Marine cleared in Fallujah mosque shooting

Yesterday, it was announced that the US marine who shot a wounded and unarmed man in a Fallujah mosque would not be charged. To quote the Guardian:

Major General Richard Natonski, commander of the 1st Marine Division, said the marine corporal had acted according to the rules of engagement, and that it was a common tactic of insurgents to lure US troops by faking injury or death.

"He has determined that the actions of the marine in question were consistent with the established rules of engagement, the law of armed conflict and the marine's inherent right of self-defence," a statement on the US marine corps website said yesterday.

I expect this turn of events is probably going to produce a very angry reaction by some people in Iraq, and it is easy to understand their anger.

Let's consider the reasoning behind this marine being cleared in this incident...

The US justice system (including the military justice system) is built around the principle that it is better to free a hundred guilty men than to wrongfully convict one innocent man. Thus, the standard of proof is quite high - one must prove guilt beyond a reasonable doubt (consider O.J. Simpson). Also, for a person to be guilty of a crime means two factors must be present, actus reus (the fact that the person committed the crime), and mens rea (that the person intended to commit a crime). In other words, if you do something bad, but your intentions were good, you are not guilty.

In the case of this marine, the actus reus part is obvious - he admitted he shot the man, there is a video showing him shooting the man, and forensic evidence shows that the bullet came from his gun. But, that is only half of the equation. The other part, mens rea, is where the question lies... did the marine intend to kill an unarmed man? Or, did he think, at the time, that the man was a threat? In this consideration, it is irrelevant as to whether the man was actually armed or not, all that is relevant is whether the marine thought he was armed.

Consider the following:

• A wounded enemy can be more dangerous than a healthy enemy: A healthy enemy's main goal is self-preservation, however if an enemy is mortally wounded, he may be quite willing to do something that would hasten his own death as long as he can take one or two of your guys with him. A wounded soldier holding a hand grenade, and releasing it when the enemy soldiers come close is not unheard of, even in past wars.
• Insurgents have sometimes faked death/injury to trick US soldiers into getting close to them: Unfortunately, this makes a soldier more likely to question whether a wounded insurgent is really wounded, or just faking it to trick the soldier into getting close.
• The insurgent's left arm was hidden behind his head: The marine could not see if he was hiding a weapon, or perhaps a grenade.
• The soldier only had a brief moment to make the decision to shoot: The marines were in a battle, and had just retaken this building from insurgents. The marine's own life was in danger every moment he was in that building. Perhaps in a different situation, he would have reacted differently.

It is obvious that shooting the unarmed man was a mistake, but was it a criminal act? If the marine honestly thought that the wounded insurgent was a threat, the answer is no. And, if a prosecutor cannot prove beyond a reasonable doubt in front of a court martial that the marine's did not think he was a threat, the answer is also no.

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That's the logical side of this story, but as I write this blog post, I cannot help but feel a nauseous, queasy feeling roiling up from the pit of my stomach. An unarmed man died in this incident, and while he was certainly not innocent, there are a number of other Iraqis who have died in similar incidents who were killed by US soldiers being a bit too quick with the trigger finger.

Najma wrote an angry post today about this marine being cleared of charges. It is easy to understand her anger if you remember that back in November, her sister's father-in-law was killed in a similar incident in Mosul. To quote Najma's sister hnk about that incident:

The place in which he got shot in was an opened area and there were no shelters to protect them from fire, there was a shop near by, the shop owner asked them to enter his place till the fire stop but he refused probably because he was worried about his family, he continue to walk, infront of him about 100 m away there was an american stryker, it was in his way home . the American soldiers who were in that stryker shot him in his thight, the bullet cause a severe bleeding

He subsequently bled to death, as the bullet had severed his femoral artery.

I am probably safe in assuming the soldier who shot Najma's father-in-law was never charged. In fact, I am sure the only reason the case against the marine involved in the Fallujah mosque shooting went as far as it did was because NBC correspondent Kevin Sites was there with his video camera. Knowing this, it is quite easy to understand why Najma would be angry seeing this marine escape charges for this incident. It should also not be surprising that a number of other people in Iraq may share similar feelings.

As for me, I am feeling rather torn over this incident. On one side, I can understand the logic behind how the marine was cleared of charges, but at the same time it is difficult to reconcile this logic with the fact that an unarmed man was killed.

Perhaps the best analogy I can think of is police shootings. A number of shootings have happened here in New York City where a child with a toy gun was shot and killed by a police officer who thought it was a real gun; so many of these shootings that New York State has banned the sale of dark-colored toy guns throughout the state. In the case of these police shootings, for justice to be served, it is necessary for us to put our queasy feelings aside and look objectively at the facts, and assess what the mindset of the police officer was at the time he pulled the trigger. In the vast majority of these cases, the police officer was cleared, since even though the child was not armed, the police officer legitimately thought he was at the time of the shooting.

I expect the marine corporal involved in the Fallujah shooting was cleared for a similar reason as these police officers who shot innocent children armed with toy guns. But, like these police officers, I am sure that marine wishes he had hesitated a bit more before making that decision to pull the trigger, and he will probably be haunted by that decision for many years to come.