Did that US Marine commit a crime?
By now all readers surely know about the video taken by NBC cameraman Kevin Sites Nov. 13 that shows a US Marine shooting an apparently helpless, wounded Iraqi man inside a mosque in Fallujah.

The Marines had battled armed insurgents who were holed up inside the mosque Friday. They killed 10. Before leaving, the Marine treated five enemy wounded. The next day the Marines returned.

On the video as the camera moved into the mosque during the Saturday incident, a Marine can be heard shouting obscenities in the background, yelling that one of the men was only pretending to be dead.

The video then showed a Marine raising his rifle toward a prisoner laying on the floor of the mosque but neither NBC nor CNN showed the bullet hitting the man. At that moment the video was blacked out but the report of the rifle could be heard.

The blacked out portion of the video tape, provided later to Associated Press Television News and other members of the network pool, showed the bullet striking the man in the upper body, possibly the head. His blood splatters on the wall behind him and his body goes limp.

Sites reported a Marine in the same unit had been killed just a day earlier when he tended to the booby-trapped dead body of an insurgent.

American commanders in Iraq announced shortly after the incident was broadcast that a formal investigation was being opened. The Marine who fired the shot has not been publicly identified but has been taken out of combat.

So: did the Marine commit murder? Sites said that the Iraqi the Marine shot was already severely wounded, but breathing, when the Marines entered the room. The Naval Criminal Investigation Service, NCIS, will conduct the investigation and decide whether a case for prosecution exists. In the military law system, the Marine's commander will then decide whether he will file the actual charges against the Marine, if any charges are to be filed. An Article 32 investigation, conducted by an appointed senior officer, will determine whether evidence is sufficient to go to trial; and Art. 32 investigation is the military parallel of a grand jury investigation. If the case goes to trial, I would say it will be a General Court Martial, the highest level of military court, affording both the greatest protective rights for a defendant and the strictest judicial procedures. It is presided over by a military judge, for this case (if a case it turns out to be) almost certainly a full colonel. (For details about military courts, read here.

The apparent facts are that the Marines entered the room where they encountered five Iraqi men whom they reasonably concluded were insurgents. At least one was dead, the others wounded. The Marine shot and killed one of the wounded men.

My first blush on this event is that this Marine is in trouble. I did see the tape the same day it was first broadcast, although the actual shooting itself was blacked out. Summary execution of wounded enemy is expressly forbidden by the Geneva Convention, to which the United States is a signatory and which is embodied in US federal law as the Law of Land Warfare.

Article 12 of the Geneva Convention of 1864 states that "…Members of the armed forces and other persons (…) who are wounded or sick, shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments…". The Parties to the Geneva Conventions also have to search for and collect the wounded and sick and to ensure them protection and care (article 15). [link, italics added]

However, it must be recognized by all that the protections afforded by the Conventions confer certain obligations upon the protected parties in order to retain the protected status. Mosques, for example (and churches and synagogues, etc) are not be damaged or destroyed, but neither may they be militarized by using them as armories or fortresses. If so - and there have been plenty examples of this in Iraq - they lose their treaty protections. Nota bene:

The definition of wounded and sick for the purpose of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) is "…persons, whether military or civilians, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility ." [italics added]

I don't know whether the shot Iraqi made any gesture that could reasonably have been interpreted as hostile in intent; I suspect not, for what I know at the moment. But if the investigation shows that the insurgents made a habit of continuing to fight when wounded - which wounded fighters may do if they wish - or if they made a habit of booby-trapping their dead, then they have effectively surrendered protection under the Convention. That will weigh heavily in favor of the Marine.

In World War 2, the Japanese did both things so often, including pretending to be dead, that Marines and soldiers fighting them came to the point of simply shooting on sight Japanese bodies that were not obviously dead. As well they should have.

But the investigation in Iraq should go forward unhindered. Let the NCIS and the Marines commanders do their job.

Update:

Marine Lance Cpl. Jeramy Ailes, 22, of Gilroy was killed Monday in Al-Fallujah by small arms fire. "They had finished mopping up in Fallujah and they went back to double-check on some insurgents. From what we gathered, somebody playing possum jumped up and shot him," said his father, Joel Ailes, who learned of his death Monday evening. "It's extremely hard."

If the Marine in the video does stand trial, testimony of Marines who witnessed acts like those that killed LCPL Ailes will practically guarantee an acquittal.

by Donald Sensing, 11/17/2004 05:06:29 PM. Permalink |