Make Iraqis Pay for Acts of ‘Perfidy’

As Saddam Hussein’s regime whimpers to ignominious nonexistence, its death throes seem to consist increasingly of tactics such as suicide bombings and false surrenders.

It is disturbing to see American commanders playing into Hussein’s hands in their apparent failure to comprehend the illegality of these Iraqi tactics under international law or to adopt any coherent policy to deter or punish those responsible.

For example, in response to a reporter’s statement that the U.S. Marines killed by a suicide bomber were legitimate military targets, allied commander Gen. Tommy Franks replied, “I suppose that’s in the eye of the beholder.”

Actually, the illegitimacy of such a tactic is clearly set out in international law. Feigning civilian status, for the purpose of inviting the enemy’s confidence that the perpetrator should be accorded protection as a noncombatant, is a specific war crime known as “perfidy.”

Another example of perfidy was when Fedayeen fighters waved a white flag and then opened fire on U.S. soldiers preparing to accept surrender. Still another was the recent operation in which an ostensibly pregnant woman lured three American soldiers to their deaths by pretending to be in distress at a checkpoint and then detonating concealed explosives. We now know that those incidents were not acts of ad hoc martyrdom but instead were deliberated and sanctioned at the highest levels of the Iraqi hierarchy. When Deputy Prime Minister Tarik Aziz and Iraq’s information minister recently broadcast their approval of “martyrdom operations,” they knew that the only way suicide bombers could draw close enough to hurt our troops was by pretending to be civilians, which then would induce our edgy troops to fire on civilians in other settings. By their brazen announcement, Hussein’s toadies admitted their responsibility for this war crime.

Fundamental international law, the “law of war,” requires lawful combatants to wear uniforms and carry arms openly so as to distinguish themselves from the civilian population. The sensible policy rationale for this rule and the companion rule against treachery is to facilitate the corresponding obligation of the opposing army to minimize harm to civilians and their property and to give quarter to those who surrender.

Erosion of those distinctions began during Vietnam, when the United States decided to treat Viet Cong guerrillas as prisoners of war regardless of whether or not they were captured in uniform. The rule erosion gained recognition in international law in the 1970s, when some nations adopted a protocol to the Geneva Convention that afforded guerrillas in so-called “wars of national liberation” a protected status as legitimate combatants, even if they did not wear uniforms and bear arms openly at all times.

President Reagan refused to submit the protocol to the Senate for ratification, citing the danger of terrorists concealing themselves in the civilian population. Interestingly, Iraq also has not ratified this protocol. Even under the more liberal rules, though, soldiers still must bear arms openly in the field.

We have dropped millions of leaflets warning Iraqi soldiers that if they use poison gas or germ agents they will be punished as war criminals. No such attack has yet occurred. Now, to help avoid protracted urban guerrilla war, we need a similar campaign to enlighten Hussein’s goon squads that we no longer will play the mark for the con game of imperiling civilians to dupe the world into hating the United States. Iraqis caught using or sponsoring such tactics should not be accorded prisoner-of-war status but held for trial by military commissions.

Perhaps most important to the Hussein regime is the local strategic advantage afforded by its tactics. It makes our troops nervous and leads to situations like the one in which soldiers shot up a van of civilians that had failed to heed a checkpoint. If American troops perceive every Iraqi civilian as a walking bomb, it naturally leads to harsh measures, which in turn stop the people from seeing Americans as liberators.

Among the many things the U.S. must do to win the peace is to put Hussein’s illegal warriors and the policymaking hirelings responsible for them on trial for their war crimes.