Marshall Lee Magincalda

15.04.2016 ( Last modified: 14.06.2016 )
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facts

Marshall Lee Magincalda was born 20 May 1983 in Manteca. He grew up in California before joining the Marines and was sent to Iraq as part of the American invasion and overthrow of Saddam Hussein.

The events that led to the conviction of Magincalda occurred in April 2006 in the village of Hamdaniyah. Magincalda was a member of 3rd Battalion, 5th Marine Regiment in Iraq in the region of Abu Ghraib. He was part of a group of eight soldiers, seven Marines and a caregiver of the U.S. Army (Corporal Trent Thomas, Vice-Corporal Robert B. Pennington, the caregiver third class Melson J. Bacos Marine Sergeant Lawrence G. Hutchins III, vice Corporal Jerry E. Shumate Jr., Private First Class John J. Jodka and Vice-Corporal Tyler A. Jackson), who were accused of murder, kidnapping, burglary, robbery, obstruction of justice and conspiracy in connection with the death of Hashim Ibrahim Awad al-Zobaie. This group of eight soldiers, under the command of Sergeant Lawrence Hutchins III, conducted an operation whose aim was to kill Saleh Gowad, a suspected insurgent, in the night of 25 April 2006 to 26 April 2006. Gowad had been arrested repeatedly by the Marines and handed over to Iraqi authorities, but was released each time, thus exasperating the Marines. During the operation in the village of Hamdaniyah, the Marines were unable to find Gowad after searching homes and therefore deliberately decided to take another man, Hashim Ibrahim Awad, at around 02.00 hours. He was first tied up and the AK-47 he owned (every Iraqi man has the right to own a gun for personal defence) taken before taking him outside the village. About 30 minutes after the abduction, the villagers of Hamdaniyah heard gunshots nearby. It has been found that it was the marines shooting at Awad. To conceal the murder, the Marines put the AK-47 belonging to the victim and a shovel next to him, probably to make others believe it was an insurgent placing a bomb along the route and thus to justify the death of the latter. The scheme was quickly revealed by military experts investigating this murder; shocking many politicians in the United States and Iraq. These events are most often described as “the Hamdaniyah incident.”

Hashim Ibrahim Awad, aged 52, was a police officer with disabilities following his involvement in the war against Iran in the 1980s. According to the Awad family, the U.S. military had offered him a position as informant , which he refused.

The U.S. Marines were first detained at Camp Fallujah in Iraq and later at Camp Pendleton in San Diego County, California. On 3 August 2007, Magincalda was sentenced to 448 days in jail and demoted to the rank of Private Second Class by the court martial of Marine Camp Pendleton.

legal procedure

The U.S. Marines were first detained at Camp Fallujah in Iraq and later at Camp Pendleton, California. On 3 August 2007, Marshall Magincalda was sentenced to 448 days in jail and demoted to the rank of Private Second Class by the court martial of Marine Camp Pendleton.

Magincalda’s trial is part of two final trials for the “Pendleton 8”, that is to say, the eight soldiers accused of murdering Hashim Ibrahim Awad on 26 April 2006. Several charges were first brought against Magincalda for his participation in Hamdaniyah events. All the accusations were based on the Universal Code of Military Justice (UCMJ).

The main charges against Magincalda were: conspiracy (violation of Article 81 UCMJ), false official statement (violation of Article 107 UCMJ), murder (violation of Article 118 UCMJ), robbery (violation of Article 121 UCMJ), aggression (violation of Article 128 UCMJ) and burglary (violation of Article 130 UCMJ).

Magincalda was accused of involvement in the kidnapping and murder of Hashim Ibrahim Awad on the night of 25 April 2006 to 26 April 2006 in the small village of Hamdaniyah.

During his final trial, which began on 23 July 2007, several charges against Magincalda were dropped because it could not be proved that he had served as a leader in the commission of the events of 26 April 2006 in Hamdaniyah. Joseph Lee, the lawyer for Magincalda claimed that his client was a reluctant participant in the transaction and that he had not himself shot Awad. The defence also called a military psychiatrist who confirmed that Magincalda suffered from post-traumatic stress disorder and severe depression as a result of his participation in the war in Iraq. Dr. Jennifer Morse Magincalda qualified that fighting “broken shell” was a cause of his experience.

In conclusion, the jury of the case found Magincalda guilty of conspiracy to commit the following: theft, burglary, kidnapping, false official statements and non-premeditated murder. Regarding the sentence imposed on Magincalda, he was sentenced to 448 days in jail, or the number of days he had already spent behind bars, and a demotion to the rank of soldier 2nd class. Therefore, Magincalda walked free from his trial because he had already completed his sentence in prison. Unlike Trent Thomas, the judges did not have demobilization imposed for misconduct because they felt he had played a less important role in the kidnapping and death of Hashim Ibrahim Awad.

In 2010, Magincalda filed an appeal for violation of his right to a quick review of his trial. The appellant advanced two grounds for which he had suffered an infringement:

– His personal military adviser retired from active service before he had time to verify the documents authenticated judgment to detect errors and file leniency applications;

– The compulsory service ended before the authorities’ action, which prevented the latter from granting him clemency by imposing non-judicial sanctions.

The Court rejected both arguments for several reasons. First, Magincalda was accompanied by other legal experts and he could ask them for advice to revise the judgment and ask for clemency. Second came the fact that the authorities could not impose non-judicial punishment because he had completed his mandatory service is not relevant in this case.

Therefore, the Court dismissed the appeal..

context

The Iraqi special tribunal is a hybrid tribunal created on the 10th December 2003 in Bagdad by the coalition provisional authorities which were government established after the invasion of Iraq in 2003. The mission of this tribunal is to judge acts of genocide and crimes against humanity as well as war crimes committed between 17 July 1968 and the 1st May 2003, the period covering the political regime of the Baas party. It is therefore aimed specifically at crimes committed by Iraqis in the aforementioned period notably those committed during the war against Iran (1980 – 1988) and the invasion of Kuwait (1990-1991).

The Iraqi special tribunal was created in the context of the Iraq war (also known as the Gulf war) that began on the 20th March 2003 by operation “Iraqi Freedom.” The operation involved the invasion of Iraq by the coalition. It was conducted by the United States, the United Kingdom and the international coalition in order to overthrow the Baas party of Saddam Hussain. The Baas party originating in Damascus in 1947 came to power in Iraq in 1963 but it was only due to a coup of 17th July 1968 that it definitively seized power until 2003. When Saddam Hussein came to power on the 16th July 1979 the party changed significantly and militarised itself. By organising itself into various cells throughout the country the party became strongly resistant in the face of hardship. The United States have been the leaders of the war in Iraq and many reasons for the war have been officially cited by the government of G.W Bush; the fight against terrorism, the elimination of weapons of mass destruction that Iraq was supposed to hold; the arrest of Saddam Hussein, to mention only the main ones. After a rapid defeat of the Iraqi army at the end of April 2003 and the capture of Saddam Hussein, the coalition and Iraq tried to establish a transitional democratic government representing all the Iraqi communities. The coalition also aimed to try members of the Baas party that had been captured.

In close collaboration with the American department of justice to which he reports directly, Paul Bremer, (Iraqi second civil administrator) established by decree the statute of the Special Iraqi tribunal on the 10th December 2003. The United States have awarded more than $100 million to ensure the “construction of the courtroom, conduct exhumations, study the documents seized, the preparation of evidence and the training of the tribunal’s members”.

The statute of the tribunal is a mix of two existing forms of procedure, inspired strongly by American adversarial law as well as Egyptian law which is essentially inquisitorial. If the statute is deemed to be insufficient it explicitly states that the Iraqi penal code of 1971 is to be used. The statute of the tribunal introduced alongside the Iraqi penal legislation a number of crimes taken from statutes of other international criminal courts in order to incriminate the former dictator Saddam Hussein and other members of the regime, namely genocide, crimes against humanity and war crimes. Furthermore, each time that one of these crimes does not have a corresponding match in the Iraqi penal order, the statute authorises the tribunal judges themselves to determine the sentence taking into account the gravity of the crime, the individual characteristics of the accused and international jurisprudence. With regards to its composition, the Iraqi special tribunal consists of 20 attorneys contracted for 3 years, 3 chambers composed of 9 permanent judges appointed for 5 years, a court of appeal composing of 9 judges and 20 judges appointed for 3 years. It is formed solely of Iraqi judges of which a certain number have denounced from the beginning the pressure exerted by the provisional government. Some judges have been the victims of threats, of removal and even of assassination.

Whilst being discredited from the beginning as rendering winners justice, the Iraqi special tribunal had the means to quickly realise its central objective, that of judging the ex head of state Saddam Hussein as well as the main representatives of the Baas regime. In addition to genocide, crimes against humanity and war crimes, the tribunal also had jurisdiction to try cases relating to the manipulation of judges, squandering national resources and the use of the Iraqi army against another Arab state. All of these charges were on the indictment for the first trial.

The first trial which took place in front of the tribunal was the trial of Saddam Hussein judged alongside seven of his lieutenants on the 19th October 2003. There were doubts concerning the fairness of the trial in regard to the conditions under which the trial began. Several Human Rights organisations one being Human Rights Watch have condemned technical and financial limits placed on the defence which risked hindering their work in comparison with the support received by the prosecution. Another issue which was the subject of controversy was the re-establishment of the death penalty on the 30th June 2004, which was abolished in 2003 by Paul Bremer. Despite the position today in international law being clearly abolitionist, several death sentences were passed early on culminating with the hanging of Saddam Hussein in December 2006 which was voluntarily made public. After said hanging the tribunal has continued and continues today to prosecute the former members of the Baas government.

At present, the Iraqi special tribunal is still evolving in the context of a political crises and repeated attacks. The execution on 25 January 2010 of “Chemical Ali”, Saddam Hussein’s cousin seems to have revived the movements against religious minorities present in Iraq.