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Marine, Military Law & Videotape

The world has now seen what some contend is footage of a Marine killing an unarmed, wounded insurgent in Fallujah. Last week, "The Australian" used its headline to term it "cold-blooded murder."

Legal doubts exist as to whether the insurgents seen in the video are protected by the law of armed conflict (search) as they were non-uniformed, evidently were not organized into a command structure and to a large part appear to have spontaneously resisted U.S. forces as they entered the city.

If the individual we see shot in the video is protected by the law of armed conflict, what the video depicts probably does not, on its own, support any kind of prosecution of the Marine.

The law of armed conflict draws from a variety of sources, including the Geneva and Hague conventions (search) and the law that came out of the Nuremburg trials (search). As it applies to U.S. soldiers, it is not as conceptual as one might think. It is the subject of several manuals distributed throughout the branches of our military; the Department of Defense has an order in place that requires every department of our military to have procedures in place that ensure the law of armed conflict is taught and observed and its violations prosecuted.

The video, taken from the vantage point of cameraman Kevin Sites, shows the Marines as they enter a building and encounter two groups of bodies against the far exterior wall. Sites breaks from the Marines and walks to the right as the Marines walk left. The camera shows the first group of bodies as Sites approaches it, with the Marines now to his left approximately 25 feet away.

The first group consists of two men, one of which is slouched with his back against the exterior wall of the building and the second of which is laying on the ground, huddled against the first. Though they are dead, at first glimpse these men might appear to be alive but injured as one is not prone, but slouched against the wall, and neither is covered with a blanket.

The camera moves past this group of two to a second group consisting of three bodies near the same exterior wall as the first. It is this group that the Marines approached as Sites broke from them and walked right. By contrast, two of these bodies are covered in blankets from the tops of their heads to their toes. Two of the three have their heads against the exterior wall and a third is positioned obversely, with its toes toward the toes of the other two. His feet are approximately six feet from the feet of the other two bodies.

A Marine calls out “He’s f**king faking he’s dead.” If we assume that the Marine is correct, then what these soldiers have encountered is a prohibited tactic, the use of which has been documented since at least the Second World War.

During World War II, it was not at all uncommon for U.S. medics serving in the Pacific to be killed by wounded Japanese soldiers that they had crossed a battlefield to help. And throughout Iraq, a similar, though more evolved tactic has been used to kill U.S. and British soldiers.

On Nov. 15, the very day the story of the Fallujah mosque shooting (search) was put into heavy rotation, Lance Cpl. Jeramy Ailes (search) was checking on a group of prisoners, some of whom were wounded, when an insurgent feigning death gunned down the Marine as he approached.

The Fallujah Marines stood mere feet from what they believed to be a live man attempting to pass himself off as dead — precisely the same thing Ailes encountered moments before he was killed. It is that belief that prevents the killing from being treated as an instance of murder. The Marines simply lacked the requisite mental state to have murdered the man on the floor.

But the Marine who shot the man on the floor has a far more interesting defense at his disposal if military authorities ever decide to launch a prosecution. Many press outlets have shown that they are willing to question the judgment of our soldiers while they are in combat. What if the Marine’s judgment that the covered person on the floor was alive is just plain wrong?

It’s entirely plausible that the man on the floor was indeed dead, and it would be very difficult, given conditions on the battlefield, for prosecuting authorities to demonstrate otherwise. Press accounts have said that the Marine command at Fallujah was made aware of the incident four full days after it happened. The man shown on the video being shot is just one of many insurgents killed in the action (what happened to the body after the shooting has not been reported). This points to some of the practical difficulties in prosecuting combat-related crimes.

Within a week of the Fallujah shooting, Marines had killed another Iraqi insurgent who was playing dead. Given an environment such as this, it would have been entirely reasonable for the Marines entering that room in Fallujah to throw a grenade in ahead of them.

Close observers of the Fallujah video will note that the instant the Marine shoots the first covered man on the floor, the covered body directly behind him raises its arms and energetically surrenders. It’s plausible that the Marine in Fallujah shot a wounded man who did not actually pose a threat. But it is far more likely that he saved the lives of his fellow Marines, and cameraman Kevin Sites as well.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of the soon to be published, "The New Immigration Law and Practice."

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