up feeling simplistic and minimalist. The audience is left with only discomfiting feelings that war is ugly, and Africa is a mess. But the audience wants to understand who should be held responsible for the mess these boys found themselves in; the audience knows it is wrong that they should have been sacrificed. But since the audience has no comprehension of the larger political canvas on which the decision to send troops to Somalia was taken nor the underlying political trajectory and reality of Somalia as a country, the crucial questions posed by the film cannot be answered.

Tears of the Sun

The most recent addition to this group of films is Tears of the Sun,22 a 2003 release. This film attempts to address the question of the responsibility of the bystander, the person who witnesses atrocities and must decide whether to act in the face of them. This film is set in Nigeria, but that country stands in as a composite for all of Africa. A coup d’etat has occurred, and a brutal rebel Army has seized power. Every type of atrocity—rape, mutilation, arming child soldiers—is found in this movie to such a degree that the audience is reviled and turns away from it.

As in Rules of Engagement and Black Hawk Down, a unit has to perform a rescue. This time, the elite Navy SEAL team must rescue the high-minded Dr Lena Kendricks, a US citizen by marriage, who is working in a rural Catholic hospital. But when the team, headed by Bruce Willis as Lt AK Waters arrives, the doctor refuses to leave unless the refugees for whom she has been providing medical care are rescued as well. Thus, Lt Waters faces a moral dilemma: should he follow orders, or will he defy his superiors and agree to help the refugees in addition to saving the doctor. He finally decides that he must help all of the people. By doing this, he also is imposing his personal, moral decision on his team who supposedly must also decide if they support his actions but who, in reality, have no choice but to support their commander.

Much of the film follows the group through numerous situations of jeopardy as they try to reach a rescue rendezvous site. This jeopardy comes primarily from the murderous rebels who kill everyone at the village outpost and then in another (p.515) village. They are also hunting one particular member of the group of refugees, who is the son of the overthrown leader and who could take power, if democracy is restored. In addition, the danger emanates from the US commanders who, essentially, abandon the team because they have gone far beyond the limited objectives of their mission.

Like Black Hawk Down, this film has the best of intentions. It is certainly responding to the new role of the military in humanitarian interventions and the particular question of how military power should respond to human suffering. This is a thorny, complex issue, but a crucial one, especially in the post-Iraq war world. The film also seeks to address the responsibility of the bystander, the witness to human suffering. Both when Lt Waters confronts the people at the village hospital and when the US soldiers witness a rebel massacre of another village, they must decide whether to relinquish their positions as observers, standing by while atrocities occur or become actively engaged—even at risk to themselves. But the film’s oversimplifications—particularly, the message that white people get moral redemption by helping suffering black victims—squelches any nuanced exploration of the ambiguity of the situation that Lt Waters, and many other soldiers like him, confront.

At one point in the film, Waters’ commanding officer tries to force him to abandon his mission by telling him that his actions are having a negative effect on US diplomacy, since his actions are interfering in the internal affairs of a sovereign nation. But since the state is now controlled by the murderous rebels, why should the audience care about protecting their autonomy? And it does not. The audience reaction is to want to revile the commander. The film is right to try to provoke these reactions. But the film does not explore, in any depth, how one might parse the moral obligation of the individual US soldier to protect and assist people subject to abuses and alleviate their suffering, particularly when confronted with contrary command instructions which limit the scope of the soldier’s mission. Further, the movie fails to explore the nuances of the relationships with indigenous peoples in the countries where humanitarian operations occur. These themes would have resonated with the real life situations confronting soldiers in conflict zones today.

A Few Good Men

Along with Judgment at Nuremberg, A Few Good Men 23 is the most important film of the last 40 years on this topic. Its importance lies in its commercial success and the strengths and limits of its analysis.

I believe film scholars often err in discussing the significance of films by referring to their implicit and explicit messages independent of their cultural impact. It (p.516) might be interesting to compare the racial assumptions in Gone with the Wind 24 and El Norte,25 but it would be foolish not to acknowledge that one had little historical impact, and the other is a cultural icon. And while I have been arguing that interesting and important values can be gleaned from the films discussed here, only Judgment at Nuremberg and A Few Good Men can be presumed to have a broader impact on American cultural conceptions of the issues raised here.

A Few Good Men is ostensibly about the scope of the defence of superior orders, another guiding principle of the Nuremberg statute26 and one of extreme salience in the United States during the Vietnam War era.27 The film also raises, but does not answer, two additional, crucial questions about command control and political responsibility.

The setting of the precipitating events in the film is the US Naval base at Guantanamo Bay, Cuba. There, a young private, William Santiago, dies, during the administration of a ‘Code Red’, by two of his fellow Marines, Louden Downey and Harold Dawson. A ‘Code Red’ is an ‘off-the-books’ punishment, given for an infraction of an unwritten Marine code of honour. In this story, Santiago had complained about the oppressive atmosphere at Guantanamo and asked for a transfer off the base. Downey and Dawson claimed that they did not intend to kill the victim but merely to scare him. They also claimed that they were ordered to administer the ‘Code Red’ by their superior officer, Lt Kendrick, played by Kiefer Sutherland. The action of the film centres on the courts-martial of the two soldiers and whether the defence team, JAG Corps lawyers, Lt Daniel Kaffee (Tom Cruise), Lt Cmdr JoAnne Galloway (Demi Moore) and Lt Sam Weinberg (Kevin Pollak), can successfully raise a defence of superior orders. In the final dramatic courtroom scene, Col Jessup, the commanding officer of the base, played memorably by Jack Nicholson, admits that the informal ‘Code Red’ punishment system exists, and that he personally ordered that the young victim be given a ‘Code Red’. This scene dramatically concludes with Nicholson being arrested by military police to face his own court martial. Further, Downey and Dawson, who are punished by being dishonourably discharged from military service, acknowledge that they should have known better than to carry out an order which required them to victimize one of their own. Thus, they recognize that they cannot defend their own actions as based on those of a superior when they should have known that the orders were improper.

A Few Good Men is the creation of the liberal and gifted Aaron Sorkin. While it preaches respect for the men who serve in the armed forces, it is absolutely clear that (p.517) immoral orders should not be obeyed, and that responsibility for immoral actions applies to both the individual perpetrators and their commanding officers. At this level, A Few Good Men stands in the shadows of Judgmentat Nuremberg in rejecting the ‘I was only following orders’ defence. And officers who command immoral orders are as culpable as those who carry them out.

But like most other liberal films, it showcases the two limits of this perspective. First, while it acknowledges responsibility for specific orders, it begs the question of command responsibility that creates an environment that fosters immoral actions and command responsibility that tolerates that environment. Essentially, the commander of the base, Col Jessup, has created an environment that encourages the use of this off-the-books disciplinary system. But until Col Jessup brazenly admits in court his use of this disciplinary system, then, and only then, can he be found culpable as a commander. But even without that admission, the murder of the young Santiago was squarely within the command responsibility of Jessup. Even had he not expressly given the order, he had a direct responsibility for that kind of behaviour by the men under his command.

The film also begs the question of responsibility of those within the military who suspected ‘Code Reds’, disapproved, and did nothing. There are several references in the film suggesting that higher-ups in the Navy suspected ‘something fishy’ was going on ‘down there’ and refused to investigate. The audience is left to believe that had not a soldier died, the abuses would have continued indefinitely, despite an awareness that they were probably going on.

Thus, in order for the film to deal directly with the issues it tries to raise—that of command and control and the defence of superior orders—the film needs to be less about Jessup as a crazy fanatic and more about Guantanamo as a closed system in which commanders like Jessup are powerful dictators while clothing themselves in the guise of ‘protecting lives’. This otherwise smart and well-written28 film underestimates its audiences’ ability to grapple with a more textured treatment of these important issues.29

An Exception: Three Kings

One film that more successfully and artfully raises fundamental questions about political and moral responsibility is David Russell’s 1999 film Three Kings.30 This (p.518) film is set at end of the 1991 Persian Gulf War. It unflinchingly examines the price paid by Iraqi rebels who supported US intervention in the region.

In the film, four ambitious and somewhat unscrupulous American soldiers, played by George Clooney, Mark Wahlberg, Ice Cube and Spike Jonze, seek to profit personally from their presence in the region, by stealing Saddam Hussein’s gold secreted in an underground vault. In their quest to locate the gold, they are confronted by Iraqi rebels who were supported and armed by the United States. The rebels have been abandoned by the US government, once the United States decides to leave the region without accomplishing the goal of overthrowing Saddam Hussein. In reality, this means these men and their families will be arrested, tortured and killed by Hussein. In a graphic scene, the mother of a young girl and wife of one of the rebels is murdered before the child’s eyes. Eventually, the soldiers realize that they must assist this group to safety, even if it means risking their own profit.

The American protagonists, all very different kinds of men, are simultaneously cynical and pained. Thus, their story provides a much richer canvas to explore the profound question of the moral responsibility of the bystander. As in Tears of the Sun and Judgment at Nuremberg, one of the crucial questions that humans face, as moral actors and witnesses to continuing atrocities, genocide and massive human rights abuses is what does it mean to watch atrocities and fail to intervene? How proximate does one have to be to bear responsibility to act? What is the distinct role of the military? This film, more than any other in this more recent spate of films attempting to explore these issues, does not flinch from these questions.

Conclusion: Back to the Florida Courtroom

Finally, the drama returns to the humid courtroom in Florida. It is almost two years after the courtroom was first seen. A new trial is in progress. This time, the same judge presides but a different jury, again ten men and women, watch and listen. The same generals are the defendants, former Salvadoran Minister of Defence Jose Garcia and former Director of the National Guard, Eugenio Vides-Casanova. But we see three different plaintiffs, three survivors of torture in El Salvador. Juan Romagoza was a doctor who treated the poor in rural health clinics; Neris Gonzalez was a lay church-worker who helped peasants learn to count so they would not be cheated by the landowners; Carlos Mauricio was a professor at the National University who continued to offer classes even after the military shut down the university.

The generals are being sued again.31 This time, the plaintiffs testify about their lives before they were tortured, about their brutal experiences after their capture by (p.519) official security forces, about their flights from their country and their attempts to create new lives in the United States. In this trial, an Argentine military officer explains to the jury the concept of the chain of command and the responsibility of command leaders to know about the actions of subordinates down the chain of command. A Stanford professor, a specialist in Latin American Studies, teaches the jury about the tormented history of El Salvador and the deliberate state of terror created by the men on trial and their cohorts in the military. And this time, the jury returns a finding of command responsibility for the torture of the three plaintiffs. As the verdict is read, many of the jurors weep—these ten average citizens—and the lawyers and supporters join in the weeping too.

The emotion of this case is not just rooted in its being the first time for any legal—and moral—accountability for the atrocities perpetuated in El Salvador, nor just because it is the first US case in which commanders who defended their actions in court were found liable. But the case signifies a willingness on the part of an American jury to grapple with the broader questions of the responsibility of commanders and leaders. By doing this, ten ordinary Americans were willing to enlarge the way that they conceptualize responsibility. They willingly went beyond the more constrained view portrayed in recent American films that eschews a richer, more textured understanding of how mass violence occurs and how responsibility for its perpetration should be addressed. Perhaps, American film making again will push beyond simple and easy characterizations and address the hard questions that justice and accountability in the wake of mass violence raises. It will be the richer for it and will enhance a collective understanding of these complex, but critical moral, legal, and political questions.32

Notes:

(1) Ford etal v Garcia etal, No 99-8359 (SD Fla filed 14 May 1998). The trial, before Judge Hurley, occurred in October, 2000.

(2) Torture Victim Protection Act, 28 USC [001] 1350 Note.

(3) An excellent discussion of the doctrine of command responsibility can be found in Elizabeth Van Schaack, ‘Proving Command Responsibility: the Anatomy of Proof in Romagoza v. Garcia’ (2003) 35 U of California Davis L Rev 1213.

(4) The appellate decision in this case, upholding the decision below, is reported as Ford v Garcia,289 F 3d 1283 (11th Cir 2002). cert denied 123 S Ct 863 (2003).

(5) For further discussion of this case, see James S Olson and Randy Roberts (eds), My Lai: A Brief History with Documents (Boston: 1998) and Michal R Belknap, The Vietnam War on Trial: The My Lai Massacre and the Court-Martial of Lieutenant Calley (Kansas: 2002).

(6) In relationship to the Holocaust, see discussions of these categories in Raul Hilberg, Perpetrators, Victims and Bystanders: The Jewish Catastrophe 1933–1945 (New York: 1992) and David H Jones, Moral Responsibility in the Holocaust: A Study in the Ethics of Character (Lanham, MD: 1999).

(7) Judgment at Nuremberg (35 mm, 178 mins United Artists, Los Angeles, 1961). The film was nominated for 11 Academy Awards, including Best Picture, Best Director (Stanley Kramer), Best Actor (Spencer Tracy), Best Supporting Actor (Montgomery Clift), and Best Supporting Actress (Judy Garland), among others. The film won Oscars for Best Supporting Actor (Maximilian Schell) and Best Screenplay Adaptation (AbbyMann).

(8) Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Control Council Law No 10 (December 20, 1945) cited in Matthew Lippman, ‘The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany’ (1992) 3 Indiana Intland Comparative L Rev 1.

(9) Lawrence Douglas, ‘Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal’ (1995) 105 Yale LJ 449.

(10) The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (8 August 1945), 59 Stat 1544, 82 UNTS 284 encompassed two sections, the London Agreement and the Charter of the International Military Tribunal. The sections addressing individual culpability are: London Agreement, art 1 (establishment of the tribunal for prosecution of war crim inals accused ‘individually or in their capacity as members of organizations or groups or in both capacities’); Charter art 7 (the official position of a defendant does not absolve him of individual responsibility).

(11) Missing (35 mm, 123 mins, Universal Pictures, Universal City, 1982). The film was nominated for four Academy Awards, including Best Picture, Best Actor (Jack Lemmon), and Best Actress (Sissy Spacek). It won an Oscar for Best Screenplay Adaptation (Costa-Gavras and Donald Stewart).

(12) The film is based on a book. Thomas Hauser, The Execution of Charles Horman (New York: 1976).

(13) A summary of the legal rulings that have emanated from the arrest of Pinochet in England in 1998 can be found in Diana Woodhouse (ed), The Pinochet Case: A Legal and Constitutional Analysis(Oxford: 2000).

(14) Peter Kornbluh’s recent book which analyzes the declassified US government documents is a rich addition to our understanding of this period. Peter Kornbluh, The Pinochet File: A Declassified Dossier on Atrocity and Accountability (New York: 2003).

(15) Rules of Engagement (35 mm, 128 mins, Paramount Pictures, Los Angeles, 2000).

(16) High Crimes (35 mm, 115 mins, Twentieth Century Fox, Los Angeles, 2002).

(17) See the conclusions of the Report of the United Nations Truth Commission on El Salvador available at www.derechos.org/nizkor/salvador/informes/truth.html.

(18) Ray Bonner, Weakness and Deceit: U.S. Policy and El Salvador (New York: 1984).

(19) Mark Danner, The Massacre at El Mozote: A Parable of the Cold War (New York: 1993).

(20) Black Hawk Down (35 mm, 144 mins, Columbia Pictures, Los Angeles, 2001). The film was nominated for four Academy Awards, including Best Director (Ridley Scott) and Best Cinematography (Slavomir Idziak). It won Oscars for Best Editing (Pietro Scalia) and Best Sound (Michael Minkler, Nyron Nettinga and Chris Munro).

(21) The film is based on a book account of the events. Mark Bowden, Black Hawk Down: A Story of Modern War (New York: 1999).

(22) Tears of the Sun (35 mm, 121 mins, Columbia Pictures, Los Angeles, 2002).

(23) A Few Good Men (35 mm, 138 mins, Columbia Pictures, Los Angeles, 1992). The film was nominated for four Academy Awards, including Best Picture and Best Supporting Actor (Jack Nicholson).

(24) Gone with the Wind (35 mm, 238 mins, Selznick International Pictures, Los Angeles, 1939). The film was nominated for 13 Academy Awards. It won eight Oscars for Best Picture, Best Director (Victor Fleming), Best Actress (Vivien Leigh), Best Supporting Actress (Hattie McDaniel), and Best Screenplay (Sidney Howard), among others.

(25) El Norte (35 mm, 139 mins, American Playhouse, Los Angeles, 1984).

(26) Nuremberg Charter, n 10 above, art 8.

(27) The events at My Lai generated public debate on individual, command and political responsibility for the massacre. See n 5 above. This defence is being raised by some of the lower-ranking soldiers accused in the Abu Ghraib prison scandals as well.

(28) Aaron Sorkin adapted the screenplay from his stage play of the same name.

(29) On viewing the film from the perspective of 2003, one is struck by the incongruity of the fact that the United States continues to maintain an ‘unfriendly’ base on the sovereign territory of Cuba. Further, the current infamy of that particular location—where the United States is holding incommunicado ‘enemy combatants,’ not subject to the protections of the Geneva Conventions or any other legal norms—makes the film feel particularly chilling. One of the iconic speeches of the film is Col Jessup’s explanation in the courtroom of his justification for his own actions. He states that,‘you want me on that wall; you need me on that wall’. He is referring to American citizens’ dependence on the US military to keep us safe from our enemies on the other side of the ‘wall’. Jessup’s view would not be universally held, at the present time, especially in regards to the use of the base on Cuba.

(30) Three Kings (35 mm, 114 mins, Warner Brothers, Los Angeles, 1999).

(31) Romagoza etal v Garcia et al, No 99-8364 (DS Fla filed 14 May 1998). The trial, before Judge Hurley, took place in June and July, 2002. The case is currently on appeal by the defendants before the US Court of Appeals for the Eleventh Circuit. It was argued on 31 July 2003 and is awaiting decision. Further information about this case is available at www.cja.org.

(32) The Abu Ghraib prison scandal, in which US soldiers engaged in abuses against Iraqi prisoners, makes the need to address command and culpability all the more present and urgent. See Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib (New York, 2004); Mark Danner, Torture and Truth: America, Abu Ghraib and the War on Terror (New York, 2004).