Introduction

      War causes death. There’s no way around that, but over hundreds of years, the Law of War has developed. These internationally agreed-upon standards set out what legally can and cannot be done by soldiers deployed into battle. These laws are designed to keep soldiers on both sides safe from torture and ill treatment and to ensure that innocent civilians are not killed unnecessarily.

      These standards, which are set down in the Geneva Conventions, require warring parties to distinguish between lawful military targets and unlawful civilian ones. The Law of War specifically forbids attacks on hospitals, schools, places of worship, and other central parts of the civilian infrastructure. Direct, intentional attacks on noncombatants are also prohibited.

      Servicemen and women learn these rules in training, and when they’re deployed into battle they receive more specific Rules of Engagement that state what is and is not permitted given the mission at hand. In the Iraq War, the Rules of Engagement were initially quite restrictive.

      “Do not target or strike any of the following except in self-defense: … civilians, hospitals, mosques, national monuments, and any other historical and cultural sites,” reads the Rules of Engagement card given to soldiers and marines in January 2003, before the invasion of Iraq.

      Do not fire into civilian populated areas or buildings unless the enemy is using them for military purposes or if necessary for your self-defense. … Minimize collateral damage. Do not target enemy infrastructure (public works, commercial communication facilities, dams), Lines of Communication (roads, highways, tunnels, bridges, railways) and Economic Objects (commercial storage facilities, pipelines) unless necessary for self-defense or if ordered by your commander. If you must fire on these objects to engage a hostile force, disable and disrupt but avoid destruction of these objects, if possible.1

      Those Rules of Engagement were not always followed, but initially they were widely respected and, as a result, civilian casualties were kept to a minimum. Once Saddam Hussein was overthrown, however, an armed resistance erupted against the U.S. occupation. With the Iraqi army defeated, many Iraqi civilians became involved as “insurgents”—Iraqis who dressed in regular civilian clothing and lived in civilian homes and apartment buildings with their families. They dropped their children off at school, went to work, and then after work spotted mortar rounds, buried roadside bombs, and fired rocket-propelled grenades at American soldiers.

      Tailors, barbers, and car mechanics joined militias that attacked U.S. troops. Every Iraqi person was a potential insurgent. “Major combat operations” had been declared over, but by June 2003, American soldiers were being attacked over a thousand times a day. The military command structure responded to these developments by loosening the Rules of Engagement significantly. For most of the five-year-long occupation of Iraq, ROE has required American soldiers only to identify a “hostile act” or “hostile intent” before firing a weapon.2

      As you’ll see in the testimony that follows, commanders have interpreted these terms very loosely. Hospitals, mosques, schools, and historic sites have all been targeted. Shootings of innocents at checkpoints and during house raids and convoy operations are excused. From 2003 to 2006, the Washington Post reports, only thirty-nine service members were formally accused in connection with the deaths of Iraqis. Just twelve of the accused served prison time, none of them officers.3

      Innocent Iraqi civilians are not killed in a vacuum. Their deaths are not limited to a few headline-grabbing events like the killing of twenty-four civilians in Haditha on November 19, 2005. Iraqi civilians are killed every day, their deaths an unavoidable part of guerilla war in general and this occupation in particular. An example of this is in the way the command structure responds to specific cases in which civilians are killed—not the big cases spotlighted in the media, but the everyday killings most Americans never hear about.

      In September 2007 the American Civil Liberties Union obtained nearly ten thousand pages of previously classified U.S. Army documents, which show how the government responds to civilian casualties. The court-martial proceedings and military investigations reveal that the definitions of “hostile intent” and “hostile actions” are so broad that virtually any activity by an Iraqi can be used to justify the use of force.

      One army document describes a November 12, 2005, incident in Abu Saida, northeast of Baghdad.4 According to the document, an Iraqi driver was “killed (shot) by American soldiers at a checkpoint after being turned back…. While attempting to turn around, an American soldier shot him. The other three passengers took him to the hospital where he was later pronounced dead.”

      Six months later, on March 25, 2006, a judge advocate captain at Forward Operating Base Warhorse completed his investigation (the captain’s name is redacted in the document). “There is