When the U.S. invasion of Iraq began, the new Homeland Security Department immediately raised the terrorism alert level to Orange because of intelligence suggesting that Iraq could be preparing acts of terrorism in response to the attack.
In fact, under international law, if Iraq were to attack the U.S. with teams of sappers, blowing up bridges, tunnels, TV stations, power plants, factories or refineries (all legitimate wartime targets), if the attackers were to wear military uniforms identifying them as Iraqi soldiers legal scholars say they would not be terrorists at all, but rather soldiers engaged in acts of war.
The penalty, should such attackers be later apprehended, would be a prisoner of war camp for the duration of the conflict, after which time they’d be repatriated.
“It’s a disturbing thought,” says George Fletcher, a professor of jurisprudence and a specialist in the law of war at Columbia University. “Iraq, under the rules of war, has a clear right of self-defense which would permit it to blow up things in the U.S.,” he says.
Nor would Iraq have to declare war against the U.S. for its agents in the U.S. to acquire military standing, according to Fletcher, because Iraq was attacked first by the U.S. “I think under the circumstances, they could certainly claim the right of self-defense,” he said.
According to Fletcher, the key to establishing whether an attack by Iraqi agents in the U.S. was an act of terror or an act of war would be whether those agents were identifiable as Iraqi military personnel or not. “If they were dressed as civilians, then they would be considered to be unlawful combatants,” he says, “and they would not come under the terms of the Geneva Convention. But if they wore their uniforms and were captured, they’d have to be considered prisoners of war.
This raises serious questions about the Bush Administration’s claim to Americans that it was going to war against Iraq to protect Americans from terrorism.
By attacking Iraq, Washington has not only given Iraq a motive to counterattack in the U.S., it has made it possible for those Iraqis who are willing to fight for their country here in America to do so with much less risk. Assuming they were to opt for something other than a suicide bombing, Iraqi agents could at least contemplate being free before long even if they were captured, since the rules of war require that POWs be treated humanely, and that they be released at the end of a war.
That’s a lot better treatment than what is in store for captured terrorists, who would likely face the death penalty.
Iraq has already said that in retaliation for the U.S. invasion, it will strike back at America. The longer the war lasts without a clear and decisive resolution, the likelier it is that Baghdad will make good on that threat. If it does, the U.S. may have little alternative but to add the perpetrators of any attack, should they be captured, to its growing list of captured soldiers in Iraq.
Of course, the Bush administration hasn’t shown much regard for international law, so it’s possible they’d ignore the fact that Iraqi fighters in the U.S. fall under Geneva Convention rules. It might just treat them like Al Qaeda suspects. That course of action, however, would put all American POWs in Iraq and other future conflicts at grave risk.
Meanwhile, even if Iraq never succeeds in opening up a front in the domestic U.S., or against American government, military or business assets overseas, Americans should be prepared for some ugly scenes. Fletcher notes that those Americans who are fighting in Iraq as special forces or as CIA operatives–that is, if they are undercover and not in uniforms that clearly identify them as American soldiers–do not have the protection of the Geneva Convention themselves, and could be treated themselves as unlawful combatants–which could mean torture or execution.
Is everyone feeling safer now?
Dave Lindorff is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. A collection of Lindorff’s stories can be found here: http://www.nwuphilly.org/dave.html
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