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Tuesday, April 27, 2004

U.S. Violating International Law? Not in Falluja.


According to the usually reliable Iraq expert Juan Cole, U.S. the attack today on guerrillas in Falluja with AC-130 gunships is likely to cause civilian casualties and is thus "illegal" under international law. Unlike most anti-war types that cry "illegal!" whenever the U.S. does something they don't like, Cole refers us to actual laws allegedly violated by the U.S. Specifically, he says that we've violated articles 3 and 33 of the Fourth Geneva Convention.

Since I find these constant cries of "illegal! illegal!" really irritating, I'm going to take this opportunity to rebut the argument of someone who, if not an international lawyer, is at least smart and knowledgable, and should be taken seriously.

I'm not an international lawyer either, but it seems pretty clear to me from reading the treaty that both of the articles Cole cites are much more limited than he believes them to be, and neither apply to the assault on Falluja.

Article 3 says: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict" is prohibited from killing "persons taking no active part in the hostilities." [my emphasis] But this article only applies in "conflict not of an international character," which is to say, domestic rebellions, civil wars, and the like.

Article 33 says: "No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited...Reprisals against protected persons and their property are prohibited." [my emphasis] Notice that this article only applies to "protected persons," not to just anybody. And what is a "protected person?"

Article 4 defines a "protected person." It says: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power." There are also further restrictions on who qualifies as a protected person, such as that soldiers don't qualify for these particular protections. So, a protected person is basically, a civilian who has been arrested or detained. Since the civilians in Falluja that were allegedly killed weren't in U.S. custody, article 33 doesn't apply either.

Notice that under Cole's interpretation, the burden on the military is impossibly heavy. No matter how many precautions are taken, any accidental killing of a civilian during the course of combat would be an illegal act. But instead, article 33 only applies in circumstances where civilian casualties can be easily avoided, when the civilians are actually in custody. And article 3 only forbids killing civilians in the case of civil war, which is to say it only asks a government to avoid killing its own citizens.
 
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