Iraq Conflict: Following the "Laws of War"?

Stefan Lovgren
for National Geographic News
April 4, 2003
Iraqi tactics of faking surrenders and using civilians as human shields have rekindled a long-running and boisterous debate over the rules governing armed conflict. Are laws of war relevant when they are so easy to break and so seldom punished? After all, as the saying goes, all is fair in love and war, right?

Wrong, counter academic scholars; without laws of war, conflicts will degenerate into all-out slaughter. "Fundamental standards of humanity in wartime are more relevant than ever," said Anthony Dworkin of the Crimes of War Project, a non-profit group based in Washington, D.C. "The hope is that the worst effects of wars can be contained, and unnecessary harm and atrocities to civilians avoided."

One thing is clear, however, "laws of war" has long been considered a term of art, and not one of absolute precision. The rules are widely open to interpretation. Many experts even suggest that the laws of war provide a code of conduct that has perhaps more political than legal importance.

The rules of war have occupied the attention of scholars, soldiers, and statesmen for thousands of years. But the principles only began to be codified in multilateral agreements about 140 years ago. The 1949 Geneva Conventions provide the most important international agreement on the laws of war.

In addition to rules governing the actual conduct of armed conflict, what is known in legal terms as jus in bello, there are also rules governing the resort to armed conflict—whether one side actually has the right to take military action. This is known in legal terms as jus ad bellum.

When it comes to noncombatants, there are two main principles. First, the military can't intentionally target civilians. Second, if a military knows that striking a military target will kill civilians and cause what's known as collateral damage, it must weigh the importance of the military target against the loss of civilian lives.

Fighting Dirty

Iraqi fighters have pretended to surrender to U.S. soldiers, only to open fire on them moments later. This is clearly an illegal tactic. It's also very effective. The Iraqis are using war's most affordable weapon: deception. "This is far and away their best strategy," said Kenneth Anderson, a law professor at the American University in Washington.

Some people argue that militaries should be entitled to use illegal tactics, especially if they're at a military disadvantage. If German troops were to cross the English Channel during World War II, Winston Churchill believed it would be acceptable for his military to both release poison gas and deprive the people of London the means to escape the city.

During the American Revolution, the British complained that colonists didn't fight fairly. Instead of marching to battle in formation, the patriots often sneaked up on British soldiers and shot at them from behind rocks and trees.

What about when one side is using illegal tactics—shouldn't the other side be allowed to use them as well? No, say experts. "You're not free to ignore the rules even if the other side systematically violates them," said Anderson. "The United States has a greater responsibility to follow the rules of war if Iraq breaks them. If both sides violate the rules with abandon, the horrors of war will be multiplied tenfold."

Using far greater firepower than your enemy is not considered a war crime. In fact, from a humanitarian standpoint, overwhelming firepower on one side is a good thing since it usually keeps civilian casualties down. When two sides are evenly matched, conflicts are stretched out and a large number of civilians may die from starvation or disease.

Dual Purpose

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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