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.

WAR CRIMES AND MISDEMEANORS

On the morning of November 19, 2005, a U.S. Marine unit patrolling Haditha, a small farming town in the heart of Iraq's violence-plagued Anbar Province, was hit by a powerful roadside bomb. The explosion killed one marine and wounded two others. But that was just the start of the killing that day. Following the attack, four Iraqi college students and a driver who were approaching the scene in a taxi were also killed, as were 19 civilians in nearby houses, including an elderly man in a wheelchair and several children and the women who were trying to shield them.

The first official account of the incident claimed that only 15 civilians had died, all from the bomb blast. In March 2006, an extensive Time magazine investigation challenged that version of events. Subsequent inquiries found that the marines had probably killed all 24 Iraqi civilians themselves and that U.S. commanders should have conducted a more thorough investigation earlier. The marines involved in the incident appear likely to face criminal charges, including for murder.

If the marines' responsibility is confirmed, the Haditha killings will be the gravest violation by U.S. forces of the legal prohibition against the wanton targeting of civilians since the invasion of Iraq. A bedrock of the laws of war for more than a century, noncombatant immunity encompasses two key concepts: distinction and proportionality. (Although the United States has not ratified all the relevant international conventions codifying these rules, it treats most of them as binding.) Parties to hostilities are expected to always distinguish combatant forces and military objects, which are legitimate targets, from civilian populations and hospitals, schools, places of worship, and important cultural sites, which are not. Under no circumstances is force to be deliberately applied against strictly noncombatant targets. But according to the principle of proportionality, collateral damage to civilians and civilian objects is acceptable if it is the byproduct of attacks on legitimate military targets and the damage does not obviously exceed the anticipated military benefit.

If the allegations are proved true, the Haditha incident will represent an egregious violation of these principles. What is less clear is whether this incident was the result of the reprehensible actions of a few or just one instance of systematic misconduct by U.S. forces in Iraq. In other words, is Haditha the exception or the rule?

Judging by a June 2003 Pew Global Attitudes survey, many people are likely to conclude the latter. The poll found that over 90 percent of Jordanian, Moroccan, Palestinian, and Turkish respondents and over 80 percent of Indonesian and Pakistani respondents felt that the United States "didn't try very hard" to avoid civilian casualties in Iraq. That view was shared outside the Muslim world by over 70 percent of the Brazilians, French, Russians, and South Koreans polled.

And yet, despite some dark spots on its record, the U.S. military has done a better job of respecting noncombatant immunity in Iraq than is commonly believed. Over the past year, I have conducted dozens of interviews with commanders, judge advocates, and others who have served in Iraq; investigated operational "lessons learned" during a recent trip to Baghdad; observed the predeployment training of forces; and extensively reviewed unclassified Pentagon documents, official and unofficial histories, troops' memoirs and blogs, and human rights reports. I have found not only that U.S. compliance with noncombatant immunity in Iraq is relatively high by historical standards but also that it has been improving since the beginning of the war.

THE RULES OF THE GAME

In 1863, in response to the horrific treatment of civilians during the American Civil War, the U.S. armed forces adopted the so-called Lieber Code (named after its author, the political philosopher and jurist Francis Lieber), the first comprehensive set of regulations covering the conduct of land warfare. The Lieber Code recognized noncombatant immunity and provided the foundation for later treaties codifying the laws of war. Still, the U.S. military's commitment to fully institutionalize its norms and socialize U.S. forces remained slack for most of the twentieth century. U.S. forces engaged in extensive bombing (including two nuclear attacks) targeting civilians and civilian infrastructure during World War II. They clearly violated the principles of distinction and proportionality on numerous occasions during the Korean War and the Vietnam War. The 1968 My Lai massacre, in which U.S. soldiers killed hundreds of Vietnamese civilians, has become the most enduring symbol of these practices.