One possible way to arbitrate this dispute is by observing the dispensation of justice with regard to American servicemen accused of the "unlawful killing" (in military parlance) of Iraqi civilians. In this area, as with the infamous cases of torture in Abu Ghraib and elsewhere, impunity is the rule of thumb for both the rank and file and their superiors. In the overwhelming majority of cases over the course of the war, prosecutions have either not taken place, or if court martials have occurred, there have been acquittals or token sentences dispensed.

No matter how profound the inequities of US military justice, the transitional Iraqi government of Ibrahim Jaafari has no means to challenge them. The trend towards impunity, therefore, would seem to validate the grievances of the opponents by demonstrating the uneven distribution of power that defines relations between the US and the transitional Iraqi government.

It is difficult to determine the precise number of US servicemen accused or convicted of unlawful killings during the war. A June 6 Associated Press article concluded that "since the Iraq war began, at least 10 US military personnel have been convicted of a wide array of charges stemming from the deaths of Iraqi civilians. But only one sentence has exceeded three years." Those 10 convictions do not reflect the dozens of investigations that have not produced court martials nor the large number of prosecutions that have led to acquittals.

The case of Ilario Pantano is typical of the way the scales of justice tip in occupied Iraq. Pantano was a Marine lieutenant accused of killing two Iraqi captives, Hamadaay Kareem and Taha Ahmed Hanjil, in April 2004, after the platoon he commanded captured them as they drove away from a house the Marines had just raided as a suspected insurgent hideout. The two officers with Pantano at the time allege that he ordered the captives' handcuffs removed, had them assume defensive positions, instructed his soldiers to look away, then shot Kareem and Hanjil in the back. Pantano emptied two magazines into them.

One of the officers present, Sergeant Daniel Coburn, stated that Pantano had become agitated when weapons were discovered in the suspected hideout and apparently wanted to "teach [the insurgents] a lesson". Pantano's defense, which has been successful in similar cases (such as the execution of a wounded insurgent in a Fallujah mosque famously captured by an NBC television reporter) was that the unarmed Iraqis moved suddenly, leading him to fear they were about to carry out an attack. Pantano faced the death penalty on charges of premeditated murder, but was cleared in a pretrial hearing in late May, and resigned from the military.

Terrorizing the natives, poisoning the well

M Cherif Bassiouni, a renowned professor of international law at Depaul University, is as familiar as any jurist with the legal dimension of US-Iraqi relations. Bassiouni is currently the director of a project to reform Iraq's legal system, as well as a project to aid the transitional government's drafting of a permanent constitution. Also, as the United Nations' Independent Expert on the Situation of Human Rights in Afghanistan in 2004, Bassiouni was apparently a little too effective, as his mandate was not renewed after heavy US pressure.

There is nothing unusual in American soldiers being judged under US jurisdiction (and by their peers, as they are in the military justice system) rather than the Iraqi courts, Bassiouni says. Such matters are usually covered by a so-called Status of Forces Agreement (SOFA) that defines relations between US forces and their host country - like the one between the US and Japan. "In the SOFA the US has the primary jurisdiction to prosecute," Bassiouni told Asia Times Online, "but it has the obligation to prosecute." If it fails to do so, the host country gets the opportunity. "But the Bush administration has refused to have a SOFA not only with Iraq but with Afghanistan," Bassiouni notes. This affords American soldiers total impunity from Iraqi or Afghani courts.

Bassiouni points out that the issue surfaced on Afghan President Hamid Karzai's June 15 pilgrimage to the White House. "[When] Karzai was here he raised the question once again. He said we need a SOFA, you have no right to detain Afghani citizens in Afghanistan," says Bassiouni. "And Bush says absolutely not. I mean, that arrogance of power." Instead, a "memorandum of understanding" for a long-term security "partnership" was signed, offering only joint "consultation" on military operations.

Michael Ratner, who heads the Center for Constitutional Rights (CCR) in New York, has tackled the issue of impunity head on. CCR is currently trying to prosecute US Secretary of Defense Donald Rumsfeld and the former top military officer in Iraq, General Ricardo Sanchez, for their roles in the Abu Ghraib torture scandal. Ratner says the policy of giving US servicemen and high officials impunity to order or carry out torture or killings is no accident.

"I think it's intentional," Ratner told Asia Times Online. "The military is saying, in Afghanistan and Iraq, 'if you mess with us you're going to die and no one is going to be held accountable'." The motivation is twofold, he believes. "Part of it is terrorizing the population and part of it is they want our army to be killers. They're frightened that if they discipline or prosecute them, they'll hold back."

If the intention is to terrorize the population, ordinary Iraqis are apparently getting the message. Reports from Iraq indicate that Iraqis stay as far away as possible from trigger-happy convoys of US troops, which are a prime target of insurgent attacks. But the use of excessive force and concomitant impunity is also poisoning what little remains in the well of Iraqi goodwill towards America.

"What we are doing politically through the Abu Ghraib situation, through the non-punishment of people, through the policy of basically giving plausible deniability to all of the officers," says Bassiouni, "is reinforcing the popular perception of anti-Americanism and that's the strongest support we're giving to the resistance."

The lonesome death of Zaidun Hassun

The demise of Zaidun Hassun in the depths of the river Tigris at 11pm two days after New Year, 2004, is surely one of the war's most arbitrary killings. Hassun and his cousin Marwan Fadil were stopped at a checkpoint by US troops near a bridge in Samarra for breaking curfew. Once detained, Sergeant Tracy Perkins ordered his men to throw them into the river, apparently to teach them a lesson. Hassun drowned, but Fadil survived to tell their harrowing tale. There was a subsequent investigation and then a court martial that cleared Perkins and his men of involuntary manslaughter. Perkins was found guilty of assault and obstruction of justice, however, charges that held a maximum penalty of 11 years in prison. He got 45 days.

One reason for Perkins' exoneration on the manslaughter charge was because the defense argued that Hassun might not really be dead, since no US doctor had examined his body. Oddly, no one bothered to exhume Hassun's grave, and photographic evidence of his corpse provided by his family, as well as the testimony of Fadil, held little weight among the soldiers sitting in judgment of their colleague. When soldiers judge soldiers, says Ratner, a slanted outcome is always a risk. "The theory of military tribunals is that military officers understand the combat situation best and therefore you want those people to judge," he says. "So first, they're sympathetic already, and second they probably see themselves in that situation."

The Hassun case illustrates the hierarchies of race that corrupt the dispensation of US military justice and indeed the wider Iraqi-US relationship. As such, the US is reproducing the kind of colonial justice practiced by the British in India, the French in Algeria or the Israelis in Occupied Palestine. Overt racism is rife in the military's internal investigations, says Ratner.

"One of the things that comes out from the CID [Criminal Investigations Division] of the army investigations is that they're shoddy and they never believe the victim or the witnesses who were Iraqi," he says. "It's almost like what we had in the American south during the post-civil war period, where they never believed the black witness in a trial against a white." US soldiers, says Ratner, "have been taught that Muslims are terrorists, so it doesn't take a big leap to say 'I'm not going to believe their testimony'."

It is not only Iraqis who feel hard done by Bush-era US military justice. When Italian special forces agent Nicola Calipari was shot dead by US soldiers on March 4 while driving towards a checkpoint as he attempted to deliver Italian journalist Giuliana Sgrena to Baghdad airport (after apparently freeing her from her insurgent kidnappers) , many assumed America's relations with its key coalition ally would ensure due diligence. But despite evidence that little warning was given before US soldiers fired on the Italian convoy, a joint US-Italian investigation - the conclusions of which the Italians refused to cosign - found no US soldier at fault.

The Calipari case shows that the US is willing to go to great lengths to hold its soldiers above the law, says Ratner. "Right now the Bush administration is not about to prosecute anybody for any crime in a serious way," he says. "Even with someone who politically they had to get along with like the Italians, it didn't make any difference to their bigger aim, which is to protect their soldiers and basically have them be looked at as a killing force that's just not accountable."

The high cost of impunity

That American soldiers are perceived by Iraqis as being above the law has serious implications for the US-Iraqi relationship. It feeds Iraqi cynicism about the legitimacy of the transitional government and reinforces assumptions that Americans are the ultimate arbiters of Iraq's purported sovereignty.

"[Iraqis] have absolutely no illusions that the present government has very little ability to exercise sovereignty," says Professor Bassiouni. "Thirty years under Saddam's regime brought people a certain type of realism. Power, control - corrupt absolutely. Saddam controlled absolutely, now the Americans are controlling absolutely."

While the Jaafari government is amenable to the US presence for now, that writ is not eternal. Jaafari's administration "obviously receives its policy directives from [Grand Ayatollah Ali] al-Sistani," Bassiouni notes. "And Sistani's basic position has been made very clear. He wants a government to be in place, an orderly transition made, and the Americans out. The US has to leave, period."

Once the constitution is in place, elections are held and the word "transitional" erased from government stationary, the colonial relationship demonstrated by the impunity US soldiers on Iraqi soil could begin to chafe unbearably. And sovereign Iraq's rulers may not be as patient in demanding jurisdiction over foreign forces as the ever-genial Hamid Karzai. Sooner rather than later, Iraqis will tire of US soldiers hurling their young men into the Tigris and getting off scott free.