In Iraq, a battle for the moral high ground

From Baghdad come angry accusations that US and British planes are deliberately killing civilians by targeting their bombs at marketplaces, homes, and food warehouses.

From the front lines come reports of Iraqis in civilian clothes opening fire after waving white flags, of hospitals used as arms depots, of Iraqi forces shooting from behind human shields, and a suicide bomber in a taxi who killed four American soldiers.

As the bitter war over territory continues in Iraq, one of the most explosive weapons both sides are deploying in the battle for international support is the allegation of enemy war crimes.

"The American government has decided to make an issue of these things to seize the moral high ground, and I think they are onto something," says Roy Gutman, author of the book "Crimes of War: What the Public Should Know."

But human rights groups are warning that the United States-led armies in Iraq should also pay more regard to international humanitarian law.

"There are reports giving rise to concerns that war crimes may have been committed by both sides in the recent fighting," Amnesty International said last week.

Observers caution that until the allegations have been investigated, they are hard to judge.

"There is a worrying tendency to rush to judgment and use events for the propaganda purposes before the facts are clear," says Adam Roberts, a professor of international law at Oxford University in England. "I have never known a war with so much spin and smoke and mirrors."

American TV audiences have been shocked by pictures of dead soldiers and of captured service men and women giving their names and home towns. That is a violation of the 1949 Geneva Conventions governing the conduct of war, which protect prisoners of war from being exposed to "public curiosity."

"We would hope the Iraqis will stop this," says Kim Gordon-Bates, spokesman for the International Committee of the Red Cross in Geneva, which administers the conventions. "We have reminded the Iraqi government of its obligations in this matter, and we have received signals that they understand them."

Arab viewers have been more outraged by graphic images of children who died in two explosions in Baghdad last week, one of which killed 55 civilians, according to the Iraqi authorities.

US officials have denied responsibility for the first blast, and say they are investigating the second. But even if they were caused by US missiles, they would not constitute a war crime unless they were deliberate attacks on civilians, or the result of "reckless or negligent" targeting, says Louise Doswald-Beck, president of the International Commission of Jurists.

"They could have been a genuine mistake," she adds.

Dismissing Iraqi claims that they were intentional attacks on civilian targets, US Gen. Stanley McChrystal said Saturday that as far as he knew, only seven Tomahawk cruise missiles had missed their targets, and that none of them had exploded.

"The Americans put a tremendous amount of thought into targeting," says Mr. Gutman. "They lawyer every target" to ensure that it is a legitimate military objective.

The Pentagon has sent dozens of military lawyers to the region to help Army, Navy, Air Force and Marine commanders choose strategies, targets, and even the weapons, angle of entry, and payload to be used.

Even so, questions are being raised about some of the targeting, with the missile strikes on Iraqi TV especially controversial, in light of the international uproar that followed US attacks on Serbian TV in Belgrade during the Kosovo war.

US military spokesmen have insisted that President Saddam Hussein has used TV as a "command and control" mechanism to direct his forces, which would make broadcast facilities a legitimate target under international law.

Independent observers, however, have voiced suspicions that the real intent of the attacks was to put an end to Iraqi officials' regular and morale-boostingly confident appearances on Iraqi TV.

"The bombing of a television station simply because it is being used for the purposes of propaganda is unacceptable," Amnesty International's director for international law, Claudio Cordone, said last week. "It is a civilian object, and thus protected."

On the other side, Iraqi forces "are using almost every shortcut in the book" of war crimes as they resort to guerrilla tactics to harass and hold up US and British troops, claims Gutman. "They don't think they can win the war if they stick by the rules."

Iraqi Deputy Prime Minister Tariq Aziz told ABC television Sunday, "A people fighting an invasion has the right to fight by all means to defend itself. When you fight an invader with whatever means are available to you, you are not a terrorist, you are a hero."

That is "bad law," comments Professor Roberts. "Even if a war is completely illegal, the laws of war apply equally to both sides."

Especially disturbing are reports from correspondents with frontline units that Iraqi Army troops and irregular fedayeen fighters are using civilians to defend themselves, either forcing them to stay in buildings where fighters have holed up, or pushing them in front of their lines.

Such actions would be a war crime under the First Additional Protocol to the Geneva Conventions, which says that "the presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations."

Waving a white flag and then opening fire on the enemy is also forbidden both by customary law and by the Protocol, which brands such behavior "perfidy."

Apart from anything else, Gutman points out, "it makes it impossible for anyone else to surrender" if advancing troops no longer trust the white flag as a symbol of parley.

The use of civilian clothes, either by regular troops or fedayeen, however, is not illegal, as US spokesmen have suggested, according to experts in international humanitarian law.

The Geneva Conventions treat irregulars and volunteer militia as legitimate combatants, entitled to POW privileges, so long as they are part of an organized chain of command, carry their weapons openly, and wear "a fixed distinctive sign recognizable at a distance" to distinguish them from civilians.

Yet even those conditions are not essential under the First Protocol, which demands that guerrilla forces merely carry their arms openly during and before military engagements. The US Army treated Vietcong guerrillas, dressed in civilian clothes, as POWs during the Vietnam War, observers recall, and volunteer American militia in civilian clothes played an essential role in the War of Independence against the British.

"I think it is inevitable that many people and countries in a situation like this will resort to guerrilla warfare against an all-powerful enemy," says Professor Roberts. "The law does not regard all guerrilla resistance as illegal."

"If they are quietly putting grenades under their civilian jackets and throwing them at the last moment," however, "that is perfidy," points out Ms. Doswald-Beck.

The legal and moral picture is muddied by the fact that neither Iraq nor the US has ratified the 1977 First Additional Protocol to the Geneva Conventions, nor the 1999 Rome Statute setting up the International Criminal Court (ICC), which will try war crimes. These are the legal instruments governing most of the incidents alleged to have occurred so far during the war.

Washington's "outright hostility to the ICC certainly does undermine its claim to adhere to the most rigorous standards of international law," argues Richard Dicker, a humanitarian law expert with Human Rights Watch.

At the same time, he points out, the US Army has incorporated almost all the provisions of the Protocol into its Land Warfare manual, one of the most detailed documents of its kind.

More problematic, however, is the question of POW treatment in the current war in the wake of Washington's refusal to abide by the Geneva Conventions in its handling of prisoners taken in Afghanistan, despite protests by some US Army lawyers. Hundreds of detainees are being held incommunicado in Guantánamo, Cuba with no right to a hearing of their claims to POW status, despite repeated complaints from the ICRC.

"The Americans have really compromised themselves by this," says Gutman. "But I think that what we are seeing this time in Iraq is not rewriting the rules, but upholding them. The Judge Advocate General Corps" of Army lawyers "is asserting itself, because they know the law can help their soldiers, too."

As the war continues, international legal analysts say, it will undoubtedly throw up more allegations of war crimes, and some will prove to be true. "There has never been a war without violations of humanitarian law," sighs Philippe Spoerri, an ICRC lawyer.