“We’ll get to the bottom of it,” US Secretary of State Condoleezza Rice vowed from Washington, D.C.’s national news shows.
“We’ll get to the bottom of it,” Gen. Peter Pace, the first US Marine to be chairman of the Joint Chiefs of Staff similarly assured The Associated Press.
The bottom. The lowest point. What lies beneath it all.
When they say “the bottom,” Rice and Pace aren’t talking about US President George W. Bush’s plummeting polls. They’re talking about the intentional, unprovoked murders of two dozen Iraqis, including, women, children, the infirm and the elderly, in Haditha. Who are the accused murderers?
US Marine soldiers.
The bottom. The lowest point. What lies beneath it all.
Rice and Pace want the Muslim world to know that Pace — the head Marine who’s chairman of the Joint Chiefs of Staff, and Rice — who boasts of surviving in a state where white race supremacists fearlessly murdered African Americans, are working on it.
But not too fast.
Rice and Pace are moving slowly to “get to the bottom of it: “You don’t want to have the emotions of the day weigh into the process,” Pace declared.
But what kind of “process” do Rice and Pace claim is under way? The military is running late. The Marines’ allegedly murdered Haditha civilians approximately eight months ago. Evidence could, at this late date, be tainted or destroyed. Witnesses could be killed or threatened, go into hiding or simply disappear, or be paid off to support the Marines’ version of the murders. Even without bribes and threats, memory fades over time and bodies decompose, making forensic work difficult, if not impossible.
Iraq’s new, US-hand-picked prime minister, Nouri Al-Maliki, also promised to get to the bottom of what “appears to be a horrible crime.” But when all these politicos and lawyers finally “get to the bottom” of the Haditha murders, who will punish the killers — Iraqi Shariah judges, or an American court-martial?
That depends upon whether, and when, Iraq and the United States get a SOFA.
A SOFA is not comfy furniture. SOFA stands for a “status of forces agreement” permitting foreign powers’ armies to “visit” sovereign states. The SOFA outlines the terms of engagement, and usually sets forth what laws and jurisdictions will apply to the visiting military service personnel. If the foreign personnel commit crimes or cause accidents, the SOFA determines whether the personnel will be tried in local courts, or in special courts-martial.
Apparently, the United States and Iraq haven’t negotiated their SOFA yet. The United States, being an invader and relying upon the law of the jungle, avers that occupying powers don’t need a SOFA. An occupying power can sit wherever it wants.
But this view conflicts with the carefully constructed fiction that Iraq has now, through America’s orchestrated electoral process, become an independent, sovereign state. If the metamorphosis is true, then Maliki’s threat to investigate and punish American soldiers is real.
Under international law, all sovereign nations have jurisdiction to punish offenders, including foreign soldiers, who commit crimes within its borders, unless it expressly or impliedly consents to relinquish its jurisdiction to the “visiting” power. This is the concept of fundamental jurisdiction, and its application is near-universal.
Could the Haditha killers find themselves before an Iraqi Shariah court?
It’s possible. The results might not be so dissimilar. War atrocities are punishable by death under the US Uniform Code of Military Justice (UCMJ), as they certainly are under Islamic law.
But the UCMJ provides significant opportunities to elude the death penalty, even for the most heinous crimes. First, a high-ranking military officer — like Pace — decides whether the death penalty will even be sought. Trial then proceeds before a military judge and a military panel rather than local citizens.
Unanimity is required on all issues arising in the death penalty case. Even then, any member can still choose a sentence other than death.
But even if the panel imposes death, the original “convening authority” can reduce the sentence or set aside the guilty verdict. If the authority approves, the record is then reviewed by one of the military justice systems — in Haditha’s case, the Navy-Marine Corps Court of Criminal Appeals. If affirmed, the case then goes to the Court of Appeals for the Armed Forces. If affirmed, the case can be reviewed by the US Supreme Court — now a bastion of Republican conservatism — and the Executive Branch.
Would Bush or his neocon colleagues give Haditha’s murderers an impartial review?
Iraq should think carefully when negotiating its SOFA with America. The Bush administration will likely seek to have the SOFA apply retroactively, allowing America’s accused to be tried before courts-martial rather than face Iraqi justice.
What do the Iraqi people want?
To get to the bottom of it. And go up from there.
