Posted on 11/27/2004 3:45:35 PM PST by naturalman1975
'HE'S f---ing faking he's dead. He's faking he's f---ing dead," screams a soldier. The video then shows a US marine with his rifle at the ready. A shot is fired at an Iraqi leaning against the wall of a mosque. Blood splatters the wall. A voice says: "Well, he's dead now."
Is it a war crime? Many have rushed to judgment answering in the affirmative. Likewise, others confidently declared that the entire US-led battle in Fallujah was a war crime before it had barely begun.
War crimes are abhorrent.They offend basic notions of humanity that should apply even in the brutality of war. But prematurely rushing to judgment, alleging war crimes where none may exist is morally repugnant and legally wrong. It debases the very notion of a war crime. If the laws of war are to mean anything, their application must depend on a forensic examination of the facts.
Yet, so often pre-emptive cries of war crimes are driven by political motivations, not legal determinations. That is why international law suffers a credibility problem. Its biggest supporters often end up undermining it the most. Whether the US marine committed a war crime raises difficult questions. Suffice to say there is more to the story than one moving picture. Was the Iraqi "hors de combat"? How do the Geneva Conventions apply, if at all, to irregular insurgents who ignore the laws of war?
The embedded NBC journalist, Kevin Sites, who filmed the shooting, reported that dead and wounded insurgents have been booby-trapped, killing one marine and injuring others. Other reports said insurgents dressed in National Guard uniforms, ambushed the unit. Some insurgents behaved like soldiers at 500 metres but morphed into civilians as marines closed in.
So how do we properly judge the actions of this soldier when the enemy so firmly rejects the laws of war? To kill or be killed often requires a split second, instinctive response from soldiers especially when confronting the deadly combination of urban combat and guerilla warfare found in Fallujah last week. In the context of all relevant facts, the military investigation will determine whether this soldier acted in self-defence. Until then, claims that the US marine committed a war crime are ill-informed.
More grotesque is the claim by former diplomat and academic Tony Kevin in The Sydney Morning Herald on the day the battle began that this US-led attack was a war crime -- and for having soldiers in Iraq, Australia was morally complicit in these war crimes. "This will be no neat, surgical strike," Kevin wrote. "To get the measure of this, think of the Warsaw rising in 1944, or the Russian army's destruction of the Chechen capital, Grozny."
To compare coalition and Iraqi forces trying to restore law and order in Fallujah before January's democratic elections with the barbarous actions of Nazis in Warsaw in 1944 is morally offensive and intellectually bankrupt. To get a measure of Warsaw, as Kevin beseeches us, consider that Heinrich Himmler's orders to the Nazis talked of "every inhabitant to be killed", "no prisoners to be taken" and "every single house to be blown up and burned".
In his book, Rising 44, historian Norman Davies says those orders were taken literally. More civilians died on each day of that 63-day battle than died on September 11, 2001. "No one was spared -- not even nuns, nurses, hospital patients, doctors, invalids or babies." On August 5, four days after the uprising began, an estimated 35,000 men, women and children were shot dead by the SS.
It was rare for the Nazis to punish their own soldiers but men under commander Bronislav Kaminski entered Warsaw's Radium Institute, a hospital for female cancer sufferers, raping patients and staff. Those protesting were killed. The hospital was then looted and torched. Kaminski's depraved actions were too much even for the Nazis. He was put to death for "perpetrating excesses".
Only those unconcerned with facts and blinded by political motivations, by a knee-jerk anti-Americanism, could mention Warsaw in 1944 in the same breath as Fallujah in 2004. The same can be said of Kevin's comparisons with Grozny, a town reduced to rubble by months of bombing by the Russians in 1999.
These hysterical claims suggest that international law is too easily exploited by political mischief-makers. That is why the US refuses to recognise the new International Criminal Court, vested with power over war crimes.
When firepower is required, we look to the US for help. Yet such is the anti-American sentiment, US soldiers are more often labelled war criminals than government-sponsored butchers in Darfur, Sudan.
Even more problematic, some laws of war are simply dangerous in the current climate of terrorism. The original Geneva Conventions sought to govern future wars between nation states that agreed to the laws of war. But increasingly the new battlefield involves a moral, ethical and legal asymmetry between regular soldiers who abide by the laws of war and terrorists who have no constraints.
International law has failed to confront this dilemma. Third World states pushed for the 1977 Protocol, which augments the Geneva Conventions, to enable them to internationalise certain wars. It allows some civil wars to be deemed wars of national liberation and irregular fighters posing as civilians in these wars can be classified as combatants and, when captured, as POWs, making them immune from prosecution for what would otherwise be terrorist acts.
The US rejected the Protocol, pointing out that not every addition to international law is a noble sign of progress. In his advice to the US Senate on January 29, 1987, president Ronald Reagan said: "We must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law." A wise decision then, it is even wiser now.
Increasingly, international law is becoming the last refuge of scoundrels as non-state terrorists claim the rights conferred by various instruments but reject the concomitant obligations.
If international law is to gain credibility, it will need to address that deadly reality.
No way it will ever gain credibility. International law is synonymous with corruption and Third World envy/hatred of the United States.
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