Iraq

Compliance with laws of war necessary for protection of civilians and prisoners of war in Iraq

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Physicians for Human Rights (PHR) calls upon all parties engaged in the Iraq war to strictly comply with international humanitarian law (also known as the law of war) that governs the conduct of war and sets out protections that apply in times of armed conflict and occupation. The 1949 Geneva Conventions and 1977 Additional Protocols to the Geneva Conventions form the basis of protections afforded to civilians (Geneva IV) and prisoners of war (Geneva III) during armed conflict and occupation. The most fundamental protection to be afforded to civilians and POWs at all times and in all circumstances is the right to humane treatment.
The Geneva Conventions and Additional Protocols stipulate that civilians may never be targeted for attack; attacks may only be directed against specific military objectives. In directing attacks against military objectives, the law requires precautions to be taken to ensure that civilians are protected against the effects of the attacks. If an attack against a military target is expected to result in civilian harm despite precautionary measures, the attack must be cancelled if the incidental harm caused to civilians or civilian objects would be disproportional (excessive) to the direct military advantage anticipated. Military objectives are combatants or objects which, by their nature, location, purpose, or use make an effective contribution to military action and whose destruction or neutralization offers a definite military advantage. Anything else constitutes a civilian object, which cannot be the object of attack.

Civilian protections to be afforded by an occupying force include facilitating access to food and water, medical care, electricity, and sanitary living conditions. Protections afforded to prisoners of war under the Third Geneva Convention include protection from all acts of violence, intimidation, or degrading treatment.

During a state of war, belligerents are responsible for the safety and welfare of civilians; during an occupation, the occupying force is responsible for ensuring the welfare of the population.

"An understanding and adherence to the Geneva conventions and the relevant protocols will lessen the inevitable damage inflicted upon Iraqi civilians and all combatants involved in the conflict," said Leonard Rubenstein, Executive Director of Physicians for Human Rights. "It's imperative that a mechanism to account for these possible violations be established." Physicians for Human Rights has had extensive experience in documenting violations of international humanitarian law in Afghanistan, Kosovo, Iraq and Somalia.

The United States and Iraq are parties to the four 1949 Geneva Conventions. While neither the United States nor Iraq has ratified the Additional Protocols, they are considered part of customary international law, applicable to all nations. The U.S. allies providing ground forces, Australia and the United Kingdom, have ratified and signed the Additional Protocol I respectfully. The United States recognizes many Protocol I provisions as expressive of rules of customary international law.

Occupying Power: (see especially Geneva IV, art 6 and referenced articles; Protocol I, arts 69-71)

The Occupying Power is bound for the duration of the occupation to ensure that civilians are protected from violence to life and person or outrages upon personal dignity; women are to be especially protected from rape or any other form of sexual assault.

If any part of the population of an occupied territory has inadequate supplies, the Occupying Power is charged with doing everything possible to facilitate relief schemes on behalf of the population. Ensuring relief supplies of foodstuffs, medical supplies and clothing is particularly emphasized. The Occupying Power must ensure the protection and free passage of contracting States or humanitarian organizations providing this relief, which is to be carried out under its supervision.

Occupied territory is territory placed under the authority of a hostile army. Occupation only extends to territory in which authority can be established and exercised. The Occupying Power must take all appropriate measures to restore and ensure public order and safety while respecting as far as possible, the laws in force in the occupied territory. (1907 Hague IV, Annex, Regulations on Laws and Customs of Land Warfare, arts 42-43).

I. The Fourth Geneva Convention Relative to the Protection of Civilians in Time of War enjoins the Occupying Power to:

  • Ensure food and medical supplies for the civilian population, especially if the resources of the occupied territory are inadequate, employing the "fullest extent of the means available to it." (Article 55)

  • Ensure the effective operation of medical services, including hospitals and public health programs, with special focus on preventing the spread of contagious diseases and epidemics, and allow medical personnel to carry out their duties. (Article 56)

  • Facilitate relief programs for the civilian population "by all the means at its disposal." (Article 59)

  • Maintain "preferential measures in regards to food, medical care, and protection" in favor of children under 15 years, expectant mothers, and mothers of children under seven. (Article 50)

  • Maintain all institutions devoted to the care and education of children. (Article 50)

  • Facilitate access of humanitarian personnel. (Article 30)
Other provisions covered by the Fourth Geneva Conventions and Additional Protocols are relevant to the war in and occupation of Iraq:

(i) Human Shields and Hostages

No party may use human shields. (Fourth Geneva IVConvention, art. 28 and Protocol I, art. 51(7)).

If human shields are used, opposing forces must still assess whether the potential harm to civilians is excessive in relation to the anticipated military advantage before carrying out an attack. Protocol I, arts. 51 (5), 57 and 58.

The taking of hostages is prohibited. Commission of these acts as reprisal for an opponent's breach of these prohibitions is strictly forbidden. Third Geneva Convention, art. 13; Fourth Geneva Convention, art. 33; Protocol I, art. 20.

(ii) Urban Warfare

To maximize the protection of civilians near any military target, the Parties should provide effective advance warning of an attack- Protocol I, art. 57(2)(c)

The Parties should also consider measures that allow Iraqi civilians to voluntarily and safely leave urban areas where military objectives are targeted for attack, and all parties should be prepared to call on third parties to negotiate passage to non-military areas - Fourth Geneva Convention, art. 15.They must also negotiate passage for medical personnel and equipment and religious personnel to and from besieged or encircled areas- Fourth Geneva Convention, art. 17.

(iii) Dual-Use Targets

A dual-use object may be a legitimate military target but if the harm to the civilian population is disproportionate to the military advantage gained, the attack is rendered impermissible - Protocol I, art. 51(5)(b). (In weighing potential targets, military planners must examine carefully how immediate the military advantage of destroying dual-use facilities is, as well as the long-term cost to civilian welfare and economy, including environmental consequences - Protocol I, art. 55)

Under customary humanitarian law and Protocol I, there are only very limited circumstances in which food, water, medical supplies, and other objects essential to the survival of the civilian population may be attacked. When these resources are used directly or indirectly in support of the military, they may not be attacked if such action would produce starvation or forced displacement of civilians - Protocol I, art. 54(2) and .Protocol I, art. 54(3)(b)

(iv) Targeting Decisions - Indiscriminate Attacks and Proportionality

International Humanitarian Law requires the Parties to the conflict to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives. Attacks that target military and civilians without distinction violates a basic principle of the Fourth Geneva Convention . Art 48 Protocol I.

Belligerents have a duty to take all feasible steps, including choosing the means and methods of attack, that will minimize injury to civilians and civilian objects - Protocol I, art. 57(2)(a)(ii).

(v) Landmines can be inherently indiscriminate

Use of any kind of antipersonnel landmines is in violation of the international norm banning these indiscriminate weapons. One hundred forty six governments, or three quarters of the world's nations including all of NATO except for the US, have joined the Mine Ban Treaty. Countries such as the UK and Australia that are party to the treaty that are participating in the current military operations in Iraq are bound by the Mine Ban Treaty to not "assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention." Allowing or helping the United States to use antipersonnel landmines or to transfer or stockpile them would likely put these countries in violation of their treaty obligations. Iraq has not signed the Mine Ban Treaty.

Though the United States has not yet joined the treaty, it has joined the Convention on Conventional Weapons, which states that "indiscriminate use of weapons is prohibited," including such weapons that "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or combinations thereof..." As the majority of landmine victims are innocent civilians due to the fact that the weapon cannot be aimed at a particular target, any of use the weapon would clearly violate international laws and norms. The Mine Ban Treaty is technically called: Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on Their Destruction.

(vi) An Occupying Power's Duty to Provide Security

An Occupying Power has an immediate duty to restore and ensure public order and safety in the territory under its authority - Hague Regulations concerning the Laws and Customs of War on Land art. 43 and Fourth Geneva Convention, art. 27. According to the International Committee of the Red Cross (ICRC) Commentary on the Fourth Geneva Convention, the Convention becomes applicable as soon as troops are in foreign territory and in contact with the civilian population there. Therefore the duty to provide security by the occupying power commences at the earliest possible moment.

(vii) Weapons of Mass Destruction

Any use of chemical weapons would violate not only the 1925 Geneva Protocol but also the 1993 Chemical Weapons Convention and customary international law. (The United States is party to the 1993 Chemical Weapons Convention. Iraq is not.)

Use of biological weapons by either party to the conflict would violate international law. The 1975 Biological Weapons Convention (BWC) prohibits the development, production, acquisition, and stockpiling of biological weapons. Both the United States and Iraq are parties to the BWC. In addition, the 1925 Geneva Protocol, the provisions of which are now regarded as customary international law and are binding on all states, explicitly bans "the use of bacteriological methods of warfare."

Use of nuclear weapons, either offensively, defensively, or in reprisal, would be illegal under international law. (1996 International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons )

II. The Third Convention relative to the Protection of Prisoners of War:

Only persons who are recognized as 'combatants' under the Third Geneva Convention and 1977 Additional Protocol I are entitled to be treated as prisoners of war upon capture.

Who are classified as combatants? Art. 4 A of the Third Geneva Convention defines combatants as including those who are (1) members of the armed forces, (2) members of militias and volunteer corps fulfilling certain prescribed conditions, (3) civilian support staff accompanying armed forces and (4) inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms openly to resist the invading forces.

Art. 44(3) of the 1977 Additional Protocol I provides POW status also to captured members of irregular forces who are under responsible command; have a fixed distinctive sign (such as an insignia, uniform or other marking) recognizable at a distance; carry arms openly; and conduct their operations in accordance with the laws and customs of war. [note: see also Geneva III, Art 4(A)(2)(a)-(d)]

In case of doubt whether a person caught committing a belligerent act is a POW, they shall be presumed as such "until such time as their status has been determined by a competent tribunal." Art. 5

(i) General Protection of POWs

POWs are the responsibility of the capturing power (not the individual or military unit that actually captures them) from the moment of the capture. - Art 12 of the III Geneva Convention

Basic standard of Treatment is set out in Art.13. POWs must be treated humanely; POWs must not be unlawfully killed or endangered, physically mutilated or subject to medical or scientific experiments not justified by the needs of the individuals concerned. Reprisals against POWs are expressly prohibited and they must also be protected from violence, intimidation, insults and public curiosity. Therefore, it can be concluded that photographs, televised airing and other media presentations of POWs that are deliberately humiliating isare a serious violations of Art. 13

POWs are not bound to supply information to the capturing power. The only information they are bound to supply is (1)his/her first name and rank (2)date of birth (3)army, regimental or serial number, or failing this, equivalent information. No physical or mental torture, nor any other form of coercion, may be inflicted on POWs to secure from them information of any kind whatsoever. POWs who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. - Art. 17

Capturing authority is under an obligation to evacuate prisoners as soon as possible from the zone of combat danger to camps in safe locations - Art. 19. While being evacuated POWs must be treated humanely and provided with sufficient food, water and medical care. The evacuating authority must also maintain a list of the persons being evacuated. Art. 20.

(ii) Establishment of POW camps

POWs must be located in healthy and hygienic conditions and unless the interests of the prisoners so demand, they shall not be located in penitentiaries. Art. 22.

They cannot be held in areas where they may be exposed to combat fire or where their presence is used to shield the location concerned from attack. POWs must be supplied with air raid shelters and other protective facilities to the same extent as the local civilian population. Art. 23

They must be accommodated in conditions of at least equivalent standard to that provided for the armed forces of the detaining power billeted in the same area, making due allowances for the habits, customs and health of the prisoners. Art. 25

POWs must be provided with adequate amounts of nutritional food, drinking water and must be supplied with adequate and appropriate clothing and footwear. Art 26 & 27. The POW camps must be maintained in a sanitary condition and due care must be taken of the prisoners general health and medical requirements. Art. 29

Religious activity is protected by the Third Convention. Prisoners have complete latitude in the exercise of religion, including communal attendance of religious observances in suitable premises subject only to the dictates of camp discipline. Art. 34

(iii) Transfer of POWs

Where prisoners are kept in transit camps before transfer, they should be kept there for as brief a time as possible (Art. 20) and the same level of protection and conditions must be maintained in these camps as in proper internment camps (Art. 24)

Where there is transfer of POWs, the move must be carried out in conditions at least as favorable to those provided for troops of the detaining authority (Art.46). The sick or the wounded whose health would be put at risk by the move may not be transferred unless their safety requires it. (Art. 47)

A detaining power may transfer POWs to another power but only so long as the transferee power is a party to the Third Geneva Convention. By transferring POWs to another power, the detaining power does not entirely shed its responsibility for the prisoners. The transfer is only effective as long as the receiving state applies the Convention fully. In the event of a violation of these rules, the transferring power is required to take effective measures in order to provide a remedy. Art. 12

(iv) Prosecution of POWs

While POWs cannot be tried or punished simply for their participation in the armed conflict they are subject to the same penal and disciplinary action as members of the armed forces of the Detaining Power. They can thus be prosecuted under the laws of the detaining power and for violations of established principles of international law. Art. 82

During a judicial proceeding POWs are entitled to substantial legal protections during the trial: POWs have the right to be tried before the same courts and facing the same procedures that the detaining power's military personnel would face, offering "the essential guarantees of independence and impartiality". Art. 84. POWs are entitled to competent counsel to represent them at the trial, and must be informed of the charges against them. POWs are also entitled to have an appeal of their conviction and sentence. Art.105

POWs may be prosecuted for offences committed prior to their capture. They must be provided with the benefits of this convention even if they are convicted. Art. 85.

All of the 1949 Geneva Conventions have achieved the status of customary international law.

CONTACT:

John Heffernan, 617 413-6407; jheffernan@phrusa.org
Barbara Ayotte, 617 695- 0041 ext. 210; bayotte@phrusa.org