Dahr Jamail: Subject to the Penalty of Death

This weekend I received an email from a friend in Iraq. It read, "Salam Dahr, I was in Ramadi today to ask about the situation. I was stunned for the news of a father and his three sons executed in cold blood by US soldiers, then they blasted the house. The poor mother couldn't stand the shock, so she died of a heart attack."

Sounds unbelievable, until you consider this short clip from CNN, which shows a war crime being committed by US troops in Iraq. In this clip, shot on October 26, 2003, Marines are seen killing a wounded Iraqi who was writhing on the ground, and cheering. One of the murderers then told CNN, "These guys are dead now you know, but it was a good feeling ... and afterwards you're like, hell yeah, that was awesome, let's do it again."

This clip alone is evidence of violations of several domestic and international laws. In effect, all US soldiers, up to and including their Commander in Chief, who commit these violations, like the man in the aforementioned clip and the ones responsible for what my Iraqi friend reports from Ramadi, are war criminals.

The US Uniform Code of Military Justice

It is important to note that US policy with regard to the treatment accorded to prisoners of war and all other enemy personnel captured, interned, or otherwise held in US Army custody during the course of a conflict requires and directs that all such personnel be accorded humanitarian care and treatment from the moment of custody until final release or repatriation. The US Uniform Code of Military Justice (UCMJ) states clearly that the observance of this Code is fully and equally binding upon US personnel, in whatever capacity they may be serving, whether capturing troops, custodial personnel or any other. The UCMJ applies equally to all detained or interned personnel, whether their status is that of prisoner of war, civilian internee, or any other.

It may be added here that it applies regardless of whether they are known to have, or are suspected of having, committed serious offenses that could be characterized as war crimes. The administration of inhumane treatment, even if committed under stress of combat and with deep provocation, is a serious and punishable violation under national law, international law, and the UCMJ.

Soldiers who murder Iraqis are not the only ones violating the UCMJ. All those who are witness to the atrocities but fail to report them to concerned authorities are to be held equally guilty of violation.

The UCMJ clearly states that violations of this Code may result in an individual being prosecuted as a war criminal, and that anyone observing a violation of law, or suspecting one has happened, has a positive legal obligation to report it to appropriate authorities. Failure to do so is a violation in itself.

The Geneva Conventions

The US happens to be a signatory of the Geneva Conventions and is therefore subject to all injunctions thereof. The video clip incident is in violation of Geneva Convention I of August 12, 1949, for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field

Interestingly, the video clip on the said web site was accompanied by a comment by one Capt. James Kimber: "The current policy in Iraq is to SHOOT ON SIGHT ANYBODY emplacing [sic] IEDs [Improvised Explosive Devices] ... "

If Kimber is to be believed and this has been the policy in Iraq, then the higher-ups giving the orders may be held as directly implicated in all such atrocities: read murders.

As for what happens if at some point Kimber is brought to trial for his crimes, Marjorie Cohn, a professor at the Thomas Jefferson School of Law in San Diego, has this to say, "Self defense is a defense to a homicide prosecution only if the shooter had an honest and reasonable belief that he had to defend himself or others from imminent death or great bodily injury. The question is how imminent the danger would be from a planted IED. There is also a factual question about whether the Marines were telling the truth."

These comments of Professor Cohn are equally relevant in the Haditha incident.

Representations

Roughly three years after the date of the video clip incident, this same Capt. James Kimber appeared in a news story on April 10, 2006. The AP wrote that "three Marines have been relieved of their commands in connection with problems during their deployment to Iraq." The three men relieved were involved in the infamous Haditha incident on November 19, 2005, in which 15 Iraqis from two families were slaughtered by Marines from their battalion who went on the rampage after a roadside bomb killed one of their colleagues.

A video taken by an Iraqi student of journalism that was obtained and brought to wider public attention by Time Magazine showed a bedroom floor smeared with blood and chunks of human flesh and bullet holes in the walls of a room in one of the homes. The dead included seven women and three children, including a three-year-old girl.

The three Marine officers are Lt. Col. Jeffrey R. Chessani, commanding officer of 3rd Battalion, 1st Marine Regiment; Capt. James S. Kimber, commanding officer of Company K, 3rd Battalion, 1st Marine Regiment; and Capt. Lucas M. McConnell, commanding officer of Company I, 3rd Battalion, 1st Marine Regiment.

While the recent AP story noted that no charges had been filed against these men, "about a dozen 3rd Battalion Marines are being investigated for war crimes in connection with the November 2005 incident in Haditha, to determine if they violated the rules of military engagement."

Meanwhile, according to Lt. Lawton King, spokesman for the 1st Marine Division at Camp Pendleton in California, Kimber and the others were reassigned to new duties within their division because of a "lack of confidence in their leadership abilities." He also said of the decision to relieve the men of their command that, "It stems from their performance during the entire deployment."

While the Naval Criminal Investigative Service has launched a criminal investigation to determine whether the Iraqis were intentionally massacred by the Marines, there has been little mention of this in the media, or of the fact that there is a second investigation on to examine the misleading explanations given by the military about the Haditha killings.

Mis-Representations

What is remarkable is that Kimber's blanket statement suggests that all Iraqis killed during the occupation, including those at Haditha, are killed because they are found "emplacing" IEDs. It must be recognized that officers like Kimber and those above him play an important role in training Marines to behave the way they do in Iraq. Consequently, officers who give these orders are as guilty of war crimes as those who execute the orders in the field.

The responsibility of creating a situation in Iraq in which war crimes are the norm and not the exception lies squarely with the officers and commanders of the US Army, starting with the Commander in Chief, George W. Bush.

Admissions

The prevailing mindset of American soldiers in Iraq is the one we see in Kimber, that of a war criminal. Jody Casey, a 29 year-old veteran of the occupation of Iraq, said, "I have seen innocent people being killed. IEDs go off and [you] just zap any farmer that is close to you. You know, those people were out there trying to make a living, but on the other hand, you get hit by four or five of those IEDs and you get pretty tired of that, too."

While he didn't participate in such killings himself, Casey said that the overall atmosphere in Iraq was such that "you could basically kill whoever you wanted - it was that easy. You did not even have to get off and dig a hole or anything. All you had to do was have some kind of picture. You're driving down the road at three in the morning. There's a guy on the side of the road, you shoot him ... you throw a shovel off."

According to Casey, his unit had been advised by troops who had previously served in the area [al-Anbar province] to keep shovels on their vehicles. Each time an innocent Iraqi is killed, a shovel thrown next to the body is evidence that the dead civilian, when killed, was in the act of digging holes to plant roadside bombs.

Michael Blake, another veteran who was in Iraq the first year of the occupation, revealed that the message US troops are given prior to their deployment is: "Islam is Evil," and "They hate us." The 22-year-old veteran, now a member of Iraq Veterans Against the War, said, "Most of the guys I was with believed it," confessing that he had witnessed innocent civilians killed indiscriminately. He said that he did not partake of the atrocities, but that it was true that "When IEDs would go off by the side of the road, the instructions were - or the practice was - to basically shoot up the landscape, anything that moved. And that kind of thing would happen a lot ... so innocent people were killed."

Law of the Land and Other Laws

To keep the perspective right, let me repeat: it is the high ranking officials in the Bush administration who are primarily responsible for creating a situation in Iraq in which war crimes have been normalized. According to the US Constitution, Article VI, paragraph 2: "This Constitution, and the Law of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (Emphasis added.)

To name just a few of the international laws broken by the aforementioned atrocities, "All Treaties made" includes the Nuremberg Tribunal Charter, Principle VI (b), which states "War crimes: ... murder, ill-treatment ... of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war," and (c), "Crimes against humanity: Murder, extermination ... and other inhuman acts done against any civilian population ... when such acts are done ... in execution of or in connection with any crime against peace or any war crime."

"All Treaties made" also includes the Geneva Conventions, Protocol 1, Article 75: "(1) ... persons who are in the power of a Party to the conflict ... shall be treated humanely in all circumstances ... (2) The following acts are and shall remain prohibited ... whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons ... " and Protocol I, Art. 51: "The civilian population ... shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." Article 57: ... parties shall, "Do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects ... an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one ... "

Since the entire catastrophe in Iraq is primarily the handiwork of the Commander in Chief of the United States Armed Forces, let it be noted that under US Federal Law, the War Crimes Act of 1996 makes committing a war crime, defined as " ... a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party ... " punishable by being " ... fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death." (Emphasis added.)

I rest my case.

Mike Ferner, a Vietnam-era vet and member of Veterans For Peace, contributed to this article.

Dahr Jamail is an independent journalist who spent over 8 months reporting from occupied Iraq. He presented evidence of US war crimes in Iraq at the International Commission of Inquiry on Crimes Against Humanity Committed by the Bush Administration in New York City in January 2006. He writes regularly for TruthOut, Inter Press Service, Asia Times and TomDispatch, and maintains his own web site, dahrjamailiraq.com.

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