A great book on this subject is The Law of Armed Conflict and International Humanitarian Law in War by Gary Solis (related to nrsolis?) I think it's currently used as a textbook at West Point and other places. I have a copy here. Solis is a clear advocate for rules of conduct in war and for the punishment of those who break those rules but he also does not shy away from pointing out the frequent cases when, as you note, guilty soldiers on the winning side escape punishment. E.g., here is a quote from the book concerning the trial of Ernest Medina, implicated in the My Lai massacre:
The prosecution urged that Medina knew, or should have known, of the massacre, but, in addition to inciting it, he took no action either to stop it or to subsequently bring to justice those who committed crimes. “Even if he did not personally commit any crimes in My Lai, Medina clearly failed to maintain control over men under his command who were committing scores of them.”42 Despite apparently meeting the von Leeb–List standard – knew or should have known – and, for that matter, the Yamashita standard – must have known – Medina was acquitted.43 One civilian nonlawyer who viewed the trial found the case poorly prosecuted.44 Another calls it “a striking example of the extent to which a domestic . . . tribunal will devise a restricted formulation of the superior responsibility doctrine in order to avoid the prosecution of its own nationals.”45 But that ascribes a sinister motive to the court-martial that did not exist. (p.422)
I had an entire semester of instruction on "The Law of Armed Conflict". It's taken VERY seriously by the military.
One example:
In the movie Lone Survivor, the SEAL team of which Marcus Lutrell was a member of is "soft compromised" by a group of goat-herders in the Afghan mountains. They were discovered when the goat herders LITERALLY tripped over them.
Now they were faced with a difficult problem. It was commonly known that the anti-coalition militia used goat-herders as scouts knowing that they would not be molested by coalition forces. Letting them go would almost certainly result in their presence becoming known to the militia. Killing them was against the ROE.
They really didn't have a choice: they let them go. In less than an hour, they were ambushed and three SEALs died. Marcus Lutrell was saved by a local Pashtun. A quick reaction force with two helicopters full of SEALs was repelled by RPGs and another 16 SEALs and other operators were killed.
SO: three goat herders were freed and nineteen men lost their lives because by the ROE, you couldn't kill the goat-herders because they weren't carrying weapons.
Ask yourself if you truly believe you could live with the fact that you freed the people who called the forces that would ambush you and kill your friends.
Our military is willing to follow the rule of law far more often than not. That's a huge difference given the life and death stakes these people are under.
This isn't a movie and there is no do-over. Making a bad decision might get your friend killed or put you in prison. Let's try and adjust our thinking to fit the circumstances these people find themselves in. It's the LEAST we can do as an informed citizenry.
(BTW: I know one of the guys who went in to those mountains to retrieve the bodies of the killed SEALs and find Lutrell. He has no illusions about the enemy he was facing.)
The prosecution urged that Medina knew, or should have known, of the massacre, but, in addition to inciting it, he took no action either to stop it or to subsequently bring to justice those who committed crimes. “Even if he did not personally commit any crimes in My Lai, Medina clearly failed to maintain control over men under his command who were committing scores of them.”42 Despite apparently meeting the von Leeb–List standard – knew or should have known – and, for that matter, the Yamashita standard – must have known – Medina was acquitted.43 One civilian nonlawyer who viewed the trial found the case poorly prosecuted.44 Another calls it “a striking example of the extent to which a domestic . . . tribunal will devise a restricted formulation of the superior responsibility doctrine in order to avoid the prosecution of its own nationals.”45 But that ascribes a sinister motive to the court-martial that did not exist. (p.422)
http://www.amazon.com/The-Law-Armed-Conflict-International/d...
I hope this information is helpful.