It is hard not to become somewhat disturbed when watching people actually dying on camera. The leaked video published on the WikiLeaks website of the two US helicopters killing around 12 people in Baghdad in 2007 is most certainly shocking. What at the first glance seems like a cold blooded murder outraged a vast internet audience and provoked numerous comments. What, however, are the legal consequences of the events shown in this video?

To answer to this, we first have to expose ourselves to the minute details of the disturbing scene so we can spot all the relevant facts. But a disclaimer needs to be given first.

Since the body of the law of armed conflict is heavily burdened with the principles of military necessity and proportionality, it is absolutely impossible to claim that all the engagements seen on the video were unlawful only on the basis of the video. We do not know all the circumstances of the case, orders the pilots had, what kind of activities were reported, the perception of the pilots (mental element) etc. This can only be established through testimonies and other evidence.

The first question to ask is whether the entire engagement as such was unlawful? The uncut video shows the arrival of the Apache assault helicopters on the site where the insurgent activities have been reported by the ground troops. Shortly afterwards, a dozen men walking on the street are spotted and the gun sight camera concentrates on them. Two of the men are riding off on a scooter while nine more people continue walking down the street. They seem casual. Two among them are carrying something hanging on their shoulder, and one of the pilots identifies it as a weapon. Slightly behind them, a man is standing, looking up the sky, shading his eyes from the sun. Perhaps he is looking at the circling helicopters. The men on the ground seem relaxed. Two more men appear on the screen with something in their hands looking (perhaps) like automatic guns. Soon afterwards, the camera captures two men, one standing behind the building wall with his hands on his hips, while the other seems to be taking cover, holding a long object in his hand. One of the pilots identifies the object as an RPG (rocket-propelled grenade).  Then one of the pilots announces he is going to fire, while the other requests him to withhold the fire until they circle round the building to its front. As the helicopter passes by, the man stands up and points the object in the direction of the helicopter. The pilot makes a claim that the man has fired. This can’t be seen since the man is completely covered by the wall. Another pilot says its “negative” and that the man was “right in front of Brad”, a military vehicle. It is not clear if the “negative” remark was about the claim of firing from the ground, a request to open fire or something else. Soon after, the decision is made: “Just fuckin’, once you get on ‘em just open ‘em up.” At this moment, the helicopter comes in front of the building and has a clear sight on the targets. The men on the ground seem relaxed, talking. One is approaching a group, seemingly calm; the other is slowly walking in another direction speaking on the mobile phone (probably going away from the group because of the noise they are making with their talk – that they are talking about something can be clearly seen from the gesticulation), one of the men is pointing towards something in the sky. Literally a second before opening fire, one of the men is hanging something on his shoulder, but that something does not look like a weapon. “Light them all up,” the leader pilot says. Shots are fired. Since the men were standing close to each other, one round of bullets makes significant casualties.

This is a detailed description of the beginning of the action. Was the commencement of the engagement justifiable under the laws of war?

Obviously, it is very easy for me, after watching the video more than 20 times, to see that only two out of initially 11 men had weapons, that two others had cameras hanging on their shoulders and that the man behind the wall is taking a photo. But I saw this on a poor resolution Internet video, while the pilots flying in Baghdad were equipped with the high resolution Honeywell IHADSS system where the display is right in front of the right eye of a pilot and a gunner. If these Apaches were equipped with the newer version of the technology, Arrowhead system, their vision would have been even better. Not to mention that I am a lawyer with no experience or military training, while these pilots were professional airmen.

It appears that the airmen genuinely believed that they had seen the automatic weapon and the RPG. Since their mission, as far as we know, was to assist the ground troops and to locate and neutralise a group of insurgents who were engaging against them in the area, it was reasonable to pay attention to a group of 11 men, some of which were, or appeared to be armed. But that attention should have revealed that the men did not act when they saw two US assault helicopters circulating around them. They were even pointing at them on several occasions. Obviously, this could have been perceived as a deception, especially after one of the pilots got the impression that he was being targeted by the RPG and that shots have actually been fired. But he did not receive confirmation of that. On the contrary, it appears the other pilot informed him that he was wrong. All of this was enough to at least postpone the engagement which took place within 42 seconds from the moment the lead pilot thought he was being attacked by the RPG. In addition, as can be seen at the bottom of the screen, the “RPG carrier” had been locked as a target. The target becomes visible to the pilot only 2 seconds before he opens fire, at which moment, he is putting something around his shoulder, being completely calm. The object appears to be too small to be any kind of weapon, let alone a rocket launcher. That was the last chance for the abortion of the engagement, which unfortunately did not take place.

Without additional evidence, including seeing the exact orders, the briefing material for the pilots, the video in its original resolution or even watching it by using the same technology, it is impossible to say whether the engagement as such was even a violation of international humanitarian law, let alone a war crime. Incidental loss of civilian lives is not always a violation of IHL. The principle of proportionality dictates that this loss cannot be excessive in relation to the military advantage anticipated by an attack. In this particular case, it would be necessary to show that it was not proportionate to the military gain of the operation to shoot at a group of 11 people, nearly half of which were visibly armed (as the crews believed) in the combat region while friendly ground troops were under fire. The fact that the men on the ground did not appear to be engaging in combat would serve against the claim of proportionality. The fact that somebody was clearly aiming something toward the helicopter in a combat zone serves to the contrary.

Even if the initial engagement was a violation of IHL, it would be very hard to prove that it was a war crime. To convict a person for a war crime, it is essential to show that a person had intent to commit such a crime. Based on the video, it appears that the crews of the helicopters genuinely believed they were targeting armed insurgents. Whether their assessment was good or bad is rather irrelevant, since reckless killing cannot be a war crime under the ICC Statute (although it can under customary international law which is the only relevant law for the US since they are not a party to the Rome Statute). If there is no evidence to the contrary, the intent of the pilots was to kill insurgents, not civilians, when they commenced the engagement. However, this lasted only for several seconds, while two rounds were shot.

One of the men manages to escape the initial two rounds of bullets. He appeared to be unarmed. He falls down, probably stumbling over the stones shattered around, or he has been hit. While he was lying on the ground, the leader said “Keep shooting.” One more round was fired. “Keep shooting” again. One more round follows. After some confusion in chasing two more men, the shooting stopped. According to the leader, eight targets were engaged. At that point, a man “crawling is spotted” by one helicopter, and the pilot decides to “shoot some more”.

The two rounds directed against an unarmed man lying on the ground and orders to “keep shooting” are very problematic, but considering it all happens within 11 seconds from the commencement of the attack, one could suppose the pilots didn’t realise the man was unarmed. However, the hunt for a “crawling” man (which we cannot see, we just see shots fired from the helicopter) would be very hard to justify. If he was crawling after the initial shooting, as pilots said, he was most likely disabled and unable for any kind of engagement against the helicopter located at a relatively safe distance. If he did not hold an RPG, he did not present any threat for the helicopters, and the ground troops which were near could easily deal with one man (if he would not want to surrender, they could kill him). While these shootings were probably violations of IHL, especially the last one described, the requirement of intent prevents us concluding it was a war crime.

However, things get worse. After several frames of dead bodies lying around and comments such as “Look at those dead bastards”, “Nice”, “good shooting”, “thank you”, the camera zooms in on the wounded man, obviously in considerable physical pain, trying to get away from the line of the fire. He is weak, not able to move. While watching this scene, one of the pilots suggests “Come on buddy. All you got to do is to pick up the weapon”. After a while, a dark van approaches the scene. One man is running. He approaches the wounded man and tries to pick him up. The van stops right beside him. The pilot announces “We have individuals going to the scene, looks like possibly, uh, picking up bodies and weapons.” The other asks for permission to engage. The “Bushmaster” (what a priceless codename), likely a command post officer, asks if the people who arrived on the scene are picking up the wounded” and the response from the pilot is: “Yeah, we are trying to get permission to engage.” After repeated requests, and a panic that the van with the wounded man will get away, the permission to engage is granted and soon after the van is severely damaged. The engagement halts after this.

It is clear that the men coming out of the van are trying to assist a wounded man who has been tracked by the pilots for several minutes! There is zero possibility that they were not aware this man was wounded and unarmed. Regardless of that, they asked for permission to engage by first sending the dishonest message to the command that the men are picking up “bodies and weapons.” Soon after, when prompted if the wounded are being picked up, they answer affirmatively, but still ask for permission to engage. After some pressure (there is some swearing, along with the comments such as “Come on, let us shoot” and “They are taking him”) they get the permission to shoot!

No defence, no matter how good it might be, could prove this was not a war crime of wilful killing of the wounded and sick. Even if we agree that this was an attack carried out within the framework of non-international armed conflict, it was in contravention to common Article 3 of the Geneva Conventions which is applicable to all circumstances. Although the USA is not a party to the Statute of the International Criminal Court, the crime of wilful killing of the wounded from Article 8(2)(a)(i), the crime of directing attack against civilians not taking part in hostilities from Article 8(2)(b)(i) and 8(2)(e)(i) and violence to life and person of the hors de combat from article 8(2)(c)(i) are all considered to be a part of customary international law.

Why were these provisions violated? They were violated because it is clear that the pilots knew the man was wounded; it is clear that the command was informed; it is clear that they received permission to open fire and opened fire against the persons trying to assist the wounded, regardless of that knowledge and; because it is clear that the shooting did not stop even after the van was perceived to be “disabled” by the pilots.

So, we await the case in which one of the accused will be a certain Kyle of an undisclosed military rank (the air crew named one crewman by his first name during the action) in which the American military judiciary will have an opportunity to show to the world that war crimes cannot go unpunished, regardless of the side one is fighting for.

Pešč, 08.04.2010.