Marine shoots wounded al Qaeda fighter in a Fallujah mosque

Recently a US Marine shot and killed a wounded al Qaeda fighter in a Fallujah mosque. An embedded reporter captured the footage, which reverberated around the world.

Generally embedded reporters do the U.S. more good than harm. Enemy propaganda will claim that the U.S. is conducting atrocities and hostile news networks such as BBC and al Jazeera will inject this meme into the international bloodstream. (Wretchard described this division of labor between the media and the islamofascists in his post entitled The Ichneumon Wasp.) With embedded reporters the MSM can generally be depended on to refute the wildest of these accusations by saying, “we were there and it didn’t happen”.

The residual problem with this arrangement is that almost no reporters and fewer of their editors have ever served in the military because the media attracts people with contempt and antipathy for the military; and it shows.

Consider what happened when a Marine is taped shooting a wounded al Qaeda fighter. Clueless about what they disparage, editors replay the tape of the shooting without providing any context to help the civilian audience to understand the migrating circumstances that justify the shooting. I can only speculate as to how much of the coverage was innocent ignorance and how much is deliberately malicious undermining of the war. It’s almost enough to make embedded reporters suddenly seem inconvenient.

Cox and Forkum also takes a dim view of this behavior; if I’m understanding their cartoon correctly, they suspect media foul play.

Watch your six

The media spin creates an impression of moral equivalence between the al Qaeda fighters and the U.S. military. This is both incorrect and offensive to common sense.

I can’t resist going off topic for a second to point out that Kerry got a Silver Star for the same conduct but I didn’t hear a single peep of disapproval from the media. Not that I disapproved of Kerry’s shooting of that wounded VC, it’s just that I didn’t think he should have gotten a silver star for it.

There is a chain of several facts that, when taken together, shows how false this purported moral equivalence is.

First, we are not “occupiers” of Iraq.

Iraq has its own government that we have to listen to. Our initial assault on the al Qaeda fighters in Fallujah was called off because Iraq’s political leaders wanted to resolve the situation politically.

Our current assault on al Qaeda fighters in Fallujah was resumed because Iraq’s political leaders determined that the attempts to resolve the problem politically failed.

The “insurgents” were are fighting in Fallujah are al Qaeda fighters

The forces the U.S. is fighting in Fallujah are under the leadership of Abu Musab al-Zarqawi. Al-Zarqawi group vowed allegiance to bin Laden's al Qaeda.

We are fighting al Qaeda in Fallujah. Characterizing the al Qaeda fighters as “insurgences” creates the false notion that these fighters are something like “minutemen” who are fighting an occupation.

The al Qaeda fighters are not conducting their operations in accordance with the laws and customs of war and, consequently, are War Criminals

War criminals can be identified because they commit War Crimes. Again, wikipedia :

War crimes include violations of established protections of the laws of war. but also include failures to adhere to norms of procedure and rules of battle, such as attacking those displaying a flag of truce, or using that same flag as a , ruse of war to mount an attack.

al Qaeda fighters are know for fake surrenders.

Booby-traps are permitted in some circumstances and prohibited in others. Wilipedia defines booby-trap as:

In warfare, a booby trap is an antipersonnel device, such as a landmine or grenade, placed in building or in a noncombat area that has a psychological draw for enemy soldiers.

A booby trap is distinguished from a land mine by the fact that it is an improvised weapon, perhaps made from an artillery shell, or a grenade, or a quantity of high explosives, whereas a land mine is manufactured for its specific purpose.

The [Convention on the Restriction of Certain Conventional Weapons ] Protocol enumerates the objects and places where booby-trapping is severely
and absolutely forbidden:

1. Innocent-looking objects (transistors, televisions).

2. Objects bearing international protection signs (a cross, crescent or red Magen David, U.N. emblem, etc.) or tied to them.

3. Wounded, sick or dead, as well as interment or cremation sites. The boobytrapping of the wounded or dead conflicts with the duty prescribed by the laws of war to administer treatment to the wounded and to see to the proper interment of the dead (see below). Therefore, it was also prohibited to abuse the special treatment accorded them.

4. Hospitals, clinics, medical equipment, medical transports.

5. Objects connected with children (toys, clothes, food, care utensils, etc.).

[…]

It is obvious from the media’s reports that the al Qaeda fighter’s use of booby-traps and feigned surrender constitutes war crimes. Consider this interview, (via The Belmont Club), where ArabNews quotes a Marine colonel:

A colonel who recently returned from his second tour of duty in Iraq, told Arab News the Marine in question was wounded in the face the previous day; and that a Marine in the same unit had been killed a day earlier, and five others wounded, as they tended to the booby trapped dead body of an insurgent.

“They use bodies as booby traps all the time,” said the Marine colonel, who spoke anonymously. “They wait until Marines are close, then they detonate themselves. From what I hear, the unit didn’t know those guys were supposed to be there.

“Those poor kids -- they’re on duty day in and day out, and have to deal with corpses and wounded guys that are booby trapped -- the insurgents do this all the time. We had incidents where they detonated themselves either in a car full of explosives or with suicide belts,” said the colonel.

The al Qaeda fighters have also violated The Third Geneva Convention’s prohibition on hostage taking, torture, mutilation and so on.

Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

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, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
taking of hostages;
[…]

Videos showing al-Zarqawi personally beheading hostages are positive proof that they are in violation of article 3 of the Third Geneva Convention.

Article 53, Protocol I, of the Third Geneva Convention also prohibits Combatants from using “places of worship” “in support of the military effort”:

Article 53 - Protection of cultural objects and of places of worship

Without prejudice to the provisions of the Hague Convention for theProtection of Cultural Property in the Event of Armed Conflict of 14 May1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals.

The al Qaeda fighters have been using Mosques to store weapons, as refuges and the al Qaeda fighter shot by the Marine was wounded while fighting in a Mosque.



It is clear from these violations that the al Qaeda fighters war criminals.

The al Qaeda fighters are unlawful combatants

Wikipedia explains the concept of unlawful combatants:

An unlawful combatant is someone who commits belligerent acts, but does not qualify under [the third Geneva Convention’s] articles 4 and 5.

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive insigina recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war. [emphasis mine—johnh]

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews [of civil ships and aircraft], who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country...
...

It is clear from the previous section that the al Qaeda fighters fail to conform to Article 4, 2(d) (i.e., conducting their operations in accordance with the laws and customs of war).

al Qaeda fighters fail to conform to Article 4, 2(c) (i.e., carrying arms openly ). They often discard their weapons at attempt to blend-in to the civilian population.

The al Qaeda fighters fail to conform to Article 4, 2(b) (i.e., having a fixed distinctive insigina recognizable at a distance ). The insigina this clause referes to is patches or other markings that identify a combatiant as clearly (a) belonging to a military and (b) identify the state or party that said military belongs to. It is clear that the al Qaeda fighters do not have such insignia because they are able to drop their weapon and blend-into the civilian population.

On this subject it is noteworthy that the al Qaeda fighters sometime don Iraqi National Guardsman uniforms. Wikipedia states:

It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform and fighting in that uniform, is forbidden, as is the taking of hostages.

Consequently, due to all of these reasons, the al Qaeda fighters are clearly unlawful combatants.

The al Qaeda fighters are not entitled to the protections of the Geneva Convention because they are unlawful combatants

This is fairly straightforward. The Geneva Convention is all about protections for lawful combatants; it is silent about the unlawful sort.
Article 2 of the third Geneva Convention states:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Note well: the language states that U.S. would be bound to honor the Conventions if al Qaeda accepted the Convention's constrains and applied them to itself. This means that we need not conform to these contains unless al Qaeda does also.

This understanding is not merely my opinion. For example, here is a passage from the An Israeli Defense Force booklet:

a combatant who belongs to an organization that as a rule does not honor the laws of war (a terrorist organization, for example) will not be accorded protection even if he himself did not violate the laws of war.

Put another way, the IDF’s legal opinion is that all members of a group that generally conducts itself illegally—with respect to the laws of war—will be be considered an unlawful combatants regardless of his actual behavior!

The U.S. Navy’s conclusions are similar to the IDF’s:

Combatants who are also civilians must inevitably tread so close to the line separating deception from treachery that the law can offer them scant protection. It is, furthermore, difficult to imagine any legal regime under which this would not be true, for the simple reason that, in defining that line, law is the central issue.

Treachery in war is readily distinguishable from legitimate forms of surprise, because it always involves a pretence that legal protection is being offered or requested. A company of soldiers who conceal their true numbers in order to induce their opponents to expose themselves imprudently have engaged in a legitimate ruse. A soldier who feigns surrender -- or, for that matter, civilian status -- for the same reason has engaged in treachery, because he has invited his enemy's confidence in a legal norm that he intends to betray

A terrorist or other "illegal combatant" who trades upon his adversary's respect for the law is, in effect, using the law as a weapon. He cannot simultaneously use it as a shield, and he may well deprive those around him of its aegis as well. [emphasis mine—johnh]

Consequently, due to all of these reasons, the al Qaeda fighters have forfeited the protections of the Geneva Conventions due to being unlawful combatants.

the moral equivalence spin is wrong

al Qaeda’s refusal to abide by the laws of war set the conditions up where the shooting occurred because became inevitable. Al Qaeda murdered Margaret Hassan because they are international terrorists.

Only an ignorant moral midget would equate the Marine’s shooting of an unlawful al Qaeda combatant with the murder of CARE International worker Margaret Hassan by her al Qaeda captors. Attempts at moral leveling by either insinuating that the Marine is on the same level as terrorists or by trying to elevate al Qaeda to the Marine’s level are destroying moral standards.

Then again, the deliberately destruction of our culture’s moral framework is one of the multiculturalists’ main techniques. It just so happens that this time instead of Israel equals Nazi Germany or the 10 Commandments on a Courthouse wall equals establishing a religion or recently invented “African heritage” holiday of Kwanza is equal to Christmas they are trying to insinuate that American fighting men equals terrorists.

Owen West and Phillip Carter co-wrote an article that refuted the moral equivalence spin that began just after the incident. The primary thrust of West’s and Carter’s excellent article in Slate :

In this unit's case, one early lesson in Fallujah was to avoid Iraqis altogether, dead or alive. Iraqis wearing National Guard uniforms had ambushed them, killing one of their own. Another Marine had been killed when an explosive detonated under an insurgent corpse. Several insurgents had continued desperate fights notwithstanding gruesome wounds. Others tried to exploit the civil-military moral gap, acting as soldiers at 500 meters and as civilians when the Marines closed in. The Iraqis in the mosque may have been immobile, but to the Marines, they posed a threat.

Further, the Marines were fighting in an enemy city with little uncontested territory. There were no "friendly lines" behind which they could rest. The Marine in question had been wounded already. He was no doubt exhausted by five days of continuous fighting by the time he risked his life and burst into the mosque on Saturday. A well-rested man would have faced a dilemma inside, filled with shades of gray. A sleep-deprived man weary from days of combat saw only a binary choice: shoot or don't shoot, life or death.

Conclusion:

The Marine’s shooting of a wounded unlawful combatant was not a war crime but instead an act intended to preclude a war crime by the wounded al Qaeda fighter: perfidy (i.e., feigning to be incapacitated by wounds).

The Marine might have violated some order previously issued by his superiors when he killed the unlawful combatant but whatever happened it wasn’t a war crime because only those who abide by the third Geneva Convention are protected by it. The unlawful combatant had long since forfeited any protection.

Postscript:

Warbloging states that the rank and file Marines in Fallujah don’t see anything wrong with the shooting.

blackfive has more info:

First, Kevin Sites, the embed reporter from NBC (who's video footage of the shooting has been broadcast around the world) is an blatant opportunist who had a responsibility to turn over the video footage to Marine Authorities, but, instead chose to broadcast it, give the entire tape to Al Jazeera, etc. It should not have been used for publicity, for television ratings, etc. Sites should have turned it over with the expectation that he would get it back. The video was broadcast (in full) on Al Jazeera - including the identities of the Marines.

So now, you have the world aghast at this shooting (especially, the Arab world - although in undeserved moral outrage), you have Marines identified before trial, and you have a reporter continuing to follow a story. Kevin Sites continues to report and continues to be embedded with the same Marines.

[…]

In warfare, a booby trap is an antipersonnel device, such as a landmine or grenade, placed in building or in a noncombat area that has a psychological draw for enemy soldiers.

A booby trap is distinguished from a land mine by the fact that it is an improvised weapon, perhaps made from an artillery shell, or a grenade, or a quantity of high explosives, whereas a land mine is manufactured for its specific purpose.

The Marines had cared for the wounded terrorists the day before when they took that Mosque the first time. The next day, those terrorists opened fire on Marines from the same Mosque.

Captain Ed notes:

But a number of leftyblogs, not being themselves rocket scientists, are trying to create an Abu Ghraib-like scandal out of this - and pin it on the Administration:

Update 2:

Beautiful Atrocites has a message from Tammy Bruce:

"One of our fighting men has come under 'investigation' for shooting a terrorist
who was pretending to be dead in a mosque. The media is spinning this as a
'shooting of a wounded, unarmed Iraqi.' The bottom line is that he was a
murderous savage trying to trick one of our soldiers, who then did his job by
killing that enemy.

Update 3:

Not everyone on the left is unreasonable. Juan Cole’s post contained a number of defensible criticisms regarding various issues he has with the way Gulf War II is being conducted. What Cole refused to do however was to assert moral equivalence between our fighters and al Qaeda’s fighters. In fact one of the interesting things about Cole is that he seemed to profess a mild surprise that his fellow leftists wanted him to place both the Marines and the beheaders on the same plane.

Please… Don’t pretend to be surprised that your fellow leftist are moral midgets, Cole. Or, better yet, try to get them to justify why they think this way and blog about that. (I think I already know the answer, I just want to see if Cole finds it.)

What’s most interesting about Cole’s post is that uses a transnational argument to justify our presence in Iraq:

Let me just clarify my comments. First of all, I did not say that the Iraq war was a legitimate war. It was not. It violated the charter of the United Nations.What I said was that the role of the US military and other multinational forces in Iraq is now legitimate because it was explicitly sanctioned by the United Nations Security Council. This is true. Many readers appear to have forgotten all about UN SC Resolution 1546 (2004), which was adopted unanimously. Here is what the Security Council said about the issue at hand:

[UNSCR drivel redacted]

So, the Marines at Fallujah are operating in accordance with a UNSC Resolution and have all the legitimacy in international law that flows from that. The Allawi government asked them to undertake this Fallujah mission.To compare them to the murderous thugs who kidnapped CARE worker Margaret Hassan, held her hostage, terrified her, and then killed her is frankly monstrous. The multinational forces are soldiers fighting a war in which they are targetting combatants and sometimes accidentally killing innocents. The hostage-takers are terrorists deliberately killing innocents. It is simply not the same thing.

Frankly I’m mildly impressed. Oh sure, I dismiss his premise that the UN’s charter can stop the U.S. from pursuing this war but at least he doesn’t feel compelled to continuing opposing our side when—by his way of reasoning— the UN has joined our side.

My problem with Juan Cole is that he’s not on our side—he’s on the UN’s side. Being on the UN’s side is perfectly orthodox for a proper transnationalist; but orthodox transnationalism also requires siding with the UN over the U.S. in the case of any disagreement between the two.

The moral of the story is that leftists cannot be relied on to place the U.S. interest over transnational organizations. Cole shows that U.S. citizens with transnationalistic ideologies tend to become patriots of transnational organizations instead of the U.S. patriots.

Consider yourself warned.