Jus in Bello Issues Arising in the Hostilities in Iraq in 2003

• Author: Yoram Dinstein
• Position: Professor of Human Rights and Pro-President at Tel Aviv University (Israel)
• Pages: 43-56

IV

Jus in Bello Issues Arising

in the Hostilities in Iraq in 2003

Yoram Dinstein1

The hostilities in Iraq in 2003 brought to the fore anumber ofjus in bello issues

deserving special consideration. This paper will deal with ten such issues.

The Status of Unlawful Combatants

The subject ofunlawful combatancy has already been addressed by the present writer

in the conference on Afghanistan in 2002.2It is not proposed to repeat here what was

stated at some length in the earlier essay. Suffice it to state that, under customary in-

ternational law, acombatant who does not fulfill the cumulative conditions oflawful

(or privileged) combatancy

—

inter alia, that ofhaving "a fixed distinctive sign recog-

nizable at adistance"3—becomes an unlawful combatant, i.e., he is denied the privi-

leges of aprisoner of war status and exposed to the full rigor of the domestic penal

system for any act of violence perpetrated by him in civilian clothes.

The use of uniforms by members of the regular armed forces is amatter of cus-

tom, esprit de corps and convenience. Lawful combatancy is not determined by the

wearing of auniform per se. As indicated, it is determined {inter alia) by the wear-

ing of afixed distinctive emblem recognizable at adistance. This fixed distinctive

emblem may be less than afull-fledged uniform (e.g., aspecial headgear or an

armband). But if the fixed distinctive emblem of regular armed forces is auniform,