Book Reviews | Gordon Campbell | News Flashes | Scoop Features | Scoop Video | Strange & Bizarre | Search


Marjorie Cohn: Setting Conditions for War Crimes

Setting The Conditions For War Crimes

By Marjorie Cohn
t r u t h o u t | Perspective
Tuesday 30 November 2004

I was drafted in 1967 and I served in Vietnam for 1 year ... So this area was mostly all free-fire zones. So it was with this understanding that it was a free-fire zone that everything was fair game. If at any time you saw people in any way trying to avoid you or run away or make suspicious movements, that was free game. You could go ahead and shoot them and kill them.
- Testimony of Guadalupe G. Villarreal, Dellums (House of Representatives) War Crimes Hearings, Apr. 28, 1971, Washington D.C.

Thirty-six years later, NBC war correspondent Kevin Sites, embedded with the U.S. Marines in Fallujah, wrote in his November 10 blog: ''The Marines are operating with liberal rules of engagement.'' Sites heard Staff Sgt. Sam Mortimer radio that "everything to the west is weapons free." Weapons Free, explained Sites, "means the Marines can shoot whatever they see - it's all considered hostile." On November 13, Sites videotaped a U.S. Marine killing an unarmed, wounded Iraqi in a Fallujah mosque.

During the U.S. attack on Fallujah, dubbed "Operation Phantom Fury," Associated Press photographer Bilal Hussein saw U.S. soldiers "open fire on the houses." Hussein also reported seeing U.S. helicopters fire on and kill people, including a family of five, who tried to cross the river.

"A large number of people including children were killed by American snipers," according to the Independent (U.K.). Civilians who remained in Fallujah "appeared to have been seen as complicit in the insurgency," the Independent reported. "Men of military age were particularly vulnerable. But there are accounts of children as young as four, and women and old men being killed."

Free fire zones, and indiscriminate killing of civilians, which constitute willful killing, are grave breaches of the Geneva Conventions. The U.S. War Crimes Act considers grave breaches of Geneva to be war crimes, which can result in the death penalty for those convicted.

Criminal liability for war crimes extends beyond the perpetrator. Under the doctrine of command responsibility, higher-ups can be just as liable if they knew or should have known their underlings were committing war crimes, but they failed to stop or prevent it. Commanders have a responsibility to make sure civilians are not indiscriminately hurt and that prisoners are not summarily executed.

The rules of engagement are set at the top. The Marines are being told they can fire at anything that moves. Before entering Fallujah, the Marines had been pumped up by tough talking superiors.

Fighting in Fallujah was grueling urban warfare. Sites wrote that the Marine who killed the wounded Iraqi in the mosque had reportedly been shot in the face himself the day before.

When Sites saw the Marine shoot the unarmed, wounded man, Sites reported, "I feel the deep pit of my stomach." He told the lieutenant "that this man - all of these wounded men - were the same ones from yesterday. That they had been disarmed, treated and left here. At that point the Marine who fired the shot became aware that I was in the room. He came up to me and said, 'I didn't know sir - I didn't know.' The anger that seemed present just moments before turned to fear and dread." By speaking up, Sites prevented other injured Iraqis from meeting a similar fate in that mosque.

After Sites's report became public, there was a great outcry. Interim Iraqi prime minister Ayad Allawi said he was "very concerned" about the fatal shooting. United Nations High Commissioner for Human Rights Louise Arbour called for an investigation of allegations of the disproportionate use of force and the targeting of civilians in Fallujah. Clips from Sites's videotape were seen around the world, and aired repeatedly on Al-Jazeera televison. Many who saw the shooting are convinced the soldier committed a willful killing, a war crime.

The Headquarters of the United States Central Command announced that the First Marine Division had initiated an investigation "to determine whether the Marine acted in self-defense, violated military law or failed to comply with the Law of Armed Conflict [Geneva Convention]."

In order to mount a successful self-defense, the Marine would have to demonstrate he had an honest and reasonable belief in the need to defend himself or his fellow Marines against imminent death or great bodily injury, just before he fired the fatal shot.

His lawyer might argue that when he shot the Iraqi in the mosque, the Marine was suffering from post-traumatic stress disorder (PTSD), which afflicted 30 percent of Vietnam veterans. PTSD can occur following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury during military combat. The person can experience a dissociative state lasting from a few seconds to several hours or days. "Psychic numbing" or "emotional anesthesia" usually begins soon after the traumatic event. An "exaggerated startle response" may occur.

One in six soldiers returning from Iraq are suffering from PTSD, according to mental health experts. A study by the Walter Reed Army Institute found that 15.6 percent of Marines and 17.1 percent of soldiers surveyed may suffer from PTSD.

Seymour Hersh uncovered the cover-up of the My Lai Massacre during the Vietnam War, where U.S. soldiers killed up to 500 unarmed old men, women and children. Hersh, in interviews on MSNBC, PBS and Fox News, is now talking about what happens when we send young kids off to war. He does not deny that these kids can do bad things. But, "the Army is in loco parentis," he says. "They're your mother and father. And they have an obligation to protect you from yourself, almost, from some of your instincts."

A senior Pentagon consultant told Hersh that George W. Bush, Donald Rumsfeld and Steven Cambone, undersecretary of defense for intelligence, "created the conditions that allowed transgressions to take place." The consultant was referring to torture at Abu Ghraib prison in Iraq. He could just as well have been talking about Operation Phantom Fury.


Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

© Scoop Media

Top Scoops Headlines


Werewolf: Living With Rio’s Olympic Ruins

Mariana Cavalcanti Critics of the Olympic project can point a discernible pattern in the delivery of Olympics-related urban interventions: the belated but rushed inaugurations of faulty and/or unfinished infrastructures... More>>

Live Blog On Now: Open Source//Open Society Conference

The second annual Open Source Open Society Conference is a 2 day event taking place on 22-23 August 2016 at Michael Fowler Centre in Wellington… Scoop is hosting a live blog summarising the key points of this exciting conference. More>>



Gordon Campbell: On The Politicising Of The War On Drugs In Sport

It hasn’t been much fun at all to see how “war on drugs in sport” has become a proxy version of the Cold War, fixated on Russia. This weekend’s banning of the Russian long jumper Darya Klishina took that fixation to fresh extremes. More>>


Binoy Kampmark: Kevin Rudd’s Failed UN Secretary General Bid

Few sights are sadder in international diplomacy than seeing an aging figure desperate for honours. In a desperate effort to net them, he scurries around, cultivating, prodding, wishing to be noted. Finally, such an honour is netted, in all likelihood just to shut that overly keen individual up. More>>

Open Source / Open Society: The Scoop Foundation - An Open Model For NZ Media

Access to accurate, relevant and timely information is a crucial aspect of an open and transparent society. However, in our digital society information is in a state of flux with every aspect of its creation, delivery and consumption undergoing profound redefinition... More>>

Keeping Out The Vote: Gordon Campbell On The US Elections

I’ll focus here on just two ways that dis-enfranchisement is currently occurring in the US: (a) by the rigging of the boundary lines for voter districts and (b) by demanding elaborate photo IDs before people are allowed to cast their vote. More>>

Ramzy Baroud: Being Black Palestinian - Solidarity As A Welcome Pathology

It should come as no surprise that the loudest international solidarity that accompanied the continued spate of the killing of Black Americans comes from Palestine; that books have already been written and published by Palestinians about the plight of their Black brethren. In fact, that solidarity is mutual. More>>


Get More From Scoop

Top Scoops
Search Scoop  
Powered by Vodafone
NZ independent news