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Iraq: Questions Regarding the Laws of War
 
March 18, 2003 Standard Version

The pending U.S. war in Iraq raises a host of legal issues. The legality of preemption and the necessity to obtain UN Security Council approval for the use of force are two outstanding concerns. Less frequently explored are issues regarding the proper conduct of military operations. Various possible scenarios could complicate efforts to carry out the war in accordance with the law of armed conflict.

The law of armed conflict regulates military operations in an attempt to protect civilians and civilian objects from the devastation of war. Also known as the law of war or international humanitarian law, the law of armed conflict comprises the Geneva Conventions of 1949, the two Additional Protocols to the Geneva Conventions, and customary international law. The fundamental principles of discrimination (the distinction between civilians and combatants) and proportionality (the avoidance of gratuitous harm to civilians and civilian objects by weighing the potential benefits of a military objective against potential collateral damage) form the basis of the law.

Potential challenges to the law of armed conflict include urban combat, the use of human shields, ambiguity regarding the appropriateness of targets, including dual-use targets, and the use of illegal weapons and certain weapons — nuclear and conventional — that are of questionable legal status.

 
Urban Combat: Military predictions and Iraqi warnings count urban combat as a real possibility during a war in Iraq. By virtue of the presence of civilians in the combat zone, urban combat complicates efforts to distinguish between civilians and combatants. In addition, assuming that the distinction between combatant and civilian can be made, the close proximity of civilians to combatants requires greater precision in attacks.

 
Human shields: Iraq demonstrated its willingness to use human shields in the Gulf War. In anticipation of an upcoming war, Iraq has encouraged individuals to "volunteer" as human shields. In addition, Iraq has forced civilians to act as human shields by placing military facilities near concentrations of civilians. Protocol 1 to the Geneva Conventions prohibits the use of human shields. Human shields do not have the capability to render a point or area immune from military operations. However, the law of armed conflict still holds, and thus any military operation must take into account the presence of civilians in or around a military target when determining the legality of that target.

 
Targeting decisions: Targeting decisions involve the determination of the legality and utility of a particular target. In order to make such a determination, one must consider the principles of discrimination and proportionality. Intelligence is key, as it is the basis for the precision of smart bombs. The reported foundation of the U.S. war plan is "shock and awe," which in its pursuit of rapid dominance may call for the launch of 800 cruise missiles in two days. At the same time, precision-guided "smart bombs" will likely constitute the majority of bombs used - approximately 80 percent as opposed to less than 10 percent of the bombs used in the Gulf War. Proper targeting decisions will require adequate intelligence and a good faith effort to adhere to principles of discrimination and proportionality.

 
Dual-use targets: Dual-use targets, which have a civilian as well as military function, the latter rendering them potential targets, challenge the very notion of discrimination. Examples of dual-use targets include roads, bridges, and electrical grids, the destruction of which could have far-reaching effects on various services, including water- and sewage-treatment facilities. The Pentagon's proposed "rapid dominance" strategy will probably include electrical grids, transportation infrastructure, and communication systems among its targets. As in all operations, the principle of proportionality requires one to weigh the potential benefit of an attack against the potential negative consequences for civilians and civilian objects.

 
Conventional weapons and weapons of mass destruction (WMD): The use of certain conventional weapons, including anti-personnel landmines, and all nuclear weapons, are of questionable legal status. The 1997 Mine-ban Treaty, to which neither the United States nor Iraq is a party, prohibits the use of anti-personnel landmines. According to a 1996 opinion of the International Court of Justice, the use of nuclear weapons is "generally" contrary to international law; no opinion was given as to the legality of the use of nuclear weapons in extreme situations that threaten the survival of a state. The use of chemical and biological weapons is prohibited by the 1925 Geneva Protocol, which is viewed as customary international law. Moreover, anti-personnel land mines and weapons of mass destruction are inherently indiscriminate and thus confound discrimination, one of the fundamental principles of the law of armed conflict. The United States used land mines in the Gulf War and has reportedly transferred land mines to Qatar and Saudi Arabia, suggesting that they may be used in an upcoming war. Many worry that Saddam Hussein, when faced with imminent destruction, will use whatever weapons of mass destruction he may possess. The United States could use "bunker busters," or tactical nuclear weapons. Such actions would challenge current normative and legal barriers to the use of nuclear weapons and other weapons of mass destruction.

 
Collateral damage: Several mitigating factors provide an incentive for the U.S. military to attempt to curtail collateral damage, most notably civilian casualties. First, concern for public opinion (perhaps via the "CNN Effect") is a powerful motivation to conduct a war with as little collateral damage and as few civilian and military casualties as possible. Second, the United States and other coalition members would be responsible for post-war Iraq and thus have an incentive to minimize damage to Iraq's civilian population and infrastructure. As the Army's Law of War Workshop Deskbook affirms, "Adherence to the law of war facilitates the restoration of peace." The anticipated benefits of a war free from needless bloodshed and destruction may offset a potential war's serious challenges to the law of armed conflict.

 
Sources:

Bill, Brian J., Ed., Law of War Workshop Deskbook (2000)

Carroll, Eugene and Rachel Stohl, "Another War, Another Round of Landmines?" The Christian Science Monitor, Feb. 18, 2003.

Central Intelligence Agency Report, "Putting Noncombatants at Risk: Saddam's Use of Human Shields"

Dworkin, Anthony, "In America's Sights: Targeting Decisions in a War with Iraq"

Human Rights Watch, "International Humanitarian Law Issues in a Potential War in Iraq"

International Court of Justice Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons, July 8, 1996

Peterson, Scott, "US Mulls Air Strategies in Iraq," The Christian Science Monitor, Jan. 30, 2003

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)

 

Krista Nelson
CDI Scoville Fellow
knelson@cdi.org

Standard Version

 

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