U.S. officials charge that President Saddam Hussein has intentionally placed his military equipment around civilian sites: schools, mosques and hospitals. It's unlikely that any U.S. military personnel will ever be legally accountable for causing civilian casualties in Iraq. But they have an incentive to follow the rules of war for political and humanitarian reasons.
Perhaps the trickiest issue is when targets can be both civilian and military. In the first Gulf War, Washington planners intentionally bombed Iraq's civilian infrastructure, which is specifically banned by the Geneva Conventions, because Iraq's military capacity depended on it. NATO forces bombed Serbian Television during the Kosovo conflict, killing 16 civilians, because Washington claimed it was an instrument of propaganda and repression.
For individual soldiers on the ground, applying the rules of war correctly can be impossible. Distinguishing between civilians and Iraqi gunmen, for example, has been complicated by paramilitary forces who fire on U.S. troops at night and walk around unarmed and in civilian dress during the day.
Finding a Court
The key to keeping the laws of war relevant, scholars maintain, is to ensure that war criminals are caught and tried in court. In the first Gulf War, no Iraqi was ever tried in court for war crimes.
The United States would like to try Saddam Hussein and his regime for war crimes, but finding a suitable forum for such a trial could be a problem. Washington opposes the International Criminal Court (ICC) because, U.S. officials maintain, it does not offer enough safeguards to stop the court from launching politicized prosecutions of Americans. A United Nations tribunal is probably out of the question, because the UN does not support the death penalty. Any U.S. military tribunal, meanwhile, would not be seen as impartial.
The most attractive option, according to experts, would be an ad hoc tribunal inside Iraq, or possibly Kuwait, using some Muslim judges, where war criminals could be tried for crimes dating back to the first Gulf War.
The success in prosecuting war criminals has been poor. "It's basically a history of impunity," said Dworkin. "But in recent years, things have changed with tribunals for ex-Yugoslavia and Rwanda, Sierra Leone and East Timor, and now the ICC. None of these bodies are without flaws but they indicate a growing demand that the world's worst offenders should be held accountable."
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