Some defend Marine in killing

WASHINGTON -- Some US Marines yesterday defended their comrade who was depicted in video footage executing a suspected Iraqi insurgent, even though specialists in human rights law said the unnamed Marine appeared to have committed a war crime.

Marine commanders have launched an investigation into whether the Marine, who was videotaped shooting a wounded man lying on the floor of a mosque in Fallujah last week, violated military rules and international legal norms. They are also investigating whether three other wounded insurgents that appeared to have fresh wounds may have been shot by troops off camera.

"If it is what it appears to be, then obviously it would be a grave breach of the Geneva Conventions," said Joe Stork, Washington director of Human Rights Watch. "It would probably be a war crime."

But if the Marine is found to have violated the laws of war, Pentagon officials and legal specialists disagreed on whether extenuating circumstances should be taken into account.

Some military officials pointed out that while US forces have followed the international laws of war -- and will continue to do so -- their enemy in Fallujah broke them repeatedly. They hid behind civilians, took over places of worship, booby-trapped corpses, and feigned surrender as a means to attack.

Under those circumstances -- coupled with the fact that the Marine in question was wounded a day earlier -- his actions should be judged against the backdrop of an extremely difficult mission, they said.

"They are following absolutely no rules," Pentagon spokesman Lieutenant Colonel Joseph Yoswa said of the Iraq insurgents. "To put a young soldier or Marine into that kind of situation puts a huge onus on us and not on them."

Others, however, argued the law is clear: Unlawful enemy tactics or a hair-trigger environment that stresses soldiers both physically and psychologically are not sufficient justification for killing.

"War crimes always happen in situations of armed conflict," said Madeline Morris, a professor at Duke University Law School and adviser on war crimes issues for the Army and the State Department. "The fear and frustration factors cannot be considered mitigating."

The shooting occurred last Saturday when a Marine unit was clearing out a mosque in Fallujah that had been the scene of a fierce firefight the day before in which American forces killed 10 insurgents and wounded five others.

An NBC reporter captured the footage as Marines entered the mosque after reports it had been retaken by enemy gunmen. The unit, whose body language did not appear to show them to be expecting a fight, noticed the five insurgents wounded the previous day were still there, although several appeared to be close to death.

One insurgent was still breathing, and in the video a Marine can be heard saying "he's [expletive] faking he's dead." The Marine, who suffered minor injuries the previous day when he was shot in the face during a battle, shot the man in the head as he lay motionless. He then said: "Well, he's dead now."

Yesterday, some of his fellow Marines rallied around him, saying they believed his actions were understandable.

"I can see why he would do it. He was probably running around being shot at for days on end in Fallujah. There should be an investigation, but they should look into the circumstances," Lance Corporal Christopher Hanson told Reuters.

"I would have shot the insurgent, too. Two shots to the head," Sergeant Nicholas Graham, 24, of Pittsburgh told the news agency. "You can't trust these people. He should not be investigated. He did nothing wrong."

The Marine's defense may be that because some enemy bodies have been booby-trapped that he was under threat of attack or under such difficult psychological pressure that his actions should be excused, according to legal specialists.

"The argument we have seen is the fact there were instances of some dead bodies that were booby-trapped," said Claude Bruderlein, director of Harvard University's Program on Humanitarian Policy and Conflict Research. "But it is hard to see how shooting the body protects you from a booby trap."

The Army's recently published field manual on counterinsurgency stipulates that even with unlawful enemy tactics and house-to-house street fighting, soldiers must adhere to international law wherever possible.

"All counterinsurgency operations comply with law-of-war principles to the extent practicable and feasible," the manual says. In detaining enemy fighters in particular, it instructs: "When possible, place detainees into restraints prior to searching or moving them."

According to Lieutenant Colonel Michael Newton, a law professor at the US Military Academy at West Point in New York, there is only one question that needs to be answered in determining guilt.

"The only factual issue is whether that combatant constituted a threat," he said. "If he did, he was a lawful target. If he was not a threat, Article 12 of the Geneva Conventions makes it very clear he was entitled to be treated humanely and protected."

Added Morris: "If there were reasons to consider him a prisoner of war, then clearly it would have been a war crime to have executed him."

The Marine in question, who has not been identified, has been removed from his unit pending the outcome of the investigation.

Meanwhile, Army officials said yesterday that another soldier has been charged with premeditated murder for his part in a fatal shooting of an injured Iraqi man in the Sadr City section of Baghdad in August.

Material from wire services was used in this report. Bender can be reached at bender@globe.com.