A frightened, tired and shell-shocked young US Marine, concerned that a wounded Iraqi left behind in a mosque might be lying on a compression mine, clutching a hand grenade or concealing a pistol, makes a split-second decision and allegedly shoots him in the head. The Marines have lost many people to insurgents feigning death or surrender in this way.
The legal basis for the Fallujah operation, and thus the case against the soldier involved, is far from clear. What is happening in Iraq is unlikely to be international armed conflict (although that is how the war started 20 months ago). But it could be classed as internal armed conflict, and therefore still subject to the provisions of the 1949 Geneva Conventions. Those conventions say that a combatant who has surrendered or is rendered hors de combat by sickness, wounds or any other cause must be treated humanely and is protected, in particular, against "murder of all kinds". If that is the case, whatever the mitigating circumstances, the Marine could be tried for a war crime.
Alternatively, defeating the "insurgency" is now a matter for internal
Iraqi law. The US forces are a form of military aid to the civil power
- just like the British Army in Northern Ireland. The latter were always
subject to civilian law. Therefore, the Marine's action ought to be dealt
with under the Iraqi criminal code. In that case, most lawyers would agree
there is a prima facie case of murder. If the investigation finds the
soldier thought the dead man was about to detonate a grenade, that would
be mitigation - but not defense.
The coalition cannot have it both ways. Either this is an armed conflict, in which case the 1949 Geneva Conventions apply, or else they are giving aid to the provisional Iraqi government, in which case they must be subject to its laws. It seems they want neither.
But this incident has also focused attention on wider questions about
the strategy adopted in Iraq, and globally. The "pre-emptive" tactic adopted
by the young Marine mirrors the strategy of America itself, close to the
heart of Condoleezza Rice: a strategy of pre-emption - to strike first
to pre-empt an imminent threat. That idea has a respectable pedigree in
international law. But it has become confused by the more forward strategy
of prevention - to prevent a threat from materializing (something much
more dodgy in international law). Although the present conflict, which
began with the invasion of Iraq, is often called "pre-emptive", preventive
seems more accurate.
In terms of strategy, the current military buzz-word is "effects-based operations": operations to achieve a desired end by co-ordinated attacks not only on the target's people and weapons, but on his will to fight. What political effect has the campaign to quell the "insurgency" - perhaps more accurately described as resistance - had? In Fallujah, in the past few days, for the loss of 38 troops, the US claims to have killed 1,200 "insurgents". Even though a quarter of a million civilians may have fled the city, it is unlikely that all the dead are insurgents, and foreign fighters appear to be relatively few in number. Comparisons with Vietnam War "body counts" are inevitable.
But this approach could be counter-productive. For every Iraqi killed, either in Fallujah or overall, there are five, maybe 10, maybe 20 sisters, brothers, husbands, wives, parents, children. For every dead Iraqi there may be 20 people who are now committed to a blood feud. We have to ask whether this is achieving the aim, which is to conduct free and fair elections in January and, in the longer term, to establish a stable and secure democracy.
For all the hype about "effects-based operations" the US approach appears
to be thoroughly attritional. The US command appears to believe that the
supply of suicidal Baathists, jihadists and foreign Islamist fighters,
and Iraqi nationalists who just resent foreign occupation, will eventually
be ground down to zero. By effectively eliminating the insurgents, according
to one retired US general, the "fellow travelers" can be made to see the
handwriting on the wall. It seems they have not seen it yet. With Fallujah
largely subdued, US forces, with limited Iraqi government help, have moved
to Mosul and Baquba.
Meanwhile the British forces, mainly deployed in the south of the country, have striven to avoid sowing seeds of longer-term discord. They have been defending themselves quite effectively, but ceasing fire the moment the attackers withdraw, rather than exploiting opportunities to inflict more casualties. Inevitably, this "softer" approach, with the ultimate objective in mind, invites criticism, and is alien to the US forces for whom "force protection" is paramount. But across the country, in Fallujah, and now in Mosul and Baquba, the US forces may have sown dragons' teeth. In Greek mythology, dragons' teeth, once planted, grow into fully-armed warriors. We must avoid doing that any more in Iraq.
The writer is professor of military science and doctrine at Cranfield
University and heads its global security program
© 2004 Independent Newspapers, Ltd.