Should Iraq Prosecute US Soldiers?

Exemption from prosecution for U.S. soldiers abroad has a long precedent in American policy and politics, as Rice noted. For decades the Pentagon has insisted that the military's own internal judicial system is the only place U.S. troops should be tried for alleged crimes while serving overseas. While that is a politically popular stance in the U.S., it been the source of tensions at times with allies such as Japan, Italy and South Korea that host large numbers of U.S. troops. In each of those countries U.S. troops over the years have been implicated in alleged crimes ranging from involuntary manslaughter to sexual assault, in cases that have often led to public outcry over military immunity. However, Washington has shown no signs of seriously rethinking the immunity question. Indeed, the specter of U.S. military personnel appearing in a foreign court after Sept. 11 led President Bush in 2002 to withdraw the tentative U.S. support for the International Criminal Court that had been offered by President Clinton during the last year of his tenure. That stance left the United States on the same side of the issue as other nations opposed to the ICC, such as Sudan, Iran and North Korea.

Few outside the human rights activist community have challenged this seemingly nonnegotiable U.S. position. But now voices inside Iraq are beginning to question whether U.S. military immunity can be tolerated by an ostensibly sovereign nation. The U.S. military presence in Iraq since 2003 has produced, in the eyes of many Iraqis, a lengthy list of alleged crimes by U.S. troops with scant signs of justice. Episodes include the Abu Graib prison abuse scandal in 2004 and the killing of 24 civilians by Marines in Haditha in 2005. Those cases and many other lesser known ones have gone to U.S. military courts. But few Iraqis view the distant proceedings as providing adequate accountability, especially considering the high number of acquittals and the paucity of convictions to date.

Iraqi Prime Minister Nouri al-Maliki himself suggested that blanket U.S. military immunity in Iraq was not in line with Iraqi visions for a new agreement governing the American military presence in the country, making the issue perhaps the single biggest stumbling block in the ongoing negotiations.

Few outside the human rights activist community have challenged this seemingly nonnegotiable U.S. position. But now voices inside Iraq are beginning to question whether U.S. military immunity can be tolerated by an ostensibly sovereign nation. The U.S. military presence in Iraq since 2003 has produced, in the eyes of many Iraqis, a lengthy list of alleged crimes by U.S. troops with scant signs of justice. Episodes include the Abu Graib prison abuse scandal in 2004 and the killing of 24 civilians by Marines in Haditha in 2005. Those cases and many other lesser known ones have gone to U.S. military courts. But few Iraqis view the distant proceedings as providing adequate accountability, especially considering the high number of acquittals and the paucity of convictions to date.

Moreover, many Iraqis would argue that these crimes are not the average and seemingly unavoidable incidents that accompany a significant military presence on foreign soil. In other words, it's one thing to deal with the occasional U.S. serviceman, normally sequestered on a large base, who winds up implicated in a criminal incident such as drunken driving, assault or even murder. It's quite another, however, to have thousands of troops fanned out across your country running prison camps and conducting military operations in a shooting war where much of the violence plays out among the civilian population.

From Time.

The UN Convention against Torture defines the practice as:

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain and suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity...."

US statutes leave no ambiguity on torture. Neither do international laws like The (1949) Third Geneva Convention's Article 13 (on the Treatment of Prisoners of War). It states:

They "must at all times be humanely treated. Anyunlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited....(these persons) must at all times be protected, particularly against acts of violence or intimidation...."