How We Fight

Colin H. Kahl

From Foreign Affairs, November/December 2006

Summary:  Reports that U.S. troops may have killed 24 civilians in Haditha, Iraq, last November have renewed fears that the U.S. military routinely violates the laws of war. But is the Haditha incident the exception or the rule? In fact, U.S. compliance with noncombatant immunity in Iraq has been relatively high by historical standards, and it has been improving since the beginning of the war.

Colin H. Kahl, Assistant Professor of Political Science at the University of Minnesota, conducted research at the Department of Defense from January 2005 to August 2006 on a fellowship from the Council on Foreign Relations.

Notably, reports about other significant abuses surfaced soon after Haditha. Several marines and a navy corpsman have been charged with dragging an Iraqi man from his home in Hamdaniya in April 2006, killing him in cold blood, and then attempting to cover up the crime by leaving an AK-47 and a shovel next to his body to suggest he had been planting an improvised explosive device. In another case, four soldiers from the 101st Airborne Division are accused of having released three male detainees in Salahuddin Province in May 2006 and then killing them. And in another still, five soldiers stand accused of raping an Iraqi girl and killing her and three members of her family in Mahmudiya in March 2006. The rash of reports may represent an upward trend in misconduct. More likely, however, it is evidence that the U.S. military has become more diligent about investigating and disclosing such incidents. In April 2006, Lieutenant General Peter Chiarelli, the operational commander of all U.S. forces in Iraq, ordered commanders across the country to begin investigating all incidents that result in the death or the serious wounding of an Iraqi civilian or that cause property damage in excess of $10,000.

In addition to conducting investigations, the military has taken steps to reduce the risk of war crimes in the first place. After Haditha, senior commanders in Iraq ordered refresher courses for troops to reinforce the ROE and the armed forces' "core values." In a letter to U.S. commanders, Chiarelli stated bluntly, "While I fully appreciate the stresses and pressures inherent in combat operations, I cannot, and will not accept behavior which is legally, morally, or ethically questionable." General Michael Hagee, the commandant of the Marine Corps, took the unusual step of traveling to Iraq in order to give a series of speeches to marines reemphasizing the importance of complying with the Geneva Conventions and U.S. ROE.

Significantly, however, these measures were initiated only after Time informed the U.S. military of the result of its own investigation into the Haditha deaths in February 2006 -- almost three months after the incident. The system worked reasonably well, in other words, but only once someone outside the U.S. military had pulled the alarm -- a sign that disclosure of potential violations may be hindered by camaraderie among troops.

The U.S. military should do more to overcome such obstacles to full compliance with the laws of war. For example, it should systematically conduct anonymous surveys of troops returning from Iraq and Afghanistan to ascertain why violations sometimes occur and whether a code of silence among U.S. forces masks them when they do. The military should also establish "civilian casualties response teams," comprised of judge advocates, intelligence officers, medical personnel, forensics and munitions specialists, engineers, and information officers, to study the effects of U.S. military operations on the Iraqi population. The findings should then be used to revise the rules and tactics governing the use of deadly force, inform planning and targeting procedures, and assist in criminal investigations.

More broadly, the U.S. military should further commit to tracking wartime civilian casualties and investigating all potential misconduct by U.S. forces. If nongovernmental organizations such as Human Rights Watch can conduct thorough investigations on the battlefield, so can the U.S. military. Recent efforts to keep tabs on escalation-of-force incidents are a step in the right direction, but they apply only to checkpoint and convoy operations, not to incidents that occur during patrols, raids, and combat. The U.S. military has gone to great lengths to comply with the norm of noncombatant immunity at the "front end" of operations. Now it needs an institution-wide commitment at the "back end" to better monitor and enforce adherence to the laws of war.

Tracking how U.S. operations affect Iraqi civilians is not simply a moral and legal imperative; it is vital to the United States' national interest. In Iraq's honor culture, every civilian death at the hands of U.S. forces feeds alienation and fuels the cycle of vengeance. The widespread perception that U.S. forces regularly misbehave in Iraq also helps violent jihadist groups everywhere recruit followers. Avoiding future Hadithas is thus crucial to tamping down the insurgency, winning hearts and minds, defusing sectarian strife, and stemming virulent anti-Americanism. In short, ensuring that U.S. forces comply with noncombatant immunity is not just the right thing to do for Iraqis; it is also the right thing to do for Americans.