The International Humanitarian Law Classification of Armed Conflicts in Iraq since 2003

Author:David Turns
Position:Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the United Kingdom (Cranfield University)
Pages:97-123
 
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VI
The International Humanitarian Law
Classification ofArmed Conflicts in Iraq
since 2003
David Turns*
Introduction: Review of the Timeline ofEvents in Iraq
Anarmed conflict, within the meaning of international humanitarian law
(IHL), began in Iraq when that country was invaded by military forces of
the coalition composed primarily of the United States, the United Kingdom and
Australia in March 2003. It continues to this day, notwithstanding acertain decline
in intensity since the British withdrawal in July 2009 and the reorganization of US
forces under anew security agreement with the Iraqi government in December of
the same year. Over the course of its duration, the Iraq conflict has undergone
three definite mutations in terms of its participants, mutations which have had the
effect of altering its characterization under IHL. The four phases of the conflict
have been as follows:
1. the initial invasion, which saw hostilities between the coalition forces
and those of the Iraqi government of President Saddam Hussein (March
to April 2003);
*Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the United
Kingdom (Cranfield University). All opinions expressed herein are entirely personal to the author
and in no way represent any official view of the British government or Ministry of Defence.
International Humanitarian Law Classification ofArmed Conflicts in Iraq
2. the debellatio of Iraq and its belligerent occupation by the victors,
represented by the Coalition Provisional Authority (CPA), confronted
by an increasingly violent insurgency (April 2003 to June 2004);
3. the transformation of the coalition occupying forces, with broader
international participation and aUnited Nations mandate, but still
opposed by the insurgency, into the Multinational Force-Iraq (MNF-I)
(June 2004 to December 2008); and
4. the continuing presence of US forces (all others having withdrawn) to
help confront the insurgency, without aUN mandate but with asecurity
agreement negotiated between the United States and the Iraqi govern-
ment (since January 2009).
The question of the nature of the armed conflict in Iraq is not of merely aca-
demic interest, nor can it be dismissed as an exercise in sterile semantics ofno prac-
tical importance to the troops on the ground. On the contrary, the determination
ofthe nature ofan armed conflict in the sense of IHL has avery real significance for
the military forces engaged in the conflict, for it impacts directly such practical mil-
itary activities as the status of the participants, their consequent classification and
treatment after capture by an opposing party, the conduct of hostilities and the use
of weaponry. Above all, it determines the international law framework and rules
applicable to the situation.
IHL recognizes two basic types of armed conflict: international (IAC) and non-
international (NIAC). Although, broadly speaking, many of the same principles of
customary international law are now considered applicable in both types of con-
flict, 1the fact remains that the detailed legal regulation of conduct in armed con-
flicts is still contained primarily in the various treaties that have accumulated over
the last one hundred fifty yearsprincipally the Hague Regulations of 1907, the
Geneva Conventions of 1949 and their Additional Protocols of 1977. The scope of
application of each of these instruments is precisely defined, but they were de-
signed for conflicts that were comparatively clear in nature: one State against an-
other State or aState against insurgents, that is, its own nationals in its own
territory. Asalient feature of the hostilities in Iraq from an Anglo-American per-
spective, after the CPA was wound down in June 2004 and the coalition occupying
forces became amultinational force present with amandate from the UN Security
Council and the consent of the new Iraqi government, has been the fact of State
forces being engaged in foreign territory against foreign non-State actors. This sit-
uation, not having been expressly envisaged in 1907, 1949 or 1977, is not covered as
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