Thin line separates aggressive fighting from war crimes

At the age of 21, Robert Pennington was already on his third tour in Iraq. He had seen his best friend killed in house-to-house fighting in Falluja in 2004. He had fired on a car that failed to stop at a checkpoint and killed an Iraqi child -- an act that his superiors called unfortunate but in accord with the rules of engagement.

But on April 26, 2006, in the town of Hamdaniya, the young Marine lance corporal and the seven other members of his squad stepped over the line. Frustrated by the Iraqi police's revolving-door releases of a suspected insurgent that U.S. forces had arrested three times, the squad decided to execute the man.

A barking guard dog at the home of their intended target, a suspected cell leader known as Gowad, thwarted the marines, who instead broke into the house of Gowad's lieutenant, Hashim Ibrahim Awad, and shot him. Then they planted an AK-47 rifle on the body, along with a shovel, to make it seem as if he had been digging a hole to hide a roadside bomb.

With that cover-up, the squad members tacitly acknowledged that they had knowingly violated the rules of engagement laid out by their superiors. At their trials this year Pennington testified, "We were sick of their rules and decided to write our own."

Pennington's attorney, David Brahms, described his client's act as a "pre-emptive strike." Brahms, a retired brigadier general and a former senior legal adviser for the Marine Corps, told National Journal that among the marines in Hamdaniya, "there was a level of frustration and fear that it was only a matter of time until the [insurgents] did something that would kill or maim one of their own. So they said, 'We've got to do something. We're trained to take the fight to the enemy.' "

The problem was how. "I remember my client saying, 'The mission was clear in Falluja, but in Hamdaniya it wasn't clear what the hell we were doing,' " Brahms said. Pennington's mission had shifted from an all-out assault on Falluja, a city largely abandoned by civilians, to a murky, cat-and-mouse counterinsurgency in Hamdaniya, where the enemy he was supposed to destroy intermingled with the civilians whose hearts and minds he was supposed to win.

But Pennington's heart and mind were stuck in Falluja. His mother testified that when her son was home, he carried around a map of the Iraqi city marked with the places his comrades had died. "The way the brain functions actually changes after trauma," said Glenn Scott Lipson, a forensic psychologist, who testified that post-traumatic stress disorder impaired Pennington's decision-making. "He was [chronically] in a state of fight-or-flight, and with that level of arousal, it undermines the ability to deliberate rationally."

Pennington pleaded guilty to kidnapping and conspiracy to commit premeditated murder, and was sentenced to eight years. Then, in August, the commanding officer of all marines in Iraq, Lt. Gen. James Mattis, ordered him released from prison. Pennington is currently in legal limbo, the remainder of his sentence technically deferred until his superiors decide to either commute it or return him to prison. (Pennington, Mattis, and the Marine Corps would not comment on the ongoing case.)

In his terse public explanation, Mattis cited Pennington's youth and low rank as reasons for clemency, along with the fact that he did not personally shoot the victim. With Pennington's release, seven of the eight squad members are now out of prison, albeit most of them with dishonorable discharges from the Corps.

Leniency in cases of U.S. troops accused of killing Iraqis outside the rules of engagement is hardly unique. In late September, even as outrage exploded over the killing of at least 14 Iraqi civilians by Blackwater USA security contractors, a court-martial found Army sniper Jorge Sandoval not guilty of murder in an incident in which he and his team had shot a suspected insurgent and then planted bomb-making materials on the body to bolster their case for his guilt. Sandoval will spend 44 days in prison on lesser charges. And in the most notorious wrongful-death case of the Iraqi war, two of the four marines accused of killing 16 Iraqi civilians (along with eight insurgents) in Haditha in November 2005 had their charges dropped.

Since the Iraq war began, the Army has filed charges involving the wrongful killings of Iraqis in only 22 cases, according to some 10,000 pages of documents obtained by the American Civil Liberties Union through a Freedom of Information Act request to the Pentagon. (The Marine Corps has not yet opened its files.)

By contrast, estimates of the number of Iraqi civilians killed by coalition forces range from 11,000 by the British Web-based organization Iraq Body Count -- which uses only verified news reports -- to 186,000 contained in a controversial 2006 survey published in the British medical journal The Lancet.

Preventing such deaths when possible -- and containing the fallout when not -- is a crucial part of any counterinsurgency strategy.

"We're supposed to be protecting the population, not killing it," said Brig. Gen. Edward Cardon, now on his third tour in Iraq as assistant commander of the Army's 3rd Infantry Division. Every death not only alienates more Iraqis but also inspires some to seek revenge on U.S. forces. "I think the soldiers understand the nuances of the war much better today than they ever have," Cardon said. "They understand [that] if you kill somebody, there could be blowback, that your fellow soldiers are at risk."

This constant dilemma -- to shoot, or not to shoot -- is an intensely personal one for military professionals. Lt. Gen. Mattis has met twice with Pennington, now reduced in rank to private.

Such intense focus from the highest level speaks to the seriousness with which the military takes the rules of engagement, even amid ambiguous and brutal guerrilla warfare, said psychologist Jonathan Shay, recipient of a 2007 MacArthur Foundation "genius grant" for his work with combat veterans. Shay told National Journal, "The killings that really take up residence as psychological abscesses are those that have a moral dimension of violating that person's own principles, like when a soldier discovers he's killed a child" -- as Pennington did.

"I have very strongly come to believe," Shay went on, "that the bright line between militarily necessary, legitimate killing, and murder means everything to a soldier." The question, of course, is where to draw that bright line.

Rage and Restraint

The kind of aggressive action that wins battles can all too easily slide into the kind of aggressive action that leads to war crimes. Holding the line between them takes extraordinary self-discipline.

One night in 2003, Lt. Col. Steven Russell was racing in his Humvee toward the site of an ambush in downtown Tikrit when "we saw a white Nissan truck come fishtailing around the corner," said Russell, now retired. "In really just a flash of a second, I saw the silhouette of a rocket-propelled grenade in the back, and I yelled at my driver, 'Cut him off!' So he headed the vehicle straight at him and rammed him; and as he rammed him, I leapt out and began firing."

In seconds, Russell and his driver had shot all four armed men in the truck. "Once I realized I was out of danger," Russell recalled, "I instinctively let out a very guttural yell. I can't describe it."

Then Russell switched modes completely. "One of them was a very big guy, and he didn't die immediately," he said. "I called a medic. It was clear he was not going to make it, but it was our duty as decent human beings. Once we had them down, we bore them no malice, even though they had tried to kill us."

Some of Russell's men, stoked with fear and adrenaline, struggled to make the same switch. "One of my soldiers fired a round at one of the insurgents who was down and incapacitated," Russell said. "I remember shouting, 'Cease fire, cease fire! We will show quarter!' "

In the final moments of that big insurgent's life -- after Russell shot him but before he died of his wounds -- the Iraqi had changed from a legitimate target to a protected person under international law. In fact, the duty of warring parties to care for, not kill, wounded soldiers no longer able to fight was the subject of the first modern treaty on the law of war, the original Geneva Convention of 1864.

Later conventions extended legal protection from lethal violence to prisoners of war, to civilian noncombatants caught in the crossfire, and -- in a pair of 1977 protocols never formally ratified by the United States -- to civilians who, without being part of an organized guerrilla force, might have taken up arms at one time (say, by planting a roadside bomb) but who were not currently "directly participating in hostilities." Especially hard for combatants, however, is honoring the rules even when the enemy may not. Geoffrey Corn, a retired Army lieutenant colonel who was the service's chief adviser on the law of war in 2004, said, "It is very common to get the cynical view of, 'Why should we care about this if the other side doesn't?' It really boils down to discipline. Soldiers are taught from the beginning of their service that there are lines that can't be crossed. Once they start crossing those lines, it is going to create a breakdown in the trust and confidence that subordinates have in their leaders."

That the rules of warfare are somewhat ambiguous makes the snap judgments that combat requires even more difficult. The Red Cross has midwifed every Geneva Convention, but national governments and their militaries work out the final text.

"It's the states that developed the law of war," said Simon Schorno, a spokesman for the Washington delegation of the International Committee of the Red Cross. "We just help monitor it and advise. And when you're talking about regulating activities on the battlefield, international humanitarian law speaks in very general terms. If it imposes obligations that are unreasonable or impracticable, it's simply going to be ignored," he added.

International law prohibits the direct targeting of civilians, for example. But its only limitation on "collateral damage" resulting from an attack on a legitimate military target, such as a munitions plant near a residential neighborhood, is that the loss of civilian life cannot be "excessive" in relation to the military need -- an assessment made not by lawyers but by commanders. The elaborate calculus of blast radius, population density, and the odds of a miss that the U.S. military goes through when planning air strikes is self-imposed, not a requirement of international law.

Right of Self-Defense

Cutting through all the protections afforded the wounded, prisoners of war, and civilians is an exception granting combat troops the right to self-defense. But just as with air strikes, the U.S. military imposes additional restrictions on ground troops before they can use lethal force to defend themselves.

These are the much-discussed "rules of engagement." They vary from one operation to another, and details are classified, but some general patterns hold. The target must show "hostile intent," for example, by speeding toward a checkpoint despite warning shots; or by not only carrying a weapon (because Iraqi and Afghan civilians have the right to bear arms) but actually pointing it at U.S. forces. And rather than, say, firing blindly into rooms that might contain civilians -- as apparently happened at Haditha -- U.S. troops must "positively identify" the individual or at least the specific location they are targeting.

"If we could tell where the fire was coming from, we'd fire back, but that was maybe three-tenths of the time," said Army Staff Sgt. Timothy Johnson, an Iraq veteran now training recruits at Fort Benning, Ga. "There were a lot of kids, a lot of women, a lot of elderly people," he explained, so if his men could not pinpoint the target, they would hold their fire, cordon the area, and start searching house-to-house in the hopes of capturing the sniper. If you just opened fire indiscriminately, "you'd go to jail," Johnson said. "The instant you don't control your anger, you quit being a soldier."

But what if some soldier fails to control his anger? At that point, the fog of war and the leniency of international law combine to make a murder case extremely difficult to prove beyond a reasonable doubt. That is especially true because a jury of military personnel tries all courts-martial, and because commanding officers are the ones who decide whether to file charges in the first place.

"It's a tough tightrope to walk for a commander," said Corn, the former Army chief adviser on the law of war. "It's very hard for them to understand why someone who volunteered to go into harm's way for the country should be put through that process."

During the fighting for Falluja in 2004, an embedded media cameraman videotaped a young marine standing over a fallen, unmoving Iraqi and shooting him in the head. The clip ran on NBC.

"The way it was presented in the media, this was a terrible, unmitigated murder," said Brahms, the defense lawyer. But after five months of investigation, "no charges were leveled -- not because the commanding officer was soft on crime but because he understood the mind-set of this young marine. Just a day or two before, there had been a similar situation: The Iraqi was [playing dead], rolled over, and shot and killed a fellow marine."

"War is a blurry endeavor, and the fog of battle is very real," Corn said. "If it was an honest mistake, then that's an unfortunate but inevitable consequence of war -- and not a criminal violation."

Confusing Stop Signs

The slow, uncertain process of military justice is little comfort to Iraqis who have seen American forces kill or injure loved ones. As a matter of cold-blooded counterinsurgency strategy, it is far better to avoid unnecessary shootings in the first place and to make amends directly to the survivors when they do happen. But basic cultural misunderstandings have hindered U.S. efforts on both those fronts.

Nowhere in Iraq have more noncombatants been killed by simple mistakes than at traffic checkpoints. When U.S. forces tried to keep civilian cars from blundering into the path of the invasion force in 2003, said Maj. Ben Connable, a Marine Corps foreign-cultures expert, "we started out just by trying to wave them down, by putting a hand out -- 'Stop!' -- with the palm forward. And this wasn't working at all. There were several incidents where we had shot up vans full of families trying to flee the fighting. It was an Army foreign-area officer who realized that [gesture] was the Iraqi symbol for 'Welcome, come forward!' We were actually motioning people to come forward and then shooting them, because we had no cultural training."

The U.S. military entered Iraq badly unprepared to sort civilians from guerrilla fighters.

"We'd hoped we would be fighting clearly marked enemy combatants," said Dennis Carletta, a military lawyer with the 3rd Infantry Division during the invasion. "But they were using civilian vehicles and civilian clothing, which is a violation of the laws of war. To this day, I see white pickup trucks driving on the highway in the States and I flash back."

Although the formal rules of engagement did not change, Carletta said, "we just made sure our troops were educated about enemy combatants posing as civilians. If a car blows through a checkpoint at a high rate of speed, that's hostile intent right there."

But at first, procedures were lethally inadequate. Carletta himself was nearly shot by nervous U.S. sentries when he drove up on them in the dark. The first checkpoint shooting of civilians by his unit came one night when an Iraqi car sped past a makeshift traffic stop: a couple of large standardized shipping containers partially blocking the road, with U.S. troops nearby invisible in the darkness. (Both civilians in the car, though wounded, survived.)

Carletta's unit did not have something as basic as stop signs to put up. "While we were in Kuwait [before the invasion], we actually tried to make signs saying 'stop' in Arabic," he said, but they could not even scrounge enough boards and paint to improvise some. "Would it have saved lives?" Carletta said. "Possibly."

As misunderstandings, and Iraqi civilian casualties, mounted, military checkpoints became more and more elaborate: signs bearing Iraqi traffic symbols for the many local drivers illiterate in Arabic; speed bumps; Jersey barriers; lights and flares for nighttime.

The emphasis was on avoiding the need for a split-second shoot/don't shoot decision. "We created an environment that prevented a lot of shootings of innocent Iraqis without compromising force protection" of U.S. troops, Brig. Gen. Cardon said. "When there are shots fired, often you have to go back and ask, how did you get in this situation to begin with?"

The same principle applies to preventing deadly shootings by U.S. military convoys. All too often, Cardon said, the high-speed, highly aggressive driving that some U.S. troops engage in to avoid potential ambush points can lead to lethal encounters with Iraqi traffic.

For example, "The soldiers are driving on the wrong side of the road; they fire a warning shot at a car because it's, quote, 'driving erratically.' After the warning shot, it drives more erratically, and they fire more shots and wound the driver," Cardon said. "Well, do you think that when you were driving against the flow of traffic, that scared the hell out of the driver?"

Cardon ordered troops on routine missions to drive on the right side of the road at reasonable speeds. "I encouraged the use of sirens and spotlights," the general said. "We made stop signs that the soldiers hold up. It says, STOP. That's amazingly effective, by the way." In contrast, Blackwater security guards often try to get Iraqi cars out of the way by hurling water bottles at them, a practice that Cardon banned for his troops.

But in a war zone, no precautions can prevent all civilian deaths. "I took every shooting that resulted in the wounding or killing of an innocent Iraqi and did an investigation," Cardon said. "It took a while to educate the soldiers that this isn't a witch hunt: If you followed your rules of engagement, just write down what happened and trust your chain of command. The ones we prosecuted were the ones that lied."

A Culture of Blood Money

In tandem with internal investigations of wrongdoing, U.S. forces pay compensation to Iraqi families for deaths, injuries, and damages -- a system that many officers say is easily abused by false claims but that saves the Pentagon money, not to mention lives, by reducing revenge attacks. But, like checkpoint procedures, the compensation system had to overcome basic misconceptions initially.

During the Cold War, U.S. forces stationed around the world had a well-established two-tier system in place: small, informal "solatia" (from the root word for "solace") payments made at a commander's discretion out of his unit's operations and maintenance budget, and larger, formal awards by investigating officers working under the Foreign Claims Act.

"The concept of these types of payments is not new," said Jon Tracy, a former Army lawyer who is now legal adviser to the Campaign for Innocent Victims in Conflict. But the Foreign Claims Act, enacted in 1942 at the outset of World War II, does not allow payouts for deaths or damages resulting from combat operations of any kind. And solatia payments were initially forbidden in Iraq.

Instead, the military began making "condolence payments" with cash recovered from Saddam Hussein's government -- an unregulated funding source later formalized as the Commander's Emergency Response Program.

"It was very ad hoc, and units could really do what they wanted," Tracy said. "Some units would impose statutes of limitations. Some would only pay if the harm had gained the attention of the media or the leaders of the community, so if an average Iraqi came with a claim, they wouldn't accept it."

More-enlightened commanders found ways to bypass formal restrictions to mollify angry Iraqis, not only by paying claims but also by sending officers to make personal apologies. "It's just as important as the monetary compensation itself," Tracy said, "that someone in the same uniform as the person who caused the harm is there to show sympathy."

Cardon, for example, routinely sends the captain who commands the company involved to apologize to the family, scaling the apology up to majors and colonels depending on the tribal status of the victim. "This was hard on us in the beginning," he said. "It just took a while for the system to understand the culture. There's a culture of blood debt here. Unless you pay" -- both money and respect -- "your fellow soldiers are at risk."

In the summer of 2003, Cardon's brigade took over the Falluja region from the 82nd Airborne Division, whose soldiers had fired into an anti-American demonstration, reportedly killing 17 Iraqis, and then failed to appease local honor by paying claims. "We were getting a lot of small-arms fire," Cardon recalled. "We went and did a lot of payments, and it really calmed the situation down." For a while, anyway. The next year, Falluja erupted into some of the worst violence of the war.

The advantage of the blood-money tradition is that it buys peace between rival groups even if no specific individual can be held accountable.

"The point is to re-create balance between the disputing parties and pay damages, not necessarily to ascertain who is absolutely guilty or innocent," said Andrew Shyrock, a University of Michigan anthropologist who has lived with Yemeni and Jordanian tribes. The disadvantage, however, is that even blood money does not always keep a feud at bay permanently.

"It's a downside of tribal law that these disputes are never really solved," he said. "It's very easy to retrigger old animosities."

In May, the Government Accountability Office reported that in fiscal 2003 through 2006, the Defense Department had disbursed almost $31 million in solatia and condolence payments to Iraqi and Afghan families for property damage, injuries, and deaths -- with a $2,500 maximum per wrongful killing. But attacks on U.S. forces continue, of course, as do U.S. shootings of civilians. Ultimately, condolence payments, courts-martial, and stop signs can serve only to contain the cost of war, never eliminate it.

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