April 2004: the attack on Fallujah (Iraq) and the protection of civilians
Every month approximately, TRIAL will comment on a video concerning international justice or current news on international humanitarian law or human rights.
The first video of this series deals in part with images excerpted from a video taken on board an American F 16 fighter plane during the month of April in Fallujah. The plane, which was undoubtedly providing air support to the troops on the ground, is seen flying over the town. The pilot of the plane can be heard reporting to his control centre that he could see “several individuals” on a road and asking if he should “take them out”. The reply from the control centre is instantaneous and positive. The pilot then fixes his missile guiding system on the large group (of around 30 people) which he is flying over and fires. Barely 30 seconds elapse from the time the pilot spots the group to the time the missile explodes on the ground.
The next video (towards the end of April), will be on the subject of amnesties.
Background
The events shown in this video took place in April 2004 in the town of Fallujah, Iraq.
From the beginning of the invasion by the American armed forces in 2003, the town had been put under the control of several units of the army from the month of April 2003 up to the month of March 2004, at which time guerrilla forces recaptured control of the town forcing the American troops into retreating.
On 31 March 2004, Iraqi insurgents ambushed an American convoy and killed 4 employees of a private American security company. Their mutilated and carbonised bodies were then strung up to be shown in images which went round the world, stirring up indignation on the part of public opinion.
In reacting to this event, the US army decided to mount an operation aimed at getting rid of the insurgents and pacifying the town of Fallujah. This operation, called “Vigilant Resolve”, began on 5 April 2004. For almost a month, US ground troops with aerial support, tried to recapture control of the town from the guerrillas before withdrawing on 1st May. These attacks resulted in several hundred deaths, including many non combatants.
This video raises a number of questions: Who were these people? Innocent civilians fleeing from the fighting or insurgents? How was the control centre able to validate so quickly the objective and was there really a proper verification? However in more general terms these images raise the whole question of the protection of the civilian population in a combat environment, especially in populated areas.
Below, TRIAL raises some questions and proposes answers in relation to such a situation.
Question: In today’s conflicts, combat zones are very often within civilian populated residential areas. Does international humanitarian law provide for special protection for these civilians?
Answer: We shall take as the basis to our answer the situation described in the video, that being the existence of an armed conflict of an international nature. The rules for internal armed conflicts are slightly different and will not be considered here.
In the case of an international armed conflict, an overall prohibition in principle to attack civilians is provided for in Articles 48 and 51 of Additional Protocol I to the 1949 Geneva Conventions (AP-I). As set out in Articles 48 and 51 § 2 AP-I the civilian population and civilian objects should not be the object of any attack or reprisals, with the exception of civilians who take a direct part in hostilities (Art. 51 § 3 AP-I).
Article 50 § 1 AP-I, which defines the notion of civilian in the negative, stipulates in paragraph 3 that “the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character”.
Moreover, Article 50 § 1 AP-I sets out a further presumption of the definition of civilian, stating that “in case of doubt whether a person is a civilian, that person shall be considered to be a civilian” and therefore to enjoy the appropriate protection.
Article 51 AP-I details the characteristics of this protection and notably prohibits indiscriminate attacks or the use of civilians to shield military objectives.
All of these obligations to provide protection are legally also of a customary nature.
Q: What are the characteristics of such protection of the civilian population, especially in the case of attacks by air?
A: In cases of international armed conflicts, several major principles govern the protection of the civilian population:
Principle of distinction: this principle obligates the parties to the conflict, at all times, to ensure the distinction between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objectives (Art. 48 AP-I).
Prohibition on indiscriminate attacks: Article 51 § 4 AP-I prohibits attacks which are not directed at a specific military objective or which employ a method or means of combat the effects of which cannot be limited. Also prohibited are attacks by bombardment which treat as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area, as well as those which may cause incidental loss of civilian life which would be excessive in relation to the military advantage anticipated (Art. 51 § 5 AP-I).
Prohibition of reprisals: also prohibited are “attacks against the civilian population or civilians by way of reprisals” (Art. 51 § 6 AP-I).
Principle of proportionality: this principle imposes on the parties to a conflict the requirement to take into account incidental losses (so-called ‘collateral damage’) which could be caused to the civilian population by military operations and to cancel the latter when it is likely that “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, would be excessive in relation to the concrete and direct military advantage anticipated” (Art. 51 § 5b and Art. 57 § 2b AP-I).
Principle of precaution: according to Article 57 AP-I, “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” In this respect, the parties to the conflict must do everything feasible to verify that the objectives to be attacked are legitimate military objectives and are not civilians nor civilian objects subject to special protection. They should also take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects. Furthermore, when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be the attack which may be expected to cause the least danger to civilian lives and to civilian objects. Finally, effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.
Finally, it is prohibited for the Parties to a conflict to attack, by any means whatsoever, non-defended localities (Art. 59 AP-I) and demilitarised zones (Art. 60 AP-I).
In the case in question concerning aerial attacks there is currently no specific wording governing the question. The principles outlined above therefore apply.
Q: What are the legal consequences resulting from the non respect of the various obligations aimed at protecting the civilian population?
A: According to Article 85 AP-I, any wilful violation of the obligation to ensure protection of the civilian population constitutes a grave breach of the Geneva Conventions. The Geneva Conventions provide for an obligation on the part of the parties (that is, the States) to repress grave breaches, and take measures necessary to suppress all other breaches (Art. 86 AP-I). Amongst these measures is a provision that the State Parties enact any legislation necessary to provide effective criminal sanctions commensurate with the commission of a grave breach of the Geneva Conventions (§ 1 common to Art. 49, 50, 129, and 146 of the four Geneva Conventions). It is therefore within the internal legal system of each of the States that the sanctions provided for can be found.
At an international level, it is possible to turn to the Statute of the International Criminal Court (when it has jurisdiction over the case) which provides for charges to be pressed for these violations, not on the basis that they constitute grave breaches of the Geneva Conventions, but rather as serious violations of the laws and customs of war.
By virtue of Article 8 of the International Criminal Court, the following are therefore considered as war crimes in the case of an international armed conflict:
“Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.” (Art. 8 § 2b-i).
“Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.” (Art. 8 § 2b-ii).
“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated.” (Art.8 § 2b-iv).
Q: Which law is applicable in the case of the attack on Fallujah 2004?
A: The attack against the insurgents in Fallujah by the US forces occurred within the context of the Iraqi occupation by the United States and several allied countries.
Occupation is defined as a situation where a “Territory is considered occupied when it is actually placed under the authority of the hostile army” (Art. 42 of The Hague Convention of 1907).
In such a situation the law provides for the application of the four Geneva Conventions (Art. 2 Common to the 1949 Geneva Conventions) as well as to Protocol I (Art. 1 § 3). In the case in question however, only the Geneva Conventions are applicable since the United States have not ratified Additional Protocol I. The content of the latter still applies though, because it is part of customary international law. Indeed, it is indisputable that the rules of AP-I relating to the conduct of hostilities mentioned above, and specifically those concerning the protection of civilians, constitute a basis of international customary law to be respected by all States, even if they have not ratified Additional Protocol I.
Q: Is it possible to conclude from this video that a war crime has been committed?
R: This video impresses the viewer by the rapidity in which the events unfold: the instantaneous positive reply from the control centre, the rapid firing of the missile, ...
Nevertheless, it is impossible to conclude that a war crime has been committed with the relatively few elements available.
At first sight, it would appear difficult to determine from such a height, and at such speed, if the individuals being aimed at are combatants (insurgents) or innocent civilians. In such cases of doubt, one should therefore assume they are civilians. Furthermore, the case could be made that the choice of the US army of aerial attacks is a complicating factor in respecting the obligation to protect the civilian population by making it more difficult to identify legitimate targets, and by requiring a rapidity of response that might have consequences over the decisions taken concerning the authentication of the objectives.
However, there is too much information missing to categorise such an attack. The video does not feature any information which might have been given to the pilot before the intervention. The latter could also have been directed on the spot by ground troops which had signalled the presence of a group of insurgents.
Nevertheless, if it is ascertained after investigation, that none of the precautions foreseen by humanitarian law were applied, and that the victims were indeed civilians, then the attack could be classified as a war crime. However, in order to reach such a conclusion it would be necessary to obtain much more information than that available.
