One Bright Spot in the Election

by Kevin Jon Heller

At least the war criminal lost:

The basic facts are undisputed: on 15 April 2004 Ilario Pantano, then a second lieutenant with the US marines, stopped and detained two Iraqi men in a car near Falluja. The Iraqis were unarmed and the car found to be empty of weapons.

Pantano ordered the two men to search the car for a second time and then, with no other US soldiers in view, unloaded a magazine of his M16A4 automatic rifle into them, before reloading and blasting a second magazine at them – some 60 rounds in total.

Over the corpses, he left a placard inscribed with the marine motto: “No better friend, No worse enemy.”

[snip]

A few months after he killed the two unarmed Iraqis, a member of his unit reported him to senior officers and he was charged with premeditated murder. At a pre-trial military hearing, prosecution witnesses testified that the detainees, Hamaady Kareem and Tahah Hanjil, were unthreatening and that their bodies were found in a kneeling position having apparently been shot in the back.

Sadly — though certainly not surprisingly, in this age of right-wing extremism — the fact that Pantano is a murderer did not stop 97,591 North Carolinians from voting for him.

http://opiniojuris.org/2010/11/03/one-bright-spot-in-the-election/

13 Responses

  1. Professor Heller,

    I am having some trouble with the link.  Could you maybe tell us what is in the part that you snipped out?  If there is anything about maybe, say, conflicting evidence, that would be nice to know.  I would be interested to know as well if there was a trial … if there were other witnesses.

    Thanks,
    NSD.

  2. Kevin, I’m a little surprised at your “reporting” of the situation… Here is the rest of the article you quote:
    “The defence countered that weapons had been found in the house from where the Iraqis were fleeing. The men had turned on Pantano unexpectedly as he was guarding them. He shouted “Stop!” but they didn’t respond and he opened fire in self-defence.
    Defence lawyers highlighted inconsistencies in the accounts of the prosecution witnesses and portrayed the main witness, who had been demoted by Pantano, as a soldier with an axe to grind. Forensic evidence was said to conflict with the prosecution case.
    In the event, all charges against Pantano were dropped on grounds of insufficient evidence. ”
    Whatever happened to the presumption of innocence? Charges dropped, no trial – the guy is at best an “alleged” war criminal…
    Of course, i’m not naive and would share any skepticism you would express on the full trustworthiness of US military proceedings, but you don’t need to misrepresent the facts so obviously to make that point…

  3. I thought concepts like “innocent until proven guilty” would be widely known on a legal blog. Huh?

  4. It’s OK. He knows a war criminal when he sees one.  He is an expert, after all.

  5. Unfortunately, many enemy soldiers act this way such as hiding in civilian areas and pretending to be civilians. Lets give the US serviceman the benefit of the doubt.  Were these “unarmed” boys shooting at him before hand?  There is a dearth of facts indicating this U.S. soldier’s guilt.
    It is “black letter law” that terrorist groups such as hamas and hezbola store weapons in schools, mosques, etc and shoot from these areas as well.  Then when the Isrealis shoot back you have all the extreme left wingers yelling and screaming about the alleged “war crimes” and violations of int’l law.   Funny, we never hear a word from these left wing extremists about the crime of practicing Christianity in places like Saudi Arabia.  Imagine, you can be prosecuted and given a death sentence if you are a practicing Christian or Jewish person.  Is that not a violation of int’l law?  It certainly seems like a racial or ethnic based “crime against humanity”.  Yet there is never any outrage.

  6. If we are not allowed to describe a soldier as a murderer and war criminal who puts 60 rounds into unarmed civilians, stopping to reload in the middle, simply because the U.S. government (typically) refused to prosecute him, then we are all in a great deal of trouble.

  7. On a different note, did you see that the Karadzic trial was suspended again? Don’t you miss the thrill of OTP incompentence?

  8. KJH: “puts 60 rounds into [...] civilians

    A report from the Article 32 hearing: ” ‘Sergeant M,’ a counter intelligence specialist whose full name couldn’t be released, testified that when he questioned the two Iraqi men, they lied and said there were no weapons in the house they fled from. Marines found three AK-47 assault rifles with loaded magazines and mortar aiming stakes, in addition to Osama Bin Laden and Saddam Hussein propaganda in the house.
    Sergeant M said he believed the men were probably insurgents, and they were not going to be released. ”

    (ref: www [dot] jdnews [dot] com /news/coburn-16455-pantano-case.html)

    Forensic evidence reportedly supports Pantano’s contention that he began firing on the men as they approached him.

    (ref www [dot] nytimes [dot] com
    /2005/05/27/national/27pantano.html)

    At a minimum, Sergeant M’s testimony establishes a possibility, or probabability, that the two individuals killed were insurgents.  Is KJH then justified in calling them “civilians”?

    Here’s the thing: if you take the view that the insurgents in Iraq were civilians under international law, you forfeit the authority to use the term civilians in the moral sense of noncombattant innocents who ought never be assailed. 

    KJH’s comment pours forth moral outrage.  He is not, primarily at least, speaking legally.  His use of the term civilians is therefore, I would submit, inappropriate.

  9. (I take no position on the justness or legality of Pantano’s killings, though even on friendly evidence it does not look pretty.  And certainly the 60 rounds was desecration.)

  10. Nathan,

    It does not matter what they were.  Pantano detained them; as a result, they were entitled to humane treatment whether they were POWs or civilians or anything else.  Killing someone outside of combat is a war crime.  Pantano can claim self-defense as a defense to that war crime all he wants; I think it’s ludicrous to conclude that Pantano honestly and reasonably believed that he had to shoot the two men 60 times, reloading in the middle, because he was in imminent danger of death or serious bodily harm.

  11. Kevin,

    Thanks for the reply.  I agree that it does not matter whether or not they were insurgents as concerns their right to humane treatment as detainees.  I’ll just note that the (undoubted) desecration does not prove the killings were murder rather than self-defense, although it certainly reflects poorly on Pantano’s state of mind.

    My point, though, was different.  It had to do with what I believe is a pernicious confusion between the technical legal definition of civilian and the broader moral use of the term.  It is arguable that the Iraqi insurgents were, technically, legally civilians under Geneva.  But they were not moral civilians in the sense of innocent noncombatants.  To say that Pantano intentionally killed innocent noncombatants is a different and stronger statement than to say that he intentionally killed insurgents who were entitled to human treatment. 

    Legally, in this context:
    “Pantano murdered civilians” = “Pantano murdered unlawful combatants”

    Morally:
    “Pantano murdered civilians” = “Pantano murdered innocent noncombatants”

    You just can’t make the first statement while investing it with the moral significance of the second.

  12. Nathan,

    Fair point; I probably should have avoided the word.  Having followed the case from the beginning, though, I am not remotely convinced they men were part of an organized armed group, making them combatants at all times.  At most, it seems to me, they were civilians who occasionally directly participated in hostilities.  But your point is still valid.

  13. Thanks much, Kevin.

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