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In Iraq, a battle for the moral high ground

Among the most explosive weapons fired by both sides are war-crimes allegations.

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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."

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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.

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