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Cablegate: Five Manslaughter Incidents - Geneva 2007 Communications

R 301505Z MAY 07
FM USMISSION GENEVA
TO SECSTATE WASHDC 4217
INFO USMISSION USUN NEW YORK

UNCLAS GENEVA 001371


STATE FOR IO/RHS, DRL/MLA, L/HRR

E.O. 12958: N/A
TAGS: PHUM UNHRC
SUBJECT: Five manslaughter incidents - Geneva 2007 Communications
Log #12.

1. (U) Mission has received a communication from Special Rapporteur
on extrajudicial, summary or arbitrary executions regarding five
incidents of manslaughter. It is number 12 on the Geneva 2007
Communications Log.

2. (U) Begin text of letter:

Excellency,
I have the honour to address you in my capacity as Special
Rapporteur on extrajudicial, summary or arbitrary executions,
pursuant to Commission on Human Rights resolutions 2004/37, to
General Assembly resolution 60/251 and to Human Rights Council
decision 2006/102.

I have received information regarding a number of incidents in which
there would appear to be significant evidence that members of the
armed forces committed such crimes as murder and manslaughter in
violation of provisions of the United States' Uniform Code of
Military Justice (UCMJ). The crimes would, of course,also
constitute violations of international human rights and humanitarian
law. However, the information that I have received suggests that
these cases were not submitted to court martial.

There are five such incidents that I would like to raise with your
Government:

1. According to information that I have received, the United States
Army Criminal Investigation Command (CID) investigated an Iraqi
death occurring on or about 19 June 2003, in which "a US army
soldier fatally shot an Iraqi national at the Safwan Bypass, Safwan,
Iraq. Investigation established probable cause to believe SPC
[omitted] committed the offense of... Voluntary Manslaughter when he
disregarded the standing rules of engagement and intentionally shot
and killed Mr. Mattar for stealing a box of MRE's." (Army CID Report
of 8 September 2003, No. 0181-03-CID519-62190-
5H1R/5H2/5Y2B9/9G2B/9G2C.) It is my further understanding that the
CID report concluded: "This investigation is being terminated ...
in that the action commander has indicated intent to take no action
against the ubject and no further investigative assistance is
required by the commander." The information that I have received
suggests that no court martial took place in relation to this
incident, despite the finding by Army CID that voluntary
manslaughter had been committed.

2. According to information that I have received, CID investigated a
killing which occurred on 2 June 2003 in LSA Dogwood, Iraq.
(Army CID Report of 4 August 2003, No. 0017-03-CID939-
63985-5H3A/5Y2BO.) The extensive investigation, which included 46
attached exhibits, "established probable cause to believe that 1Lt
[omitted] committed the offense of Involuntary Manslaughter ... when
1LT [omitted] gave an unlawful order to SGT [omitted] 105th MP CO,
to shoot the tires out of a fleeing vehicle, which violated the
rules of engagement (ROE), a lawful order which 1LT [omitted] had a
duty to obey, and resulted in the unlawful death of Mr. Hamza." The
report concluded that "the Staff Judge Advocate is of the opinion
that significant admissible evidence is available to prosecute 1LT
[omitted] for the offense[] of Involuntary Manslaughter".
Nevertheless, a Commander's Report dated 10 September 2004 that I
have received states that the involuntary manslaughter charge was
dropped because "[although an unfortunate incident, 1LT [omitted]
clearly had no intent to injure the fleeing Iraqi criminals."

3. According to information that I have received, CID investigated a
homicide which occurred on 12 August 2003 near Ad-Diwaniyah, Iraq in
which "the victim and numerous other local nationals were attempting
to sell items to members of a convoy. ... [and] 1LT [omitted], SSG
[omitted], and SSG [omitted] while performing their duties as the
roving patrol for CSC Qania chased away the victim and other local
nationals, who fled on foot, east from the MSR. SSG [omission] began
pursuing the victim on foot after the victim threw a rock just
missing him. 1LT [omission] assisted in the pursuit and, after
cornering the victim, told the victim to stop, using both verbal
commands and hand signals. The victim picked up a baseball-sized
rock and threw it at 1LT [omitted], missing him. 1Lt [omitted] then
again commanded the victim to stop and come to him. The victim
picked up another baseball-sized rock and threw it at 1LT [omitted].
1LT [omitted] ducked out of the way, stood back up and pulled the
charging handle of his m4 loading a round into the chamber, in full
view of the victim. The victim then picked up another baseball
size rock and was attempting to throw it at 1LT [omitted] when he
fired one (1) round from his M4 rifle, striking the victim in his
left shoulder." (Army CID Report of 25 September 2003, No.
0070-03-CID939-64002-5H6.) The case was closed because "the Staff
Judge Advocate is of the opinion the shooting was a justifiable
homicide and it is clear that no criminal act was involved."

4. According to information that I have received, CID investigated a
homicide that occurred on 17 August 2003 outside of Abu Gharib
prison, in which "a soldier accidentally shot and killed a reporter
from Reuters News Agency." (CID Report of 20 January, 2004, No.
0143-03-CID259- 61191-5H9C2.) It is my further understanding that
the reporter, Palestinian journalist Mazen Dana, was filming outside
the prison after having received a proper press permit from U.S.
authorities. According to the CID report which I have reviewed, the
soldier fired at Dana because "he believed Mr. Dana was a hostile
combatant when he raised an unknown device to his shoulder, holding
it with both hands. The soldier thought the device was a Rocket
Propelled Grenade (RPG) Launcher, but it was later determined to be
a news agency videocamera." The report concluded that the incident
was therefore an "accidental death", and the soldier was thus not
prosecuted for any crime.

5. According to information that I have received, video footage by
journalist Kevin Sites appears to depict a marine killing an unarmed
and wounded Iraqi man in a Mosque at point blank range on 13
November 2004. In the video footage, one Marine can be heard
yelling "He's fucking faking he's dead! He's faking he's fucking
dead!" The Marine then fires directly at the apparently wounded man
several times. Immediately following the shooting, another Marine
can be heard stating "He's dead now." My understanding is that the
Marine was investigated but not prosecuted.

While I do not wish to prejudge the accuracy of these allegations, I
would note that, if they were accurate they might give rise to
concern about the extent to which your Government is consistently
imposing effective penal sanctions for grave breaches of the Geneva
Conventions and, more generally, consistently prosecuting and
punishing the unlawful use of lethal force. (For further discussion
of the law in this area, see E/CN.4/2006/53, paras. 33-43.)

It is my responsibility under the mandate provided to me by the
Commission on Human Rights and reinforced by the appropriate
resolutions of the General Assembly, to seek to clarify all such
cases brought to my attention. Since I am expected to report on
these cases to the Human Rights Council, I would be grateful for
your cooperation and your observations on the following matters:

1. For each of the incidents raised above, are the facts alleged in
the case summary accurate?

2. For each of the incidents raised above, please provide
information on any criminal, disciplinary, or administrative
sanctions that were imposed.

3. For each of the incidents raised above, has your Government
provided compensation to the victim's family?

4. With respect to the incidents occurring on 2 June 2003 and on or
about 19 June 2003, why was no prosecution conducted despite the
investigator's conclusion that the evidence indicated that crimes of
involuntary manslaughter or voluntary manslaughter, respectively,
had been committed? Was there any process to review decisions by
commanders not to convene courts martial?

5. With respect to the incidents that occurred on 12 August 2003, 17
August 2003, and 13 November 2004,what was the legal basis for
concluding that no crimes had been committed? Please provide
information on any measures your Government took to prevent the
recurrence of similar incidents.

6. Does your Government collect information on the initial
disposition of offenses following a commander's preliminary inquiry
into allegations? If so, please provide data on how many
allegations of murder or manslaughter result in no action being
taken, administrative action, non-judicial punishment, or the
convening of a court martial. Similarly, please provide data on
the kinds of courts martial - summary, special, and general - that
have been established in such cases.

I undertake to ensure that your Government's response is accurately
reflected in the report I will submit to the UN Human Rights Council
for its consideration.

Please accept, Excellency, the assurances of my highest
consideration.

Philip Alston Special Rapporteur on extrajudicial, summary or
arbitrary executions. End text.

Tichenor


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