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December 22nd,
2006 - ‘Atrocity’ Cases Test US Military Justice |
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‘Atrocity’ Cases Test US Military
Justice Charges against eight marines in the Haditha case refocus attention on
how the military handles the abuse and killing of civilians. By Brad Knickerbocker The Christian Science Monitor from the December 22, 2006 edition Haditha, Hamdaniyah, and
Mahmudiya - Iraqi cities where US troops are alleged to have committed
wartime atrocities - may not have seared the public consciousness as deeply
as did My Lai in Vietnam. But the cases, including new criminal charges filed
Thursday against eight marines in connection with the killing of 24 civilians
in Haditha, are sure to focus more attention on how the military handles
abuse and killing of prisoners and civilians. The serious charges brought
in these cases also raise basic questions about how the US military-justice
system proceeds against alleged atrocities: What constitutes a "war
crime"? What is the responsibility of officers of enlisted soldiers and
marines who are found guilty? What punishments are being meted out? Prosecution in such cases
falls under the US Uniform Code of Military Justice, the Law of Armed
Conflict, and the Geneva Conventions. But it is the "rules of
engagement" that may be most relevant for troops going into battle. Such rules for combat
typically are set by the unit commander just before an operation begins,
based on an evaluation of mission, enemy, terrain, troops, and time
available, says retired Army Col. Dan Smith, a military analyst with the
Friends Committee on National Legislation, the Quaker lobby in Washington.
But, he adds, rules of engagement "can be idiosyncratic." Colonel Smith notes, too,
that "soldiers always have the right of self-defense using even deadly
force if they judge that they are in danger of suffering grievous wounds or
death from enemy action." In the Haditha case, those
marines charged with killing civilians (including 10 women and children shot
at close range) are expected to assert that they were fired on from houses
near where their convoy was hit by an improvised explosive device (IED) that
killed a lance corporal. "Our view has been and
continues to be that these are combat-related deaths," defense lawyer
Gary Myers told the Associated Press. Mr. Myers represents Lance Cpl. Justin
Sharratt, who faces one charge of murder involving unpremeditated killings of
three men in a house. Evidence gathered by
military investigators contradicts that, prompting the Marine Corps to charge
four of the eight marines with murder. It also led Thursday to charges
against four others - unit officers not present at the scene - of failing to
properly investigate and report the event. The highest-ranking officer to be
charged is a lieutenant colonel, accused of failing to obey an order or
regulation, encompassing dereliction of duty. That raises questions about
the responsibility of officers up the chain of command, from lieutenants
leading platoons to colonels commanding brigades. Rank should be important in
assessing professional and perhaps even criminal responsibility, says Gary Solis,
a 26-year Marine Corps veteran who served as a courts-martial prosecutor and
judge. "Under the law of armed
conflict, if a superior knew, or should have known, of a subordinate's
misconduct, and he took no action to stop it or to punish it, then he is
himself personally criminally liable for the crime committed," says Dr.
Solis, who directed the law of war program at West Point and now teaches at
Georgetown Law School in Washington. "That's basic World War
II Nuremberg Tribunal stuff," he says. "But how often have we seen
the principle honored? Not often." During the nine-year Vietnam
War, 95 soldiers and marines were convicted of murder or manslaughter of
noncombatants. Courts-martial resulted in sentences as stiff as 50 years and
life in prison. In Iraq and Afghanistan,
most incidents involving civilian deaths caused illegally by US forces have
resulted in far lighter punishment, Solis finds. For example, an Army chief
warrant officer charged with negligent homicide in the 2003 death of an Iraqi
detainee received a letter of reprimand, a fine of $6,000, and two months'
restriction to Fort Carson, Colo. A sergeant involved in the beating death of
an Afghan detainee in 2005 was reprimanded, given a one-grade demotion, and
fined $1,000. In the Abu Ghraib prison scandal, the most senior officer
punished was Army Reserve Brig. Gen. Janis Karpinski, demoted to colonel. But dealing with detainees
is very different from fighting in the heat and fog of battle, especially
when the enemy emerges from or blends into the civilian populace. That
situation, which troops face routinely in Iraq and Afghanistan, can lead to a
difficult and potentially deadly paradox. "Because Army personnel
are trained for conventional warfare, they naturally want to kill the
enemy," says national security analyst Ivan Eland of the Independent
Institute, a nonpartisan think tank. "But in counterinsurgency warfare,
a premium must be put on providing security for the population without
killing civilians. "This unfortunately
means tighter rules of engagement, which increases US casualties," says
Dr. Eland. In Haditha, the death of one
marine and injuries to two others while traveling in a convoy preceded the
attacks on Iraqi civilians. The squad leader that day faces the most serious
charges - murdering 12 people and ordering other marines to kill six people.
His attorney said the charges carry a maximum penalty of life in prison. Other recent cases of
civilian deaths at the hands of US troops point to murderous intent. In the Hamdaniyah case,
seven marines and a Navy corpsman have been charged in the kidnap and murder
of an Iraqi man, and then making it look as if he had planted an IED. So far,
four have pleaded guilty to lesser charges in return for prison terms of less
than two years. In the Mahmudiya case, five
Army soldiers have been charged in the rape and premeditated murder in April
of a 14-year-old Iraqi girl and the murder of her parents and 5-year-old
sister. One soldier pleaded guilty to avoid the death penalty. Another, a
sergeant charged with dereliction of duty for failing to report the crimes,
accepted an "other than honorable" discharge from the Army. Cases
against the others are pending. As with civilian trials, the
nature of the evidence may lead military prosecutors to conclude that
negligent homicide - not premeditated murder - is the most serious case they
can make. "Even with negligent
homicide, the starched and pressed judge advocate who's not been in combat
has to convince a jury that the young [marines] who daily risked their lives
in Iraq are unworthy of belief," says Solis, the former Marine Corps
judge advocate. "That could be a hard sell, and acquittals would not
surprise me." Some experts attribute such
atrocities to the stress of enduring multiple tours of duty in Iraq, as well
as the very difficult circumstances of fighting an unconventional war. "It seems to me the
main point is that these incidents are symptoms of combat stress," says
John Pike, director of globalsecurity.org. "The question is whether the
combat stress management system is doing a good job because there are so few
incidents or a bad job because these incidents happened." - Material from wire
services was used in this report. External link: http://www.csmonitor.com/2006/1222/p01s01-usmi.html |