Assassinated by Democracy: The Haditha Massacre and US Culpability for War Crimes
June 2006
Introduction
On 19th November 2005, 24 Iraqi civilians – women and children included – were killed by US Marine forces in this Euphrates-bordering farming town, without warning or provocation. Original reports painted a bittersweet picture, stating that the deaths were the result of an improvised explosive device (IED) exploding on a Haditha roadside, or poor souls caught up in an exchange of fire between Marines and Iraqi insurgents. Recent investigations reveal the true extent of the initial bungled cover-up, featuring damning allegations that the bloodbath was a wilful response to the IED detonation’s fatal effect on one American soldier, and injury of two others. Not only did the massacred civilians have no connection to the initial IED attack on the American convoy, they appear to have been scapegoated because of their coincidental proximity to the US forces (in three houses near the IED attack and in a taxi that was in the same street).
This briefing looks discusses the nature or war crimes, and the possibility of such charges being brought against
(i). What constitutes a war crime?
Prior to World War Two, it was generally accepted that the horrors of war could not be divorced from its inherent nature. However, the murder of several million people – mainly Jews – by Nazi Germany and the mistreatment of both civilians and prisoners of war by the Japanese, gave birth to the concept of war crimes. At the heart of this innovation lies the notion that individuals can be held responsible for the actions of a country or that nation’s soldiers. This unique characterisation means in effect the consequences of war crimes are clearly more ominous and potent than any violation of domestic statutory law. Every violation of the law of war in an inter-state conflict is a war crime, while violations in internal conflicts don’t necessarily fall under this category.
The Allied powers were able to prosecute the people they believed to be the perpetrators of these crimes, leading to the famous Nuremberg trials in 1945 and 1946, which resulted in the executions of twelve Nazi leaders. A similar process started in Tokyo in 1948. Seven Japanese commanders were hanged, though the Allies decided not to put Emperor Hirohito in the dock.
War crimes encompass genocide, crimes against humanity and mistreatment of civilians or combatants during war. A vast body of statutes apply to these, including the Geneva Conventions 1949 and the two Additional Protocols of 1977, the Laws & Customs of War, and, in the cases of Rwanda and the former Yugoslavia, the statutes of the International Criminal Tribunal in the Hague (ICTR and ICTY, established by the UN Security Council acting under Chapter VII of the UN Charter).
The Geneva Conventions are the definitive codifications of international humanitarian law, encapsulating global revulsion against the worst atrocities of the twentieth century. The Geneva Article 147 of the Fourth Geneva Convention defines war crimes as: “Wilful killing, torture or inhuman treatment, including… wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or wilfully depriving a protected person of the rights of fair and regular trial, …taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
The gravity and scope of war crimes warrants the jurisdiction of a single international court, liberated from the potential burden of a politically-motivated question-mark. As of June 2003, 139 countries had signed the Rome Statute that establishes the International Criminal Court and 90 countries had ratified it. Despite this transparent effort to universalise international justice, the US still repudiated the treaty, citing interference with national sovereignty as the reason. However, this is an unfair assertion. While the ICC maintains its authority by acting as a fundamental guarantee against impunity, it is still flexible enough to allow state parties to conduct their own investigation and prosecution in the first instance. Crucially, a citizen of one of the “objector nations” could still find himself before the Court if he was to travel to a country which is a signatory to the treaty, regardless of the fact that their country of origin is not a signatory.
The Rome Statute of the International Criminal Court delineates war crimes in Article 8. 2 (b). (i). “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
- Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
- Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.”
In order to reiterate the principle of individual responsibility, collective punishment has been defined as a war crime. Article 33 of the Fourth Geneva Convention of 1949 states: “No protected person may be punished for an offence he or she has not personally committed,” and “collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”
Despite this raft of legislation, war crimes are often difficult to categorise. For instance, the displacement of civilians from their homes by enemy troops only becomes a war crime if the expulsions can be proven to be part of a campaign of ethnic cleansing or mass punishment, as opposed to a method of protecting the civilians.
(ii). Can war crimes charges apply to those responsible for Haditha?
The debate concerning US adherence to the laws of war was revived when news of the Haditha massacre broke out. On 19th November 2005, 24 Iraqi civilians – women and children included – were killed by US Marine forces in this Euphrates-bordering farming town, without warning or provocation. Original reports painted a bittersweet picture, stating that the deaths were the result of an improvised explosive device (IED) exploding on a Haditha roadside, or poor souls caught up in an exchange of fire between Marines and Iraqi insurgents. Recent investigations reveal the true extent of the initial bungled cover-up, featuring damning allegations that the bloodbath was a wilful response to the IED detonation’s fatal effect on one American soldier, and injury of two others. Not only did the massacred civilians have no connection to the initial IED attack on the American convoy, they appear to have been scapegoated because of their coincidental proximity to the US forces (in three houses near the IED attack and in a taxi that was in the same street).
Regardless of populist military euphemisms such as “collateral damage,” if the deaths of the civilians in Haditha are indeed found to be targeted reprisal killings, the acts of the US marines are war crimes and make a mockery of the tapestry of laws that protect civilians in armed conflict. The need to distinguish between combatants and civilians is a fundamental principle of international humanitarian law. In the words of George W. Bush himself, dripping with unintentional irony, “We must understand that we’re in a global war against a totalitarian group of people who will kill innocent life, there or here, in order to achieve an objective.”
This statement sums up the soldiers’ haphazard approach towards the sanctity of civilian life in a war zone – critically, an attitude that has more in common with the brazen, active voice of recklessness than the remote passivity of carelessness. The objective of this group of Marines was clearly a thirst for revenge, albeit targeted at those who were the most ill-equipped to defend themselves.
Unfortunately, the application of the Geneva Conventions ceases upon the establishment of a democratically-elected Iraqi government. An armed conflict that features Iraqi government and US forces fighting against an insurgent group would be classified as internal, and is therefore outside the scope of much of the Geneva Conventions, which protect civilians from the tyrannical whims of occupying powers. However, there are international laws which would apply to those responsible for Haditha. The killing of non-combatants would be a flagrant violation of Common Article 3 of the Geneva Conventions (which covers internal fighting) and customary international law of armed conflict. The study shows, however, that state practice has developed a more complete regulation of internal conflicts under customary law than in treaty law.
The Uniform Code of Military Justice governs the conduct of American forces, and lends credence to the policy argument that the US military prefers to prosecute American servicemen for violations of American rather than international law. Once the military investigation draws to a close in June 2006, it will be up to a senior Marine commander in Iraq to decide whether to press murder – the most serious UCMJ charge relating to the use of military force – or alternative violations. The most likely scenario is that the Marines will face trial by US court-martial.
(iii). Can those much higher up the chain of command to be prosecuted, e.g. President Bush?
Attorney Paul Hackett claims that the investigations into the Haditha massacre are focused on the troops who were in the four-vehicle convoy hit by a roadside bomb, and not their superior officers. The first key concept which assesses the responsibility of senior officers in war crimes is that commanders are only 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. The US War Crimes Act is the relevant legislation here, and the punishment could be life imprisonment or even the death penalty if the victim dies. This principle was refined in the jurisprudence of the tribunals for the former Yugoslavia and Rwanda, but does not apply in this case, as the commanders were not even present.
The second key concept, which is relevant to Haditha, relates to the responsibility to ensure respect for the laws of war. This encompasses reporting and investigating violations and therefore pours scorn on cover-ups. Transparency is vital, which is why it is bizarre that superior officers did not order an investigation into this case. The fifteen Iraqi victims were clearly victims of gunfire, not a roadside bomb like Marine Captain Jeffrey Pool stated (it is rare for IEDs to kill people in such numbers).
Although three of the Marine officers have been relieved of their command, none have yet been charged in connection with Haditha. If charges are pressed, they will be based on the second ground. Once again, appropriate redress will be gained through the Uniform Code of Military Justice. Possible charges including making false statements or failure to follow regulations on the investigation and reporting of possible crimes. However, the problem with these violations is their emphasis on procedural failure rather than moral collapse, as well as their posthumous outlook. An exclusively American reprehension creates an insular approach to war crimes and their punishment, diminishing the international accountability of the US Marines.
Soldiers charged with murder in Haditha could rely on the defence that it was difficult to distinguish between innocent civilians and insurgents amidst the chaos of the situation. This is a weak argument because the soldiers had not done everything feasible to establish whether their victims genuinely represented a threat or not. It is heartening to note that spontaneous assumptions – and situational ethics in general – will not suffice when innocent lives are at stake. The threshold for this defence is so high that even civilian links to the insurgency i.e. involvement of family and friends, would not make them legitimate targets themselves.
The Iraqi government is also conducting an investigation into the slaughter at Haditha, and would have an uphill task when clarifying the legal position of American forces in Iraq. If the armed forces present in the territory of another country are at war with them, they are subject to prosecution for war crimes. The other alternative is to regulate the presence of soldiers with a Status of Forces Agreement, which aims to prosecute them for any crimes by the country they are citizens of, not the country in which they are based. Yet the USA did not sign a Status of Forces Agreement with Iraq, instead choosing to operate under the Coalition Provisional Authority’s Order Number 17 which exempted the multinational forces in Iraq from Iraqi legal process. Although the application of the Geneva Conventions comes to a close once a sovereign government has been elected, it is not clear whether such a government can be bound by regulations issued by an interim occupational regime. The Iraqi Parliament technically has the power to rescind or amend this order, but have presumably not done so because they cannot bring prosecutions against American servicemen without the nation’s acquiescence anyway.
Iraq’s Prime Minister Nuri al-Maliki has attacked the American troops in Iraq, saying, “Yes, a mistake may happen but there is an acceptable limit to mistakes.” American troops do not seem to hold the sanctity of Iraqi lives in high regard. It is akin to Iraq being forced to “pay the price” for one American life with 24 dead Iraqis. Since these prosecutions are invariably questions of judgment, it is rare for soldiers to be prosecuted in such cases.
An even more pertinent question concerns whether George W. Bush, Dick Cheney and Donald Rumsfeld will be charged with war crimes on the theory of command responsibility. The effect of Articles 2(3) and 2(4) of the UN Charter is to circumscribe the situations in which force can be used. Article 42 colludes with this, stating that force is only justified when all peaceful methods of solving the dispute have been exhausted. In relation to the US and UK invasion of Iraq, where the superpowers believed that Iraq had shirked its UN-mandated disarmament obligations, they still did not have a unilateral right under Article 42 to use force to secure adherence to these. In other words, the US and the UK did not have the authority to ‘punish’ Iraq. Any potential action to be taken was a matter for the Security Council to decide. Returning to the Charter, there are only two situations in which one state can lawfully use force against another:
- In individual or collective self-defence, a customary international law right enshrined in Article 51 of the Charter.
- Pursuant to an UN Security Council resolution.
Daniel Webster’s statement regarding the Caroline Case of 1837 clarifies this position by saying that self-defence is justified only when the necessity for action is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Since Iraq had invaded no country for eleven years before “Operation Iraqi Freedom” and the Security Council had not authorized the invasion, the Iraq action was a war that violated the UN Charter. Not only is this war a war of aggression, but the Nuremberg Trial declared such a war to be the supreme international crime.
There is damning evidence to suggest that US forces are committing torture based on high-level government policy, as well as accounts of war crimes in Fallujah. Reports abound that troops were not properly briefed on the Geneva Conventions, the international laws of armed conflict and the US military’s own rules of engagement. It could therefore be argued that President Bush, Dick Cheney and Donald Rumsfeld had adequate warning of the likelihood of a war crime taking place in a town like Haditha – and should consequently be prosecuted under the War Crimes Act. The strongest admission of guilt over Haditha is the decision to pay compensation to families of the victims. Such a decision only takes place at the higher levels of the chain of command.
In response to a reporter’s question on 31st May 2006, President Bush said he had discussed Haditha with General Peter Pace, chairman of the Joint Chiefs of Staff. “He’s a proud Marine. And nobody is more concerned about these allegations than the Marine Corps. The Marine Corps is full of honorable people who understand the rules of war. If in fact these allegations are true, the Marine Corps will work hard to make sure that that culture – that proud culture – will be reinforced. And that those who violated the law, if they did, will be punished.” Bush’s assertions are likely to offer little solace to Iraqis like merchant Muhanned Jasim, who declared “We have a Haditha every day.” Hopefully, the Haditha investigations will not follow the same shrouded path as the Abu Ghraib scandal, where only a few low-ranking soldiers were prosecuted. The saddest irony is encapsulated by the graffiti on one of the Haditha victims’ houses, which reads, “Democracy assassinated the family that was here.”
———————————————————-
Islamic Human Rights Commission
PO Box 598
Wembley
HA9 7XH
United Kingdom
Telephone (+44) 20 8904 4222
Fax (+44) 20 8904 5183
Email: info@ihrc.org
Web: www.ihrc.org
