Setting the Conditions for War
by Marjorie Cohn
www.truthout.org, November 30,
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,
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
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"
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
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
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
Marjorie Cohn, a contributing editor
to truthoout is 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.
War Crimes & Criminals