American Marines have been accused of massacring 24 civilians in the Euphrates River farming town of Haditha last fall to avenge the deaths of some of their own. As the story spreads, outrage at American double standards is once again building around the world and in Iraq. So, here's an idea: Let's let the Iraqis put the Americans alleged to have committed these crimes on trial. The United States wants to encourage the fledgling Iraqi institution of democracy, right? That's why we wanted Saddam tried in Iraq, and through the Iraqi judicial system—both to build up its legitimacy and to give Iraqis the sense of ownership that comes with having control over the legal process. Why, then, shouldn't we also turn over our own soldiers who were involved in either the Haditha massacre or any of the other possible massacres for trial under the Iraqi justice system?
Doing this would probably be politically idiotic, and maybe even legally impossible. But it isn't without legal precedent. And given the fragility of the new Iraqi government, and the American government's claims about its legitimacy, this vote of confidence would make a powerful political and diplomatic statement. President Bush claimed a week ago that, despite Abu Ghraib, the United States and Iraq "have now reached a turning point in the struggle between freedom and terror." Wouldn't permitting Iraqis to try the offenders in their own courts this time go a long way to backing up that claim?
So far, no one in Iraq is calling for any of our troops to be turned over, but the rhetoric is escalating. Prime Minister Nuri Kamal al-Maliki has accused the U.S. military of habitual attacks: "They crush them with their vehicles and kill them just on suspicion," he said of the U.S. soldiers. Karen Hughes can try all the gambits she wants at the State Department to put a kind face on America in the Arab world, but it's in moments like this one that the United States has a chance to reverse the impression it has created in the Middle East: that we take "moral" stands only when it suits our own interests.
Iraqis are skeptical about American justice and we've hardly given them much cause for confidence. As the neighbors of some of those massacred at Haditha recently toldTime,the light sentences meted out for Abu Ghraib—and only to the lowest-ranking offenders—convinced them that American military justice is largely about whitewashing the truth and protecting one's own.
As it happens, there is some legal precedent for such a move: In July 2001, U.S. officials turned over an American serviceman to face trial in a foreign court for crimes committed in a foreign land. When Staff Sgt. Timothy Woodland was accused of raping a Japanese woman, he was tried in the Japanese judicial system. In that case, U.S. officials put the strength of U.S.-Japanese relations ahead of military and legal constraints. Woodland was handed over despite the express wording of a U.S.-Japan agreement providing that U.S. commanders do not have to relinquish troops until they are indicted.
Now, Iraq is not Japan, although President Bush never tires of using the occupation of Japan after World War II as a model for the democratic development of Iraq. And we were obviously not engaged in open hostilities on Japanese soil when the incident occurred, nor is there any way to justify a rape as part of a military action. But the object in both cases is the same: Whatever legal barriers existed were deemed less urgent than the political and diplomatic message sent. The idea that we can bolster a shaky trust by subjecting Americans to the criminal justice system of an ally applies in this case as well.
Like the Status of Forces Agreement that governs U.S.-Japanese relations, there is certainly a formal legal bar to trying the Haditha defendants in Iraqi court: CPA Order 17, issued in the summer of 2003 by Paul Bremer, expressly states that U.S. military and civilian governmental personnel, as well as U.S. contractors, are exempt from the Iraqi legal process. That order might need to be waived for the soldiers who committed the alleged atrocities against the men and women of Haditha. But as a diplomatic matter, the mere presence of that order is an insult to Iraqis: It calls out the message that we can invade their country, break their laws, and remain wholly immune from their criminal consequences.
The administration also has an opportunity to legitimize the Iraqi police force, which has already been conducting its own investigations into these alleged atrocities. The U.S. government has been anxious to strengthen the Iraqi police as a precondition for withdrawing U.S. troops. What better way than to give them moral authority with the Iraqi people than by showing them enforcing laws that apply to more than just Iraqis?
The larger legal anxiety about subjecting American soldiers to foreign law mirrors the concern at the root of the United States' refusal to join the International Criminal Court. We like the idea of spreading justice everywhere around the world, but after we spread it, we trust only our own courts to impose it. We balk at the prospect of American troops being subject to anything but American justice, because protecting our national security interests sometimes means doing unjust things like killing civilians unintentionally.
So the U.S. compromise is to institutionalize hypocrisy: We want everyone to emulate our courts system, but we insist that nothing but our own law is fair when it comes to U.S. soldiers–even when we are intervening around the world to foster American-style democratic institutions where the law treats all citizens fairly.