War and the Law

March 26, 2003
By David B. Rivkin, Jr. and Lee A. Casey

As the military campaign in Iraq continues, United States and other Coalition forces have scrupulously followed the applicable requirements of the laws and customs of war--despite the charges levied by the Iraqi leadership.  The same cannot, however, be said for Iraq itself.  Iraqi forces have, in fact, engaged in behavior that violates the laws and customs of war, and for which both individuals and Iraqi commanders may be criminally punished. 

Some of these violations include: 
 

Execution or Mistreatment of Prisoners of War 

To date, the most serious offense has been the alleged execution-style killing of American prisoners of war.  This is a clear violation both of customary international law, and of the 1949 Geneva Convention  -- which defines such murders as “grave breaches” that must be prosecuted and punished by treaty parties.  The individuals who engaged in this activity, as well as their commanders to the extent that they have ordered or condoned the action, may be punished as war criminals. 

In addition, although merely filming the capture or surrender of enemy combatants does not violate the Geneva Convention, photographing and broadcasting interviews with individual POWs is a violation.  This is a critical distinction that the Iraqi authorities have attempted to blur.  Under Articles 13 and 14 of the 1949 Geneva Convention III Relative to the Treatment of Prisoners of War, POWs “must at all times be protected . . . against insults and public curiosity,” and also “are entitled in all circumstances to respect for their persons and their honour.”  These provisions prohibit the kind of individual interviews of obviously terrified, and even wounded, prisoners that Iraq has filmed and broadcast on its state television stations, and made available to Al-Jazeera. 

What of the charge that Coalition forces have broken these provisions as well?  In contrast, the footage taken by media accompanying Coalition forces showing the generalized surrender of Iraqi prisoners does not identify or dwell on individual prisoners or show their interrogation (a particularly sensitive process).  Broadcasting the fact that troops are surrendering does not violate the treaty’s prescriptions. 

It should, however, be noted that under no circumstances should surrenders be “staged” for the media, since this could be considered an exploitation and humiliation of the Iraqi POWS.  Moreover, “embedded” media personnel should not be permitted to dwell on such scenes, or to purposefully film facial expressions.  The point at which merely reporting the fact of surrenders, and exposing POWs to “public curiosity” or demeaning them is very much a matter of degree. 

In this regard, suggestions by Iraqi authorities, that the interrogations of Coalition prisoners they have broadcast did not violate the treaty because, while they might be demeaning, the questioning did not go beyond that allowed by the treaty, are incorrect as a matter of law.  These are separate issues.  It is the act of demeaning a POW, by filming and broadcasting his or her interrogation that is forbidden by the treaty--regardless of whether the substance of the interrogation also is in compliance.

Feigned Surrenders 

Like the murder of POWs, the feigned or “fake” surrenders undertaken by a number of Iraqi troops also constitute serious violations of the laws of war, and may be prosecuted as war crimes.  The prohibition of such tactics was codified in the 1907 Convention (No. IV) Respecting the Laws and Customs of War on Land, With Annex of Regulations (the “Hague Regulations”), which specifically forbids the improper use of a flag of truce and “treacherous” attacks.  A feigned surrender, used to gain an advantage before attacking an enemy, is a classic and clear example of illegal treachery.

Iraq’s Use of Irregular Forces 

Finally, Iraqis who engage in guerilla or partisan warfare against Coalition forces may also open themselves to prosecution and punishment as “unlawful combatants.”  As a general rule--and unlike Al-Qaeda and the Taliban--the armed forces of Iraq meet the critical criteria to merit “lawful” combatant status.  That is, Iraqi forces have a responsible command structure; and they wear uniforms, carry their arms openly, and conduct their operations (as an institutional if not necessarily individual matter) in accordance with the laws and customs of war.  As a result, Iraqis captured by the United States are prisoners of war under the Geneva Conventions, and must be accorded all of the rights and privileges attached to that status – just as captured Coalition forces must be treated in a manner consistent with the Geneva Convention.  They cannot be punished for opposing, with armed force, the advance of Coalition forces.  

However, it appears that at least some individuals in Iraq have engaged in irregular or guerilla attacks against Coalition forces.  In particular, press reports indicate that members of the Republican Guard, as well as Ba’athist Party “militia,” have discarded their uniforms, and fired upon Coalition forces wearing civilian clothing.  This constitutes a violation of the laws of war, for which the individuals may be tried as war criminals.   

Moreover, undertaking attacks in civilian dress may also deprive the perpetrators of their status as lawful combatants.  One of the critical prerequisites for that status, recognized under customary international law, the 1907 Hague Regulations, and the 1949 Geneva Conventions, is the wearing of a uniform, or some other badge or device visible at a distance, that clearly distinguishes a combatant from the surrounding civilian population.   Individuals who engage in hostilities wearing civilian clothing are unlawful combatants, they need not be accorded the rights and privileges of POWs under the Geneva Conventions (although they still must be treated humanely), and can be subject to prosecution and punishment for their hostile actions – even if they have violated no other provisions of the laws of war. 

What of the charges being advanced by Iraqis and others within the Arab world, that U.S. and Coalition air raids themselves violate the rules of war and constitute war crimes?
 

Attacks on Iraqi “Infrastructure”  

To date, Coalition forces have not, to any great extent, targeted Iraq’s infrastructure – especially the power grid, bridges, and water supply systems.  This is clearly a decision based on prudence (since destruction of any or all of these potential targets would make rebuilding Iraq’s economy more expensive and difficult after the war), and not necessarily on legal restrictions. 

Under the laws of war, attacks must be limited to military, rather than civilian, objects.  This is called the principle of “distinction.”  It has long been accepted, however, that certain potential targets, such as power stations, bridges, highways, railroads and the like, may have both civilian and military uses.  If such facilities, based on “their nature, location, purpose, or use make an effective contribution to military action,” and their “destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage,” they may be lawfully attacked.  (See Department of the Army, The Law of Land Warfare FM27-10 (18 July 1956), Change No. 1 ¶40 (15 July 1976).) 

Any such attack must, of course, take into account the additional principle of proportionality – which requires that civilian casualties, or damage to civilian property, “incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.” (Id., Change No. 1, ¶ 41.) So long as both the rules of distinction and proportionality are respected, attacks on infrastructure are permissible. 

To date, based upon the available evidence, the Coalition forces have been scrupulously complied with the principles of distinction and proportionality.  If anything, their rules of engagement have been, to an unprecedented degree and well beyond the law’s requirements, protective of both Iraqi civilians and military personnel. 

Messrs. Rivkin and Casey are partners in the Washington, D.C. office of Baker & Hostetler LLP. They have served previously in a variety of legal and policy positions in the Reagan and Bush ’41 Administrations, including the White House Counsel's Office and the Department of Justice.