June 9, 2006 The Crimes at Haditha: A Briefing By Anthony Dworkin
On November 19, 2005, a group of U.S. Marines killed 24 Iraqi civilians in the town of Haditha following a roadside bomb (or improvised explosive device) attack against the Marines’ convoy that killed one of their members. As is now well known, the Marines appear to have deliberately targeted civilians (including a large number of women and children) who had no apparent link to the attack on the American convoy and to have killed them at close range. The U.S. Army has conducted two investigations into the incident: a criminal investigation by the Naval Criminal Investigation Service, which is considering criminal charges related to the shootings in Haditha, and a separate investigation by a senior Army officer, Maj. Gen. Eldon A. Bargewell, into the way that the Marine hierarchy in Iraq responded to the incident. A draft of General Bargewell’s report is said to be under consideration by the U.S. Army and sources have said that the report is “virtually complete”. The NCIS criminal investigation is expected to report by the summer.
A great deal has been written about the Haditha incident. This briefing attempts to summarize what has emerged so far and to set out its legal ramifications. A forthcoming article will examine the possible causes of the killings and ask what can be done to make such incidents less likely.
What Crimes Were Committed at Haditha?
Although no final assessment can be made until ongoing reports are completed, it appears that the Marines at Haditha killed civilians who had no apparent connection to the IED attack on the American convoy and who posed no apparent threat to U.S. forces when they were shot. According to press accounts, those killed were in three houses near the site of the IED attack and in a taxi that was in the same street at the time. Only one weapon was found in any of these locations, and according to press accounts it was voluntarily handed to American troops before they opened fire.
The killings at Haditha therefore appear to have been a direct attack against civilians who were not taking part in conflict, and therefore a violation of one of the most fundamental principles of international humanitarian law – that of distinguishing between combatants and civilians.
In terms of the law, the conflict in Iraq at the time of the Haditha incident should probably be seen as an internal (or non-international) armed conflict with the forces of the Iraqi government and the United States fighting against an insurgent group. The full Geneva Conventions would not be applicable in such a case (their application would end at the time that the American occupation of Iraq gave way to a government that exercised legal authority over its territory). However there are international laws that would apply: Common Article 3 of the Geneva Conventions (which covers internal fighting) and the customary law of internal armed conflict. There is no question that the killing of unarmed civilians would be a serious violation of both these laws.
As a matter of policy, the U.S. military prefers to prosecute American servicemen for violations of American rather than international law. The laws governing the conduct of American forces are set out in the Uniform Code of Military Justice. It has been suggested that some at least of the Marines at Haditha may be charged with murder, the most serious charge in the UCMJ relating to the use of lethal force. If charged, the Marines will face trial by U.S. court-martial.
How Far Were Senior Officers Responsible?
In assessing the responsibility of senior officers, it’s important to distinguish between two different concepts: the notion of command responsibility for war crimes, and the responsibility to ensure respect for the laws of war.
Command responsibility describes the idea that superior officers can be held liable for acts committed by military forces under their control. The principle was established in the Yamashita case following World War II and has been refined in the jurisprudence of the tribunals for former Yugoslavia and Rwanda. The formula used to ascribe responsibility is that commanders may be held criminally liable if they knew or should have known that forces under their control were committing war crimes and did nothing to stop them. In the case of Haditha, the principle of command responsibility would not seem to apply to officers not present during the attack, since they could not have known what was happening while the crimes were being committed.
The principle that is relevant in Haditha is the responsibility to ensure respect for the laws of war by reporting and investigating violations. Gen. Bargewell’s inquiry is investigating whether there was an attempt to cover up the killings at Haditha, and whether more senior officers were involved. After the initial killings (which came on a day of widespread violence in the area) a second Marine group arrived to collect the bodies. According to the death reports they completed, all those killed were the victims of gunfire. Yet the following day, Marine Captain Jeffrey Pool released a statement saying that 15 Iraqis had been killed by a roadside bomb. Military sources have said that, even if they weren’t aware of the discrepancy between the two sets of figures, superior officers should have recognized this statement as suspicious, since it is extremely unusual for IEDs to kill people in such numbers. Moreover, it is normal to hold investigations in all cases in which several civilians are killed – yet no investigation was ordered in this case.
Following the first public account of the incident, which appeared in Time Magazine in March, three officers in the Marines were relieved of their command, including Lt. Col. Geoffrey Chessani, commander of the 3rd Battalion of the 1st Marines, and Capt. Luke McConnell, commander of the company of the 3rd Battalion from which the Marines at Haditha had been drawn (Kilo Company).
If they or other officers are charged in connection with Haditha, it is likely they would be charged under the Uniform Code of Military Justice with making false statements or with dereliction of duty for failing to follow regulations on the investigation and reporting of possible crimes.
What Defense Could the Marines Offer?
According to a Reuters report published on June 7, soldiers charged with murder in connection with Haditha may argue that the killings took place in chaotic conditions in which it was hard to distinguish innocent civilians from collaborators with the insurgency. “Who are the good guys and who are the bad guys?” said one source involved in the possible defense of one Marine. “There’s a strong possibility” that at least some of the men killed could turn out to be insurgents, the source added.
If the soldiers involved genuinely had reason to think the people they shot represented a threat, and did everything feasible to establish whether they did or not, then the killings might not have been a crime. But the accounts that have emerged so far seem paint a very different picture, in which most of those killed were shot without any evidence that they were insurgent fighters or posed a threat to American forces.
Even if civilians had some knowledge of the insurgency (for instance if they knew that friends or family members were involved in it) that would not make them legitimate targets of attack themselves. Such indirect knowledge would not count as direct participation in hostilities, which alone can remove the immunity that civilians enjoy from being fired on deliberately.
Could the Marines be Prosecuted Under Iraqi Law?
The Iraqi government announced that it is also conducting an investigation into the killings at Haditha, and the U.S. military chief of staff Brig. Gen. Donald Campbell said that the United States would “give them whatever assistance they need.”
The legal position of American forces in Iraq is unclear. Traditionally, armed forces present in the territory of another country are either at war with that country (and therefore subject to prosecution only for war crimes) or have the terms of their presence regulated by a Status of Forces Agreement. Generally, SOFAs include a provision that soldiers will be prosecuted for any crimes by the country to which they belong, and are immune from prosecution by the country in which they are based.
However the United States has not signed a Status of Forces Agreement with Iraq. Instead, they operate under a regulation issued by the Coalition Provisional Authority (which oversaw the occupation of Iraq after the overthrow of Saddam Hussein) in June 2004. This regulation, extending the terms of an earlier order and known as CPA Order No. 17 (Revised), said that all members of the multinational force in Iraq “shall be immune from Iraqi legal process”. Moreover it said that the order would remain in force until the final coalition forces left Iraq, unless it was rescinded or amended by later legislation. The Iraqi Parliament has not ended or amended the order, so it presumably still remains in force – however it remains uncertain whether a regulation issued by a regime of occupation can continue to bind the actions of a successor sovereign government.
In the end, this question seems academic, since it is politically inconceivable that the Iraqi government would attempt to prosecute American servicemen without American consent.
It’s worth noting that a similar ambiguity surrounds the operation of U.S. forces in Afghanistan, where there is also no Status of Forces Agreement. In the wake of the crash of an American military vehicle in Kabul in late May that killed several Afghans, the Afghan Parliament passed a motion called for the prosecution of the Americans involved. However the Parliament cannot initiate prosecutions and no government official has suggested that he has any interest in doing so.
Are There Many More Hadithas Yet to be Discovered?
On Thursday June 1, Iraq’s Prime Minister Nuri al-Maliki launched a surprisingly harsh attack on the operating methods of American troops in Iraq, saying that violence against civilians was a “daily phenonmenon”. He charged that the American forces “do not respect the Iraqi people” and that “they crush them with their vehicles and kill them just on suspicion.”
And as it happens, it has been revealed that U.S. investigators may be considering murder charges in relation to a second incident in Iraq, when a separate group of Marines allegedly executed a man in Hamdaniya on April 26 and then planted a shovel next to his body to make it seem as if he had been planting a roadside bomb.
Although there may be many questionable instances of the killing of civilians in Iraq, from what we know so far Haditha appears to stand out both for the numbers of people killed and for the fact that there seems to have been nothing to suggest they posed a threat. It’s for this reason, undoubtedly, that authorities appear to be considering a murder charge in the case.
Much more frequent, it seems, are “grey area” cases in which U.S. forces fire on Iraqi civilians in situations where it is unclear whether they pose a threat or have been involved in insurgent or terrorist actions. In these situations, the law obliges soldiers to take “all feasible precautions” to avoid harm to civilians, and to avoid attacks where the likely harm to civilians is excessive in relation to the military significance of the target. Clearly, there are many people in Iraq – from the Prime Minister down – who feel that the rules of engagement followed by American troops don't place sufficient emphasis on the value of Iraqi lives. However, it is rare for soldiers to be prosecuted in such cases, because the decisions involved are inevitably questions of judgement where criminality can be difficult to prove beyond doubt.
In response to this kind of complaint, it seems more promising to try to influence the operational approach of U.S. forces through training – as is now apparently happening – rather than through criminal prosecution of offenders. There is no doubt that the demands of counter-insurgency warfare are uniquely challenging and it is vital that everything is done to reinforce the importance of preserving as far as possible the standards of humane warfare in such circumstances.
In the case of Haditha, the opposite seems true. It is hard to see that very much “ethics training” is needed to understand that the deliberate killing of innocent civilians is wrong, and the criminal prosecution of those involved seems essential (assuming current reports are accurate) to indicate that U.S. forces do indeed respect the laws of war.
|