Much angst is being expressed about the videotape of an American killing a wounded insurgent.
Was it a war crime violating the Geneva Convention?
No.
First of all, the “prisoner” was not yet a prisoner; he had not been searched and detained. Iraqi jihadis have often played possum and then detonated an explosive when an American attempted to search and detain him. Thus, it was reasonable for the soldier to shoot the Iraqi playing possum. Notably, the two wounded insurgents who were laying on the floor with their hands raised were not killed. As they were clearly submitting and had their hands in plain sight, they were taken prisoner.
More importantly, it did not violate the Geneva Convention because the insurgents are NOT covered by the Geneva convention. (As an aside, neither are the combatants detained at Guantanamo.)
The Geneva Convention
ARTICLE 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(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: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and cusoms 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 civilian 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, who shall provide them for that purpose with an identity card similar to the annexed model.
(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 of 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.
Clauses 2 and 6 tell the tale. The insurgents do not meet the criteria of resistance in an occupied zone. They also do not meet the criteria of clause six; the insurgents are not spontaneous, having been resisting for a year or more so can legally expected to have uniformed themselves with a fixed sign recognizable at a distance. They also do not respect the laws and customs of war.
Soldiers who refuse to be bound by the wars defining decency in war can have no expectation of receiving mercy. In fact, the insurgents have systematically violated the Geneva Convention’s rules:
(From article 3)
a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Hmm. Even if the insurgents had signed the Geneva Convention, they would, by their actions, released any party to the conflict from having to follow the Geneva Convention.
As un-uniformed combatants, they are subject to being shot out of hand even AFTER they have been taken prisoner. The shooting of combatants hiding in civilian clothes has been a well-established law of war for centuries. Remember Major Andre? How about the German sabateurs who landed on Long Island in World War II? How about the SS troops who disguised themselves as Americans during the Battle of the Bulge?
All shot.
