Haditha massacre: US accountability on war crimes

Accountability is the catchword when the so-called internal community refers to Sri Lanka today. Last week we saw the US Under Secretary for Maria Otero Assistant Secretary Robert Blake, at the conclusion of their visit to Sri Lanka earlier that week, keep emphasizing on the need for accountability by Sri Lanka with regard to allegations of war crimes and violations of humanitarian law during the long battle to defeat the LTTE, especially in the last phase of the successful operation against terrorism.

Accountability by Sri Lanka is now the chorus in the anti-Sri Lankan choruses being chants that come from a common hymn sheet shared by Amnesty International, Human Rights Watch, International Crisis Group, and of course, never to be forgotten UN High Commissioner for Human Rights Navanethem Pillay.

The chanting gets louder and more shrill as the date for the next session of the UNHCR draws closer, with questions being raised by pro-LTTE politicians in the House of Commons, and Channel 4 promising to come out with a sequel to Sri Lanka Killing Fields, the first doctored video of which was launched to sync with the last session of the UNHCR.

Foreign policy

This campaign for accountability by Sri Lanka is most strange, especially when one considers the sources from where it emanates today. The United States, with Hillary Clinton trying to score more points than Obama on foreign policy in the US Administration, now leads the call for accountability by Sri Lanka, of course after being compelled to accept the useful contribution made by the LLRC to the process of reconciliation on the country.

It is interesting to see the call for accountability by only one party to the Sri Lankan conflict, namely the Sri Lankan state, with the convenient position that a government has greater responsibility than a non-state actor, namely the LTTE - acknowledged by the US itself as the most ruthless terrorist organization in the world.

Even admitting this argument of the greater responsibility and accountability of a state in a conflict, one fails to understand why all those who call for accountability from Sri Lanka does not bother to ask even some of the more prominent leaders of the pro-LTTE Tamil organizations that are campaigning against Sri Lanka, as to what amount of responsibility or accountability they should bear for the inhumane brutality that took place in this country, when many of them were carrying arms, recruiting child soldiers, training suicide killers, or performing other services for the LTTE and the Sun God - Velupillai Prabhakaran.

Violation of humanitarian law

Yet, as the cry for accountability by Sri Lanka reaches higher decibels within the limited ‘international community’ it is necessary to juxtapose the situation about accountability by the United States itself, in matters of war crimes and violation of humanitarian law.

I do not intend to go into the regular examples of drone attacks of on civilians and the ever more frequent and hollow apologies about them. I will also not raise the question of Bahrain and the support that continues to be given to a brutal Sunni regime there that suppresses a Shia majority. I would only raise the issue of the Haditha Massacre.

What was the Haditha Massacre? On November 19, 2005, US Marines from Kilo Company, Third Battalion, First Marine Division killed 24 unarmed civilians in Haditha, Iraq, execution-style, in a three- to five-hour rampage. One victim was a 76-year-old amputee in a wheelchair holding a Koran. A mother and child bent over as if in prayer were also among the fallen. Now what happened to those responsible for this massacre in the US justice system?

As the New York Times reported on January 27, 2012: “The collapse this week of the prosecution of a Marine for a civilian massacre in Haditha, Iraq - a striking outcome, even in a military justice system with a mixed record of charging soldiers for war crimes - has not only outraged Iraqis but also stunned some American military law specialists.”

By the time of the trial in late January, the NYT reported that charges against six Marines had been dropped, and a seventh Marine had been acquitted in a court martial. After several days of spotty testimony about the last remaining defendant, Staff Sgt. Frank Wuterich, 31, who admitted telling his men to “shoot first and ask questions later’ after the bombing,the military agreed to a plea deal allowing him to avoid prison time.”

“It was a series of missteps, errors built upon mistakes, until the case was just untriable,” said Lt. Col. Gary D. Solis, a retired Marine Corps judge who now teaches military law at Georgetown University.

Security issues

The Marine Corps rejected any claim of incompetence in the prosecution of the Haditha case. “The case was handled in strict accordance with the Uniform Code of Military Justice,” said Lt. Col. Joseph Kloppel, a spokesman. Is this the level of accountability that the United States and others who keep screaming against Sri Lanka on the need for accountability expect from this country, or is it some other standard that the world is unaware of? Under Secretary of State Mario Otero who asked for accountability when in Colombo last week, and Assistant Secretary Blake would have both been well aware of the Haditha Massacre and the outcome of the ‘trial’.

Under Secretary Otero must have made a special study of it because she oversees and coordinates US foreign relations on the spectrum of civilian security issues across the globe, including democracy, human rights, population, refugees, trafficking in persons, rule of law, counter-narcotics, crisis prevention and response, global criminal justice, and countering violent extremism.

“There is a surprising pattern of acquittals,” said Eugene R. Fidell, who teaches military justice at Yale Law School. “I think there is an unwillingness in some cases of military personnel to convict their fellow soldiers in the battle space,” the NYT said.

Military law

It added that “the limited data available suggests that even when the military has tried to prosecute troops for murder or manslaughter in a combat zone, the acquittal rate has been significantly higher than it is in the civilian context.

“Over the last 10 years, the (US) Army has court-martialed 43 people on murder or manslaughter charges in cases that occurred in Iraq or Afghanistan and that included both civilian victims and detainees. Twenty-eight were convicted and 15 acquitted.”

However, there is the interesting observation by Stephen A. Saltzburg, a law professor at George Washington University, that acquittal rate is more than twice as high as it is in civilian criminal cases, but, the gap is not surprising, given the chaos of combat. This comes very close to what the LLRC stated in its report about establishing responsibility for what happened in the final phase of the battle to defeat the LTTE.

The NYT reported that the challenges the prosecution faced dovetailed with the difficulties often encountered in efforts to prosecute troops for unlawful killings in combat zones. Collecting physical evidence and finding witnesses can be difficult because the killings often occur in unstable and dangerous areas, and the cases often come to light only after time has passed. This echoes well the LLRC thinking on what happened in Sri Lanka.

Yet, what stands out about the Haditha judgment, is, “It’s a travesty,” said Eric S. Montalvo, a former prosecutor and defense counsel in the Marine Corps who is now in private practice specializing in military law. “I don’t believe that justice was served.”

People who followed the Haditha case say it collapsed largely because of prosecutors’ errors - including giving immunity to squad mates whose credibility as witnesses came into question, and tactical decisions that led to a lengthy delay before the trial got under way.

International Court of Justice

Is this the standard of accountability the US wants all countries of the world to follow on matters of war crimes and violations of humanitarian law? Or is this a standard that is confined to the United States, which does not accept the International Court of Justice, for fear its citizens will be tried before it? And is Haditha also the standard of accountability of the UNHCR’s Navanethem Pillay?

It is time the world was told what really is expected on accountability in these situations. If Haditha is OK for the United States, which includes Hillary Clinton, is there anything more that is called from Sri Lanka? Let the Haditha Massacre open the eyes of the world to the duplicity of the ‘international community’ to the whole issue of accountability by Sri Lanka.