As conventional Iraqi forces were swiftly defeated by invading coalition forces in 2003, guerrilla insurgent groups mobilized to continue the fight in post-invasion Iraq. Some of the insurgent groups began to use their capture of enemy combatants to make statements for their causes, torturing and killing captured soldiers and contractors then releasing footage to the media. Over time, their assaults spread to civilian and non-combatants, sparking international rebuke.
However, the killing of 24 civilians in the Iraqi city of Haditha in November 2005 by US Marines served as one of the starkest reminders of the war's brutality. Both US President George W. Bush and Iraqi Prime Minister Nouri al-Maliki called for investigation into the deaths in May 2006, and preliminary probes by US officials revealed that the killings may have been unprovoked.
The military ultimately charged four officers and three additional Marines, including Staff Sgt. Frank Wuterich with 13 counts of murder, Capt. Lucas McConnel with dereliction of duty, Lt. Col. Jeffrey Chessani with dereliction of duty and violating an order, and Lance Cpl. Stephen Tatum with involuntary manslaughter, reckless endangerment and aggravated assault. More troubling, however, was testimony during the respective trials that officers had ignored the civilian deaths as routine and failed to report them to their superior officers.
JURIST Guest Columnist Victor Hansen argued that the manner in which the US Marines chose to charge the soldiers accused in the Haditha killings reveals a double standard of criminal liability:
In Haditha, the Marines on the scene who are charged with negligent homicide and murder can face potential punishments which include many years of confinement and quite possibly life sentences. In contrast, the officers charged with dereliction of duty face a maximum of 6 months confinement, and this only if the prosecution can prove willful dereliction. If the officer's dereliction was only culpably inefficient, the maximum sentence is three months confinement. In the case of obstruction of justice, that officer faces a maximum punishment of 5 years confinement. Significantly, in order for prosecutors to prove this offence they must show that the charged officer took some wrongful affirmative actions with the specific intent of influencing or impeding criminal proceedings. Given these actus reus and mens rea requirements, proving obstruction charges against is likely to be very difficult. The practical consequence in Haditha, like so many cases before, is that the enlisted soldiers are the only ones in the chain of command to face serious criminal liability.Many of the charges were ultimately dropped, such as in the case of Chessani. Additionally, some of the accused officers were exonerated of their involvement in the Haditha killings. Additionally, three officers received official reprimands from the Secretary of the Navy in September 2007.
This double standard need not exist. There is a well established doctrine of command responsibility under international law and the law of armed conflict which allows military leaders to face serious criminal sanctions if these leaders failed to prevent, stop, or punish war crimes that are committed by the forces under their command and control. When it is established that military leaders failed in their duty to properly control their forces, these leaders can face the same criminal liability as their forces who actually committed the crimes.
Although Wuterich's trial date was indefinitely postponed in March 2008, his trial officially restarted on January 10, 2012. He ultimately pleaded guilty to dereliction of duty on January 24, 2012, effectively ending the US military's legal proceedings regarding the Haditha massacre. However, Iraqi Prime Minister Nouri al-Maliki announced his county's intention to seek additional legal redress three days after Wuterich's plea. JURIST Contributing Editor Amos Guiora suggested that the "powerful disconnect" between the crimes committed at Haditha and the punishments meted out by the US military bespeaks a need to better emphasize the rule of law during armed conflict:
The answer ... is training, re-training and additional training, specifically on morality in armed conflict. Simply put, Haditha presents a unique teaching moment for the US military. The takeaways are clear: soldiers must be trained intensively, continuously and repeatedly to distinguish between friend and foe. Easier said than done, particularly in the amorphousness inherent to a non-traditional war paradigm. Frankly, however, there is no choice but to impose this burden on soldiers regardless of the military circumstances confronting them. Otherwise, justice can never be served either in the zone of combat or in a court of law.At the same time that the US military was contending with accusations of war crimes in Haditha, they were already embroiled in the Abu Ghraib prison scandal, stemming from the April 2004 release of photographs showing US soldiers humiliating Iraqi prisoners in the prison facility. International advocacy groups accused the US of committing torture as well as violating international law. Abu Ghraib was only the beginning of accusations regarding the treatment of prisoners of war, as additional allegations of the summary execution of prisoners and civilians surfaced.
JURIST Contributing Editor Marjorie Cohn made the case for prosecuting Donald Rumsfeld for war crimes after he ordered such acts:
Prosecuting a war of aggression isn't Rumsfeld's only crime. He also participated in the highest levels of decision-making that allowed the extrajudicial execution of several people. Willful killing is a grave breach of the Geneva Conventions, which constitutes a war crime. In his book, Chain of Command: The Road from 9/11 to Abu Ghraib, Seymour Hersh described the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. It authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world. Rumsfeld expanded SAP into Iraq in August 2003. But Rumsfeld's crimes don't end there. He sanctioned the use of torture and cruel, inhuman and degrading treatment, which are grave breaches of the Geneva Conventions, and thus constitute war crimes. Rumsfeld approved interrogation techniques that included the use of dogs, removal of clothing, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, and deprivation of light and auditory stimuli. According to Seymour Hersh, Rumsfeld sanctioned the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld also authorized waterboarding, where the interrogator induces the sensation of imminent death by drowning. Waterboarding is widely considered a form of torture.Many were discouraged at the perceived legal injustice for the perpetrators of the Abu Ghraib scandal. In 2007, the commanding officer of the "photo incident" of Abu Ghraib was acquitted of failing to control the soldiers under his command. JURIST Guest Columnist Victor Hansen criticized the acquittal as a failure of the military command structure to hold superior officers accountable for the crimes of their subordinates. One of the few convicted for involvement the Abu Ghraib incident, Army Spc. Charles Graner was released in August 2011 after his sentence was significantly shortened. The aftermath of Abu Ghraib continued to wind its way through US courts, with the US Court of Appeals for the Fourth Circuit dismissing a torture claim by former Abu Ghraib detainees as recently as September 2011. However, in analyzing the US military's failure to completely investigate the Abu Ghraib crimes, JURIST Guest Columnists Victor Hansen and Lawrence Friedman concluded there remained "very troubling issues that, if they are not resolved, mean that the military and civilian leadership have learned nothing from the Abu Ghraib scandal." Some of the most startling claims of war crimes were against independent military contractors civilians leased by the government as mercenaries. Many of the crimes centered around the contracting company, whose employees in the Iraq conflict were expelled from the nation over what the new Iraqi government saw as a lack of progress by the US to sentence contractors for violent crimes. Although the US was responsible for convictions against military contractors for war crimes, the January 2010 decision to dismiss charges against five contractors in the alleged murder of 17 Iraqi citizens drew outrage from Iraq and the international community. However, the decision to appeal the dismissal earned praise from the UN Working Group on the Use of Mercenaries.
Nonetheless, a large number of incidents and alleged atrocities went without prosecution during the Iraq War, due in part to a lack of jurisdictional oversight for the mercenary forces. JURIST Guest Columnist Tara Lee analyzed the Status of Forces Agreement (SOFA) with Iraq that removed the US's jurisdictional reach over contractors:
What it does demonstrate is that the U.S. government was eager to get a SOFA signed, so as to claim progress on the path to Iraqi sovereignty. To get it signed, the U.S. government made an enormous concession as to the due process rights of one currently unpopular class of its citizens: contractors. By so conceding, we achieved a document we can point to and claim that Iraq is sovereign. Iraqi sovereignty was our stated goal in Iraq. This SOFA is just one last way for us to wave a "Mission Accomplished" banner. There was no legal reason to treat contractors differently. This SOFA does not fill a jurisdiction gap in accountability over contractors. There are already jurisdictional means by which U.S. courts can hold U.S. contractors in Iraq accountable for their actions. Nonetheless, starting January 1, 2009, the U.S. government can only do so if the Iraq government defers. According to the U.S. Department of State, there will be no exceptions to this deference, not even if the contractor is arrested for doing exactly what his U.S. government contract obligated him to do. The U.S. government is offering its contractors no due process guarantees, no indemnification, and worst of all, no answers.The use of contractors in Iraq remains so controversial that the UN called for the creation of international regulations for prosecuting international contractors and mercenaries. As neither the US or Iraq was a signatory to the Rome Statute at the time, the International Criminal Court (ICC) was unable to exercise jurisdiction over most of the alleged war crimes.
World leaders involved in the Iraq War faced attempted legal action, as former US President George W. Bush, Vice President Dick Cheney and UK Prime Minister Tony Blair were all accused of crimes against humanity in recent years. In November 2011, the Malaysian Kuala Lumpur Foundation to Criminalize War found Bush and Blair guilty of war crimes, following a symbolic trial. The attorney general of British Columbia was also forced to block a real lawsuit in October 2010 filed by the Canadian Centre for International Justice accusing Bush of torture.
HRW and Amnesty International (AI) both urged the Canadian government to investigate and arrest Bush for his role in torture. Other rights groups urged the signatory states of the UN Convention Against Torture to pursue criminal charges against Bush, while controversial Spanish jurist Baltasar Garzon recommended pursuing charges under universal jurisdiction beginning in March 2007. Calls to investigate the criminal culpability of Bush administration officials were consistently rejected by US officials. Although the UK government was willing to admit culpability in the deaths of civilians, it also made no moves to pursue charges against Blair.