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Background on International Humanitarian Law, War Crimes and the War in Iraq

What is international humanitarian law?

International humanitarian law (IHL) is also known as the laws of war. It sets out rules that all combatants must follow. It applies in wars between nations and during civil wars. It is aimed primarily at protecting civilians and captured or injured soldiers during armed conflict. The main sources of IHL obligations are the four Geneva Conventions of 1949, their two protocols of 1977, and customary international law (principles that, because of their wide acceptance by nations, are considered binding on all belligerents). The United States, the United Kingdom, and Iraq are parties to the 1949 Geneva Conventions.

Related Material
U.S.: Hundreds of Civilian Deaths in Iraq Were Preventable
Press Release, December 12, 2003

U.K. Military Practices Linked to Iraqi Civilian Casualties
Press Release, December 12, 2003

What are some of the key obligations of international humanitarian law?

IHL protections fall into two main categories. The first concerns the proper treatment of civilians and captured combatants by a party to a conflict. The Geneva Conventions provide detailed rules on how they must be treated. The most serious IHL violations are considered war crimes, including willful killing, torture and inhuman treatment, the taking of hostages, unlawful deportation and confinement, and willfully depriving a person of the rights of fair and regular trial.

The second category of violations concerns the conduct of warfare and the weapons used. Warring forces may not intentionally attack civilians or civilian facilities. Attacks that do not or cannot discriminate between combatants and civilians are illegal. Civilians cannot be used as “human shields.” All feasible precautions must be taken to minimize harm to civilians. Attacks that cause disproportionate harm to civilians—that is, harm outweighing the military advantage—are prohibited. To the maximum extent feasible, civilians should be removed from battle zones, and military defenses should not be placed in populated areas.

How are war crimes and violations of IHL punished?

States have primary responsibility for prosecuting war crimes. War crimes have also been prosecuted by special international tribunals such as the Nuremberg tribunals after World War II and the international criminal tribunals for the former Yugoslavia and Rwanda. The newly established International Criminal Court is empowered to prosecute war crimes; neither the United States nor Iraq is a party to the court. States have a duty to denounce and prevent all violations of IHL, in addition to those that constitute grave breaches of the Geneva Conventions.

Did U.S. or British forces commit war crimes or violations of IHL in Iraq?

U.S. forces engaged in a number of practices that may have violated international humanitarian law. U.S. cluster munition strikes in populated areas may have been indiscriminate attacks in violation of IHL for not distinguishing between combatants and civilians. British forces also used cluster munitions in populated areas. While Human Rights Watch was unable to make case-by-case determinations, it believes that many of the cluster munition attacks in populated areas in Iraq would violate IHL. The U.S. "decapitation" strikes aimed at Iraqi leaders may have also been indiscriminate attacks in violation of IHL because their targeting method could not distinguish between combatants and civilians. Furthermore, all 50 U.S. "decapitation" strikes failed to kill the targeted leaders, but killed dozens of civilians. The continued resort to these strikes despite their complete lack of success and the significant civilian losses they caused can be seen as a failure to take "all feasible precautions" as required by IHL. During the course of Human Rights Watch's investigation, evidence did not emerge suggesting that coalition forces committed war crimes.

Did Iraqi forces commit war crimes or violations of IHL?

Iraqi forces committed numerous violations of IHL during the major hostilities in March and April 2003. These included use of human shields, abuse of the red cross and red crescent emblems, use of antipersonnel mines, and the placing of military objects in protected areas such as mosques and hospitals. While these acts would have to be evaluated on a case-by-case basis, it is likely that many of them constituted war crimes.