Ans: An insurgent fighter who commits an act of terror in Iraq is strictly speaking, not an armed soldier employed by the Iraqi government who would be covered under IHL and would not therefore be entitled to a combatant’s privileges. Under the combatant’s privilege, the soldier can fire upon enemy troops without prosecution. Whereas an insurgent who has bombed a US military vehicle in Baghdad is liable for prosecution under IHL.
Not only that, they are also subject to attack from coalition authority forces and from the new Iraqi regimes, police and military forces. Human Rights Watch goes to the extent of arguing that all the parties to the conflict in Iraq, including the insurgents are subject to IHL. Insurgents or terrorists the world over, have no legal status. If they were to be tried by Iraqi law, which governs criminal activity then the focus would be different.
If they were to be tried as per the norms of IHL or international human rights laws then too the situation would be different. But in both cases there has to be a system of understanding the legal implications of an act of terror. To take an illustration. Some time after the June 2004 transfer of sovereignty in Iraq, insurgents beheaded a 26-year-old American businessman Nicholas Berg and shot 20-year-old Keith Matthew Maupin. What law, national or international would apply to the people who perpetrated these acts?
They could be tried under Iraqi law. They could also be tried under a Coalition Forces Authority order that prohibits the possession, transport, concealment, sale, and use of unauthorized firearms, and military weapons, by any individuals other than the Coalition Forces, and authorized Iraqi security police and personnel. But in practice nothing like this ever happens. The unseen insurgent is on the run and prosecution is not preferred for the want of evidence.
There was a suggestion made in 2006 by the Iraqi PM Nuri al-Maliki to the US that insurgents fighting coalition forces in Iraq should get amnesty. This was promptly rejected by the US arguing that these forces had no right to amnesty. If one views the acts of terror by insurgents in Iraq as an act of war and not a crime, there is really no reason for amnesty. Since the insurgents do not anyway have any protection or impunity, within national or international law, the amnesty suggestion appeared to be a sensible one, but whether it is workable is a moot question.
If one views the conflict in Iraq according to the Geneva Conventions as an armed conflict in a non-international situation or better put an internal conflict, with external forces playing the role of a stabilizer, then the Hadith incident of November 2005 in which several civilians were killed was in violation of international law. US Marines killed 224 Iraqi civilians who had apparently no connection to an IED blast that killed a Marine in the town of Hadith on 19 November. Protocol I of the Geneva Conventions expressly prohibits all direct attacks on civilians, including attacks carried out in reprisal.
Article 51 (6) of Protocol I states: “Attacks against the civilian population or civilians by way of reprisals are prohibited. ” Common Article 3 of the Geneva Conventions and the customary law of internal armed conflict if applied to the Hadith killings would demonstrate that there was a violation of law. But American soldiers cannot be tried under Iraqi law, unless the US hands over full sovereignty and Iraq is able to try cases without American soldiers having protection against prosecution.
Interestingly, Article 66 of the Fourth Geneva Convention states that excepting laws that concern the security of the external force that occupies another country, local laws remain in force and local courts remain competent to try cases. In this scenario, it may be possible to try insurgents, if they are caught as per Iraqi law. But the motivations of the executive and judiciary in an Iraq occupied by the US may be suspect in the eyes of the local people. Therefore, this remains a grey area.