Line between war, murder tough to draw

Past cases in Iraq shed light on the path ahead for new controversies.

Before Haditha, there was Sadr City. Before the recent allegations that marines rampaged from house to house last November, killing women and children, there was the 2004 courts-martial of soldiers charged with killing seven men in a garbage truck in Sadr City – including one man who, according to a soldier, waved a white flag.

This week, fresh developments have stirred further scrutiny of American troops' behavior. On Monday, the military announced that it has charged three soldiers with the murder of Iraqi detainees. Wednesday, reports at press time suggested that charges would also be filed in another investigation into a civilian death in Hamandiya.

Yet in some respects, the charges are nothing new in Iraq. Since the war began, at least 11 US servicemen and eight British soldiers have faced murder charges. Though these past cases have largely escaped public notice, they shed light on the path ahead for current proceedings, pointing to the difficulty of defining and prosecuting a homicide in a war characterized by chaos.

"We are not alone in finding it difficult to obtain convictions or secure harsh sentences in cases arising out of this conflict," says Eugene Fidell, president of the National Institute of Military Justice.

All the charges against the British soldiers have been dropped, for example. Dutch officials unsuccessfully attempted to prosecute a sergeant major for mistakenly killing an Iraqi with a warning shot.

The results of the US prosecutions have been more varied. Though the Army has no current list of how many soldiers have been charged with murder in Iraq, various reports suggest that at least five soldiers have been convicted or have pleaded guilty to a count of murder. At least six others have seen original charges of murder downgraded to manslaughter or other charges, or dismissed completely.

Some cases have further underscored the thin line between what is a bad decision and what is a criminal act. In one instance, Pfc. Edward Richmond was sentenced to three years in prison for fatally shooting a handcuffed Iraqi cowherd. Private Richmond said he thought the Iraqi had lunged for his partner. In fact, the partner said, the Iraqi had stumbled.

Yet 10 days earlier, Richmond's partner, Sgt. Jeffrey Waruch, had fatally shot a 13-year-old girl and wounded her mother and sister after a roadside bomb attack. The unit's commanding general decided the sergeant did nothing illegal and that there was not enough evidence to prosecute.

Before Haditha came to the forefront, the military's most troubling murder cases involved members of the 1st Battalion, 41st Infantry Regiment in Sadr City. In August 2004, they opened fire on a dump truck they believed was planting roadside bombs. One staff sergeant was sentenced to three years in prison for what he called a "mercy killing" of an Iraqi wounded in the attack, while a second was given one year of confinement.

Days after the attack on the dump truck, two more members of the unit fatally shot two Iraqi civilians during a door-to-door security sweep. One is serving five years in prison and the other, 25.

Regarding the first set of charges announced Monday, the Army has said only that three soldiers from the 3rd Brigade Combat Team of the 101st Airborne Division allegedly shot three Iraqis detained during a raid near a chemical plant north of Baghdad. Those charges also claim that the three soldiers threatened to kill a fellow soldier if he told anyone.

The charges expected to be announced Wednesday involved allegations that marines removed an Iraqi man from his home in April, fatally shot him, and then planted a shovel near him to make it look like he was digging a trench for a bomb. Seven marines and one Navy corpsman have been held at Camp Pendleton in southern California during the investigation.

Neither case is connected to events in Haditha, and neither of the two Haditha investigations has yet been released.

With few exceptions, past cases have yielded relatively light punishments, some experts say. "In case after case, the sentences don't track with the seriousness of the offenses being committed," says Gary Solis, a professor of military law at Georgetown University in Washington.

According to his research, 122 soldiers and marines were convicted of murder during the Vietnam War, and many of the sentences were for life in prison. They "were harsher than the sentences imposed by civilian courts" for similar crimes, Professor Solis says.

While he is wary of comparing the two conflicts, Solis does note that the propensity for harsh penalties has dissipated. Only two of the soldiers convicted of murder in Iraq have been sentenced to 25 years in prison. None of the others has been sentenced to more than five years.

Military officials suggest that this is the result of better training and better leadership. "At the end of the day, our soldiers are performing very well," said Maj. Gen. James Thurman, commander of Multinational Division Baghdad, in a Pentagon briefing last week.

For the most part, experts agree. But some also suggest that the uncertain nature of an urban insurgency has created new ethical questions. "In training, one way to clear a building is to shoot, but is that reasonable in the circumstance?" asks Mr. Fidell. "We haven't had that much experience in house-to-house fighting."

The question could be central to a Haditha court-martial, if it comes to that. None of the past cases in Iraq approaches the magnitude of the Haditha allegations, which claim that marines stormed several houses in a village and killed as many as two dozen civilians after a roadside bomb attack. But the earlier cases suggest that military juries are sensitive to the stresses of today's operating environment.

Said General Thurman: "Iraq is the toughest and most complex war that I've ever been involved in."

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