The WikiLeaks Attack: Was It Illegal?

Yesterday, in a short piece on the WikiLeaks footage of an attack in Baghdad in 2007, I raised questions about the legality of the incident and the legitimacy of presenting it as an "indiscriminate" assault. The footage is horrific; the attack killed 12 people and injured two children, none of whom appear to have been engaged in combat. Two of the men killed were Iraqi civilians employed by Reuters. All the while, the voices of the U.S. military personnel can be heard radioing back and forth about the shooting, demonstrating a cavalier disdain for the lives they are ending. At one point, they chuckle about a tank rolling over a dead body.

It's stomach-churning, but is it a crime, as WikiLeaks contends? As I pointed out, the pilot was very clearly following a military protocol, which explains, for example, why he was looking for a weapon before firing upon a wounded man (he never found one, but got permission to fire after a van showed up to take the man away). Still, that doesn't necessarily mean he was following the protocol correctly, nor that the protocol lives up to international laws of war. In addition, WikiLeaks presented the video without a great deal of context, so we're equally hindered by what we don't know: who the other men are, whether any of them in fact had weapons, and whether there was good reason to believe they had been engaged in hostile activities before the film started rolling.

Late last night, The New Yorker posted a legal analysisthat provides some preliminary answers. Even without context, they say, the video contains enough material to raise questions about the legality of the attacks, citing four issues: proportionality, positive identification of the combatants, the role of the commander, and the treatment of injured combatants. The attack may not have been as "indiscriminate" as WikiLeaks presented it to be, but it appears there still may be a legal case to be made regarding the military's conduct.