War and the Law(1)
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.
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.