Mayhem in Fallujah:
What the Law Has to Say About the Gruesome Murders In Iraq, and What the U.S.'s Response to the Murders May Be

By PHILLIP CARTER

Monday, Apr. 05, 2004

The gory images last week from Fallujah, where four American contractors were savagely killed and their burned bodies displayed, served as a stark reminder of the brutality of war.

But before rushing to vengeance, it is helpful to consider some of the legal issues on both sides of the incident. For starters, it's not immediately clear whether the contractors were civilians, combatants, or something in between. Next, there is some ambiguity about the choice of the crime, or crimes, with which the Iraqi insurgents and mob should be charged.

Finally, any U.S. military/peacekeeping response will have legal and practical obstacles to overcome -- and those obstacles, too, need to be considered before we respond too hastily.

The Definitions of Non-Combatants, and of Combatants

A person's legal status affects both his rights and duties under the law of armed conflict. As one might imagine, civilians are given broad protections under this body of law; in contrast, while soldiers are somewhat protected, they are far more constrained in their actions.

The paramount goal of the law of war is to manage the carnage of warfare, and confine its effects (as much as is practicable) to those combatants who choose to engage in war. No wonder, then, that civilians enjoy greater protection than soldiers do.

But who is a civilian? The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War defines non-combatants as those "[p]ersons taking no active part in the hostilities". This category obviously includes civilians living in a war zone, such Iraqi citizens who live in Fallujah or Baghdad. It also includes foreign aid workers, such as those from the Red Cross and United Nations.

Non-combatant status, as the Geneva Convention suggests, is determined by a person's actions in support of hostilities: has this person carried a weapon, or directly aided in the war effort? Have they "tak[en] active part" in the war, or not?

Historically, civilians employed in armament factories and other war-related industries have been considered non-combatants -- although there is some dispute over whether they can be lawfully targeted while on the job. Similarly, government employees or contractors who perform non-military functions (such as mail delivery) are generally considered non-combatants.

That, then, is the agreed-upon definition of "non-combatant." Conversely, Article IV of the Third Geneva Convention Relative to the Treatment of Prisoners of War defines what a "combatant" is.

Regular soldiers, such as those in the U.S. Army or nascent Iraqi Civil Defense Corps, qualify for treatment as combatants. Guerillas and irregular combatants who meet four criteria -- of wearing uniforms, carrying arms openly, operating under a recognizable command structure, and obeying the laws of war -- also fall into this category.

Combatants who do not meet these four criteria, however, fall into a gray area, as evidenced by the dispute over the legal status of the men interned at Guantanamo Bay.

Were the Contractors Combatants or Civilians?

Contractors fall somewhere in the murky area between civilians and combatants. And the American-led Coalition Provisional Authority recognizes this murkiness by placing contractors in a separate legal category in an order outlining the status of various types of coalition personnel deployed to Iraq.

To understand the reason for the murkiness, it's helpful to look at the Fallujah situation. The four men who died in Fallujah were American citizens with some past or present military affiliation. As employees of a government contractor, Blackwater Security Consulting, they were agents of the U.S. government -- although they formally worked for a private company.

The four men carried weapons, although unlike soldiers, they presumably had orders only to use them in self-defense within the scope of their contract and the coalition's rules of engagement. In addition, they had a quasi-military mission to defend convoys from Iraqi insurgents.

For these reasons, even though it's clear the four men were not U.S. military personnel, they may have been combatants for the purposes of international law.

In the past two decades, the problem of defining contractors' status has become increasingly more complex for the American military. Its forces routinely take contractors into battle with them, depending on them to maintain sophisticated communications and warfighting equipment.

(Interestingly, embedded journalists also present a close case, just as contractors do. Are they truly civilians? After all, they have chosen to link up with a U.S. military unit, and many traveled wearing military protective equipment such as body armor and chemical protective gear. Even given their link to a unit, embedded journalists appear to remain civilians. But the line is a thin one: Indeed, journalists were expressly ordered not to carry weapons during the recent war precisely because doing so could result in the loss of their non-combatant status and Fourth Geneva Convention protections.)

What Crimes did the Iraqi Mob Commit -- If Any? Crime Versus War.

It is obvious that the Iraqi insurgents ambushed and killed four American contractors in Fallujah. It is not so obvious that this was a crime -- as opposed to an act of war.

The Iraqi guerillas define themselves as freedom fighters fighting an unjust occupation. If the Iraqi insurgents can be categorized in some way as combatants, then they are entitled to lawfully kill in wartime just as American soldiers can. Essentially, this doctrine of "combatant immunity" allows soldiers to kill in war as a form of justifiable homicide.

Obviously, American and Iraqi authorities have branded the Iraqi insurgency a criminal -- and indeed, terrorist -- enterprise, and branded its acts unlawful as a result. But there is at least a colorable argument that there should be combatant immunity on the part of the Iraqi insurgents. And if the Blackwater employees can indeed be categorized as combatants, then the incident was merely one more case of soldiers killing soldiers in war - a tragic, but hardly criminal, occurrence.

If These Were Crimes -- Not Acts of War -- Which Crimes Were They, Exactly?

However, such a conclusion is not likely to sway the powers that be in Baghdad, who, as noted above, consider the Iraqi insurgents to be terrorists. The Coalition Provisional Authority has reinstituted the 1969 Iraqi Penal Code as the criminal code for Iraq, and that code has several sections would apply to the Iraqi insurgents' actions in Fallujah.

Paragraph 405 of the Iraqi Penal Code defines murder as the willful killing of another person. This section could certainly be applied to the Iraqi guerillas who ambushed the two American vehicles and killed their occupants. Their actions were planned, purposeful, intentional and willful.

If the crime is indeed murder, would it be capital murder? The answer, surprisingly, is no.

Paragraph 406 of the Iraqi Penal Code lays out several types of capital murder, including premeditated killing, the use of explosives in the commission of murder, and murder where the body is subsequently mutilated. Plainly, the Fallujah situation would qualify as capital murder.

However, the Coalition Provisional Authority issued an order on June 9, 2003, which suspended the use of capital punishment by the new Iraqi government. So even these more serious forms of murder would likely be punishable by life in prison -- the penalty under Paragraph 405 -- rather than by the death penalty, as they would be absent the suspension.

Finally, Iraqi law also criminalizes the desecration of human remains. Paragraph 374 of the 1969 Penal Code makes it a minor crime to willfully desecrate a corpse, with penalties of up to 3 years in prison. This statute is included in a section that prohibits the defacing of a grave marker and the disruption of a funeral ceremony.

These sections could be used to prosecute members of the Iraqi mob who were caught on videotape burning, dismembering and beating the bodies of the American contractors killed last week.

Not Only Iraqi Crimes, But International War Crimes Too

In burning, dismembering, and publicly displaying the American corpses after the attack, the Iraqi mob likely committed several international war crimes too.

The customary laws of war grew, in part, out of the chivalric codes of the Middle Ages. These codes forbade the desecration of enemy corpses for moral and practical reasons; it was seen as unknightly, as well as likely to spread disease. And in the late Nineteenth and early Twentieth Centuries, these customary laws of war were gradually incorporated into treaties, starting with the 1864 Geneva Convention and culminating with the four Geneva Conventions of 1949.

To the extent that the contractors can be considered non-combatants, Article 3 of the First Geneva Convention makes their mutilation and public display a war crime.

Moreover, even if these contractors were combatants, Article 17 of the First Geneva Convention requires honorable treatment for their bodies after death. Instead, their bodies were horribly dishonored and mistreated.

U.S. military law also prohibits corpse desecration. Although there is no specific article in the Uniform Code of Military Justice, it has been prosecuted as a general act contrary to "good order and discipline" under Art. 134 of that code.

The Army's field manual on the law of war lists "maltreatment of dead bodies" along with other grave breaches of the Geneva Convention that may result in a war crime prosecution.

Who will Try the Insurgents and the Mob? Either Iraq, Or The U.S. Military

If arrested, the Iraqi insurgents would likely be put on trial by the Iraqi government for their crimes.

The Iraqi Governing Council statute passed to try Saddam Hussein (and other top members of his regime) would not apply to these crimes, because its jurisdiction covers only events that occurred between 1968 and 2003 - the dates of Hussein's rule.

However, regular Iraqi criminal courts have been reconstituted since the fall of the Hussein regime, and they are now operating with Iraqi judges, lawyers and staffs around the country. These courts enforce the 1969 Penal Code, and operate under the auspices of the Iraqi Governing Council and the Coalition Provisional Authority. Any trial of the Iraqi insurgents or mob would likely take place in this venue, with Iraqi judges, jurors and lawyers.

Another option is for the U.S. military to try these insurgents. Article 18 of the Uniform Code of Military Justice gives military courts jurisdiction over war crimes, and Article 21 gives jurisdiction over such acts to military commissions and tribunals.

However, given the U.S.'s willingness to let the Iraqis try the most wanted war criminal of all - Saddam Hussein - it's unlikely that U.S. military courts martial or military commissions would be used in this case. Iraqi courts will probably be the forum in which these crimes are tried.

What Rules Govern the U.S.'s Military Response?

Not only court proceedings, but the U.S.'s response will also be governed by specific rules. This time, the relevant rules will be the rules of warfare -- again, as embodied in the Geneva Conventions and customary international law.

In describing the U.S.'s response, U.S. Army Brigadier General Mark Kimmitt said, "We are not going to do a pell-mell rush into the city. It's going to be deliberate, it will be precise and it will be overwhelming. We will not rush in to make things worse. We will plan our way through this and we will reestablish control of that city and we will pacify that city."

Although American forces will doubtless exact some measure of vengeance upon the insurgents in Fallujah, Brig. Gen. Kimmitt's remarks indicate some deliberation about the right amount of force to be used - a deliberation that is very much informed by consideration of international law.

Rules of warfare have existed since the time when combatants fought with spears and shields, but they have often been observed in the breach or disregarded entirely by nations when it suited their interests. A confluence of events in the Twentieth Century - including technological revolutions in warfare, the advent of instantaneous news reporting from the field, and the professionalization of Western militaries - has contributed to an environment where American commanders take law very seriously as they consider military courses of action.

The Rules Of Response: Three Basic Principles

Customary international law has historically allowed some kinds of reprisal against other combatants for crimes of war. However, modern international law disdains such acts -- and expressly prohibits them against civilians and other protected groups. For example, the Fourth Geneva Convention states that "[r]eprisals against protected persons and their property are prohibited." Thus, the American military cannot retaliate against the Iraqi civilians in Fallujah just to make a point.

However, American commanders can respond if they adhere to three principles of international law: necessity, proportionality, and distinction.

As the name implies, necessity requires that a given military plan be enacted to further some important military interest - not mere wanton death or destruction. In the case of Fallujah, vengeance alone would not be enough to show military necessity. Instead, military planners must link the mission to successful pacification of Fallujah, which in turn is linked to the larger effort to bring lasting stability to Iraq.

It is not likely that necessity will pose an obstacle to military planners in Iraq; plainly pacification is a necessary objective, and without a response it is difficult to imagine that the situation in Fallujah will not simply worsen.

Proportionality is a more difficult to principle to apply; it is a legal rule which all but guarantees "slippery slope" problems for planners, military lawyers and commanders.

Under customary international law, a wartime commander must use those means that are proportional to his ends. This can have many applications in the field. A commander should not use an artillery barrage to respond to a handful of soldiers, nor should he level a city to respond to one ambush.

In the self-defense or retribution context -- as here -- there is generally supposed to be a relationship between the acts of the enemy and the level of retribution.

These first two principles -- necessity and proportionality -- often come into conflict. A commander may argue that the safest and most efficient way to eliminate an enemy squad is to use artillery, particularly if he's concerned about the prospect of friendly casualties.

On a grand scale, President Truman made this argument when defending his decision to drop the atomic bomb - he reasoned that this one disproportionate use of force was militarily necessary to break Japan's will, and end the war quickly. Similarly, U.S. commanders in Iraq could argue that one overwhelming display of force in Fallujah could break the will of the enemy insurgency. However, it's unlikely that such a disproportionate response will be adopted, for reasons discussed below.

The final principle of law applicable to the American response is "distinction", which literally means distinguishing between combatants and non-combatants. Unlike necessity and proportionality, distinction is a "bright line" rule. According to this principle, commanders must not intentionally or negligently kill non-combatants.

"Collateral damage" is a euphemism for the unintended effects of military firepower, and commanders have a legal duty to minimize such collateral damage as much as possible.

The application of distinction to Fallujah is clear: American commanders may not indiscriminately bomb the city in order to exact revenge. Nor may the U.S. target force at a smaller sub-section of non-combatants in order to make a point. And in targeting the Iraqi insurgents, the U.S. must take steps to minimize any collateral damage - killing of civilians - such as having a team of intelligence analysts and lawyers review every target prior to a bombing or artillery mission.

Non-combatants enjoy the greatest protection of any category of persons under international law. No atrocity may be used to justify an act of retribution against non-combatants.

A Case of Convergent Legal and Operational Interests

With the U.S. response comply with these three principles? It is very likely the answer will be yes.

To begin, it's unlikely that the U.S. would use extraordinarily heavy-handed tactics in responding to the Fallujah ambush. In addition to the legal problems with any "overwhelming" response, such an option would entail significant practical and operational problems for the American military.

In Fallujah, commanders are likely to err on the side of proportionality for at least two reasons. First, the world will be watching the American response, and it will judge the justness of America's continued occupation by the judiciousness of our force.

Second, the use of force will have an effect on the Iraqi mob responsible for the incident. Too much force could provoke a backlash and foment a new Iraqi insurgency; too little force could show weakness and also provoke more insurgent activity. Obviously, these two considerations counsel taking some middle path among the options.

Ultimately, American commanders will likely choose a path in Fallujah which conforms with necessity, proportionality and distinction not only because the law requires, but also (or, from a more cynical point of view, primarily) because it's in our interest to do so. Such a middle path will likely include increased patrols of the city, searches of suspected insurgent homes and weapons cache sites, checkpoints to limit the flow of people and materiel into the city, and curfews to control the population at night. The U.S. response will likely not include massive air or artillery bombardment, such as that employed during World War II or more recently by the Russians in Chechnya.

Historically, nations have always tended to follow the laws of war when it was in their interest to do so, and Fallujah presents another case of where American operational interests and legal imperatives converge.

Thus, American forces will likely respond in Fallujah with measured, precise force against those who can be proven to be responsible -- and no one else. Such a response will both comply with the laws of war, and help to win the hearts and minds of the many Iraqi citizens who weren't part of the mob.


Phillip Carter is a former Army officer who attends UCLA Law School and teaches an undergraduate seminar on American Law & Terrorism. His blog can be found at http://philcarter.blogspot.com.

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