Iraq: Haditha isn't the war crime - the whole bloody war is

1. Blame for Haditha Lies at Bush's Feet
There is a leadership deficit in the Armed Forces today, and it begins with the commander in chief, President George W. Bush.
By Scott Ritter

Like many Americans, I have followed the events unfolding around the deaths of 24 Iraqis civilians in the Iraqi village of Haditha, and the roles and responsibilities of U.S. Marines in their deaths, with a mixture of anger, frustration, shock and horror. I start this essay with the premise that all are innocent until proven guilty, and will maintain that posture until the facts surrounding the incident have been fully investigated.

As a former Marine Corps officer, I have to admit to a certain bias in favor of the Marines. I personally believe all of the involved Marines should be punished to the full extent of the law if found guilty of the crimes they have been accused of. There simply is no excuse for the systematic murder of civilians.

However, the crimes that the Marines have been accused of, and the behavior required to carry out such crimes (both from the enlisted Marines and their officers) run so counter to the very fabric of the Marine Corps I was a member of that I have a hard time accepting the charges at face value. Many of my peers still serve in the Marine Corps today as battalion commanders, regimental commanders, or senior staff officers.

This is not a "new" corps of Marines that has somehow lost its way since I left active duty. This is my band of brothers, fellow warriors imbued with a spirit of service and sacrifice that endeavors not only to persevere on the field of battle, but also never bring shame or dishonor to the 232-year tradition that binds all Marines together.

War is a hard business, and those who wage war have to be hard people if they are to survive. The niceties of civilian life are set aside, and men (and, increasingly, women) are called upon to engage in action which runs counter to everything they have been taught as human beings and American citizens - to take human life, effortlessly and efficiently, with little or no regard for those being terminated.

A target is just a target, and any delay in taking that target down can and will result in your becoming a target yourself. In war it is literally kill or be killed. Most civilians will never - and therefore can never - understand this phenomenon, and the mental and physical trauma it inflicts on those involved. Combat hardens a person and changes those who have engaged in it forever.

Because war is in and of itself so horrible, and the act of waging war so dehumanizing, there is a real danger of those involved suffering a complete breakdown of human sensibility, becoming so traumatized by the act of killing that they become desensitized to human suffering and death. Death becomes a narcotic, and the act of taking human life a drug that must be consumed over and over again.

War is a destructive force, no more so for those who participate in it as combatants. War becomes an addiction, and human detritus a common occurrence. As Michael Herr, the acclaimed writer who chronicled the Vietnam War in his book, "Dispatches," wrote: "Charging someone with murder in Vietnam is like handing out speeding tickets at the Indianapolis 500." In war, death becomes a daily fact of life.

The proclivity to become addicted to dealing death is one of the major reasons behind the laws of war. Adherence to the laws of war goes far beyond any legal obligation; once the bullets start flying, legal niceties go out the window. Adherence to the rules of law doesn't come from a sense of right and wrong that exists on the battlefield, but rather as a result of rules and procedures being drilled into the minds of those who wage war over and over again, until these rules, like procedures for fighting through an ambush, are branded into the minds and muscle memory of those pulling the triggers.

The rules of war are adhered to not because someone is thinking about doing the "right thing" on the field of battle, but because of the discipline which ingrained these rules into the very fabric of the warriors waging combat, and the leadership which continued to emphasize these rules once the forces became engaged in combat. The main reason it is so hard for me to believe that the Marines of 3rd Battalion, 1st Marine Regiment did what they are accused of doing in Haditha is that it runs counter to the discipline and leadership I know they were subjected to. If Haditha in fact occurred, something went very, very wrong.

It is far too easy to place blame, when things do go wrong in war, on a "few bad apples." The fact is, every soldier, sailor, airman and Marine in a theater of combat is a potential "bad apple" if denied the discipline and leadership necessary to maintain a certain standard of conduct in conflict. Every American who has seen the movie "A Time to Kill" knows that he or she, just like the Samuel Jackson character in that movie, would take the law into their own hands and kill anyone who subjected a child of theirs to the torment and suffering inflicted on the young girl in the movie.

It is harder to put yourself in the place of a young Marine or soldier who has watched a comrade with whom he has bonded with over the course of months or even years die violently at the hands of an enemy. It is even harder when the enemy cannot be immediately located and have vengeance visited upon him.

But even worse is when the enemy is you. Paul Reickhoff, the Iraq war veteran who wrote the masterful book, "Chasing Ghosts," wrote of growing up as a child influenced by movies such as "Red Dawn," where a Soviet-Cuban army of occupation had descended upon American soil. In the film a group of American high school kids banded together to resist the occupation and formed an insurgency they nicknamed the "Wolverines." The Wolverines used every method necessary to combat the enemy occupier, who was equipped with tanks and superior firepower, including assassinations and improvised explosive devises."

The Wolverines were heroes. The occupiers, frustrated by the tactics of the Wolverines, used increasingly brutal means of suppressing the insurgency, including taking out their revenge on the innocent civilian population. Reickhoff wrote of how he and his fellow soldiers, by invading and occupying Iraq, had reversed roles with the Iraqis. The Americans were now the brutal occupier, and the Iraqis were the 'Wolverines'. And in such an environment, it is far too easy to start taking out one's frustrations on those you can see, such as innocent civilians, when those you can't see, the insurgents, start killing your own. We are all Samuel Jackson's character, seeking vengeance. And when no clear-cut perpetrator can be found, we become the evil Soviet-Cuban invader of "Red Dawn."

Of course, we are American fighting men and women, and we adhere to a higher standard of conduct, one built on discipline and leadership. I know our fighting men and women have been properly trained regarding the rules of war. The problem is leadership. And, to quote an old Russian military saying, "A fish stinks from its head." There is a leadership deficit in the armed forces of the United States today, and it begins with the commander in chief, President George W. Bush, and his secretary of defense, Donald Rumsfeld. It extends to the entire U.S. Congress and onto the senior leadership of the uniformed armed services, the Joint Chiefs of Staff.

All of these individuals and organizations set a standard of carefree indifference to the rule of law when they ordered, or gave consent to, the invasion and occupation of Iraq. They were mute when the president and his secretary of defense waived the Geneva Convention when it came to so-called "terrorists" and "unlawful combatants." They forgot that many who fought for the United States during the American Revolution would be classified as terrorists or unlawful combatants using the standards set forth by the Bush administration. So would the Wolverines. And in waiving American adherence to the rule of law in general, and the law of war in particular, American leadership, civilian and military, set a standard of indifference that was far too easily replicated by the men and women under them. This is why we had Bagram, Guantanamo Bay and Abu Ghraib. And this is why we have Haditha.

The sad fact is that American service members in Iraq are not fighting a fight they can win. There is no standard for victory. They are deployed for six months, a year, or more, to a theater of operations that President Bush has already acknowledged will only be resolved by the next president. This means that those being dispatched to Iraq have only one mission: to survive. This is not a mission statement conducive to sound decision making and action. It is a mission statement that has all U.S. combatants reverting to a primal state where it is kill or be killed, regardless of the rules. And it is asinine in the extreme to talk about rules in the first place when the leadership of the men and women America sends into harm's way show such a wanton disregard for rules to begin with.

There may have been a crime committed in Haditha. The facts will emerge in due course. But it should be clear to all that there is an ongoing crime taking place in Iraq, and anywhere around the world where American military forces operate according to a mandate given to them by the Bush administration. America has collectively walked away from the rule of law, and in doing so, has become the greatest perpetrator of war crimes in modern times.

The scope and scale of our crimes, as manifested in Iraq and elsewhere, are mind-boggling. The indifference of the American people is mind numbing. And the wrath of history, which will judge all of us harshly, has yet to be felt.

(Scott Ritter served as chief U.N. weapons inspector in Iraq from 1991 until his resignation in 1998. He is the author of, most recently, Iraq Confidential: The Untold Story of the Intelligence Conspiracy to Undermine the U.N. and Overthrow Saddam Hussein.)


2. First Officer Publicly Resists War
By Marjorie Cohn

Yesterday, US Army First Lieutenant Ehren Watada became the first officer to publicly state his refusal to obey an order to deploy to Iraq. Lieutenant Watada said at a press conference in Tacoma, Washington, "The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war." He stated, "An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq."

Citing "deception and manipulation … and willful misconduct by the highest levels of my chain of command," Lt. Watada declared there is "no greater betrayal to the American people" than the Iraq war.

The "turning point" for Lt. Watada came when he "saw the pain and suffering of so many soldiers and their families, and innocent Iraqis." He said, "I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable." Lt. Watada felt he "had the obligation to step up and do whatever it takes," even if that means facing court-martial and imprisonment.

Lt. Watada asked me to speak about the legality of the war at his press conference.

I cited the Nuremberg Charter, which set forth the three most serious crimes: crimes against the peace, war crimes, and crimes against humanity. The US Army Field Manual 27-10, art. 28, incorporates the prohibition against these three crimes. The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.

The United States Is Committing a Crime Against the Peace in Iraq

The Nuremberg Tribunal called the waging of aggressive war "essentially an evil thing ... to initiate a war of aggression ... is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.

Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US, or any other country, for 12 years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones."

Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused to give its stamp of approval. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.

Moreover, the Constitution gives only Congress, not the President, the authority to declare war. Congress cannot delegate that authority to the President. Even if Congress could delegate the war power to the President, it cannot authorize the President to execute an aggressive war.

The United States Is Committing War Crimes in Iraq

Violations of the laws of war, memorialized in the Hague and Geneva Conventions, constitute war crimes.

All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment. These prohibitions are memorialized in the Army Field Manual 27-10, art. 506. The Pentagon is trying to remove Article 3 Common from the newly revised instructions that go with the Manual. The implication is that the Defense Department intends to treat prisoners inhumanely.

Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture or inhuman treatment, and willfully causing great suffering or great bodily harm are grave breaches.

The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians at Haditha and in other Iraqi cities are war crimes.

Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their inferiors were committing war crimes and failed to stop or prevent them. However, it is unlikely that Attorney General Alberto Gonzales will charge Bush, Cheney or Rumseld with war crimes.

The United States Is Committing Crimes Against Humanity in Iraq

Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.

The dropping of 2,000-pound bombs in residential areas of Baghdad during "Shock and Awe" were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a "weapons-free" zone, with orders to shoot anything that moved, was a crime against humanity.

Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: "No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

The Uniform Code of Military Justice, in articles 90-92, sets forth the duty of military personnel to obey lawful commands. The Nuremberg Principles, which are part of US law, provide that all military personnel have the obligation not to obey illegal orders. The Army Field Manual 27-10, sec. 609 and UCMJ, art. 92, incorporate this principle. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States …"

The Bush administration is committing crimes against the peace, war crimes and crimes against humanity in Iraq. Lieutenant Ehren Watada is correct when he says this is an illegal war. I salute his courage.

(Marjorie Cohn is a professor at Thomas Jefferson School of Law, President-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.)