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The Fog of War Crimes

Who’s to blame when ‘just following orders’ means murder?

BY Frida Berrigan

A Marine squad was on a dusty road in Iraq, far from home. Suddenly, a deadly roadside bomb explodes the early morning calm and kills a lance corporal and wounds two other Marines. The mission: tend to the wounded and find those who were responsible … Or make someone pay? Three sleeping families awaken to the sound of grenades and guns.

By the end of the “operation,” 24 people were dead, including three women and six children. Bullets, fired at close range, tore through bodies and lodged deep in walls. A one-legged elderly man was shot nine times in the chest and abdomen. A man who watched the violence from his roof across the road told The Washington Post that he heard his neighbor speak to the Marines in English, begging for the lives of his wife and children, saying, “I am friend. I am good.” All the family was killed except one: 13–year-old Safa. Covered in her mother’s blood, she reportedly fainted and appeared dead.

In a road nearby lay the bodies of five men–four college students and their driver.

On Nov. 20, 2005, a Marine spokesman reported: “A U.S. Marine and 15 civilians were killed yesterday from the blast of a roadside bomb in Haditha. Immediately following the bombing, gunmen attacked the convoy with small-arms fire. Iraqi army soldiers and Marines returned fire, killing eight insurgents and wounding another.”

The only truth in that statement was that there was a roadside bomb and that a Marine–Lance Cpl. Miguel Terrazas, known as T.J. to the other men in his squad–was killed instantly. The rest was a lie. It took months for the truth to come out, and the search for justice is taking even longer. The 24 Iraqi bodies have since been buried in a cemetery in Haditha, a farming town beside the Euphrates River. But no one–from the commander on down–has been sentenced to prison, and the effort to hold Marines responsible for this crime has focused on a few men who are low on the chain of command.

Geoffrey Corn, a retired lieutenant colonel and a professor at Southern Texas College of Law, says the laws of war work because “for every case of atrocities that we read about, there are thousands of Marines and soldiers who act with restraint.”

The Laws of Armed Conflict and the Geneva Conventions were designed as the basis for military conduct in times of war. Three central principles govern armed conflict: military necessity, distinction (soldiers must engage only valid military targets) and proportionality (the loss of civilian lives and property damage must not outweigh the military advantage sought). Among other things, the Geneva Conventions identify grave breaches of international law as the “willful killing; torture or inhuman treatment; willful causing of great suffering; and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully or wantonly.” An examination of the military’s actions in the aftermath of Haditha reveals a clear unwillingness to apply these principles.

Whose neck is on the line?

“You stop war crimes by coming down on the ranking officer,” says Ian Cuth-bertson, a military historian and senior fellow at the World Policy Institute.

“All armies in all wars at all times have committed war crimes,” he continues. “The question is: Does command authority condone or stop them? You can’t just give an 18-year-old an automatic weapon and tell him, ‘Don’t shoot prisoners in the head.’ You need an officer to rein him in. The officer needs to feel as though his own neck is on the line.”

In the case of Haditha, Marines have not put officers’ necks on the line. Maj. Gen. Richard Huck, who was in charge of Marines in Haditha in 2005, along with his chief of staff Col. Richard Sokoloski and Col. Stephen Davis, who headed the regimental combat team, all received letters of censure from the secretary of the U.S. Navy. The censure did not strip the men of their rank or salary, but they will be barred from future promotions, which could force them out of the Marines. According to Gary Solis, a military law expert and former Marine, censure is the Marine Corps’ most serious administrative sanction.

But, as Cuthbertson points out, the generals are not being censured for letting Haditha happen. They are being punished for not investigating. This is a big difference.

Cuthbertson cites the Allied response to the Malmedy massacre in Belgium as one example of taking war crimes seriously up the chain of command. In 1944, German soldiers killed more than 70 unarmed U.S. prisoners of war. In war crimes trials after Germany was defeated, justice was swift and extended far beyond those who actually pulled triggers. “The commander of the regiment wasn’t there. He was found guilty and sentenced to death,” says Cuthbertson. “The general of the Army wasn’t there. He was found guilty and sentenced to life in prison.”

Unraveling the massacre

In January 2006–a month after the Haditha massacre–an Iraqi journalism student gave Time magazine a video of the bloody aftermath. Taher Thabet shot footage in the homes and at the morgue, recording the carnage in shaky frames. Time passed the footage on to the chief military spokesman in Baghdad, forcing the Marines to launch an investigation. Until the evidence was in their hands (and widely available on the Internet), they appeared ready to accept as truth the flimsy, contradictory account of events cobbled together by the squad leader and his men.

Two months later, the investigation determined that Marines–not insurgents–killed the civilians, and Naval Criminal Investigative Services further concluded that the civilians were deliberately targeted. CNN reported on the investigations on March 16, and Time published a long article on March 27. President Bush, however, did not address the Haditha issue until June 1, when he called the allegations “very troubling for me and equally troubling for our military.”

But it took until December 2006 for eight Marines to be charged: four enlisted men with unpremeditated murder, and four officers with dereliction for covering up or failing to report the killings. These indictments helped the Marines create the impression that those responsible for Haditha were rigorously prosecuted. Yet the four charged with murder were not the only four who pulled triggers that day. And the four officers charged in the cover up were not the only four who lied.

In handing down the eight indictments, the Marines also granted immunity to at least seven others who either participated in the killings or tried to hide what the squad had done. The military ultimately offered immunity deals to two of those charged with murder in exchange for their damning testimony. Charges against two of the officers were also dismissed after their “Article 32 hearings,” a sort of a half trial, half grand-jury proceeding unique to military criminal proceedings.

At this point, criminal responsibility for 24 murders in at least four separate locations is being placed on two Marines: Staff Sgt. Frank Wuterich and Lance Cpl. Stephen Tatum. Of their squad of 13, they are the only two who face general court martial for the killings.

Tatum, from Edmund, Okla., is charged with involuntary manslaughter, aggravated assault and reckless endangerment. His trial date has not been set, but if found guilty of all three, Tatum could face a maximum 19 years in confinement, a dishonorable discharge and forfeiture of pay. During his July 24, 2007 military investigation hearing, the 25-year-old Marine choked back tears, saying, “I am not comfortable with the fact that I might have shot a child. I don’t know if my rounds impacted anyone. … That is a burden I will have to bear.”

For his part, Wuterich, the Marine squad leader, was originally indicted with more than a dozen counts of unpremeditated murder, as well as soliciting another to commit an offense and making false official statements, which carry a maximum penalty of imprisonment for life. After his Article 32 hearing in August 2007, Investigating Officer Lt. Paul Ware recommended dismissing 10 murder charges and reducing seven others to negligent homicide. There has not been a determination on that recommendation, and a court martial date has not yet been set. Wuterich told CBS’s “60 Minutes”: “Everyone visualizes me as a monster–a baby killer, cold-blooded, that sort of thing.” On the TV screen, he was handsome, polished and impossibly young looking.

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Frida Berrigan is a senior program associate with the New America Foundation's Arms and Security Initiative and a member of the Campaign for a Nuclear Weapons Free World.

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