The Shooting of a Wounded Iraqi Fighter in Fallujah

During the attack on Fallujah by U.S. and Iraqi soldiers, a freelance photojournalist working for NBC news recorded video footage that appears to show a Marine killing a wounded Iraqi fighter.  The incident has attracted world-wide attention and condemnation.  On Friday November 19, the International Committee of the Red Cross released a statement calling for “greater respect for basic tenets of humanity” in Iraq; it said the killing of a wounded fighter – as well as the killing of the hostage Margaret Hassan – had shocked the world.  The U.S. Marine involved in the incident has apparently been withdrawn from active operations while the First Marine Division conducts an investigation.

The killing of an unarmed and wounded enemy fighter seems at first appearance like an unambiguous violation of the laws of war.  But some military lawyers point out that, while the action may well turn out to have been a war crime, its legality can only be assessed after a thorough review of the case. 

“Without knowing all the facts one must be careful not to jump to conclusions,” according to A.P.V. Rogers, former Director of Army Legal Services for the British Army.  “The decisive factor in the case is whether the Iraqi fighter in question had (a) clearly expressed an intention to surrender or (b) was so incapacitated by wounds as to be hors de combat.” 

The photojournalist’s account of the incident gives no indication that the wounded fighter was indicating a desire to surrender when he was shot.  The decisive question therefore is whether he was evidently wounded to such a degree that he could no longer be thought to pose a threat. 

Under the laws of armed conflict, it is forbidden to kill an enemy fighter when he is clearly unable to fight.  This is a basic principle of the law and applies in all circumstances.  The first Geneva Convention of 1949 lists the wilful killing of a wounded fighter as a grave breach.  Additional prohibitions are set out in Article 41 of the First Additional Protocol of 1977 (which says among other provisions that anyone who “has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself” shall not be attacked) and Common Article 3 of the Geneva Conventions (which says that “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely.”)  Both these statements are generally accepted as expressions of customary international law. 

There is some debate about whether the current fighting in Iraq should still be regarded as an international armed conflict (since it is effectively a continuation of the conflict begun by the U.S. invasion and continued through insurgency against the American occupation) or as a non-international armed conflict (as the International Committee of the Red Cross argues).  Technically, this might affect which precise body of law is applicable: in an international armed conflict, the prohibition would come from the Geneva Conventions and from customary international law (the United States is not a signatory to the first Additional Protocol but would accept this provision as customary law); in a non-international conflict, it would come from Common Article 3 which covers internal conflict.  In practice, there can be no dispute with the basic proposition that killing an incapacitated enemy fighter is a breach of one of the most central tenets of the laws of war. 

As A.P.V. Rogers pointed out, it is not always easy to determine in battle when an enemy fighter is incapacitated: “There have been many examples in history where soldiers have carried on fighting even when badly wounded or, feigning death, have concealed a grenade, which they are prepared to detonate as a last resort.  If so, they are not hors de combat and not protected from attack.” 

Rogers added that “in considering the case, any tribunal would be entitled to take into account the operational background to the incident since this would go to the accused person’s belief of the facts.”  According to news reports, the U.S. forces in Fallujah say they have encountered situations during the fighting in which insurgents’ bodies have been booby-trapped, and have found fighters wearing vests with explosives for possible suicide attacks.  On the videotape of the incident, the Marine who shot the wounded fighter can be heard shouting, “He’s f**king faking he’s dead” – apparently suggesting that he thought the wounded fighter might be feigning death with hostile intent. 

In fact, as the cameraman Kevin Sites realized, all the fighters in the mosque had already been disarmed the previous day by another group of U.S. troops, and had been left there to await military evacuation.  According to an account posted on his website, Sites had witnessed the wounded men being bandaged by American troops the day before; a staff judge advocate (military lawyer) later told him that they were to be transported to the rear “when time and circumstances allowed.”  But Sites’ narrative suggests that the Marines who entered the mosque on Saturday were not aware that the Iraqi fighters had already been engaged and disarmed the day before. 

Even bearing all this in mind, however, Sites’ account raises disturbing questions.  He says that there were no weapons visible anywhere in the mosque.  He records that the wounded fighter made no sudden movements – there was “no reaching or lunging.”  He writes that the Marine appeared unconcerned about other wounded Iraqis in the same room who might conceivably pose a similar threat.

It will be up to the military investigation and any possible judicial process that ensues to determine whether the Marine’s actions were reasonable in the context of fierce urban fighting in which deception was commonly employed – or whether he failed in his obligation to treat an enemy fighter humanely once he was not in a position to fight.

Related chapters from Crimes of War: What the Public Should Know:

Hors de Combat

Related Links:

Kevin Sites' Blog

Possible Law of Armed Conflict Violation Under Investigation

Multi-National Force Iraq

ICRC Calls for Greater Respect for Basic Tenets of Humanity

International Committee of the Red Cross

November 19, 2004

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