Fighting in Civvies and, Maybe, Outside the Law

Iraqi fighters dressed in civilian clothes and operating in small groups are violating the laws of war and are not entitled to the Geneva Conventions’ protections for true soldiers, U.S. officials and experts in international law said Tuesday.

They can be fired at and, if captured, put on trial as common criminals, experts said.

“Any civilian who picks up a gun in an armed conflict loses the immunity from attack,” said American University law professor Robert K. Goldman. “And unlike a prisoner of war, they can be tried as murderers.”

Some of the most effective Iraqi fighters in the war’s early days have been acting as guerrillas operating behind the lines. They have posed as civilians and then opened fire on U.S. and British troops.

U.S. military leaders expressed anger at what they called “acts of treachery” by the Iraqi fighters.

“I’m not going to call them ‘troops.’ They’re essentially terrorists,” said Defense Secretary Donald H. Rumsfeld.

“Some of the biggest losses we’ve taken are due to Iraqis committing serious violations of the law of armed conflict,” added Air Force Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff.

The Geneva Convention of 1949 set out protections for soldiers and civilians during times of armed conflict.

Captured soldiers are to be treated humanely and cannot be punished for their acts of war.

Civilians are supposed to be shielded from violence, cruelty and punishment.

But civilian fighters fit neither category.

The Geneva Convention says the protections for prisoners of war extend to “members of the armed forces” who are captured as well as “members of militias [and] organized resistance movements” who have a commander and who display “a fixed distinctive sign recognizable at a distance,” carry their weapons openly and “conduct their operations in accordance with the laws and customs of war.”

The Iraqi fighters meet none of these criteria, U.S. officials said.

They are not recognizable as soldiers, and they are waving white flags before firing on U.S. troops, according to Defense Department officials.

“We have the option of not treating them as POWs if they are captured,” said Eugene R. Fidell, a Washington lawyer and expert on military law. “They would be in the same legal pool as Al Qaeda,” he said.

U.S. authorities would be entitled to try them for war crimes in military trials or through international courts, he said.

But Rumsfeld’s quick willingness to invoke international law and the Geneva Convention has been branded as hypocrisy, particularly in Europe.

“I have talked to a number of members of the foreign press, and they all begin asking how can Rumsfeld scream about adherence to the Geneva Convention when he was willing to ignore it last year,” said Goldman, the American University professor. “The [Bush] administration made a mistake in denying POW treatment to the Taliban combatants [in Afghanistan]. But I also believe in the power of redemption.

“We need to apply the [Geneva] Convention fairly, and we will save ourselves from a lot of trouble.”