No Trial, No Way

Here's a prediction about the fate of the U.S. Marine in Iraq accused, mostly by the media, of war crimes. He'll walk, without any Court Martial.

Process: There's plenty to come. There will be an investigation to determine whether charges should be filed; the most probable accusations are murder and/or manslaughter. If charges are filed, the Corps will conduct a second Article 32 investigation. But that's all--charges will not be forwarded to the convening officer.

Law: He's innocent under the law. The U.S. and Iraq are parties to the 1949 3rd Geneva Convention regarding prisoners of war. But the treaty covers only "lawful combatants," defined as:

1. In uniform: Wear distinctive clothing making them recognizable as soldiers from a distance.



2. Openly bearing: Carrying guns or small arms and not concealing them.



3. Under officers: Obedient to a chain of command ending in a political leader or government.



4. Fighting according to the laws of war: Not committing atrocities or crimes, not deliberately attacking civilians or engaging in terrorism.

Our enemy in Fallujah flunks at least two of these conditions, and thus is outside the treaty.

Even were the treaty interpreted to apply to the Fallujah terrorists fighting under Al Qaeda leader Abu Musab al-Zarqawi, killing the enemy in war is not a crime. The treaty takes effect only when a warrior becomes a prisoner, defined as a person who has "fallen into the power of the enemy." If the Marine reasonably believed the target was "playing possum" to kill coalition forces, the terrorist couldn't yet have been a prisoner.

When the shooting occurred, civilians already fled Fallujah. Only the enemy was inside the building. When the Marines entered, the fighting was ongoing: there was neither a surrender nor a cease fire:

Marines did not really secure the building and . . .these Iraqis were not prisoners yet: They were still combatants and still lawful targets; thus there's no crime.

Reality: The reason I'm certain about no trial is the terrorists in Iraq have enacted this same ruse before, as reported by AP yesterday:

In Fallujah, where U.S. Marines and soldiers are still battling pockets of resistance, insurgents waved a white flag of surrender before opening fire on U.S. troops and causing casualties, Marine spokesman 1st Lt. Lyle Gilbert said Saturday without elaborating.

According to Oliver North, neutral observers agree:

Within hours of the videotaped incident in the mosque, another Marine was killed and five others wounded by a booby-trapped body they found in a house after a gunfight. Why was this not made part of the original story? Even Amnesty International, no friend to the American armed forces, has reported that the Iraqi terrorists have illegally used white flags to lure coalition forces into ambushes. Yet this, too, is absent in the original story.

Conclusion: The American Marine is innocent--both in law and in fact--of any crime. Our enemy decapitates civilians on video. The Marine Corps and the American people can tell the difference between combat and inhuman atrocities. Too bad the Europeans, Arabs and our mainstream media can't.

More:

Another terrorist ruse on Saturday, says the Australian Broadcasting Corporation and the New York Times:

Fighting raged in the rubble of Falluja. Two marines were killed and four wounded in an ambush on Friday in which an insurgent deceived the Americans by waving a white flag, military officials said Saturday.

Here's the DOD News Release on yet another incident:

INSURGENTS FAKING DEAD FIRES ON MARINES

FALLUJAH, Iraq – Marines from the 1st Marine Division shot and killed an insurgent, who while faking dead, opened fire on the Marines that were conducting a security and clearing patrol through the streets here at approximately 3:45 p.m. on 21 November.

Faking surrender is a violation of the laws of land warfare. The penalty for violating the laws of land warfare is death. Q.E.D.

Still More:

Gordon Cucullu, Green Beret Lt. Col. (Ret.), writing in FrontPage Magazine:

It is illuminating to note tha[t] another wounded terrorist in the same video raised a hand in surrender. The Marines did not shoot him, only the faker.