Several comments:
1. A good defense lawyer would ask for the proof that the guy wasn't "dead" before the final shot.
2. Fox News, in discussing this story last night, showed film of a Marine who was killed a block away from the mosque by a booby-trapped "dead" insurgent. These guys have been fighting this insanity for a week.
Another comment: Faking surrender not only makes you not protected when you try to surrender, but makes your unit not protected. It is one of those lines that is not to be crossed.