Under International Humanitarian Law (IHL), the coalition led by the United States is the “Occupying Power” in Iraq. Its conduct as an occupying power is governed primarily by two major international instruments that relate to the treatment of civilians during war and in occupied territories: the 1907 Hague Regulations annexed to the Convention (IV) Respecting the Laws and Customs of War on Land, and the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
An occupying power is responsible for respecting the fundamental human rights of the population under its authority. All persons shall be treated humanely and without discrimination. This includes respecting family, honor and rights, the lives of persons, and private property, as well as religious and customary beliefs and practice. Women shall be especially protected against any attack. Everyone shall be treated with the same consideration by the occupying power without any adverse distinction based, in particular, on race, religion or political opinion. Private property may not be confiscated. However, an occupying power may take such measures of control and security as may be necessary as a result of the war.
An occupying power is specifically prohibited from carrying out reprisals and collective penalties against persons or their property and from taking hostages. The Fourth Geneva Convention permits the internment or assigned residence of protected persons for “imperative reasons of security.” This must be carried out in accordance with a regular procedure permissible under international law and allow for the right of appeal and for review by a competent body at least every six months. The Fourth Geneva Convention provides detailed regulations for the humane treatment of internees.
International Humanitarian Law applies to situations of belligerent occupation as well as situations where hostilities rise to the level of armed conflict. However, the application of IHL (as codified in the Geneva Conventions, its protocols, and other sources) does not preempt the application of international human rights law, particularly non-derogable rights such as the right to life. In situations of this complexity, both legal regimes complement and reinforce each other.
When considering which legal standards apply to a particular situation, it is incumbent to distinguish between a legitimate military response in situations of armed confrontation, such as exchanges of fire between U.S. and other coalition forces and armed Iraqi opponents of the occupation, and law enforcement and public security requirements. Declaring a situation to be “a state of armed conflict” does not negate the obligation of the occupying power to apply law enforcement standards to maintaining checkpoints, conducting raids on civilian homes and shops, or controlling civilian protests, even if some of these protests turn violent and require dispersal by soldiers or law enforcement officials.
The U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials84 and the U.N. Code of Conduct for Law Enforcement Officials85 provide international standards governing the use of force in law enforcement. These principles, while not legally binding, provide authoritative guidance and reflect a high level of consensus by the international community about the standards that states are required to apply on the use of force and firearms by law enforcement officials. The Basic Principles define “law enforcement officials” to include “all officers of the law, whether appointed or elected, who exercise police powers, especially the power of arrest or detention. In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.”86
Principle 9 of the Basic Principles states:
The Basic Principles provide that law enforcement officials shall “as far as possible, apply non-violent means before resorting to the use of force and firearms.” (Principle 4). The Basic Principles also call for proportionality in the amount of force used (Principle 5), for the adoption of reporting requirements where force or the use of firearms lead to injury or death (Principle 6), and for governments to ensure that “arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law” (Principle 7).
The U.N. Code of Conduct for Law Enforcement Officials applies similar international human rights standards for law enforcement. Article 3 of the Code requires that “[l]aw enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” The official commentary accompanying Article 3 sets forth detailed standards applying to the use of firearms, arguing for restraint in their use (“The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children”), and recognizing the principle of proportionality in the use of firearms (“In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved”).
In a meeting with Human Rights Watch, officials from the U.S. JAG and the CPA General Counsel’s office agreed that U.S.-led coalition forces were governed by the Fourth Geneva Convention. There had been no cessation of hostilities in Iraq, they said, and therefore the coalition was in “a state of armed conflict and a state of occupation.”88
The Geneva Conventions set less stringent conditions for resorting to lethal force when dealing with persons actively engaged in hostilities, but the basic principle remains the same: to protect civilians. Under international humanitarian law, the prohibition against firing on civilians remains absolute, and combatants must at all times distinguish between military and civilian targets. Indiscriminate or disproportionate military actions are strictly prohibited.
Guerilla fighters in Iraq do not have the treaty obligations of a state. They are, however, bound to conduct operations in an armed conflict situation in conformity with the basic humanitarian principles that prohibit under all circumstances targeting civilians or carrying out indiscriminate attacks, or attacks that disproportionately harm civilians. Suicide car and truck bombings like those against the United Nations headquarters in Baghdad and the Imam `Alimosque in al-Najaf are war crimes that violate the most fundamental principles of international humanitarian law.89
84 U.N. Doc. A/CONF.144/28/Rev.1 (1990), adopted in 1990 by the Eighth U.N. Congress on the Prevention of Crime and Offenders.
85 G.A. res. 34/169, annex, 34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979), adopted by the U.N. General Assembly on December 17, 1979.
86 Basic Principles, “Note.”
87 Ibid, Principle 9.
88 Human Rights Watch interview with Col. Marc Warren, Col. Mike Kelly and Major P.J. Perrone, Baghdad, September 23, 2003.
89 See Iraq: End Deliberate Attacks on Civilians, Human Rights Watch press release, August 30, 2003, and Attack on U.N. Headquarters Condemned, Human Rights Watch press release, August 19, 2003.