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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 Staff writer of The Christian Science Monitor / December 22, 2006

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.

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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.