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XVI. Legal Standards and the Conflict in Iraq

International Humanitarian Law in Iraq

All parties to the military conflict in Iraq—Iraqi government forces, U. S. and other coalition forces and insurgent groups—are bound by international humanitarian law (or the laws of war). International humanitarian law imposes upon warring parties legal obligations to reduce unnecessary suffering and to protect civilians and other non-combatants. An important guiding principle of international humanitarian law is to distinguish between combatants and those not taking part in the hostilities.

International humanitarian law is applicable to situations of armed conflict without regard to the legal basis for the conflict. That is, it applies whether the armed conflict itself is legal or illegal under international law, and whether those fighting are regular armies or non-state armed groups. U.S. and other coalition forces, Iraqi government forces and insurgent groups are all obligated to respect the laws of war regardless of whether the armed conflict and resulting occupation are considered lawful or not.

Likewise, insurgency is not in itself a violation of international humanitarian law. The laws of war do not prohibit the existence of insurgent groups or their attacks on legitimate military targets. Rather, it restricts the means and manner of insurgent attacks and imposes upon them a duty to protect civilians and other non-combatants. In other words, international humanitarian law does not regulate if states and armed groups engage in hostilities, but rather how states and armed groups engage in hostilities. Human Rights Watch, consistent with our position of neutrality in armed conflicts, takes no position on the legality under international law of the U.S.-led invasion of Iraq or the resulting insurgency.

The specific international humanitarian law provisions applicable in Iraq have changed as the nature of the conflict has evolved over the past two years. The U.S.-led attack on Iraq that began on March 20, 2003 is considered to be an international armed conflict—a conflict between opposing states. The law applicable to international conflicts includes the four Geneva Conventions of 1949, to which Iraq and the United States are party,391 and the Hague Regulations of 1907,392 which are considered reflective of customary international law.

With the fall of the Iraqi government in April 2003, the United States along with the United Kingdom became occupying powers under international law, regulated primarily by the Hague Regulations and the Fourth Geneva Convention.393 Occupying powers have a legal obligation to restore and ensure, as far as possible, public order and safety in the territory under their authority.394 Military commanders on the ground must act to prevent and where necessary suppress serious violations involving the local population under their control or subject to their authority. The occupying force is responsible for protecting the population from violence by third parties, such as newly formed armed groups or forces of the former government. Ensuring local security includes protecting civilians, including minority group members and other targeted groups, from reprisals and revenge attacks. Until such time that local police can be organized for securing public order, occupying armed forces may have to be deployed in this role. Unless such forces are facing hostilities, the use of force is governed by international human rights standards for law enforcement. That is, only necessary and proportionate force may be used and only to the extent required.395

The occupying powers in Iraq exercised power through the Coalition Provisional Authority (CPA), headed by U.S. diplomat L. Paul Bremer.396 From 2003 to 2004, the CPA gradually transferred power to Iraqi bodies it had established. On July 13, 2003, the CPA created the Interim Governing Council as a stated step towards transferring authority to Iraqis, followed by the Iraqi Interim Government on June 1, 2004, run by Prime Minister Ayad `Allawi.397 On June 28, 2004, the CPA transferred all government authority to the Iraqi Interim Government. The Transitional Administration Law, prepared by the CPA, became supreme law of the land until an elected assembly drafted a new permanent constitution. Under the Geneva Conventions an occupation is considered ended when control by the occupying power is no longer exercised.398 The United Nations, via U.N. Security Council Resolution 1546,399 and the ICRC each determined that the occupation of Iraq under international law ended with the June 28 transfer of power.400

The hostilities in Iraq since the end of the formal occupation are considered a non-international (internal) armed conflict, governed primarily by common article 3 to the Geneva Conventions and customary international humanitarian law.401 Many provisions of the 1977 Protocols, including most of those concerned with protecting the civilian population, are considered reflective of customary international law.402

During armed conflicts, international human rights law remains in effect, though it may be superseded by more specific provisions of international humanitarian law (the principle of lex specialis).403 Human rights law may also be limited by so-called derogation clauses imposed under a state of emergency.404 Some rights can never be derogated from, including the right to life, the right not to be tortured or otherwise mistreated, the right not to be charged ex post facto, and the right to freedom of thought, conscience and religion.405 International humanitarian law has been increasingly interpreted to be consistent with the requirements of human rights law. Thus the fundamental guarantees provided to all persons in custody under common article 3 to the 1949 Geneva Conventions and customary international humanitarian law also can be found in international human rights law.406

On October 16, 2003, the U.N. Security Council authorized a Multi-National Force in Iraq. Dominated by the United States but including other members of the coalition, the Security Council gave the force the authority “to take all necessary measures to contribute to the maintenance of security and stability in Iraq.”407 As of September 2005, the United States had approximately 140,000 soldiers in Iraq.408 Twenty-six countries in the coalition were contributing another 23,000 military personnel.409

National and regional elections were held on January 30, 2005. In addition to eighteen provincial bodies, Iraqis voted for a 275-member Transitional National Assembly. The Assembly appointed a transitional government run by Prime Minister Ibrahim al-Ja`fari, but its main task over 2005 is to draft the constitution, to be presented to the Iraqis for approval in a general referendum scheduled for October 15, 2005.410

International Humanitarian Law and the Protection of Civilians

The changed designation of the conflict since 2003 from an international to an internal armed conflict is largely irrelevant when dealing with the basic issue of civilian protection. Regardless of how a conflict is defined, all forces must respect the principles of preventing unnecessary suffering, ensuring humane treatment, and upholding the distinction between combatants and civilians. It is always forbidden to target civilians, and government armed forces and non-state armed groups must take all feasible precautions to minimize civilian harm.

The principle of distinction between civilians and combatants is recognized as a fundamental principle of international humanitarian law in both international and internal armed conflicts. This principle provides that all parties to a conflict:

must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.411

All parties must also distinguish between civilian objects and military objectives; attacks may not be directed against civilian objects.412 Attacks that are primarily designed to spread terror among the civilian population are prohibited.413

A civilian is defined under international humanitarian law as a person who is not a member of the armed forces. The term “civilian” also includes some employees of the military establishment who assist the armed force.414 This would include, for instance, the numerous civilians serving on military bases as cleaners, translators and construction workers. While as civilians they may not be targeted, these civilian employees of military establishments or those who indirectly assist combatants assume the risk of death or injury incidental to attacks against legitimate military targets while they are in the immediate vicinity of military targets.

Civilians are protected from attack unless and for only such time as they take a direct part in hostilities. In case of doubt whether a person is a civilian, that person is considered a civilian.415

The meaning of “taking a direct part in hostilities” has never been fully clarified. According to the ICRC commentary to Protocol I, “direct participation [in hostilities] means acts of war which by their nature and purpose are likely to cause actual harm to the personnel and equipment of enemy armed forces,” and includes acts of defense.416 Direct participation in hostilities “implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place.” Civilians lose their immunity from attack for as long as they directly participate in hostilities.417

Typically, civilians who fire weapons or directly assist combatants on the battlefield, such as by loading weapons or acting as artillery spotters, are considered to be directly participating in the hostilities. “Hostilities” not only covers the time when the civilian actually makes use of a weapon but also the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon.418 Persons planning military operations or directing attacks would also be considered directly participating in hostilities.

There are a number of gray areas in the phrase “direct participation in the hostilities.” These relate not only to the civilian’s activity and whether it is direct participation or not, but also to its geographic or temporal beginning and end. That is, there is little clarity as to when a civilian with a weapon actually begins participating in the hostilities, and at what point the participation ends. However, civilians subjected to attack documented in this report were unambiguously not directly participating in the hostilities. Iraqi politicians or government employees, civilian officials and staff of foreign governments, humanitarian aid workers, journalists and contractors without a military function are all protected civilians under the laws of war.

Police normally have the status of civilians.419 Police units that take part in military operations or otherwise engage in military functions may be targeted as combatants. Individual police may only be targeted during such time that they take a direct part in the hostilities.420 Recruitment candidates for the police or military, such as those waiting in line outside police stations or army recruitment centers, are also civilians not considered to be participating in hostilities.

The principle of distinction is also enshrined in common article 3 of the four Geneva Conventions, which imposes legal obligations on all parties to a conflict to ensure humane treatment of persons not, or no longer, taking an active role in hostilities. Common article 3 states:

Persons taking no active part in the hostilities, including members of armed forces who had laid down their arms and those placed hors de combat [out of combat] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

Common article 3 expressly binds “each Party to the conflict,” that is, government forces and non-state armed groups, even though the latter do not have the legal capacity to sign the Geneva Conventions. In Iraq, the Multi-National Force, Iraqi government forces and organized insurgent groups are parties to the conflict and therefore bound by common article 3’s provisions.

The obligation to apply common article 3 is absolute for all parties to the conflict and independent of the obligation of the other parties. In other words, Iraqi insurgent groups cannot excuse themselves from complying with common article 3 on the grounds that the Multi-National Force or Iraqi government forces are violating common article 3, and vice versa.

With regard to civilians and captured combatants, both government and insurgent forces are prohibited from using violence to life and person, in particular murder, mutilation, cruel treatment and torture. The taking of hostages is forbidden, as is humiliating and degrading treatment. No party to the conflict may pass sentences or carry out executions without previous judgment by a regularly constituted court that has afforded the defendant all judicial guarantees.421

Customary international humanitarian law provides a more encompassing list of protections for civilians in internal armed conflicts. While not an all-inclusive list, the following practices, orders, and actions are prohibited by all sides:

  • Rape and other forms of sexual violence.422

  • Enforced disappearance.423

  • Arbitrary deprivation of liberty.424

  • Convictions or sentencing without a fair trial.425

  • Collective punishments.426

  • Desecration of corpses.427

    In addition parties must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need.428 The freedom of movement of humanitarian relief workers must be ensured.429

    Designation of Military Objectives

    Under international humanitarian law, a legitimate military objective is an object or a target, selected by its nature, location, purpose, or use, that contributes effectively to the enemy’s military capability, and whose destruction or neutralization offers a definite military advantage in the circumstances.430 Legitimate military objectives include the enemy’s forces, weapons, convoys, installations, and supplies. In addition, objects generally used for civilian purposes, such as houses, buses, taxicabs, or a civilian airfield, can become military objectives if their location or use meets the criteria for a military objective.”431

    The laws of war characterize all objects as civilian unless they satisfy the two-fold test mentioned above. Objects normally dedicated to civilian use, such as houses, mosques, churches and schools, are presumed not to be military objectives. If they do in fact assist the enemy’s military action, they can lose their immunity from direct attack. This presumption only attaches to objects that ordinarily have no significant military use or purpose. For example, this presumption would not include objects such as transportation and communications systems that under applicable criteria are military objectives.

    The attacker must take all feasible precautions to verify that the objectives to be attacked are military and not civilian. “Feasible” means “that which is practical or practically possible taking into account all the circumstances at the time, including those relevant to the success of military operations.”432 At the same time, defenders must take all feasible precautions to protect civilians under their control from the effects of attacks.433 During international armed conflicts and arguably during internal ones, all parties must avoid locating military objectives near densely populated areas and they must, to the extent feasible, remove civilians and civilian objects from the vicinity of military objectives.434

    Prohibition on Attacks Causing Disproportionate Civilian Harm and Indiscriminate Attacks

    International humanitarian law prohibits attacks that cause disproportionate harm to civilians or which cannot discriminate between civilians and military objectives.

    The principle of proportionality obliges combatants to choose a means of attack that avoids or minimizes damage to civilians. Attacks are prohibited if they may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.435

    If an attack can be expected to cause incidental civilian casualties or damage, two requirements must be met before that attack is launched. First, there must be an anticipated “concrete and direct” military advantage. Thus, a remote advantage to be gained at some unknown time in the future would not be a proper consideration to weigh against expected civilian losses.”436

    Creating conditions “conducive to surrender” by conducting attacks that incidentally harm the civilian population437 is too remote to qualify as a “concrete and direct” military advantage.438

    The second requirement of the principle of proportionality is that the foreseeable injury to civilians and damage to civilian objects not be disproportionate, that is, “excessive” in comparison to the expected “concrete and definite military advantage.”

    Excessive damage is a relative concept. For instance, the presence of a single soldier cannot serve as a justification to destroy the entire village. If the destruction of a bridge is of paramount importance for the occupation of a strategic zone, “it is understood that some houses may be hit, but not that a whole urban area be leveled.”439 There is never a justification for excessive civilian casualties, no matter how valuable the military target.440

    Indiscriminate attacks are also prohibited. An indiscriminate attack has been defined as an attack that:

    1) is not directed at a specific military objective;

    2) employs a method or means of combat that cannot be directed at a specific military objective; or

    3) employs a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.441

    Suicide Attacks and International Law

    Suicide attacks are a method of warfare that in themselves do not violate the laws of war. For example, Japanese kamikaze attacks against U.S. military forces during World War II were lawful attacks on military targets. In Iraq, most suicide attacks have been carried out by persons carrying explosive devices on their person or driving vehicles packed with explosives. As weapons they are very discriminate: a suicide bomber is able to detonate with an accuracy that exceeds that of the most sophisticated guided weapon. It is not an inherently indiscriminate weapon, such as land mines or roadside bombs detonated by a timing mechanism.

    Yet for several reasons, many if not most of the suicide bomb attacks carried out in Iraq have been in violation of the laws of war. First, many of the suicide bombers have targeted civilians or civilian objects, not military targets. Second, attacks conducted against military targets have been against police stations or convoys surrounded by civilians, such that the attacks caused disproportionate civilian casualties compared to the expected military advantage. Third, most suicide bombers have carried out their attacks dressed as civilians with their explosives hidden, although they are combatants under the law; any attempt to feign civilian or noncombatant status to deceive the enemy into letting down their guard is perfidy, and violates international humanitarian law.442

    Perfidy poses particular dangers because it blurs the distinction between enemy soldiers, who are a valid target, and civilians and other noncombatants, who are not. Soldiers fearful of perfidious attacks are more likely to fire upon civilians and wounded or surrendering soldiers, however unlawfully. Perfidy is distinguished from ruses of war, such as mock operations, misinformation, surprises, ambushes, or the use of camouflage or decoys. Ruses are permissible acts of warfare intended to trick the enemy; they do not violate international law to the extent that they do not depend on taking advantage of an enemy’s willingness to abide by the law protecting noncombatants.443

    Criminal Responsibility

    Serious violations of international humanitarian law are war crimes. All individuals—combatants and civilians—are criminally responsible for war crimes they commit. Military commanders, whether of regular armed forces or non-state armed groups, may be held responsible for war crimes committed under their orders. They may also be held culpable as a matter of command responsibility for crimes committed by their subordinates if they knew or should have known of the crimes and did not take all necessary and reasonable measures to prevent such crimes or to punish those responsible.444

    The law governing internal armed conflicts does not recognize what is known as the combatant’s privilege—the license to kill or capture enemy troops, and destroy military objectives. The privilege immunizes combatants from criminal prosecution by their captors for violent acts that do not violate the laws of war but would otherwise be crimes under domestic law. Members of armed groups may be prosecuted under domestic law for participating in the hostilities.445 Specifically, Iraqi courts can prosecute captured insurgents taken into custody according to international fair trial standards for such offenses under Iraqi law. They may also be prosecuted under a CPA order that prohibits the possession, transport, concealment, sale, and use of unauthorized firearms, and military weapons, by any individuals other than the coalition forces, Iraqi security police and personnel under the supervision of the coalition and private security companies licensed by the Ministry of the Interior.446

    Any non-Iraqis taking part in insurgent activities in Iraq would generally be governed by the same laws that apply to Iraqis, that is, they could be prosecuted for taking up arms. Such persons could also be legally returned to their home country unless there are substantial grounds for believing they will be subjected to torture, ill-treatment or persecution upon return.447

    Crimes Against Humanity

    Some insurgent groups have committed murder, torture and other offenses as part of widespread or systematic attacks against the civilian population. When carried out as part of a group’s policy or plan—evidenced for instance by claims of responsibility for suicide attacks against civilians—such attacks are crimes against humanity.

    Crimes against humanity were first codified in the charter of the Nuremberg Tribunal of 1945 to prohibit crimes “which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied…endangered the international community or shocked the conscience of mankind.”448 The concept has been incorporated into a number of international treaties and the statutes of international criminal tribunals, including the Rome Statute of the International Criminal Court.449 The definition of crimes against humanity varies slightly by treaty, but as a matter of customary international law the term “crimes against humanity” includes a range of serious human rights abuses committed as part of a widespread or systematic attack by a government or non-state group against a civilian population.450 Murder and torture all fall within the range of acts that can qualify as crimes against humanity.451 Unlike war crimes, crimes against humanity may be committed in times of peace or in periods of unrest that do not rise to the level of an armed conflict.

    Crimes against humanity include only abuses that take place as part of an attack against a civilian population. So long as the targeted population is of a predominantly civilian nature, the presence of some combatants does not alter its classification as a “civilian population” as a matter of law.452 Rather, it is necessary only that the civilian population be the primary object of the attack.453 The attack against a civilian population underlying the commission of crimes against humanity needs only to be widespread or systematic; it need not be both.454 “Widespread” refers to the scale of the acts or number of victims.455 A “systematic” attack indicates “a pattern or methodical plan.”456 Finally, the perpetrator must have known that the conduct was part of a widespread or systematic attack against a civilian population.457

    Those who commit crimes against humanity, like war crimes, are held individually criminally responsible for their actions. Crimes against humanity give rise to universal jurisdiction, they do not permit the defense of following superior orders, and they do not benefit from statutes of limitation. There is an emerging trend in international jurisprudence and standard setting that those responsible for crimes against humanity and other serious violations of human rights should not be granted amnesty.458 As in the case of war crimes, all states are responsible for bringing those who commit crimes against humanity to justice.



    [391] The four Geneva Conventions are: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 U.N.T.S. 287, entered into force October 21, 1950.

    [392] Hague Regulations annexed to the Convention (IV) Respecting the Laws and Customs of War on Land, 1907 (Hague Regulations).

    [393] International humanitarian law provides that once an occupying power has assumed

    authority over a territory, it is obliged to restore and maintain, as far as possible, public order

    and safety. Hague Regulations, article 43. U.S. President George W. Bush declared an end to major combat operations on May 1, 2003, but the U.S. government did not contest that it was an occupying power. U.N. Security Council Resolution 1483 (May 22, 2003), recognized the situation in Iraq as one of occupation under international law. In a September 2003 meeting with Human Rights Watch, officials from the U.S. Judge Advocate General and the CPA General Counsel’s office said that there had been no cessation of hostilities in Iraq, and therefore the coalition was in “a state of armed conflict and a state of occupation.” Human Rights Watch interview with Col. Marc Warren, Col. Mike Kelly and Maj. P.J. Perrone, Baghdad, September 23, 2003.

    [394] Hague Regulations, article 43.

    [395] See Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, August 27 to September 7, 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990).

    [396] The CPA passed regulations, orders and memoranda on issues ranging from security to taxes. It also prepared the Law on Administration for the State of Iraq for the Transitional Period (Transitional Administration Law, or TAL), which was intended as temporary constitutional law. The validity of certain provisions of the TAL under the law of occupation is a matter of dispute. See, e.g. Naomi Klein, “Iraq is Not America’s to Sell,” The Guardian (UK), Nov. 7, 2003; Antonia Juhasz, “The Handover That Wasn’t,” Foreign Policy in Focus, posted July 20, 2004.

    [397] The U.N. Security Council endorsed the Iraqi Interim Government on June 8, 2004, in resolution 1546. The CPA acknowledged the members of the interim government the next day (CPA Regulation 10, Members of Designated Iraqi Interim Government with Annex A, June 9, 2004).

    [398] See ICRC Commentary to the Fourth Geneva Convention, art. 6.

    [399] The U.N. Security Council endorsed the Interim Iraqi Government on June 8, 2004, in resolution 1546. The CPA acknowledged the members of the interim government the next day (CPA Regulation 10, Members of Designated Iraqi Interim Government with Annex A, June 9, 2004).

    [400] The ICRC issued a statement on August 5, 2004 that stated in part:

    After the hand-over of power from the Coalition Provisional Authority to the interim Iraqi Government on 28 June 2004, following the United Nations Security Council resolution 1546 stating the end of the foreign occupation, the legal situation has changed. As stated in the resolution, the presence and the military operations of the Multi-National Forces in Iraq are based on the consent of the Interim Government of Iraq. The ICRC therefore no longer considers the situation in Iraq to be that of an international armed conflict between the US-led coalition and the state of Iraq and covered by the Geneva Conventions of 1949 in their entirety. The current hostilities in Iraq between armed fighters on one hand opposing the Multi-National Force (MNF-I) and/or the newly established authorities on the other, amount to a non-international armed conflict. This means that all parties including MNF-I are bound by Article 3 common to the four Geneva Conventions, and by customary rules applicable to non-international armed conflicts.

    (ICRC, “Iraq post 28 June 2004: protecting persons deprived of freedom remains a priority,” August 5, 2004, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList265/89060107D77D7299C1256EE7005200E8, as of September 15, 2005.

    For an analysis of the occupation’s legal end, see Sir Adam Roberts, “The End of Occupation in Iraq,” International Humanitarian Law Research Initiative, June 28, 2004, available at http://www.ihlresearch.org/iraq/feature.php?a=51, as of September 15, 2005.

    [401] An authoritative study of customary international humanitarian law is the two-volume ICRC Customary International Humanitarian Law (2005). Important sources of customary international humanitarian law are the First and Second Additional Protocols of 1977 to the 1949 Geneva Conventions (respectively Protocol I and Protocol II). Protocol I, which has been ratified by Iraq, applies to international armed conflicts but many provisions on the methods and means of warfare are recognized as reflective of customary law during internal armed conflicts. Protocol II applies during internal armed conflicts and virtually all of its provisions are considered indicative of customary law. See generally Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II), of 8 June 1977.

    [402] See, e.g. Theodore Meron, Human Rights and Humanitarian Norms as Customary Law, 1989, pp.62-70, 74-78 (discussing the customary law character of certain aspects of Protocol I). In 1987, the U.S. State Department Deputy Legal Advisor gave a speech in which he enumerated many of the principles enshrined in Protocol I that the U.S. considers customary international law. See “The Sixth Annual American Red-Cross Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions,” The American University Journal of International Law and Policy, Vol. 2, No. 2, Fall 1987, pp. 419-427 (containing remarks of Michael J. Matheson).

    [403] See International Court of Justice, Nuclear Weapons Case, Advisory Opinion (1996).

    [404] See International Covenant on Civil and Political Rights (ICCPR), article 4. Seealso, Human Rights Committee, General Comment 29, States of Emergency, article 4, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 186 (2003).

    [405] ICCPR, art. 4(2).

    [406] See generally the discussion of fundamental guarantees, ICRC, Customary International Humanitarian Law, pp. 299-383..

    [407] U.N. Security Council Resolution 1511, October 16, 2003.

    [408] “Two Infantry Battalions to Deploy to Iraq for Election Period,” States News Service, August 24, 2005.

    [409] The countries in the Multi-National Force as of July 1, 2005, were: Albania, Armenia, Australia, Azerbaijan, Bulgaria, Czech Republic, Denmark, El Salvador, Estonia, Georgia, Italy, Japan, Kazakhstan, South Korea, Latvia, Lithuania, Macedonia, Mongolia, Netherlands, Norway, Poland, Romania, Slovakia, United Kingdom, and Ukraine.

    [410] If the constitution is accepted by more than 50 percent of voters, elections for a new Assembly will be held within two months. If the constitution is rejected, the Transitional Assembly will be dissolved and Iraqis will elect a second Transitional Assembly to redraft the constitution. The permanent constitution also will fail if rejected by two-thirds of the voters of any three provinces.

    [411] ICRC, Customary International Humanitarian Law, Rule 1, citing Protocol I, articles 48, 51(2), 52(2); Protocol II, article 13(2).

    [412] ICRC, Customary International Humanitarian Law, Rule 7, citing Protocol I, arts. 48 and 52(2).

    [413] ICRC, Customary International Humanitarian Law, Rule 2, citing Protocol I, art. 51(2); Protocol II, article 13(2).

    [414] Civilians include those persons who are “directly linked to the armed forces, including those who accompany the armed forces without being members thereof, such as civilian members of military aircraft crews, supply contractors, members of labour units, or of services responsible for the welfare of the armed forces, members of the crew of the merchant marine and the crews of civil aircraft employed in the transportation of military personnel, material or supplies. . . . Civilians employed in the production, distribution and storage of munitions of war. . . .” See M. Bothe, K. Partsch, and W. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 1982), pp. 293-94.

    [415] Protocol I, Article 50(1). Some states have expressed reservations about the military implications of a strict interpretation of this rule. According to the ICRC, “when there is a situation of doubt, a careful assessment has to be made as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious.” See ICRC, Customary International Humanitarian Law, pp. 23-24.

    [416] ICRC, Commentary on the Additional Protocols, p. 619.

    [417] Bothe, New Rules for Victims of Armed Conflicts, p. 303.

    [418] ICRC, Commentary on the Additional Protocols, p. 618-19. This is a broader definition than “attacks” and includes at a minimum preparation for combat and return from combat. Bothe, New Rules for Victims of Armed Conflicts, p. 303.

    [419] See Bothe, New Rules for Victims of Armed Conflicts, p. 240; Report of Working Group B, Committee I, 18 March 1975 (CDDH/I/238/Rev.1; X, 93), in Howard S. Levie, ed., The Law of Non International Armed Conflict, (Dordrecht, Netherlands: Martinus Nijhoff, 1987), p. 67.

    [420] ICRC, Customary International Humanitarian Law, rule 4, citing Protocol I, article 43(1). The commentary to rule 4 states: “Incorporation of paramilitary or armed law enforcement agencies into armed forces is usually carried out through a formal act, for example, an act of parliament. In the absence of formal incorporation, the status of such groups will be judged on the facts and in the light of the criteria for defining armed forces. When these units take part in hostilities and fulfill the criteria of armed forces, they are considered combatants.” Ibid. p. 17.

    [421] Common article 3 to the 1949 Geneva Conventions.

    [422] ICRC, Customary International Humanitarian Law, rule 93, citing 1949 Geneva Conventions, common article 3; Protocol I, art. 75(2); Protocol II, art. 4(2).

    [423] ICRC, Customary International Humanitarian Law, rule 98.

    [424] ICRC, Customary International Humanitarian Law, rule 99. Arbitrary deprivation of liberty violates the right to humane treatment under common article 3 to the Geneva Conventions.

    [425] ICRC, Customary International Humanitarian Law, rule 100, citing Protocol I, art. 75; common article 3 to the Geneva Conventions.

    [426] ICRC, Customary International Humanitarian Law, rule 103, citing Hague Regulations, art. 50; Third Geneva Convention, art. 87; Fourth Geneva Convention, art. 33.

    [427] ICRC, Customary International Humanitarian Law, rule 113, citing Hague Regulations, article 16; 1949 Geneva Conventions; Protocol I, article 34; and Protocol II, article 8.

    [428] ICRC, Customary International Humanitarian Law, rule 55, citing Fourth Geneva, article 23; Protocol I, art. 70(2).

    [429] ICRC, Customary International Humanitarian Law, rule 56, citing Protocol I, article 71(3); Protocol II, article 18(2).

    [430] ICRC Customary International Humanitarian Law, rule 8, citing Protocol I, art. 52(2).

    [431] Bothe, New Rules for Victims of Armed Conflicts, pp. 306-07.

    [432] ICRC Customary International Humanitarian Law, rule 16, citing Protocol I, article 57(2)(a); see also Bothe, New Rules for Victims of Armed Conflict, p. 362.

    [433] ICRC Customary International Humanitarian Law, rule 22, citing Protocol I, article 58(c).

    [434] ICRC Customary International Humanitarian Law, rules 23-24, citing Protocol I, article 58(a-b)..

    [435] ICRC, Customary International Humanitarian Law, rule 14; see also Protocol I, arts. 51(5)(b) & 57(2)(iii).

    [436] Bothe, New Rules for Victims of Armed Conflict, p. 365.

    [437] ICRC, Commentary on the Additional Protocols, p. 685.

    [438] Ibid., p. 685. As set out above, to constitute a legitimate military objective, the object, selected by its nature, location, purpose or use must contribute effectively to the enemy's military capability or activity, and its total or partial destruction or neutralization must offer a "definite" military advantage in the circumstances. See Protocol I, art. 52(2) where this definition is codified.

    [439] ICRC, Commentary on the Additional Protocols, p. 684.

    [440] Ibid., p. 626.

    [441] ICRC, Customary International Humanitarian Law, rule 14, citing Protocol I, arts. 51(4)(a).

    [442] ICRC, Customary International Humanitarian Law, rule 65, citing Hague Regulations, article 23(b); Protocol I, art. 37(1). Acts of perfidy include pretending to be a civilian, who cannot be attacked, or feigning surrender (surrendering soldiers also cannot be attacked) so that opposing forces let down their guard at the moment of attack. Other examples include feigning protective status by the misuse of emblems of the United Nations or the red cross and red crescent.

    [443] See ICRC Commentary to Protocol I, pp. 439-441.

    [444] See generally, ICRC, Customary International Humanitarian Law, chapter 43. Regarding command responsibility of commanders of non-state armed groups, see ICTY, Prosecutor v. Aleksovski, Trial Chamber, Judgment, case no. IT-95-14/1, June 25, 1999. (“Superior responsibility is thus not reserved for official authorities. Any person acting de facto as a superior may be held responsible under Article 7(3) [of the ICTY statute on individual criminal responsibility]. The decisive criterion in determining who is a superior according to customary international law is not only the accused’s formal legal status but also his ability, as demonstrated by his duties and competence, to exercise control.” Para. 76).

    [445] Under the laws of war, during a military occupation the criminal laws of the occupied country remain in effect. The occupying power may only set aside or modify laws that pose a security threat to the occupying power or which contradict international legal standards (Fourth Geneva, art. 64). Any new criminal laws must be publicized and ex post facto (retroactive) laws are prohibited (Fourth Geneva, art. 65).

    The Iraqi Penal Code (Law No. 111 of 1969), as amended, includes broad categories of offenses under which those involved in insurgent activities might be prosecuted: offenses against the internal security of the state (pt. II, ch. 2); offences that endanger the public (pt. II, ch. 7); offenses affecting the life and physical safety of others (pt. III, ch. 1); offenses affecting the freedom of an individual and the deprivation of such freedom (pt. III, ch. 2); and, offenses against property (pt. III, ch. 3).

    [446] CPA Order 3 (revised and amended), Weapons Control, December 31, 2003.

    [447] International law prohibits the transfer, return (refoulement) or expulsion of persons to countries where there are substantial grounds for believing that they would be in danger of being subjected to torture. The prohibition against torture and refoulement is absolute and cannot be waived under any circumstances. See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 3. Both Iraq and the United States are party to the convention.

    [448] History of the United Nations War Crimes Commission and the Development of the Laws of War (1943), p. 179, quoted in Rodney Dixon, “Crimes against humanity,” in Commentary on the Rome Statute of the International Criminal Court (O. Triffterer, ed.) (1999), p. 123.

    [449] Rome Statute of the International Criminal Court, 2187 U.N.T.S. 3, entered into force July 1, 2002.

    [450] See Rodney Dixon, “Crimes against humanity,” in Commentary on the Rome Statute of the International Criminal Court (O. Triffterer, ed.) (1999), p. 122. This is the standard applied by Article 7 of the Rome Statute of the International Criminal Court. Iraq is not a state party to the Rome Statute and is therefore not bound by it, but the definition in Article 7 accords with the conception of crimes against humanity in customary international law.

    [451] Murder and torture are among the core offenses that have been included within the definition of crimes against humanity at least since the adoption of the charter establishing the Nuremberg tribunal after World War II. The ICC Statute also lists: extermination, rape, enslavement, deportation, imprisonment, persecution, enforced disappearance, apartheid, and “other inhumane acts.” ICC Statute, article 7(1).

    [452] See, e.g., Prosecutor v. Naletilic and Martinovic,International Criminal Tribunal for the former Yugoslavia (ICTY), Trial Chamber, March 31 2003, par. 235 (“The population against whom the attack is directed is considered civilian if it is predominantly civilian”); Prosecutor v. Akayesu, International Criminal Tribunal for Rwanda (ICTR), Trial Chamber, September 2, 1998, par. 582 (“Where there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character”); Prosecutor v. Jelisic, ICTY Trial Chamber, December 14, 1999, par. 54 (“The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”).

    [453] See Naletilic and Martinovic, para. 235.

    [454] See Prosecutor v. Tadic, ICTY Trial Chamber, para. 646 (“it is now well established that…the acts…can…occur on either a widespread basis or in a systematic manner. Either one of these is sufficient to exclude isolated or random acts.”).

    [455] Akayesu defined widespread as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims,” Prosecutor v. Akayesu, ICTR Trial Chamber, September 2, 1998, para. 579; see also Kordic and Cerkez, ICTY Trial Chamber, February 26, 2001, para. 179; Kayishema and Ruzindana, ICTR Trial Chamber, May 21, 1999, para. 123.

    [456] Tadic, para. 648. In Kunarac, Kovac and Vokovic, the Appeals Chamber stated that “patterns of crimes—that is the non-accidental repetition of similar criminal conduct on a regular basis—are a common expression of [a] systematic occurrence.” Para. 94.

    [457] See Kupreskic et al., ICTY Trial Chamber, January 14, 2000, para. 556: “[T]he requisite mens rea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs.” See also Tadic, ICTY Appeals Chamber, para. 271; Kayishema and Ruzindana, ICTR Trial Chamber, May 21, 1999, paras. 133-134.

    [458] For example, on July 7, 1999, the Special Representative of the Secretary-General attached a disclaimer to the Sierra Leone Peace Agreement, saying “The United Nations interprets that the amnesty and pardon in article nine of this agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law.” See also, Commission on Human Rights, resolutions 1999/34 and 1999/32; the Annual Report of the U.N. Committee Against Torture to the General Assembly, 09/07/1996,A/51/44, para. 117; and U.N. Human Rights Committee General Comment 20, April 10, 1992.


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