As Coalition forces in Free Iraq struggle to impose security and restore basic services, the U.S. faces yet another pressing task: bringing swiftly to justice all those responsible for war crimes against members of the U.S. armed forces since the beginning of Operation Iraqi Freedom.

Early indications are promising. President George W. Bush has delivered clear policy guidance: “War criminals will be hunted relentlessly and punished severely.” Even now the Army’s 75th Exploitation Task Force, staffed by seasoned criminal investigators, forensic experts, and pathologists, is scouring Iraq for evidence. What’s more, senior administration officials have rightly decided to separate U.S. prosecutions of war crimes against U.S. forces from planned Iraqi-led proceedings dealing with the Baathist regime’s previous atrocities against the Iraqi people. This is an appropriate division of responsibility that will greatly simplify and speed the pursuit of justice in both cases.

EDITOR’S NOTE: This is the first of two articles focusing on Iraqi war crimes against U.S. forces. A separate article will consider why the Iraqis themselves — rather than some international tribunal — should prosecute the Baathist regime’s massive crimes against the Iraqi people.

1. War Crimes in General. What exactly are war crimes? These are crimes under international law consisting of the most severe violations of the laws and customs of war committed during international armed conflicts. These overlapping categories of positive law — mainly treaties — and customary law — roughly speaking, consistent state practice creating binding obligations for all states — are the twin foundations of the body of law known as international humanitarian law. In general, treaties bind only those states which are parties, but some or all of their terms may gain such widespread recognition and acceptance that these terms come to bind all states. Such is the case with the two most relevant modern treaties governing the proper conduct of war: all four 1949 Geneva Conventions (GC I-IV) and the 1907 Hague Convention IV.

Another relevant source of law is the 1977 Additional Protocol I (AP I) to the Geneva Conventions, which must be used with care. Most — but not all — of its terms are widely regarded as simply restating and refining existing customary international law, the principal exception (discussed below) being its lowered standard of lawful conduct for paramilitary and irregular (guerilla) forces. Apart from this and a handful of other highly controversial provisions — which the U.S. cited in declining to ratify this treaty — AP I represents customary international law; and the U.S. has accepted this consensus and incorporated these terms into its official guidance for U.S. armed forces (see Field Manual 27-10).

More generally, the laws and customs of war are based on the recognition of appropriate limits designed to curb unnecessary suffering or destruction and to safeguard noncombatants. The whole logic of this body of law explicitly rejects the proposition that, during armed conflict, anything goes. Consider the general principle underlying the Hague Convention: “The right of belligerents to adopt means of injuring the enemy is not unlimited” (art. 22). In principle, such limitations are at least as ancient as Deuteronomy’s stern injunction against felling fruit-bearing trees for use as siege engines (Deut 20: 19-20). In fact, the direct antecedents of modern war crimes are found in medieval concepts of sin and dishonor that also underlie the just-war tradition governing the morally legitimate use of force (ius in bello) during armed conflict.

Like the ius in bello principles, international humanitarian law addresses means, not ends; and it applies in all international conflicts, notwithstanding their perceived rights or wrongs.

Recognition of due limits in armed conflict in turn rests on the just-war principles of proportionality (forbidding infliction of unnecessary suffering or destruction) and discrimination (forbidding direct and intentional attacks against noncombatants). The latter principle — also known as the principle of distinction — requires combatants to distinguish between hostile combatants and legitimate military targets, on the one hand, and noncombatants and civilian objects, on the other.

Combatants and noncombatants are categories corresponding roughly with soldiers and civilians respectively, with some exceptions. Clearly designated military medical and religious personnel are noncombatants immune from lawful attack; and some civilians (senior civilian defense officials and on-duty defense industry workers, for instance) are combatants and therefore legitimate military targets.

2. Iraqi War Crimes in Particular. The scale and gravity of the war crimes committed by Iraqi forces are appalling. According to Joint Chiefs Chairman Gen. Richard Myers, these crimes have resulted in a significant proportion of overall U.S. casualties: “Some of the biggest losses we have taken are due to Iraqis committing serious violations of the law of armed conflict and the Geneva Conventions, by dressing as civilians and [by] luring us into surrender situations and opening fire on our troops.” These violations prompted Defense Secretary Donald Rumsfeld to conclude on April 3 that “Iraq is running out of real soldiers and soon all that will be left are war criminals.”

Nearly every reported Iraqi war crime to date involves grave violations of the principle of distinction, either by unlawfully misusing noncombatant status or by unlawfully mistreating noncombatants (Coalition prisoners and Iraqi civilians alike). The most heinous such crimes — generally termed “grave breaches” under the Geneva Conventions — fall into these four categories:

Feigned Surrenders. In “countless cases” — according to State Department Ambassador-at-Large for War Crimes Pierre-Richard Prosper — Iraqi fighters have feigned surrender and then opened fire on U.S. forces. During just one such episode, nearly two-dozen U.S. Marines were killed or wounded at Nasiriyah on March 23.

Under the 1907 Hague Convention, “it is especially forbidden … to make improper use of a flag of truce” and “to kill or wound treacherously individuals belonging to the hostile nation or army” (art. 23). AP I, moreover, specifically defines as unlawful “perfidy” any “feigning of an intent to negotiate under a flag of truce or of a surrender” and any “feigning of civilian, noncombatant status” (art. 37).

Both provisions cited reflect universally accepted and binding principles of customary international law. The rationale is that combatants manifesting an intent to surrender are thereby transformed irrevocably into noncombatants and so forfeit their so-called “combatant’s privilege” — in essence their license to kill enemy combatants with immunity from prosecution for engaging in lawful acts of war. In effect, the legal right to honorable surrender — and the related prohibition against refusing quarter — creates a corresponding duty to observe the limits of noncombatant status. As a practical matter, fake surrenders unlawfully endanger innocent comrades by making adversaries understandably reluctant to accept subsequent acts of surrender at face value.

Feigned surrenders must be distinguished from lawful ruses of war, such as the use of deception, camouflage or misinformation, as well as such tactics as ambushes or hit-and-run attacks. In other words, a combatant may lawfully disguise himself as a shrub, but not as a noncombatant, either in the guise of a civilian or a surrendering combatant — or by hiding among crowds of civilians. All three practices — repeatedly engaged in by Iraqi forces — are equally unlawful and deserve severe punishment.

Misuse of Noncombatant Status. Iraqi forces have repeatedly — and unlawfully — fought in civilian guise. This lamentably widespread practice violates the fundamental norm of distinction by deliberately blurring the essential difference between combatants and noncombatants. It therefore endangers both U.S. troops faced with such potential treachery and Iraqi civilians by making them all potentially hostile in the eyes of U.S. troops. Hence this April 1 comment by an unnamed senior Pentagon official: “Everyone is now seen as a potential combatant until proven otherwise.”

GC III (art. 4) limits lawful exercise of the so-called combatant’s privilege to forces — whether regular, militia or irregular — observing all these conditions:

(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carry arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

In many instances Iraqi fighters have violated most if not all of these requirements. These are the relevant legal standards, since neither the U.S. nor Iraq has ratified AP I, whose lower standard for lawful combatants (carrying arms openly before and during military engagements) remains by far that instruments most controversial provision (and therefore not accepted as customary international law). These violations may result in forfeiture of the combatant’s privilege, with consequences discussed below.

No doubt the most egregious examples of this particular war crime are suicide car bombings conducted against U.S. troops at vehicle checkpoints. Two of these attacks resulting in American deaths were conducted by an Iraqi officer in mufti and by a visibly pregnant woman in civilian clothes. These atrocities differ fundamentally from World War II kamikaze attacks by means of clearly identifiable military aircraft. In these car-bombing cases, the immediate perpetrators are beyond the reach of U.S. justice; but their superiors and associates are fair game.

— Jack Cullinan, a lawyer, formerly served as a senior foreign-policy adviser to the U.S. Catholic bishops.