Whatever one thinks about the legality of the U.S. invasion in Iraq, it is quite evident from the new coverage of the war that the Iraqi forces are fighting dirty. Their use of schools, hospitals and mosques as ammunition depots and bases of operations and use of human shields constitute clear violations of the international law of armed conflict as embodied in the 1949 Geneva Conventions, the 1907 Hague Conventions and the 1954 Convention for the Protection of Cultural Property. If the Bush administration is serious about prosecuting war crimes committed by Iraqi forces during this war, these violations listed above should be among them.
Less obvious is whether the recent incident of a car bomb should be considered a war crime. In that instance, a member of the Iraqi paramilitary forces, the so-called “Fedayeen Saddam,” posed as a civilian taxi driver whose car was disabled, beckoned U.S. soldiers for assistance and blew himself up, killing himself and four Marines.
Technically this bombing was a violation of the law of armed conflict, for even clandestine forces must be in uniform or otherwise readily identifiable as combatants when they are deploying for an operation. The operation could also be considered a violation because its aim is to put genuine civilians at significantly greater risk of being mistaken for combatants, a scenario that was tragically played out a few days later when U.S. soldiers killed noncombatant occupants of an approaching vehicle that failed to stop at a checkpoint.
But before we rush to judgment of the tactics of suicide bombings against military forces, we must ask ourselves the following questions: what would we do under similar circumstances? If in the 1960s, Soviet forces had invaded the United States for the purpose of removing its government from power and installing a Communist government, might U.S. soldiers and civilians alike have resorted to similar tactics of guerilla warfare to drive the Soviets out? The forces of what is regarded as the legitimate government of Iraq believe, rightly or wrongly, that they are fighting for their survival. Suicide bombings committed by lawful combatants against other combatants do not violate the laws of war. Is it such a stretch, therefore, to deliver the bomb under the cover of plain clothes, when an uniformed combatant has virtually no chance of getting close enough to accomplish such a mission?
When put into perspective, the question of whether suicide bombings against U.S. forces in Iraq should be considered war crimes is less clear-cut then at first glance. This brief column does not purport to resolve the question, as reasonable minds will arrive at different conclusions. I would suggest, however, that the United States be extremely selective about which, if any, suicide bombings to prosecute after the war is over. American war crimes tribunals will be highly sensitive to charges of “victor’s justice,” and the more serious war crimes of misusing protected sites, using human shields and false surrendering are far more worthy of prosecution.
-The writer is a GW law student.