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  • AI Index: MDE 14/041/2003 Amnesty International

    Iraq Respecting International

    Humanitarian Law

    BACKGROUND INFORMATION Much of the example of past practice focuses on US or UK armed forces. This should not be taken to imply that the actions of Iraqi forces cause less concern on the contrary. The greater attention to US and UK forces reflects the fact that both have shown, as far as AI is aware, more willingness to respect IHL commitments and to engage in discussing their legal position.

    Introduction AI seeks assurances from all parties that they will do their utmost to comply with their obligations under international human rights and humanitarian law. The need for these assurances is based on their past conduct in conflict and their interpretations of relevant law which sometimes fall short of what AI is demanding. International humanitarian law is the body of rules and principles which seek to protect those who are not participating in the hostilities, including civilians but also combatants who are wounded or captured. It limits the means and methods of conducting military operations. Its central purpose is to limit, to the extent feasible, human suffering in times of armed conflict. The four Geneva Conventions of 1949 and their two Additional Protocols of 1977 are the principal instruments of international humanitarian law. Iraq and the US are parties to the 1949 Geneva Conventions, but neither is a party to the Protocol I relating to the Protection of Victims of International Armed Conflicts (Protocol I adopted in 1977. The United Kingdom and Australia are parties to Protocol I.) However, the fundamental provisions of Protocol I, including the rules cited below (unless otherwise noted) are considered part of customary international law and are therefore binding on all states. If a party to the conflict fails to fulfil their obligations under international humanitarian law, AI will call on other High Contracting Parties (neutral, allied or enemy) of the Geneva Conventions to take action to ensure respect for international humanitarian law (in accordance with common Article 1 of the Conventions.)

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    Basic demands All parties to the conflict must issue clear instructions to their forces:

    prohibiting any direct attacks against civilians or civilian objects, (including in reprisal);

    prohibiting attacks which do not attempt to distinguish between military targets and civilians or civilian objects (indiscriminate attacks);

    prohibiting attacks which, although aimed at a legitimate military target, have a disproportionate impact on civilians or civilian objects;

    prohibiting attacks using inherently indiscriminate weapons;

    to treat humanely all prisoners, the wounded and those seeking to surrender prisoners must never be killed or held as hostages, and to respect the rules relating to prisoners of war;

    to take all other necessary measures to protect the civilian population from the dangers arising from military operations, including not locating military objectives among civilian concentrations;

    to refrain from recruiting and deploying child soldiers

    to punish all breaches of the laws of war and to ensure those responsible are brought to justice.1

    They should also make clear to any of their allied or proxy forces that they expect them to follow the same rules.

    1. No direct attacks on civilians One of the cornerstones of international humanitarian law is the principle that all possible measures must be taken to distinguish between civilian persons and objects, and combatants and military objectives. Article 48 of Protocol I sets out the ''basic rule'' regarding the protection of civilians (often referred to as the principle of distinction):

    1 These concerns, along with others, are set out in People come first - AI's 10-point appeal to all parties

    involved in all military action in Iraq AI Index: MDE 14/022/2003, issued on 18 March 2003.

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    Amnesty International AI Index: MDE 14/041/2003

    ''In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.''

    No states (and very few armed political groups) admit to deliberately targeting civilians. (For attacks on civilians in reprisal see below). Direct attacks on civilians are often justified by denying that the victims are actually civilians. Civilian immunity is also undermined by the manner in which definitions of military objectives/civilian objects are interpreted by attacking forces (see below). In practice, of course, civilians are targeted. In March 1988 an estimated 5,000 people were deliberately killed and thousands wounded as a result of chemical weapon attacks by Iraqi forces on the Iraqi-Kurdish town of Halabja, Sulaimanya province, launched after Kurdish opposition forces had allegedly entered the town. Most of the victims were civilians, many of them women and children.2 Further, hundreds of civilians were killed in northern and southern Iraq by government forces in the wake of the March 1991 uprising.3

    2. Reprisal attacks prohibited Protocol I expressly prohibits all direct attacks on civilians, including attacks carried

    out in reprisal. Article 51 (6) of Protocol I states: AAttacks against the civilian

    population or civilians by way of reprisals are prohibited.@ Protocol I also prohibits

    attacks by way of reprisal against

    civilian objects (Article 52(1))

    cultural objects and places of worship (Article 53(c))

    objects indispensable to the survival of the civilian population (Article 54 (4))

    the natural environment (Article 55 (2))

    works and installations containing dangerous forces (Article 56(4)) In addition to protecting civilians and civilian objects against reprisals, Protocol I also prohibits reprisals against other non-combatants, including the wounded, sick and shipwrecked, medical facilities and personnel. And Geneva Convention III of August

    12, 1949 stipulates that Ameasures of reprisal against prisoners of war are

    prohibited.@

    2 Amnesty International Report 1989, AI Index: POL10/02/89. 3 Amnesty International, Iraq: Human rights violations since the uprising, AI Index: MDE14/05/91.

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    It is contested whether the absolute prohibition on reprisals against civilians is customary law. Some states that have ratified Protocol I, including the UK, have entered reservations specifically on this point, allowing that they may attack civilians in reprisal for prohibited attacks by the other party. The UKs reservation says: The obligations of Articles 51 and 55 are accepted on the basis that any adverse party against which the United Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government. Any measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise there to and will not involve any action prohibited by the Geneva Conventions of 1949 nor will such measures be continued after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning given to an adverse party, and if that warning has been disregarded, of any measures taken as a result. During the 1991Gulf War, Iraq launched ballistic missiles at civilian objects in Israel and Saudi Arabia in retaliation for air strikes by the US and its allies in Iraq. These attacks resulted in the deaths of civilians. Some official Iraqi statements justified the missile attacks as reprisals for violations of the laws of war by the US and its allies. However, reprisals-- in the legal sense of the term -- cannot be launched against a state that is not a party to the conflict (Israel). And other Iraqi statements suggested that, in fact, the purpose of the attacks was to spread terror among the civilian population, which is prohibited by Article 51 (2). The US has refused to rule out reprisals, including through the use of nuclear weapons. US officials have stated that any attack by Iraq using chemical or biological weapons could be met by US reprisal with nuclear weapons. This warning reportedly was also issued during the 1991Gulf War.

    3. Targeting military versus civilian objects

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    Amnesty International AI Index: MDE 14/041/2003

    According to Protocol I, Article 52 (1): Civilian objects are all objects which are not military objectives. Article 52 (2) defines military objectives as

    ''those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.''

    Objects that do not meet these criteria are civilian objects. In cases where it is unclear whether a target is used for military purposes, ''it shall be presumed not to be so used'' (Article 52(3)). The US accepts that the Protocol I definition of military objective reflects customary law. However, it takes a broader view than many states, including most of its NATO allies, of what constitutes effective contribution to military action and definite military advantage. For example, one official US military manual states:

    Military advantage may involve a variety of considerations, including the security of the attacking force. ... Economic targets of the enemy that indirectly but effectively support and sustain the enemys war-fighting capability may also be attacked. 4

    This overbroad interpretation has the potential of depriving civilians of the greater protection offered by the definition in the Protocol. The official US Air Force doctrine suggests that the morale of the civilian population may, in itself, legitimately be targeted since weakening of the will to fight would offer a military advantage.

    War is a clash of opposing wills. While physical factors are crucial in war, the national will and the leaderships will are also critical components of war. The will to prosecute or the will to resist can be decisive elements.Strategic attack objectives often include producing effects to demoralize the enemys leadership, military forces, and population, thus affecting the adversarys capability to continue the conflict.5

    4 See Annotated Supplement to the Commanders Handbook on the Law of Naval Operations, 8.1.1. It also provides the following definition of military objectives: those objects which by their nature, location, purpose or use effectively contribute to the enemys war-fighting or war sustaining capability and whose total or partial destruction, capture or neutralization would constitute a definite military advantage to the attacker under the circumstances at the time of the attack. Emphasis added. 5 Air Force Doctrine Document 1: Air Force Basic Doctrine, AFDD-1 (1997)

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    The USAF Intelligence Targeting Guide, while acknowledging the language of Article 52(2), defines military objectives as including, but not limited to, those objects so defined in the Protocol, concluding. The key factor is whether the object contributes to the enemys war fighting or war sustaining capability.6 As put by one US Air Force lawyer who is an advocate of this doctrine:

    Unlike Article 52 (2), this guidance allows for the possibility that a target may not provide an immediate military advantage per se, but may still contribute to the enemys ability to fight.7

    The danger this doctrine poses to civilians was evident during Operation Allied Force, when the US and NATO bombed the headquarters of Serbian radio and television (RTS) on the grounds that RTS was a propaganda organ and that propaganda is direct support for military action. AI believes that justifying an attack on a civilian facility on such grounds stretches the meaning of effective contribution to military action and definite military advantage beyond the acceptable bounds of interpretation. Disrupting government propaganda may help to undermine the morale of the population and the armed forces, but attacks carried out solely to undermine civilian morale are not legitimate. It is difficult to envisage how disrupting transmissions of RTS for three hours -- at the cost of the lives of 16 civilians -- provided any military advantage to NATO.8 During the air campaign in Afghanistan, the US attacked a radio station controlled by the Taleban. Secretary of Defence Donald Rumsfeld explained that media controlled

    by the Taleban were Apropaganda vehicles for the Taliban leadership...Our decision

    was that the radio station and the television station in fact were vehicles for the Taliban leadership and for al Qaeda to manage their affairs and that therefore they

    were certainly appropriate targets.@9

    Attacks that have undermined civilian immunity have not been confined to media. During the air campaign against the FRY, NATO launched attacks on targets owned by FRY President Slobodan Milosevics and/or close associates, including cigarette factories, which also stretched the meaning of military objective and needlessly endangered the lives of civilians.

    6 Air Force Pamphlet 14-210, USAF Intelligence Targeting Guide (1 Feb 1998). 7 Tearing Down the Faade: A Critical Look at the Current Law on Targeting the Will of the Enemy and Air Force Doctrine, Air Force Law Review, Volume 51 (2001)

    8 For...

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