Flit

I'm sorry, I don't see the issue

The Marine killing in Fallujah was pretty cut-and-dried even before the cameraman who caught the now infamous footage provided his play-by-play. Five wounded enemy combatants had been left in a captured mosque the day before, without their weapons, and the next day another group of Marines passing by killed four of them. The last man killed was clearly hors de combat under Geneva, and while there will certainly be no end of arguments of extenuating circumstances, there can be no doubt the underlying act caught on tape was therefore unlawful, under the military justice of any Western nation. It's just an updated version of the Breaker Morant case (with the exception that the modern day Morant didn't also kill the civilian cameraman witness, as Morant's men did). The Geneva hors de combat provision is very simple: if you have a weapon trained on an unarmed, wounded man, and he's doing nothing hostile, you cannot shoot him. Period. It's not a hard rule to understand, even if following it does require summoning up some basic human morality under combat stressors.

So I fail to understand why the legal minds with blogs are focussing their arguments on another, hypothetical case, where some enemy combatants are killed the moment they were wounded/dropped their weapons. There is exactly zero evidence to this point that the dead Iraqis in the current example were doing anything but lie and wait for their deaths. Volokh with his "...though he had been fighting minutes ago..." and Phil Carter with "Killing the insurgent in a split second because it was instinctual" seem to be discussing an entirely different battle altogether. Their military-serving hypotheticals are simply not the situation in the news at the moment.

PS: For the record, I agree with most Australians that Morant and Handcock's 1902 executions were an excessive punishment for the crime in question, given the men's record of bravery, and the preferential treatment given the British soldiers involved in the incident. I don't think Morant should have been acquitted entirely either, though.

UPDATE: To clarify, I agree the issue of the Fallujah killing caught on tape does need to be resolved via military justice, and there is every indication that is what is being done. The cameraman's account is further evidence that the Marine superiors have recognized their responsibility in this case, and are investigating the situation appropriately. The cameraman's actions throughout are also commendable.

The basic narrative seems to be that tankers perceived they were under fire, then believed they had located either fire or possibly movement of individuals in the previously cleared mosque and opened up with machine guns. It's conceivable there could have been a fighter firing from there, who then escaped with his weapon, but more likely that the tankers were simply mistaken about the location or even existence of any enemy fire (their situational awareness from within their armoured shells is notoriously poor in urban environments; you hear a ping on the armour, then you look around for movement... it's entirely possible one of the wounded men showing a face at a window was sufficient for these first Americans to open fire). Marines closed on the objective from two directions to re-secure the building, and may themselves have instinctively waxed some of the wounded men on entry. The final killing, after the building was secure and the tape was rolling, was at once militarily unnecessary, unlawful, and understandable.

Any investigation of Geneva violations should not focus on that one soldier, but also on the decision by someone higher to leave non-ambulatory wounded enemy in an unmarked building overnight after the first emergency care. While it's entirely possible there was no other option, the abandonment of enemy wounded prisoners in that situation was not only the precipitating act, but also a potential Geneva infraction.