The war on terror was clearly not contemplated when the four Geneva Conventions, addressing wars between national entities, were signed in 1949.1 The violence in Iraq currently perpetrated by al Qaeda and dissident elements of the former regime is being spearheaded by individuals under no known national authority, with no command structure that enforces the laws and customs of warfare, with no recognizable, distinguishing military insignia, and who do not carry arms openly. More importantly, they represent no identifiable national minority in Iraq, but rather largely draw their support from sponsors outside Iraq. Their attacks have injured and killed civilians of all ethnic groups, as well as more than 3,740 U.S. military personnel attempting to help the fledgling, democratic government in Baghdad to succeed. The terrorists' use of young people and women as human couriers for explosive devices is reminiscent of our experience in Vietnam and raises serious questions about the status of those individuals when they are acting on behalf of terrorist elements in Iraq. (2) The lack of legal status of the terrorists and their surrogates as other than common criminals is seldom, if ever, acknowledged publicly by unbiased news services, and this raises serious concerns for the military in their efforts to assure the public of their adherence to the law of war.
The U.S. military participation on the ground in Iraq is dictated by approved rules of engagement (ROEs), which are a direct reflection of the law of war in its application to this specific conflict. This article addresses the legal considerations that must be part of our thinking when developing the ROEs that will both protect those lawful participants (U.S., coalition, and Iraqi) in the conflict and those who are innocent civilians, while denying any but required minimal legal protections accorded common criminals for the unlawful belligerents represented by al Qaeda and their outside sponsors.
It is important to understand that terrorist violence provides no legal gloss for its perpetrators. The critical international law principles applicable to the violence in Iraq are found in the 1949 Geneva Conventions in Common Article 3 relating to internal armed conflicts and the principles enunciated in the two Additional Protocols to these conventions negotiated in 1977.3 The minimal protections afforded by Common Article 3, for example, include prohibitions on inhumane treatment of noncombatants, including members of the armed forces who have laid down their arms. Specifically forbidden are "murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular, humiliating and degrading treatment," and extrajudicial executions. Provision must also be made for collecting and caring for the sick and wounded.
The 1977 Geneva Protocols had their roots in the wars of national liberation following World War II. Colonial powers, to include the United States, Great Britain, and the Netherlands, had engaged these liberation movements militarily, often with little regard for the law of armed conflict. In the 1974 conference hosted by the Swiss government in Geneva, the need to address conflicts of a noninternational character was addressed in Article 96, paragraph 3, of Protocol I and in Protocol II. At the conference, the Swiss government invited members of national liberation organizations to participate, but not vote.
The participation of nonstate actors helped shape the drafting of Article 96, paragraph 3, of Protocol I. This section provides that a party to a conflict against a state army can unilaterally declare that it wants the 1949 Geneva Conventions and the 1977 Protocols to apply. This would offer, of course, greater protection for members of national liberation movements.
Under Article 96, however, parties authorized to make such a declaration had to establish that they were involved in "armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination. …