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The Geneva Convention and the Iraq War - 2003-04-11


Last week a suicide car bombing at a checkpoint 130 miles northwest of Baghdad killed seven US soldiers. The bombing reportedly involved a woman crying in distress to lure her victims. An earlier suicide bombing near the city of Najaf was carried out by a non-commissioned Iraqi army officer posing as a taxi driver. Iraq’s deputy Prime Minister Tarik Aziz and Information Minister Mohammed Saeed Sahhaf publicly approved these acts, calling them martyrdom operations.

But most analysts consider them violations of the international law of warfare. Tim Lomperis, chairman of the Political Science Department at St. Louis University says suicide bombing is using civilians for military purposes.

“Suicide bombing is using civilians for military purposes,” he says. “Suicide bombing is a direct violation of the Geneva Convention because you are supposed to display your arms openly. So you don’t get militia status for being a suicide bomber because you don’t have a distinctive emblem, and you are not displaying your arms openly. You are hiding them around your chest.”

The Geneva Convention, established in 1949 and signed by almost 200 countries including the United States, Britain, and Iraq, is a set of four conventions outlining the international rules of warfare. The conventions oblige warring parties to protect civilians, sick and wounded soldiers and prisoners of war. They also ban or restrict the use of some weapons. “The whole point of Geneva Conventions is to separate civilians and civilian targets from military forces and military targets, and you are not supposed to fuzzy those lines up,” says professor Lomperis. “Another very grievous violation of the Geneva Convention is the use of hospitals as military bases. Hospitals with clear markings as hospitals are not supposed to be used for military purposes nor are they supposed to be targeted,” he adds.

While some deception is permitted in war, acts such as feigning sickness, surrender or non-combatant status are not. Civilians, sick and wounded soldiers as well as surrendering soldiers are protected under the Geneva Convention. Pretending to be in that category in order to lure adversaries to let down their guard constitutes a violation of rules of war. Professor Lomperis says the practice of Saddam Hussein’s militia to pose as civilians is one of many violations of the Geneva Convention committed by the regime. “The third convention did cover the militias, but militias are supposed to wear distinctive emblems,” he says. “They are supposed to follow the rules of war and they are supposed to carry their weapons openly. So disguised soldiers who do not show their weapons, do not have any distinctive emblems, for example the Saddam Fedayeen, are almost by definition a huge violation of the Third Geneva Convention.”

Protecting civilians is an essential part of the Geneva Convention. Observers say Saddam Hussein has not only failed to protect civilians; he has been using them as human shields to protect military targets.

“We clearly have instances where the Iraqis have apparently been using civilians as human shields to fight from behind,” says Scott Silliman, professor of Law at Duke University, North Carolina. “That clearly violates the law. There’s no question about it. You cannot use a human shield. Nor can you, in fact, destroy civilian property. Nor can you target civilians in any way. And of course, we’ve seen this, at least the allegations that the Fedayeen Saddam have been firing on Iraqi civilians, trying to keep them and Iraqi troops, trying to keep them up by the front lines.”

Professor Silliman says as a result, the coalition forces in Iraq have great difficulty distinguishing military targets from civilian ones. Recent battles in Baghdad and Basra have resulted in a growing toll on civilian life and property. Three foreign journalists were killed during the battle for Baghdad as well as many women and children in residential areas. Civilian casualties have raised international concern and prompted human right groups to issue renewed warnings to warring parties to make the safety of civilians their top priority.

Duke University’s Scott Silliman notes civilian deaths do not mean there has been a breach of the Geneva Conventions. “There was a lot of media attention focused on this very, very tragic incident of a van that did not stop at one of the American checkpoints, and a soldier fired into the van and killed the woman driver and children,” he says. “That’s not a violation of law of war simply because he might in hindsight have fired a warning shot perhaps earlier, or have taken another step by shooting the tires of that van or something like that,” says Professor Silliman. “Nonetheless, if he felt reasonably threatened - and I stress the word reasonable – by that van approaching him, in light of all the experience available to him and he fired his weapon in self-defense, that’s a judgement call that I think would be upheld under the law.”

Critics of this war, especially in the Arab world, are not satisfied with this kind of reasoning. Some have accused coalition forces of deliberately targeting civilians. The bombing of a Baghdad market has been labeled a “massacre,” even though coalition forces called it an accident and expressed regret over the casualties. The coalition is also criticized for the lack of food, water and medicine as well as the disruption of law and order in some parts of Iraq. Under the Geneva Convention, the occupying force is obliged to ensure public order and safety in the territory under its control.

Both sides have been criticized for mistreating prisoners of war. When the United States accused Iraq of breaking the Geneva Convention by releasing video images of captured and frightened American soldiers, some critics noted photographs in the media of captured Iraqis in humiliating positions. Since some of them were taken by reporters embedded with American troops, critics hold the United States responsible. In addition, some groups criticize the United States for holding 641 detainees from the war in Afghanistan in Guantanamo Bay, Cuba, and refusing to give them the status of prisoners of war.

“The Geneva Conventions require that any determination of POW status -- and individuals enjoy POW status unless it’s proven that they do not merit it -- any determination that an individual does not have a POW status should be made by a court,” says Richard Dicker, Director of the International Justice Program at the Human Rights Watch in New York.

His colleague, Dinah PoKempner, General Council for Human Rights Watch, says as the leader of the coalition against Iraq, the United States is under intense international observation. Its actions after the war may be even more so. “I think the United States, because this has been a controversial war, is going to be under a great deal of scrutiny for the behavior of its troops, whether fairly or unfairly,” she says. I think the United States as a world leader is expected to lead by high standards of performance. So that’s going to be part of the picture after the war.”

Human Rights Watch says only an independent international tribunal can ensure fair trials for war crimes and those committed during the decades of Saddam Hussein’s rule. Such a court, it adds, should include jurists from the Arab world to ensure that all the accused have a fair trial.

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