Why have Iraqi war crimes received only a fraction of the media attention lavished on ultimately bogus reports of “massive looting” from Baghdad’s National Museum? Are fictitious artifacts of greater value than the lives of U.S. soldiers and Iraqi civilians?

This article seeks to redress that imbalance by continuing the discussion of Iraqi war crimes and considering how best to bring accused Iraqi war criminals swiftly to justice.

EDITOR’S NOTE: This is the second of two articles focusing on Iraqi war crimes against U.S. forces. The first article can be found here.

Misuse of Privileged Civilian Sites. Another grave violation of the fundamental norm of distinction lies in the widespread — if not ubiquitous — misuse of privileged civilian sites — especially hospitals, schools, and mosques — as munitions dumps and fighting positions.

International law defines the concept of “protected persons” (all noncombatants) with greater specificity than that of privileged civilian sites; but the underlying principle is a firm element of customary international law. This is stated as a “basic rule” requiring combatants “at all times to distinguish between the civilian population and combatants and between civilian objects and military objectives” (AP I, art. 48).

Under GC IV, civilian hospitals “may in no circumstances be the object of attack” (art. 18), but their unlawful misuse through “acts harmful to the enemy” renders them legitimate military targets (art. 19). Such “perfidious use … of the distinctive emblem of the red cross [or] red crescent” constitutes a “grave breach” under AP I (art. 85). In just one particularly egregious case, U.S. forces detained some 170 armed fighters, confiscated hundred of small arms and huge quantities of ammunition and ordnance at the Nasiriyah hospital where Pvt. Jessica Lynch was being held. The same facility held some 3,000 chemical-warfare suits and was guarded by a main battle tank parked in its courtyard.

Similarly, nearly every school Coalition forces searched across the length and breadth of Iraq was used to store massive amounts of ordnance. This practice was so widespread that it cannot be dismissed merely as happenstance or a matter of local initiative. It was rather a matter of policy for which senior officials must be held accountability under the principle of command responsibility, discussed below.

As with hospitals and schools, so too with mosques. Restating customary international law, AP I specifically prohibits misuse of “places of worship … in support of the military effort” (art. 53). In comparison, consider only the extraordinary forbearance shown by U.S. forces when fired on from the inside the precincts of Shia Islam’s holiest mosques in Karbala and Najaf.

Mistreatment of Noncombatants. President Bush has aptly summarized Iraqi war crimes against noncombatants, Coalition prisoners, and Iraqi civilians alike: “Prisoners of war have been brutalized and executed. Iraqis who refuse to fight for the regime are being murdered.”

Normally, the unintentional killing of civilians is the focus of subsequent inquiries. But Saddam’s gangster regime was hardly a normal state. During Operation Iraqi Freedom, its forces repeatedly fired on fleeing civilians with heavy weapons and small arms; repeatedly misused civilians as human shields; and repeatedly coerced soldiers and civilians alike into fighting for the regime under threats of death or hostage-taking. Indeed, one British officer in Basra was moved to remark (with characteristic British understatement) that “it is very difficult to get into the mind-set of people who would mortar their own [civilian] population.”

All these reprehensible offenses against noncombatant immunity are war crimes, “grave breaches” of GC IV, art. 147 (prohibiting “willful killing, torture and inhumane treatment” of civilians, as well as hostage-taking) and of AP I, art. 85(3) (prohibiting “making the civilian population or individual civilians the object of attack”). AP I, art. 50(7), restating customary international law, explicitly forbids use of human shields by prohibiting misuse “of the civilian population or individual civilians in order to shield military objectives from attacks or to shield military operations.”

As for Coalition prisoners, both President Bush and U.K. Prime Minister Tony Blair have confirmed that U.S. and British troops have been unlawfully executed after capture. Others have been tortured or subjected to unlawful and inhumane treatment in violation of GC III, art. 130 and AP I art. 85 (as was nearly every allied POW during the 1991 Gulf War — offenses which the U.S. rightly intends rightly intends to prosecute as war crimes).

Intentional killing of noncombatants, the gravest war crime in this category, is murder, pure and simple, and a potential capital crime.

PROSECUTING WAR CRIMINALS

Under applicable U.S. and international law, the U.S. has both unique sovereign responsibility and full legal authority to prosecute war crimes committed against U.S. armed forces. International law in general is not self-enforcing (thus leaving enforcement action to states in many cases), and the Geneva Conventions and other relevant instruments lack any enforcement mechanism.

In prosecuting accused war criminals, the U.S. has three options: military courts-martial, special military commissions, (or tribunals) or U.S. district courts.

The most likely forum is a set of military commissions, since the U.S. has never prosecuted war crimes against its own forces except in this way. Military commissions resemble courts martial in that U.S. military officers serve as judges and jurors, while offering more streamlined though fair trial procedures and fewer appeal possibilities. This approach will require a fresh presidential Military Order specifically applicable to Iraq, similar to that issued in November, 1991 with respect to Afghanistan.

Two issues sure to arise are the legal status of certain combatants and the matter of command responsibility.

Certain Iraqi-controlled forces — notably the Baath party and Fedayeen Saddam militias, internal security forces, and well-armed and well-funded foreign religious mercenaries — regularly failed to observe applicable, minimum standards necessary for exercise of the combatant’s privilege. These unmet requirements include wearing distinctive uniforms and insignia and compliance with the laws and customs of war under proper command and internal discipline (GC III, art. 4).

The potential consequences of noncompliance are loss of protected status for otherwise lawful acts of war, which are treated as common crimes against persons and property, and loss of full POW rights and status, though the right to humane treatment remains unaffected.

Command responsibility is a well-established principle that makes superiors criminally liable for knowing or having reason to know that subordinates are committing war crimes and failing to stop them. This is a particularly appropriate line of inquiry where, as in this conflict, certain war crimes and other violations of the laws and customs of war were so common and widespread that they appear to have been committed as a matter of policy set by senior officials. Normally, the question is how far up the chain of command such responsibility extends. In other words, what are the proper limits of meaningful supervision? In the case of a fascist, one-party dictatorship, however, where civilian officials wear military uniforms — and where there is no separation of powers — an equally relevant question concerns the composition of the chain of command itself. Consider these examples:

Taha Yassin Ramadan, Iraq’s vice president, announced after the first suicide car-bombing against U.S. troops that its perpetrator — an Iraqi military officer feigning civilian status — would receive a posthumous decoration and endorsed such attacks as “routine military policy.” Is this a command to conduct unlawful acts of war as a matter of policy?

Mohammed Saeed Sahhaf, Iraq’s information minister (also known as Baghdad Bob), vowed on April 4 that an “untraditional” attack would take place against U.S. forces involving “martyrdom operations in a very new, creative way.”

Tariq Aziz, Iraq’s deputy prime minister, declared: “A people fighting an invasion has the right to fight by all means to defend itself. When you fight an invader by whatever means are available to you, you are not a terrorist, you are a hero.”

These utterances bring to mind the parable of evil trees and bad fruit (Mt 7).

WHY WAR CRIMES MATTER

It is an outrage — though no particular surprise — that the Iraqi war crimes outlined above should have received only a fraction of the media attention devoted to thoroughly bogus allegations of the massive looting of antiquities. News organizations should ponder their responsibilities in light of the substantial likelihood that at least some Iraqi atrocities — perhaps including the deadly March 25 Baghdad marketplace explosion — were deliberately calculated to create the misimpression that Coalition forces were to blame — the so-called Al Jazeera effect.

More important, prosecuting war criminals involves more than seeking justice in particular cases and deterring future crimes by making an example of these criminals. It is a matter of keeping faith with the men and women of the U.S. armed forces. One of the most admirable features of the U.S. military ethic is the value placed on individual human life — both that of Americans and of others — and the determination to spare no effort to recover comrades who have fallen into enemy hands. An essential corollary lies in the duty to hunt down and punish war criminals responsible for crimes against U.S. troops.

Just last week two U.S. Army soldiers were killed at Fallujah after coming under fire from several directions, including from a nearby mosque. To borrow a phrase from NRO’s Michael Ledeen: What are we waiting for?

— Jack Cullinan, a lawyer, formerly served as a senior foreign-policy adviser to the U.S. Catholic bishops.