A British soldier, shown in an image from video, guards an Iraqi prisoner of war, Saturday, April 5, 2003, at a POW camp in Basra, Iraq. (AP Photo/Pool via APTN)

The ongoing hostilities between the US-led coalition and Iraq are a classic example of an international armed conflict, as defined in Common Article 2 of the 1949 Geneva Conventions. Accordingly, the military operations being conducted by all the warring parties in the Iraqi conflict are governed by the Geneva Conventions, as well as by the customary laws of war.

Because neither the US nor Iraq are Parties to the First Additional Protocol to the Geneva Conventions, applicable to international conflicts, that instrument is not directly applicable as a matter of conventional law to the hostilities in Iraq. However, since some of the Protocol’s provisions essentially restate, clarify or otherwise codify pre-existing customary legal restraints on methods and means of warfare, the substance of these provisions constitute customary international law. As such, they directly bind all nations and their armed forces during interstate wars regardless of ratification.

Indeed, despite its refusal to ratify Protocol I, the US has expressed its support for many rules in that instrument and regards others to be customary international law. However, the US opposes the new rules in the Protocol concerning prisoner of war status (POW) for irregular combatants. Thus, Article 4 of the 1949 Third Geneva Convention (POW Convention) is the source of legal standards governing entitlement to POW status in the Iraqi conflict as among the various warring parties.

The Right to be a Prisoner of War

It is important to understand that under the customary laws of war combatants have been historically classified in interstate hostilities as either “privileged” or “unprivileged” combatants. The privileged combatant is a person authorized by a party to such an armed conflict to engage in hostilities and thus has the “combatant’s privilege.” This privilege not only entitles him to directly participate in hostilities, but also guarantees him prisoner of war status upon capture and immunity from prosecution by his captor for his lawful acts of war. Members of regular armed forces, including militias or volunteer corps forming such forces, as provided for under Article 4A(1) and (3) of the Third Geneva Convention, are privileged combatants. Although members of regular armed forces are expected to comply with the laws of war, they do not forfeit their right to POW status upon capture even if they commit war crimes. They can, however, be tried and punished for such crimes by their captor.

An “unprivileged” combatant refers to a person who does not have the combatant’s privilege, but nevertheless directly participates in hostilities. Such combatants would include, inter alia, civilians who in violation of their protected status engage in fighting or other hostile acts. However, the law does sanction a levee en masse whereby civilians may spontaneously take up arms in order to resist an invading force. Spontaneity means that there is no time to organize into regular forces. Civilians participating in a levee en masse may qualify for privileged combatant and POW status, provided that they do not conceal their weapons and observe the laws of war. This is the single, limited exception to the proscription against civilians participating in hostilities.

The notion of unprivileged combatants has also been used to describe irregular or part-time combatants, such as guerrillas, partisans and members of resistance groups, who either fail to distinguish themselves from the civilian populations while on active duty or do not otherwise fulfill the requirements for privileged combatant status stated in Article 4A(2) of the Third Convention. This article effectively holds members of independent irregular groups to higher standards than those required of members of regular armed forces. Specifically, in order to qualify as privileged combatants entitled to POW status, members of irregular groups must comply with the following stringent conditions set forth in sub-paragraph 2 of Article 4A: 1) they must belong to an organized group; 2) they must belong to a party to the conflict; 3) they must be under responsible command; 4) they must have a fixed, distinctive sign recognizable at a distance; 5) they must carry their arms openly and 6) they must conduct their operations in accordance with the laws and customs of war.

Most authorities agree that the first three conditions are applicable to the irregular group collectively, while the final three conditions apply both to the group collectively and its individual members. Thus, if a majority of the members of the group fail to meet, for whatever reason, all or any of the last three conditions at any time, then all members of the group will not qualify for privileged combatant and POW status upon capture. Unlike privileged combatants, therefore, unprivileged combatants can be tried and punished for all their hostile acts, even if they otherwise did not violate the laws of war. It should be understood, however, that unprivileged combatants are not as such war criminals although their specific acts might breach the laws of war.

How The Law Applies in Iraq

In the present hostilities in Iraq, US-led Coalition forces are fighting against a mix of Iraqi regular armed forces and irregular groups, and quite possibly against individuals, both Iraqi and foreigners, who, whether motivated by patriotism or the call to jihad, have joined the fight. Under the legal standards discussed above, it is clear that members of Iraq’s regular armed forces, including Republican Guard units, are privileged combatants entitled to POW status upon capture. The legal situation of the Saddam Hussein’s Fedayeen fighters is quite different. They are apparently irregular combatants and, as explained above, in order to qualify for POW status, the group collectively and its individual members must comply with the strict conditions specified in Article 4A(2) of the Third Geneva Convention.

Since these irregulars must continuously comply with these requirements, it is difficult to imagine how any members of this group could qualify for that status if, as has been widely reported, some of their members commit war crimes or disguise themselves as civilians in the course of the hostilities. Unlike Iraqi civilians who spontaneously take up arms to fight invading Coalition forces, foreigners who, for whatever reason, join the fight against Coalition forces without being members of Iraqi regular or irregular forces can be considered as waging “private” hostilities and treated as unprivileged combatants and prosecuted as such.

Coalition spokespersons have charged, and independent media have reported, that Iraqi combatants have disguised themselves as civilians, faked surrenders in order to attack Coalition forces, used civilians as human shields, fired on Coalition troops from within crowds of civilians, and launched suicide attacks against Coalition troops. Official statements from Baghdad confirm many of these charges. It should be understood, however, that while some of these tactics clearly violate the laws of war, the legality of others may depend on the particular circumstances or the legal status of the perpetrator. For example, customary law permits ruses of war, such as the use of camouflage, decoys, and misinformation to mislead and confuse the adversary. However, it prohibits the killing or injuring of the enemy by treacherous or perfidious means, such as by feigning civilian status, incapacitation by wound or an intention to surrender.

In my opinion, therefore, the mere use of civilian disguise by a combatant is not a war crime, but, as previously noted, could deprive irregular combatants of POW status. Similarly, the use of the enemy’s uniform to penetrate the enemy’s lines is permissible, but fighting in that uniform would be illegal. An enemy combatant, clearly identifiable as such, who undertakes a suicide mission against the adversary does not violate the law. However, a combatant disguised as a civilian would be engaging in an illegal attack. While the intentional use of civilians to shield military objectives and operations would be a war crime, responding to enemy fire in self-defense from within crowds of civilians could be lawful.

As previously indicated, regular combatants who commit these and other war crimes can be tried, but will retain their POW status. Moreover, liability may extend up the chain of command to reach those who ordered these illicit acts. In sharp contrast is the extremely precarious legal position of Iraqi irregular forces. If even some members of Saddam’s Fedayeen feign civilian status, conceal their weapon and/or commit war crimes, then they and most likely all other members of this irregular group could be denied POW status and tried as unprivileged combatants, as well as for any war crimes they may have committed.

In light of the array of tactics employed by combatants on the Iraqi side, confusion will inevitably surround the precise legal status of many Iraqi and foreign combatants captured by US and other Coalition forces. Because denial of POW status entails potentially serious consequences for combatants, such determinations must strictly comply with the dictates of the Third Convention. In this regard, Article 5 of that treaty creates a presumption that a captured combatant is a POW unless a competent tribunal determines otherwise on an individual basis. During the 1992 Gulf War and the Vietnam conflict the US convened such tribunals to verify the status of detainees, something that the US did not do – and for which it was justifiably criticized both at home and abroad – in denying POW status to all Taliban and al Qaeda fighters in the Afghan conflict. Recent statements by US military briefers suggest that the Bush Administration is now listening to its law of war experts in the Pentagon and the State Department and plans to convene Article 5 tribunals to make proper status determinations, most likely at the conclusion of the hostilities.

Robert Kogod Goldman is Professor of Law and Louis C. James Scholar at the Washington College of Law, American University, where he teaches the law of war. He is also Co-Director of the Law School’s Center for Human Rights and Humanitarian Law.

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