My Way News

On the Shooting

E.B. sends this article questioning whether a Marine acted legally in administering a coup de grace to a possibly wounded, possibly dead insurgent. JHD sends this article on the same topic, which points out that several insurgents have used such ploys to kill Marines -- and other ploys, such as boobytrapping corpses. It also mentions that the Marine in question had himself been shot in the face earlier that day while performing similiar duties.

Doc has posted an evaluation of the incident, and concludes that it was righteous for various reasons, one of which was that the insurgents are illegal fighters who are not therefore covered by the Geneva Conventions. This is a trickier legal point than you might imagine, however, because during "an occupation," all citizens of the occupied nation are covered by the Conventions, whether they are otherwise behaving as legal fighters or not. If the insurgent were a foreign fighter, then, he would not be protected; if he was or was thought to be a native Iraqi, whether he is protected or not doesn't depend on his conduct, but on whether or not we are still engaged in what the Conventions considers "an occupation."

Does the provisional Iraqi government's existence, and the fact that we have transferred control of the country to them, end the occupation? I gather that our government is arguing that it does: we transferred custody of Saddam at the same time, for example, in order to comply with the Conventions' requirements that we release or transfer all prisoners of war when the occupation ends. The administration has also stated from time to time that we are in Iraq "at the invitation" of the provisional government.

Still, this is a complication any defense by a JAG officer would have to address. There is another: if the military has been ordered to treat the insurgents in line with the Conventions, then there is an obligation to do so whether or not the Conventions normally would apply. I am not certain what orders have been given, but the US military's legal arm is very attached to the Geneva Conventions. I would be a bit surprised if troops in Iraq were not under orders to apply their standards at all times.

I do think, however, that no courtmartial could find this Marine guilty of murder. He was dealing, not with a prisoner but with an apparent corpse; he was doing so when there had been several suicide attacks on Marines; in circumstances when, indeed, even a corpse is dangerous; and when determining whether or not the "corpse" was dead or alive, armed or disarmed, would entail extraordinary risk to life and limb under the Conventions' standards.

The Conventions, in fact, permit you to grenade holes in which insurgents (or children) might be hiding. That is the nearest parallel to this situation that comes to my mind, as regards the ability to know the precise nature of a potential threat, and the power to use lethal force to make certain the way is safe. If that is righteous under the Conventions, surely this is: in that example, dead children as well as dead enemy combatants are a possible result. In this circumstance, the only possible result is a dead enemy combatant. There is no possibility of the force administered killing a noncombatant at all.