Should the US Marines responsible for Haditha be tried in Iraq?

[Roland99]

Would Iraq hold jurisdiction over them? Or, is there something in the IWR (which really should be moot, legally, at this point) that "absolves" the US?

[mike_c]

1. I might be the only "not sure" vote so I'll explain my thinking....

First, I've come to the general conclusion that the Haditha incident should not be appproached as a war crime-- although I am uncomfortable with the possibility that it represents a direct violation of the Geneva Conventions. Rather, it should be regarded as a "normal" crime, a revenge killing committed by U.S. marines. That conclusion hinges upon whether or not there was official, command sanction for collective punishment of civilians. If there was, then this is a war crime without doubt, but I'm assuming for now that there wasn't, even though I strongly suspect that there was, at least tacitly.

So if this was an ordinary crime, the question really comes down to whether or not it should be prosecuted by the military under the UCMJ or whether it belongs under the jurisdiction of the country it was committed in.

Now we get to why I answered "not sure." I think the answer is "both."

On the one hand, the military was responsible for the actions of those marines, or at least for creating the situation in which the crimes occured, so it should be equally responsible for cleaning up its own messes. There is no doubt that the UCMJ has jurisdiction in this matter. The Marines have already cast doubt on their ability to prosecute this case, however, by attempting to cover it up.

On the other hand, Iraq is a sovereign nation and a nation of laws. Notwithstanding that among those laws is a provision left by the CPA that specifically prohibits prosecution of any American for crimes committed in Iraq, the victims were Iraqi and the social compact was violated under Iraqi jurisdiction. The victims' right to justice is best served in the Iraqi criminal courts, IMO.

What to do? I'd recommend a Soloman style solution similar to the one used to divide state and federal criminal jurisdiction in some cases: charge the marines for some of the murders under the UCMF, and allow Iraqi courts to prosecute the other murders separately. This would preserve both parties' jurisdiction while avoiding any double jeopardy for the marines themselves. Of course, doing so will still have to deal with that troublsome prohibition against prosecuting Americans for crimes against Iraqis.

on edit-- there is nothing in the IWR that applies to this situation, but Paul Bremmer inserted a poison pill into Iraqi law that DOES apply just before he relinquished authority to the interim government.

[haele]

6. The marines are under the UCMJ ,

If they are in uniform, wanton murder of civilians is considered a war crime and the UCMJ and other treaty law (Geneva conventions) have jurisdiction.

If they are out of uniform and commit a crime, the civilian authorities are recognized to have jurisdiction.

I'm not unsympathetic, but so long as there is little civil law in Iraq (how many Iraqi police and "militia" are being tried other than through some sort of vengeance?) who can be sure that justice is being done, rather than some form of public vengeance.
The ones who instigated the killings, the ones who pulled the triggers, the ones who just stood by and watched and the ones who covered them up are all guilty of murder (or at least complacency/conspiracy), but to different degrees. Which would be capital (if you believe in the death penalty), which should be punished with long prison sentences?

I'd like to see them tried in the Hague under an international courts martial, myself. Military incidents, where motivation is not clear like this is what that court is for.
I'd also like to see a trial with all those up the chain of command who provoked the atmosphere of disregard of life, law and order.

This activity is the symptom of a severe problem in leadership.

Haele

[mike_c]

8. I understand all that, and I agree with you re: The Hague....

Another DUer (dmesg I believe) posted a compelling argument that the Haditha killings were not war crimes unless there was command complicity, i.e. unless the marines were under orders to kill civilians. At first I disagreed but I've come to accept that he's correct in the general instance UNLESS collective punishment was actually endorsed by commanding officers. I think the cover up argues strongly for that possibility, but that hasn't been investigated yet, so the most we can assert is the possiblity of command complicity, IMO.

However I'm still not entirely convinced that crimes committed by individual marines might not be war crimes if they are are committed during hostilities in clear violation of the Geneva Conventions. The Haditha murders undoubtedly trample Articles 32 and 33 of the Fourth Convention:

Art. 29. The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred.

(snip)

Art. 32. The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.

Art. 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

Pillage is prohibited.

Reprisals against protected persons and their property are prohibited.

Regarding the state of Iraq's courts, the Geneva Conventions also require that we protect Saddam Hussein-- a prisoner in our care-- from unreasonable reprisal. The U.S. support for the trial of Saddam Hussein is a specific endorsement of the suitability and fairness of the Iraqi judiciary.

[DemInDistress]

2. yes, its the "New Democratic Iraq" and our troops are there as

guests,they murdered Iraqi citizens and now need to be tried in Iraq. Let the shit fall where it may. Eom....

[BuyingThyme]

3. Yes. Over there, where democracy in on the march, they still believe in

such things.

[Stinky The Clown]

4. I voted 'no' ... but with prejudice .......

On the face of it, I think no American soldier (I know, they're Marines and one Navy corpsman) should ever be subject to the civilian laws of a foreign nation when they're under combat conditions. If one thinks back a number of years when some sailor (or was it a Marine?) was charged with rape in Okinawa. That was clearly a civilian crime that occured on Okinawan (Japanese) soil. In this case, these guys were on patrol under orders to be on patrol. While we're not actually in a declared war, that's effectively the circumstance - war. They should be subject solely to our laws.

That's my prejudice, but not where my heart is.

I think justice demands they should be tried by Iraqis under Iraqi law and subject to Iraqi penalties.

[kiahzero]

9. That's pretty much my thinking

Trying them under UCMJ may not be ideal from a moral standpoint, but doing otherwise would seem to be a bad precedent in my opinion.

[Roland99]

11. Seems to that Iraq could push under the premise that no war was declared

Any US-sanctioned military action would be null and void after the transfer of sovereignty to Iraq which occurred just about exactly 2 years ago.

Personally, I'm not real sure the Iraqi judicial system is in any way a system that could truly be trusted but I also don't trust our own military judicial system that's let pretty much everyone involved in torture off with a slap on the wrist.

[Critters2]

16. That's a good point n/t

[Philosoraptor]

17. Had the atrocities been committed in Branson, MO. would the U.S. try them?

Oh by golly you bet.

[Kerry fan]

5. No. Bush, Cheney and Rumsfeld

Should be tried in Iraq.

[Tierra_y_Libertad]

7. Better yet, in the Hague by the ICC.

Of course, neither is going to happen.

[tibbir]

10. I don't care if the Marine Corps is exempted in some way

the the people responsible should be tried under Iraq's laws.

[Philosoraptor]

12. They are a sovereign nation right? The crimes happened on their soil.

Didn't we go to a great deal of trouble to bring democracy to them?

[upi402]

13. BushCo should be tried there, not grunts

Marines were not there of their own choosing. They were ordered and got instruction handed down from a rotten upper eschelon.

[Critters2]

15. I'd agree if there were a draft,

but those in a volunteer military need to take responibility for their own actions and decisions. Including the decision to enlist.

[upi402]

19. They didn't volunteer to fight for the crime family's profiteering

Just volunteered to protect America. They were not in collusion with the BushCo evildoers.

[Critters2]

20. I have two retired generals in my congregation

and they both fully support the whole PNAC agenda, and the BFEE. The military is in collusion with the neo-cons, and need to be held acountable--yes, even the grunts. They voted for these criminals, they signed on with them, they are responsible. It does them no justice to treat them like ignorant victims.

[upi402]

22. Well, I agree that anyone who voted for him had to have known by 04

that * was no good. And supporting evil IS supporting evil. I know the troops can use force to stop illegal killing like that, so in these cases I can see what you're saying. Many are just enlisting for the benefits or to save America. Then they get indoctrinated. No excuse for it now, no excuse before '04 too.

[Critters2]

14. This was a crime committed in Iraq

The US government keeps insisting that Iraq is a soverieng nation, not a colony. Time to put its money where its mouth is. Let the Iraqis run their own nation, and try those who commit crimes there.

[Solly Mack]

18. The Hague for war crimes

same with the entire Bush Regime...including those who have resigned.

In fact, America should be branded a war crime nation...it's what America is and nothing will change that fact(not time and most certainly not apologetic posturing)...but jailing the war criminals will go a long way toward achieving a very small measure of justice...as well as showing the world America accepts responsibility for her criminal actions.

The invasion/occupation of Iraq is a war crime...in addition to all the other war crimes committed by American occupiers..both military and civilian.

By not charging the troops and their command for war crimes in an international court, everything achieved at Nuremberg is a mockery and a lie...and America an even bigger hypocrite.

[bridgit]

21. yup...

[Ksec]

23. The crime happened in their jurisdiction

and it was against Iraqi people.

Id say they dont deserve our protection .

[mikelewis]

24. Absolutely no!

First of all, we do not know all the facts. By all appearances, it looks as though a heinous crime has been committed by our soldiers but they should be assumed innocent until proven guilty. No matter what, the sanctity of that ideal must be preserved for every American citizen, even soldiers who may have committed atrocities. What guarantee do we have that these American soldiers will receive a fair trial and what pray tell would be the punishment for this crime? Death? Something worse? I am in no hurry to hand this responsibility over to any nation, let alone a nation in turmoil where the legal system is a sham at best. So no, for justices' sake, no.

Secondly, if our soldiers are tried by anything other than the statutes in the USCMJ then it threatens the integrity of our entire military structure. Our forces are weakened now, this would break them. I am not suggesting that these soldiers were instructed to do what they did; however, this crime might not rest solely on their shoulders. If they are tried by anything other than the USCMJ, the chain of command would be completely exonerated from any blame outside of this little group.

What factors led to the killings? Were these men subjected to an inordinate amount of stress due to extended tours of duty, long hours, improper training, lack of quality leadership? What intel did they possess that led them to the conclusion that the house they targeted held "insurgents"? Did they simply watch the "bad guys" run into the house or was there eyes overhead directing their pursuit? Were they ordered to clear the house or had they been ordered to do similar operations in the past? Is this an isolated incident or is this common practice and we just got caught this time? A foreign tribunal will not have access to this information and justice will not be served without it.

The main concern, however, is the legitimacy of the trial. No one doubts that they will be sold down the river and few questions will be asked about culpability beyond the shooters. This is a guarantee no matter who holds the trial. However, my hope is that these Marines cowboy up and start fighting back against the assholes that put them in this situation in the first place. The best way to do this is within the law. I don't know what legal recourse they have but if I lost my mind and killed an innocent person in a war based on lies, I would hire the best damn attorney I could find and kick the living shit out of the bastards that put me there. I know it's an all-volunteer force and no one told them to go around killing civilians however, when the civilians and the enemy start becoming indistinguishable, its reasonable to conclude that heinous shit like this is going to happen.

Since any reasonable person could assume that an insurgency would grow out of discord and war, it is likely that this could have been foreseen and steps could have been taken to limit the possibility of this tragedy from taking place. This happened almost a year ago and the Army is just now addressing the issue and taking steps to avoid this from happening again? WTF? The second the word insurgency came up in the first command meeting, this should have been foreseen and steps taken to alleviate this possibility. If they had merely taken this rudimentary step prior to this tragedy, they could at least claim that they tried to help better prepare the troops. Now they can't claim anything of the sort. For goodness sake, this is a propaganda nightmare!

I do not support the war but dammit, if I did, if this was a last resort, no choice, honest to God necessity war, what sort of fucking retarded know-nothing General doesn't prepare his troops for this sort of engagement. The leadership has let down it's soldiers and put them in a terrible situation and through failure to adequately prepare them, has aided in this atrocity. Yes, these marines, if guilty, deserve the lions share of the blame but not all of it. The only chance the truth has is if one of these Marines has enough honor to fight for it. Right now, there's no place other than here, in this country, the land that sent them to kill with out preparing them for war, it's here that they should stand trial and here that they should fight for the truth.

However, they'll probably just cop a plea like the cowards of Abu Ghraib. They'll all agree to shut up and slink away to jail but I live in eternal hope. Maybe just one will want to atone for this sin and try like hell to fight for his salvation. I'm not holding my breath though, the soldiers of today have proven to be a cowardly bunch when it comes to a fight for the truth. They're more than willing to die for a lie but refuse to even attempt to fight for the truth. When they are tried here, maybe one soldier, one honest to God, red-blooded American soldier will be disgusted at the hypocrisy and actually stand up for what's right. This will not happen in another country or in an international tribunal. If it's going to happen, it can only happen here and it needs to happen more than anything.

[Nevernose]

25. Excellent post.

I'm sure that many here will flame away, but you should really consider turning that post into an essay and submitting it for the front page. Good analysis, IMO.