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VII. ACCOUNTABILITY

Coalition Forces in Iraq are not subject to Iraqi law. According to Coalition Provisional Authority Regulation Number 17, coalition personnel are “immune from local criminal, civil and administrative jurisdiction and from any form of arrest or detention other than by persons acting on behalf of their parent states.”⁹⁰

Given the absence of Iraqi legal structures to hold coalition forces accountable, it is incumbent on the occupying powers of the participating countries to investigate all allegations of abuse, and to punish those found to have violated domestic military codes, international humanitarian law, or human rights standards. Both the laws of war and non-derogable human rights standards require the investigation of suspicious or apparently unlawful killings, even during times of armed conflict. As of mid-October 2003, the United States military was not fulfilling that obligation, thus creating an atmosphere of impunity for U.S. troops.

Two types of investigations are possible in the U.S. military: administrative and criminal. Administrative procedures such as a Commander’s Inquiry or an Army Regulation 15-6 investigation can result in “adverse administrative action,” such as fines, extra duty or confinement. Criminal investigations involve a military court and can lead to a court martial.

Human Rights Watch is not aware of any criminal investigations into cases of alleged use of excessive or disproportionate force. As of October 1, the U.S. military said it had completed five administrative investigations above the division level, and all of them under the authority of the Deputy Commanding General in Iraq. They are as follows:

1. Two Iraqi police killed on August 9 (see case study above). The investigation determined that soldiers from the 1^st Battalion, 41^st Infantry of the 3^rd Brigade of the 1^st Armored Division acted in accordance with the rules of engagement. While the soldiers perhaps mistook an unmarked police car for criminals, witnesses claim that Lt. ‘Ala’ `AliSalih was killed after he was standing outside the car with his hands up. One of the surviving policeman was beaten while in custody.

2. In an incident not documented in this report, conflict erupted in Baghdad on August 13 when residents accused the U.S. military of trying to tear a black religious banner from a communications tower. According to residents in the Shi`a neighborhood of al-Sadr City, a U.S. helicopter tried to tear the banner down around 11:00 a.m. An angry crowd gathered and assaulted a U.S. convoy on the ground. While fighting to retreat, one Iraqi was killed and four were injured. The military said they had killed a man who fired an RPG; Iraqis said the victim was a young boy.⁹¹

   The U.S. military at first said the helicopter had flown too close to the tower and rotor wash blew the banner down.⁹² “Apparently the helicopter either blew down the banner or somehow that banner was taken down, and we are taking steps to ensure that doesn’t happen again,” said the commander of coalition troops in Iraq, Lt. Gen. Ricardo Sanchez.⁹³ Human Rights Watch saw a video of the incident filmed by someone on the ground, which is for sale in Baghdad’s video shops. The helicopter is seen hovering over the banner for a long time and, although it is filmed from a distance, it appears as if someone in the helicopter is trying to take the banner down.

   The military issued an apology the following day. “What occurred was a mistake and was not directed against the people of al-Sadr City,” said a statement signed by Lt. Col. Christopher K. Hoffman of the 2^nd Squadron, 2^nd Armored Cavalry Regiment. “I am personally investigating this incident and will punish those that are responsible.”⁹⁴

   The military’s investigation determined that “some U.S. forces members exercised poor judgment,” and disciplinary action is being taken, the military’s press office said. Head of the U.S. Judge Advocate General in Iraq, Lt. Col. Marc Warren, told Human Rights Watch the helicopter pilot was being taken before a flight review board and administrative action would also be taken against the commander under article 15 of Army regulations. The commander faces a variety of possible sanctions, from fine to confinement.⁹⁵

3. Two cars fired upon at a checkpoint in the Tunis district of al-Slaikh on August 7, killing Saif Ra`d `AliSa`id al-`Azawi in the first car and four members of the al-Kawwaz family in the second car (see case study above.) According to the military press office and U.S. JAG, an investigation determined that it was “a regrettable incident” but soldiers from the Alpha 2-3 Field Artillery had “acted in accordance with the rules of engagement.⁹⁶

4. According to the military press office and U.S. JAG, an investigation was conducted into a checkpoint incident in the al-Mansur neighborhood that left one person dead and one injured. Human Rights Watch did not investigate this case. The soldiers involved were found to have acted in accordance with the rules of engagement, but a recommendation was made to better mark checkpoints with chemical lights. Compensation was also paid to the victims in this case.⁹⁷

5. On August 17, U.S. soldiers shot and killed Reuters cameraman Mazen Dana, aged forty-three, outside Abu Ghraib prison on the outskirts of Baghdad. Mazen was the twelfth journalist killed since the war began, and the second Reuters journalist to die.⁹⁸ Reuters said Dana and his sound engineer had asked soldiers for permission to film. After the killing, the U.S. military issued an apology and said soldiers thought his camera was an RPG. A military spokesman expressed condolences at the time but said troops would not fire a warning shot if they felt threatened. “I can’t give you details on the rules of engagement, but the enemy is not in formations, they are not wearing uniforms,” Col. Guy Shields told the press asking about the incident. “During war time, firing a warning shot is not a necessity. There is not time for a warning shot if there is potential for an ambush.”⁹⁹

A military investigation determined that the soldiers involved had acted within the rules of engagement. The military’s Criminal Investigation Division (CID) also took part in the investigation, JAG officials told Human Rights Watch, but not because it was a criminal investigation; rather, the CID lent its technical skills.¹⁰⁰

Reuters responded angrily that it had not been informed directly of the investigation’s results. In a letter to U.S. Defense Secretary Donald Rumsfeld, Reuters chief executive Tom Glocer said, “I certainly don’t believe that my government intentionally targets Reuters or anyone else’s journalists but let’s just say protecting journalists isn’t high enough on the Pentagon’s priority list.”¹⁰¹

In addition to the cases mentioned above, a high-level investigation is ongoing into the friendly fire killing of eight Iraqi police and a Jordanian guard by the 82^nd Airborne in al-Falluja on September 12. The U.S. military apologized for the incident and appointed Brig. Gen. Jeffrey Schloesser, assistant commander of the 101^st Airborne Division, to head an investigation. The U.S. JAG was not aware of other investigations ongoing as of September 23, although officials said they might not know of investigations conducted on the division level.

In addition to the six cases documented in this report that are not being investigated, one glaring absence from the list was the first major altercation in al-Falluja on April 28 and 30, when U.S. troops killed an estimated twenty Iraqis and wounded up to seventy others. Human Rights Watch conducted an in-depth investigation into those two incidents and presented its finding in a May 2003 report, Violent Response: The U.S. Army in al-Falluja. The report called on U.S. authorities to conduct a full, independent and impartial investigation to determine the circumstances that led to the shootings, and to hold accountable anyone found to have committed violations of international humanitarian law.