Subject to the Penalty of Death

By Dahr Jamail
t r u t h o u t Perspective

Tuesday 25 April 2006

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
<http://www.informationclearinghouse.info/article5365.htm> 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] ... <http://www.informationclearinghouse.info/article5365.htm>"

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
<http://www.mercurynews.com/mld/mercurynews/news/special_packages/iraq/14310414.htm>
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
<http://www.ivaw.net/>, 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 <http://deoxy.org/wc/wc-nurem.htm>, 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
<http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002441----000-.html>
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.