Wounded soldiers and the Geneva Conventions:

I'm not up on the facts of the incident in which a marine is alleged to have killed a wounded and supposedly harmless enemy soldier. But let's assume the following situation: A wounded insurgent — not a member of a nation's armed forces or militias allied to a nation's armed forces — is no longer attacking you (naturally, it's quite permissible to kill wounded enemy soldiers who are still attacking you), but you are afraid that he might attack, might detonate some suicide bomb, or what have you. Is it a violation of the Geneva Convention to kill the person? (I can't speak to other legal rules, including any specifically promulgated by the U.S. military, since I'm not expert on the field, and have looked only at the Geneva Conventions touching on this.)

The answer appears to turn on whether the wounded person belongs to a group that has been following the laws of war. The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 13, provides that:

The present Convention shall apply to the wounded and sick belonging to the following categories:

* (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

* (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

o (a) that of being commanded by a person responsible for his subordinates; o (b) that of having a fixed distinctive sign recognizable at a distance; o (c) that of carrying arms openly; o (d) that of conducting their operations in accordance with the laws and customs of war.

* (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.

* (4) Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany.

* (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law.

* (6) Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

It's not clear whether the Iraqi insurgents are covered by any of these categories. Item 3, for instance, pretty clearly doesn't apply, because militias such as the Iraqi insurgents are not "regular armed forces"; item 1 doesn't apply, because the militias aren't part of the Party's (i.e., Iraqi government's) armed forces.

But even if they somehow are covered by item 2 — I'm not sure they are, since "Party" refers to governments, and these forces don't seem to belong to the Party, but it's conceivable that the reference to "organized resistance movements" is intended to cover situations where people fight on after the government of the nation has been defeated and a new one has been put into place — they are covered only if they respect the laws and customs of war. Insurgents who are fighting out of uniform, or who are using places of worship for military purposes (see Protocol Relating to the Protection of Victims of International Armed Conflicts) are, to my knowledge, violating the laws of war, and thus are not covered. Likewise, "the feigning of an incapacitation by wounds or sickness" — which I take it would include a wounded person pretending to be incapable of hostile action, while he's preparing to attack or detonate a suicide bomb when enemy soldiers approach — and "the feigning of civilian, non-combatant status" would violate the laws of war. ("Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy" and are thus forbidden.)

Thus, if insurgents have systematically shown unwillingness to comply with the laws of war, as best I can tell they are not protected by the Geneva Convention I mentioned above. And while that's harsh, it's understandable: Soldiers ought to help the enemy wounded, but not when doing so runs the risk of being killed by those who will keep attacking even though they're wounded and pretending to be incapacitated.

Again, I don't know the facts of the incident I mentioned above; nor have I followed closely the extent of the violations of the laws of war by Iraqi insurgents; and I'm not an expert on the laws of war, so I might be missing something important here. Nonetheless, it seems to me that before people assume that the Geneva Convention for the protection of the wounded applies, we'd have to investigate whether the Iraqi insurgents are entitled to such protection.

UPDATE: Owen West and Philip Carter deal with the same matter in Slate. The core of their view is that "The Third Geneva Convention makes it a war crime to kill or injure a prisoner or to deny medical care to a prisoner for wounds suffered in combat, among other things. If prosecutors charge the Marine with murder, they will argue that the Marines took these Iraqi men as prisoners the moment they secured the building. Moving or not, the wounded Iraqi was a prisoner, and therefore it was a crime to shoot him, even in the crazy kill-or-be-killed environment of Fallujah." But I don't see how the the Third Geneva Convention applies to insurgents who don't abide by the laws of war, see article 4. (I'm also not sure why "prisoner" status would automatically flow from securing the building.)

Among other things, this paragraph in the Slate piece is a catalog of the insurgents' violations of the laws of war, including "perfidy" of the sort that is both unlawful and understandably leads enemy soldiers to worry that even your wounded may be a serious threat:

In this unit's case, one early lesson in Fallujah was to avoid Iraqis altogether, dead or alive. Iraqis wearing National Guard uniforms had ambushed them, killing one of their own. Another Marine had been killed when an explosive detonated under an insurgent corpse. . . . [Other insurgents] tried to exploit the civil-military moral gap, acting as soldiers at 500 meters and as civilians when the Marines closed in. The Iraqis in the mosque may have been immobile, but to the Marines, they posed a threat.

All in all, the West & Carter piece is generally sympathetic to the accused Marine; but I don't see why it so quickly assumes that the Geneva Conventions apply here.

FURTHER UPDATE: Reader Seth Barrett Tillman points to this part of the Protocol:

Article 41.-Safeguard of an enemy hors de combat

1. A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.

2. A person is hors de combat if:

(a) He is in the power of an adverse Party;

(b) He clearly expresses an intention to surrender; or

(c) He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape. . . .

I take it that the question is whether wounded enemy soldiers are in "the power of an adverse Party" when the Party's soldiers have reason to fear that they still retain the ability and willingness to kill (based on previous such actions by the wounded person's fellow soldiers).

More on the Geneva Conventions and wounded combatants:

A colleague of mine suggested that the Fourth Geneva Convention may protect wounded insurgents even if their armed forces don't comply with the laws of war:

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely . . . .

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; . . .

2. The wounded and sick shall be collected and cared for.

This does seem to provide a stronger case than the other provisions I cited in the post below, because it doesn't directly require that the armed group to which the wounded person belongs comply with the laws of war; but even this provision doesn't strike me as applicable here.

The whole question is whether a wounded enemy soldier is now "taking no active part in the hostilities" -- though he had been fighting minutes ago -- and is "hors de combat," which is to say out of combat. If the enemy forces have indeed continued shooting when grievously wounded (which is not a violation of the laws of war), or have pretended to be out of combat and continued shooting (which is a violation), or have pretended to be friendly soldiers and then attacked (which is also a violation), or have hidden explosives under corpses (which likely is perfidious action, and thus a violation, though I'm not sure), then this might make it quite reasonable for our forces to doubt that the enemy soldier is indeed now "taking no active part in the hostilities."

Phil Carter responds:

Phil Carter, who is a co-author of the Slate piece that I mentioned below, an expert on law-of-war questions, and my former student, responded:

You wrote: "But I don't see how the the Third Geneva Convention applies to insurgents who don't abide by the laws of war, see article 4. (I'm also not sure why 'prisoner' status would automatically flow from securing the building.)"

Interesting note, but you're basically making the same flawed argument as the DOJ and DOD lawyers with respect to the Gitmo detainees. The default position is that a combatant is entitled to Geneva protections, until such time as that combatant is adjudicated by a competent tribunal. (See Art. V) The official US policy is that Geneva III *does* apply to Iraq, unlike the the administration's position with respect to Afghanistan and Al Qaeda detainees generally. But regardless, the treaty contemplates the situation where a combatant does not qualify for status under Art. IV, and establishes a procedure for adjudicating this. Until that tribunal acts, prisoners are entitled to 3rd GC protection.

As for the question of when someone becomes a prisoner, that's a really thorny factual inquiry. I think the test was met here, because the Marines secured the building. But we'll see.

There's another interesting wrinkle here that we didn't even cover. The Marines were fighting under a Rules of Engagement document. Even if this shooting didn't violate the Geneva Conventions, it might have violated their ROE. And consequently, it may still be an unlawful killing. I don't have access to those ROE documents, but I imagine they're at the heart of the inquiry right now into this young Marine's actions.

This one's going to be studied at the JAG school for a long time.

Phil may be correct, and I can't even express an opinion about the Rules of Engagement. But I'm skeptical about the need for a tribunal. It seems to me that while tribunals make sense when the question is what to do with a prisoner who is safely detained, they obviously can't be used in a split-second decision in battle about who's a possible threat and who isn't. One could, I suppose, say that therefore soldiers must always err on the side of assuming that the person is protected by the Conventions; but that doesn't seem right, given the soldiers' need and entitlement to protect themselves against unlawful actions by unlawful combatants. If soldiers are entitled to deal harshly with wounded enemy soldiers who might be engaged in perfidious acts, surely that entitlement can't be contingent on holding a mini-trial right there to determine the matter.

Also, the provision is in the Third Geneva Convention, related to treatment of Prisoners of War, "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." Again, this makes sense once the person has been taken prisoner (hence its presence in the Prisoners of War convention), but not when we're talking about wounded people on the battlefield, hence its absence in the Sick and Wounded convention — the one that I was discussing in my first post.

But beyond this, I don't see any doubt in some situations -- for instance, when the enemy combatant is captured while fighting in a mosque, which is per se a violation of the laws of war (again, see the first post in the chain), or fighting out of uniform, or otherwise not abiding by the laws of war.

Phil's follow-up responses, to points similar to those I raise above (though I didn't ask him about all of the points, so any incompleteness in his responses may flow from that):

[L]ook at the plain meaning of Art. V. In cases of doubt, you treat enemy belligerents as prisoners once captured, not as unlawful combatants or some other invented category. Only a competent tribunal can resolve this doubt. Now, you can still kill the enemy, and in fluid situations where someone may or may not be a prisoner, you can still act to defend yourself. The issues you raise have to deal with adjudicating someone's status once they're a prisoner — not what to do with them on the battlefield. I think you're conflating the issues here, between the determination as to whether someone is still a belligerent, and on the other hand, what status a prisoner should receive after capture.

Seeking shelter in a mosque is generally a violation of the law of war, as is perfidy. Nonetheless, I don't see any language about reasonable doubt or executive determinations in the GC. The language is very broad — "Should ***any*** doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." [emphasis mine] It does not say "reasonable" doubt or anything of the sort, although that's the argument that DOD and DOJ has made. I think the plain meaning of this article contradicts their interpretation, and so do a number of federal judges.

In any event, that's not a job for the grunts to sort out. They're allowed to use force within the constraints of their ROE. If their ROE breaks the law of war, then they have a defense of superior orders available to them, and the officer who drafted the ROE and approved will be on the blame line. Only a competent tribunal can determine these things. The Army's even drafted regulations for what these should look like (see http://www.army.mil/usapa/epubs/xml_pubs/r190_8/cover.xml).

In any event, those are my views, and Phil's — hope you folks find them interesting.