DESPITE THOUSANDS OF CIVILIAN DEATHS, FEW MURDER CASES HAVE BEEN BROUGHT IN IRAQ WAR
WASH. POST REPORTS CAUTION AMONG MILITARY BRASS TO HOLD SOLDIERS ACCOUNTABLE WHEN THEY VIOLATE THE LAWS OF WAR
28 August 2006

While prisoner abuse has been a widely reported charge, with shocking images and public outrage to keep attention on the subject, there has been relatively little similar public outrage expressed over situations where civilians have died in questionable circumstances. The Washington Post reports there has been a tendency not to investigate many such deaths, with top officials saying "in private" that there's "a tendency to consider Iraqi civilian deaths an unintended consequence of combat operations".

The United States has rejected calls to join the International Criminal Court at the Hague, saying it could be used to punish individual Americans unfairly for political reasons, and that the United States justice system is more than adequate to prosecute any crimes that would enter into an international or war crimes jurisdiction. A failure to prosecute apparent violations of the laws of war raises questions about this defense and has spurred new calls for the United States to subject its military personnel to prosecution by the ICC.

The now infamous "Haditha massacre" of November 2005, in which 24 civilians were apparently shot at close range while bound inside their homes, allegedly as revenge for the death of one of the soldiers' comrades, is a spotlight case. The deaths were not investigated by the US military at first, because the word of the soldiers in their report of "combat activities" was taken as the ultimate truth and no inquiry was deemed necessary. Many news sources eventually reported that the commanding officer viewed the deaths as part of a "routine" operation.

Only later, when a new pair of eyes came to the case, in the form of Lt. Gen. Peter W. Chiarelli, commander of Multinational Corps-Iraq, with a mind to clean up what appeared to be sloppy command or even cover-up in such cases and prosecute wrongdoing, did the case begin to appear to military commanders to be a murder case. It is now under investigation and for that reason was not included in the Post's study of under-prosecuted offenses.

The Post survey found that "There is no accurate count of the number of Iraqi civilians killed by U.S. forces", as the US military insists it does not keep track of such figures. That declaration, initially made by commanding general Tommy Franks, in 2003, spurred the project of the indepedent watchdog group Iraq Body Count, which uses media reports and cross-referencing to estimate the number of civilian deaths in Iraq since the 2003 invasion.

IBC's count currently estimates that between 40,000 and 45,000 civilians have been killed by insurgents, terrorists and US forces over the last 41 months. The Pentagon has reported that in 2005 at least one civilian per day was killed by US forces in what were termed "escalation of force incidents", which refers to security measures that use deadly force, such as firing on drivers of vehicles that appear not to heed commands at checkpoints. It is not clear if the type of force used at such checkpoints falls within the legitimate laws of war, as it places civilian lives at serious risk.

The Post study, which examined only closed cases, found "The majority of U.S. service members charged in the unlawful deaths of Iraqi civilians have been acquitted, found guilty of relatively minor offenses or given administrative punishments without trials", and also that in several cases charges were dropped entirely and no punishment pursued.

The Post also quotes "an Army major who served in Iraq in 2004, speaking anonymously because he fears retribution" as saying he thinks "there were many other engagements that should have been investigated, definitely... But no one wanted to look at them or report them higher... It was just the way things worked."

Georgetown Law professor Gary Solis, a former Marine prosecutor, is quoted as saying "I think there are a number of cases that never make it to the reporting stage, and in some that do make it to the reporting stage, there has been a reluctance to pursue them vigorously". Solis also examined the record of prosecutions in the Vietnam war, which was much longer and led to far more civilian deaths, and found only 122 convictions over the 12 years of that conflict. Still, the rate of conviction in the Iraq conflict appears to be only 40% of that figure, suggesting a great number of suspicious civilian deaths have never been investigated at all.

39 US military personnel have so far been charged in connection with suspicious deaths in the Iraq conflict. One of the most severe punishments handed down was a 25 year sentence for an American soldier who shot an Iraqi soldier. In a separate case, an American soldier was sentenced to 25 years for killing a man in his home.

But the 39 individuals charged so far have faced charges in connection with the deaths of only 20 Iraqis, not all civilians. 26 of them faced charges of either murder, negligent homicide or manslaughter, and only 12 served any prison time for the crimes they were accused of.

An Army spokesman told the Washington Post "Conviction and confinement is not always the measure of a correct result." The apparent reluctance of the US military to label civilian deaths suspicious has raised questions among human rights groups and anti-war activists about the legitimacy of the "rules of engagement" currently in use. There is some concern that too many situations are labeled as legitimate uses of deadly force, despite having no strategic or tactical use and despite apparent conflicts with the laws of war.

According to the Post, "Army and Marine officials confirmed that The Post's compilation of criminal homicide cases is comprehensive. The Naval Criminal Investigative Service, which handles Navy and Marine cases, did not respond to requests for comments on the data."

And since the allegations about killings at Haditha, Hamdaniya and Mahmudiya, emerged, where many of the victims were women, children or elderly, 17 more US personnel have been charged in connection with civilian deaths, an increase over the rate of prosecutions through February 2006, and due in large part to the order of Lt. General Chiarelli to investigate all cases of civilian deaths in "escalation of force" actions.

In at least one case, a platoon-leader reporting the apparent murder of a civilian by two of his soldiers, and observing an apparent lack of interest in prosecuting the alleged wrongdoing, was himself charged with murder by the military. Charges were eventually dropped, the case investigated, and Lt. Erick Anderson promoted; he has since left active duty.

Retired Maj. Gen. John Batiste is cited as saying he always attempted to investigate any apparent crimes as soon as possible, worried that such violence would work against the military mission. Batiste is quoted as saying "We created more enemies in Iraq than there were insurgents, and that's a geometric equation".

The military justice system includes one major difference from civilian proceeding which critics say is a fundamental flaw: it allows the commanding officer of the accused to decide whether or not a case should be investigated and to characterize evidence against the accused before any hearing takes place. In once case, 2nd Lt. Ilario Pantano was not prosecuted, despite shooting two men he detained at a checkpoint 60 times and leaving a sign warning insurgents the same would happen to them.

Charges against Pantano were dropped and the killings justified because he argued that he saw a threatening movement from one or both of the men. Such cases have led to calls from current and former military personnel and legal experts for a reform of the Uniform Code of Military Justice to allow an independent decision-making system for deciding investigations and prosecutions, to ensure the efficiency, integrity and reputation of the US military and thereby its ability to function effectively in combat zones. [s]

• Washington Post: "Homicide Charges Rare in Iraq War"