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Features The perils of colonial justice
July 21st, 2005 -- Among its more vociferous opponents the American project in Iraq is characterized as a classic colonial adventure, indistinguishable in nature or intent from the darkest chapters in Northern oppression of the South. Proponents, on the other hand, argue the inherent benevolence of American empire — the export of US democracy and egalitarianism in contrast to the transparent racist imperialism of yore. One way to arbitrate this dispute is perhaps to observe the dispensation of justice with regards to United States servicemen accused of the “unlawful killing” of Iraqi civilians. In this area, as with the infamous cases of abuse at Abu Ghurayb Prison and elsewhere, impunity is the rule of thumb for both the rank-and-file and their superiors. In the overwhelming majority of cases since the occupation began no prosecutions have taken place; and if courts martial have occurred, there have been acquittals or token sentences dispensed. No matter how profound the inequities of US military justice, the transitional Iraqi government of Ibrahim Ja’fari has no means to challenge them. The trend towards impunity, therefore, appears to validate the grievances of opponents of the occupation by demonstrating the uneven distribution of power that defines relations between the US and the transit-ional Iraqi government. Array of charges It is difficult to determine the precise number of US servicemen accused of unlawful killings in Iraq. According to Associated Press, “at least ten US military personnel have been convicted of a wide array of charges stemming from the deaths of Iraqi civilians. But only one sentence has exceed-ed three years.” Those ten convictions do not reflect the dozens of investigations that have not produced courts martial, nor the large number of prosecutions that have led to acquittals. The case of Marine Lt. Ilario Pantano is typical of the way the scales of justice tip in occupied Iraq. Pantano was accused of killing two Iraqi captives, Hamaday Karim and Taha Ahmad Hanjil, in April 2004, after the platoon he commanded captured them as they left a house the Marines had just raided. The two non-commissioned officers with Pantano at the time allege that he ordered the captives’ handcuffs removed, had them assume defensive positions, instructed his soldiers to look away, then shot both of them in the back, emptying two magazines. One of the NCOs, Sgt. Daniel Coburn, said Pantano became agitated when weapons were discovered in the suspected hideout and apparently wanted to “teach them a lesson”. Pantano’s defence, which has been successful in similar cases (such as the execution of a wounded insurgent in a Falluja mosque famously captured by a TV camera) was that the unarmed Iraqis moved suddenly, leading him to fear they were about to carry out an attack. Pantano faced the death penalty on charges of premeditated murder but was cleared in a pretrial hearing in late May. He has resigned his com-mission. Cherif Bassiouni, professor of inter-national law at Depaul University in Chicago, is the director of a project to reform Iraq’s legal system, as well as of a project to aid the transitional government’s drafting of a permanent constitution. As the UN’s independent human rights expert in Afghanistan in 2004, Bassiouni was apparently a little too effective, as his mandate was not renewed after heavy US pressure. There is nothing unusual in American soldiers being judged under US jurisdiction (and by their peers, as they are in the military justice system) rather than the Iraqi courts, Bassiouni says. Such matters are usually covered by a Status of Forces Agreement (SOFA) that defines relations between US forces and their host country, as between the US and the other NATO countries. “In the SOFA the US has the primary jurisdiction to prosecute,” Bassiouni told MEI. But if it fails to do so, the host country gets the opportunity. “The Bush Administration has refused to sign a SOFA with either Iraq or Afghanistan,” Bassiouni notes. This affords American soldiers total impunity in Iraqi or Afghan courts. The issue surfaced when Afghan President Hamid Karzai’s visited the White House on 15 June. “He said we need a SOFA, you have no right to detain Afghan citizens in Afghanistan,” says Bassiouni. “And Bush says absolutely not.” Instead, a “memorandum of understanding” for a long-term security “partnership” was signed, offering only joint ‘consultation’ on military operations. Michael Ratner, who heads the Centre for Constitutional Rights (CCR) in New York, has tackled the issue of impunity. CCR is currently trying to prosecute US Secretary of Defence Rumsfeld and the former military commander in Iraq, Gen. Ricardo Sanchez, for their roles in the Abu Ghurayb scandal. Ratner says the policy of giving US servicemen and high officials impunity to carry out torture or killings is no accident. “The military is saying, in Afghanistan and Iraq, if you mess with us you’re going to die and no one is going to be held accountable.” The motivation is twofold, he believes. “Part of it is terrorizing the population and part of it is they want our army to be killers. They’re frightened that if they discipline or prosecute them, they’ll hold back.” If the intention is to terrorize the population, ordinary Iraqis seem to be getting the message. Reports indicate that Iraqis stay as far away as possible from American troops, who are a prime target of insurgent attacks. But the use of excessive force and concomitant impunity is also poisoning what little remains in the well of Iraqi goodwill towards America. “What we are doing politically through the non-punishment of people, through the policy of plausible deniability for all our officers,” says Bassiouni, “is reinforcing the popular perception of anti-Americanism and that’s the strongest support we’re giving to the resistance.” The lonesome death of Zaydun Hassun The demise of Zaidun Hassun in the River Tigris on 3 January 2004 is surely one of the Americans’ most arbitrary recent killings in Iraq. After Hassun and his cousin Marwan Fadel were detained at a checkpoint by American troops near a bridge in Samarra for breaking curfew, Sgt. Tracy Perkins ordered his men to throw them into the river, apparently to teach them a lesson. Hassun drowned, but Fadel survived. There was a subsequent investigation and then a court martial that cleared Perkins and his men of involuntary manslaughter. Perkins was found guilty of assault and obstruction of justice, however, charges that held a maximum penalty of 11 years’ imprisonment. He got 45 days. One reason for Perkins’ exoneration on the manslaughter charge was that his defence argued that Hassun might not really be dead, since no US doctor had examined his body. The photographic evidence of his corpse provided by his family, as well as Fadel’s testimony, held little weight among the soldiers sitting in judgment of their colleague. When soldiers judge soldiers, says Ratner, a slanted outcome is always a risk. “The theory of military tribunals is that military officers understand the combat situation best,” he says. “So first, they’re sympathetic already, and second, they probably see themselves in that situation.” The Hassun case illustrates the hierarchies of race that corrupt the dispensation of US military justice and indeed the wider Iraqi-US relationship. As such, the US is reproducing the kind of colonial justice practiced by the British in India, the French in Algeria or the Israelis in occupied Palestine. Overt racism is rife in the military’s internal investigations, says Ratner. The army’s Criminal Investigations Division “never believe the victim or the witnesses who were Iraqi,” he says. US soldiers “have been taught that Muslims are terrorists, so it doesn’t take a big leap to say ‘I’m not going to believe their testimony’.” It is not only Iraqis who feel hard done by Bush-era US military justice. When Italian special forces agent Nicola Calipari was shot dead by American soldiers on 4 March while attempting to deliver Italian journalist Giuliana Sgrena to Baghdad airport (after apparently freeing her from her insurgent kidnappers) many assumed America’s relations with an ally would ensure due diligence. But despite evidence that little warning was given before US soldiers fired on the Italian convoy, a joint US-Italian investigation — the conclusions of which the Italians refused to co-sign — found no US soldier at fault. The Calipari case shows that the US is willing to go to great lengths to hold its soldiers above the law, says Ratner. “The Bush Administration is not about to prosecute anybody for any crime in a serious way. Even with someone who politically they had to get along with, like the Italians, it didn’t make any difference to their bigger aim, which is to protect their soldiers and basically have them be looked at as a killing force that’s just not accountable.” The high cost of impunity That American soldiers are perceived by Iraqis to be above the law has serious implications for the US-Iraqi relationship. It feeds Iraqi cynicism about the legitimacy of the transitional government and reinforces assumptions that Americans are the ultimate arbiters of Iraq’s purported sovereignty. Iraqis “have absolutely no illusions that the present government has much ability to exercise sovereignty”, says Bassiouni. “Thirty years under Saddam’s regime brought people a certain type of realism. Power, control, corruption — Saddam controlled absolutely, now the Americans are controlling absolutely.” While the Ja’fari government is amenable to the US presence at the moment, that writ is not eternal. Ja’fari’s administration generally follows the views of Ayatollah Ali al-Sistani. “Sistani’s basic position has been made very clear,” notes Bassiouni. “He wants a government to be in place, an orderly transition made and the Americans out. The US has to leave, period.” Once the constitution is in place, elections are held and the word “transitional” erased from government stationary, the colonial relationship could begin to chafe unbearably. And sovereign Iraq’s rulers may not be as patient in demanding jurisdiction over foreign forces as the ever genial Hamid Karzai. Sooner rather than later, Iraqis will tire of US soldiers hurling their young men into the Tigris and getting off scot-free. |
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