The Strike on the Van

If you want to understand why this video caused what it caused, watch the two minutes with the van. The first burst of the morning can be argued about. This part is much harder, and the people who defend the rest of the engagement tend to go quiet here.

What happens

Saeed Chmagh is alive at the kerb, badly wounded, dragging himself along the ground. He has been visible in the sight for several minutes and he is clearly no threat to anyone.

A van comes down the street and stops. Two or three men get out and go to him. They begin lifting him towards the vehicle. Nobody in the frame is carrying a weapon, nobody points anything at anything, and the whole sequence looks like what it was: people picking up a wounded man.

The crew report over the radio that individuals are collecting bodies and weapons, ask for permission to engage, and are given it. Then they fire into the van.

Who was in the vehicle

The driver was Saleh Matasher Tomal, a local man who was taking his two children across the district that morning and stopped when he saw a man bleeding in the road. He was killed. Saeed Chmagh, who had survived the first burst, was killed.

In the front seat were Tomal's son and daughter, roughly ten and five years old. Both were badly injured. Both survived, and were carried out of the wreck by an American soldier a few minutes later. Their story is here, and the soldier's account is here.

There is no evidence the crew could see the children. The windscreen was not visible from their angle and the sight is not that kind of camera. That is a genuine point in their favour about intent, and it changes nothing about the result.

Specialist Ethan McCord of Bravo Company reached the vehicle within minutes and carried both children out. The Army's AR 15-6 investigation, completed in July 2007, found this engagement fell within the rules of engagement. No court has examined it since.

What the law says about picking up the wounded

This is the part that gets misquoted in both directions, so it is worth being careful.

• The wounded who are out of the fight are protected. Once a fighter is hurt badly enough that they cannot fight, they may not be attacked. This is one of the oldest rules there is.
• Civilians who collect the wounded are civilians. Helping an injured person is not taking part in hostilities, and it does not make you a target.
• The rule is not absolute. Armed fighters recovering a comrade so he can fight again, or a vehicle being used to move weapons, are a different case. This is the gap the military argument runs through.

So the legal question is narrow: was there a reasonable basis, at that moment, to believe the van was doing something other than rescue? The footage does not show one. The rules the crew were working under required identification before firing, not a hunch.

The test, reduced to one question

Was there a reasonable basis, at that moment, to believe the van was doing something other than rescue? The footage does not show one. That is the whole of the legal difficulty, and no answer to it has ever been given in public.

The official answer

The Army's internal investigation concluded that this engagement, like the others that morning, fell within the rules of engagement on the information available to the crew. Its reasoning rests on the context of the first burst: a group that had included at least one man with a launcher, in an area with active fighting, and a vehicle arriving at that location within minutes.

That is not a foolish argument. It is also not the same as showing that anyone in the van was doing anything but helping. The investigation's findings are set out in full here.

Why this archive keeps the phases apart

People defending the crew tend to talk about the first burst, where there is a visible object that could be a weapon. People condemning the crew tend to talk about the van, where there is not. Both are answering a real question. Neither is answering the other one.

The strike on the van that no court was ever asked about

No criminal court has ever examined this phase. No prosecutor has weighed the footage of those two minutes against the rules the crew were bound by. The only body that looked at it in detail was the institution the crew belonged to, in an inquiry that could not charge anyone even if it had wanted to.

That is what people mean when they say this case was never resolved. The van is the clearest example of it in the whole recording, and it is the reason the accountability question refuses to go away.