|
|
|
|
The perils of
colonial justice in Iraq
By
Ashraf Fahim
Among its more vociferous
opponents, the American project in Iraq is
characterized as a classic colonial adventure,
indistinguishable in nature or intent from the
deepest, darkest chapters in Northern oppression
of the South: America is to Iraq 
as Britain was to
India or Belgium to the Congo. Proponents, on the
other hand, argue the inherent benevolence of
American empire - the export of democracy and
egalitarianism in contrast to the transparent
racist imperialism of yore.
One possible
way to arbitrate this dispute is by observing the
dispensation of justice with regard to American
servicemen accused of the "unlawful killing" (in
military parlance) of Iraqi civilians. In this
area, as with the infamous cases of torture in Abu
Ghraib and elsewhere, impunity is the rule of
thumb for both the rank and file and their
superiors. In the overwhelming majority of cases
over the course of the war, prosecutions have
either not taken place, or if court martials 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
Jaafari has no means to challenge them. The trend
towards impunity, therefore, would seem to
validate the grievances of the opponents by
demonstrating the uneven distribution of power
that defines relations between the US and the
transitional Iraqi government.
It is
difficult to determine the precise number of US
servicemen accused or convicted of unlawful
killings during the war. A June 6 Associated Press
article concluded that "since the Iraq war began,
at least 10 US military personnel have been
convicted of a wide array of charges stemming from
the deaths of Iraqi civilians. But only one
sentence has exceeded three years." Those 10
convictions do not reflect the dozens of
investigations that have not produced court
martials nor the large number of prosecutions that
have led to acquittals.
The case of Ilario
Pantano is typical of the way the scales of
justice tip in occupied Iraq. Pantano was a Marine
lieutenant accused of killing two Iraqi captives,
Hamadaay Kareem and Taha Ahmed Hanjil, in April
2004, after the platoon he commanded captured them
as they drove away from a house the Marines had
just raided as a suspected insurgent hideout. The
two 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 Kareem and Hanjil
in the back. Pantano emptied two magazines into
them.
One of the officers present,
Sergeant Daniel Coburn, stated that Pantano had
become agitated when weapons were discovered in
the suspected hideout and apparently wanted to
"teach [the insurgents] a lesson". Pantano's
defense, which has been successful in similar
cases (such as the execution of a wounded
insurgent in a Fallujah mosque famously captured
by an NBC television reporter) 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, and resigned from the military.
Terrorizing the natives, poisoning the
well
M Cherif Bassiouni, a renowned
professor of international law at Depaul
University, is as familiar as any jurist with the
legal dimension of US-Iraqi relations. Bassiouni
is currently the director of a project to reform
Iraq's legal system, as well as a project to aid
the transitional government's drafting of a
permanent constitution. Also, as the United
Nations' Independent Expert on the Situation of
Human Rights 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 so-called Status of Forces Agreement (SOFA)
that defines relations between US forces and their
host country - like the one between the US and
Japan. "In the SOFA the US has the primary
jurisdiction to prosecute," Bassiouni told Asia
Times Online, "but it has the obligation to
prosecute." If it fails to do so, the host country
gets the opportunity. "But the Bush administration
has refused to have a SOFA not only with Iraq but
with Afghanistan," Bassiouni notes. This affords
American soldiers total impunity from Iraqi or
Afghani courts.
Bassiouni points out that
the issue surfaced on Afghan President Hamid
Karzai's June 15 pilgrimage to the White House.
"[When] Karzai was here he raised the question
once again. He said we need a SOFA, you have no
right to detain Afghani citizens in Afghanistan,"
says Bassiouni. "And Bush says absolutely not. I
mean, that arrogance of power." 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 Center for
Constitutional Rights (CCR) in New York, has
tackled the issue of impunity head on. CCR is
currently trying to prosecute US Secretary of
Defense Donald Rumsfeld and the former top
military officer in Iraq, General Ricardo Sanchez,
for their roles in the Abu Ghraib torture scandal.
Ratner says the policy of giving US servicemen and
high officials impunity to order or carry out
torture or killings is no accident.
"I
think it's intentional," Ratner told Asia Times
Online. "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 are
apparently getting the message. Reports from Iraq
indicate that Iraqis stay as far away as possible
from trigger-happy convoys of US troops, which 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 Abu Ghraib
situation, through the non-punishment of people,
through the policy of basically giving plausible
deniability to all of the 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 Zaidun Hassun
The demise of Zaidun Hassun in the depths of
the river Tigris at 11pm two days after New Year,
2004, is surely one of the war's most arbitrary
killings. Hassun and his cousin Marwan Fadil were
stopped at a checkpoint by US troops near a bridge
in Samarra for breaking curfew. Once detained,
Sergeant Tracy Perkins ordered his men to throw
them into the river, apparently to teach them a
lesson. Hassun drowned, but Fadil survived to tell
their harrowing tale. 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 in prison. He
got 45 days.
One reason for Perkins'
exoneration on the manslaughter charge was because
the defense argued that Hassun might not really be
dead, since no US doctor had examined his body.
Oddly, no one bothered to exhume Hassun's grave,
and photographic evidence of his corpse provided
by his family, as well as the testimony of Fadil,
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 and therefore you want those people to
judge," 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.
"One of the
things that comes out from the CID [Criminal
Investigations Division] of the army
investigations is that they're shoddy and they
never believe the victim or the witnesses who were
Iraqi," he says. "It's almost like what we had in
the American south during the post-civil war
period, where they never believed the black
witness in a trial against a white." US soldiers,
says Ratner, "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 US soldiers on March 4 while driving towards a
checkpoint as he attempted to deliver Italian
journalist Giuliana Sgrena to Baghdad airport
(after apparently freeing her from her insurgent
kidnappers) , many assumed America's relations
with its key coalition 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
cosign - 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. "Right now the Bush
administration is not about to prosecute anybody
for any crime in a serious way," he says. "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 as being 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 very little
ability to exercise sovereignty," says Professor
Bassiouni. "Thirty years under Saddam's regime
brought people a certain type of realism. Power,
control - corrupt absolutely. Saddam controlled
absolutely, now the Americans are controlling
absolutely."
While the Jaafari government
is amenable to the US presence for now, that writ
is not eternal. Jaafari's administration
"obviously receives its policy directives from
[Grand Ayatollah Ali] al-Sistani," Bassiouni
notes. "And Sistani's basic position has been made
very clear. 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 demonstrated
by the impunity US soldiers on Iraqi soil 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
scott free.
Ashraf Fahim is a
freelance writer on Middle Eastern affairs based
in New York and London. His writing can be found
at www.storminateacup.org.uk.
(Copyright 2005 Asia Times Online Ltd. All
rights reserved. Please contact us for information
on sales, syndication and republishing.) |
|
|
|
|
|
|
|
 |
|
|
|
|
|
All material on this
website is copyright and may not be republished in any form without written
permission.
© Copyright 1999 - 2005 Asia Times
Online Ltd.
|
|
Head
Office: Rm 202, Hau Fook Mansion, No. 8 Hau Fook St., Kowloon, Hong
Kong
Thailand Bureau:
11/13 Petchkasem Road, Hua Hin, Prachuab Kirikhan, Thailand 77110
|
|
|
|
