Wednesday, March 22, 2006

Bush denies Iraq is in Civil War

While Iraq's former interim Prime Minister Iyad Allawi told the BBC 50 to 60 people were dying every day and that the country was in civil war, US President George W Bush on Monday said he does not believe Iraq has descended into civil war. (BBC-News, Bush denies Iraq is in civil war, Tuesday, 21 March 2006)

The questions raised, concerning international humanitarian law, are what is a civil war, is the question of any legal relevance and is the Iraq in a state of civil war.

A civil war is a war between two or more groups of inhabitants of the same state. Different kinds of civil wars are acknowledged, the classical ones being fought for control of the government or of a part of the territory of a state.

Converting this definition into legal terms, a civil war is the classical example of an internal armed conflict (Oeter, Civil War, in: EPIL I, ), so that some norms of international humanitarian law apply. Common Art. 3 of the four Geneva Conventions of 1949 extends some of the more basic norms of international humanitarian law also to internal armed conflicts and thus civil wars and Additional Protocol II of 1977 goes even further than Art. 3 (AP II however according to Art. 1 has a relatively high threshold for application).
Concerning other parts of the Laws of war, for example the right to search foreign ships etc., the question of applicability is decided by the recognition of the rebels as belligerents.
If they are recognized as such by the government, making them subjects of international law, the laws of war fully apply for the conflict.
Another legal question of major relevance is the right of other states to intervene in that war, either on the side of the rebels or of the government. While help given to rebels generally has to be seen as prohibited, the situation is disputed when help is given to the government.

The question if there is a civil war in Iraq and which consequences that would have is difficult to answer, probably even impossible at this stage. I only want to outline the problems and the possible answers. (I am already working on one or two longer posts so I don’t have the time to review the whole situation in depth, which would cost me a week or so seeing all the problems raised)
The first remark has to be that the activities of foreign fighters/terrorists obviously do not count in determining if there is a civil war going on in Iraq. Only if the Iraqi ethnic/religious groups are fighting each other or the government could this amount to a civil war. One thing is not that clear in that context: does it count if those groups fight the American troops stationed in Iraq. This is a question that only could be answered if one first answered the question whether the US occupation has ended by the elections for the new Iraqi government (or before that date), an at least disputed question.

The articles by Daniel Thürer and Malcolm MacLaren, ‘Ius Post Bellum: A Challenge to the Applicability and Relevance of International Humanitarian Law’, in: Liber amicorum Jost Delbrück, Berlin 2005, pp. 753 et seq. and Knut Dörmann and Laurent Colassis, ‘International Humanitarian Law in the Iraq Conflict’, 47 GYIL (2004), pp. 293 et seq.  both give a good account on that question.

If one said that the occupation has ended and that the US Troops are supporting the Iraqi government on its own account, there would be no problem. Fighting the US Troops would equal fighting the Iraqi government. But if one is of the opinion that the US still occupies Iraq, fighting the US Forces is not part of a possible civil war (then, however, international humanitarian law would apply at least to the US Forces according to and to the amount specified in Art. 6 of the Fourth Geneva Convention of 1949).
Even if one only takes into account the fighting between the Iraqi ethnic groups, one has to say that the question of the existence of a civil war is not easily answered. There are bombings and armed clashes which clearly have an inter ethnical/religious character. See for example the bombing of the golden-domed mosque in the city of Samarra and the related demonstrations and armed clashes that erupted across southern Iraq last month. (See Michael Howard, Iraq slips towards civil war after attack on Shia shrine, The Guardian, Thursday February 23, 2006) Often these incidents are so severe, that here or there somebody calls it a civil war. (For a list of official or quasi official statements pointing in that direction see Think Progress, Bush Ignored Warnings Of Iraqi Civil War)
But I probably (seeing my fragmentary insight into the facts) would agree that there is no civil war yet, at least not in the legal meaning of the word. The occasional bombings and even some minor armed clashes do not amount to a civil war, even if they are as frequent as they are in Iraq. A civil war has to be more structured and openly fought, not that terrorist-like. I admit that Iraq seems to be at the fringe of a civil war, seeing that ethnical frictions worsen with any bombing and any incident.

Another problem is how one should know who attacked whom. That may be the main problem to decide

UPDATE: Because I really was not sure about my insights into the facts and thus my conclusion, I looked into all the newspapers reports on Iraq. I still think that there, at the moment, is no civil war in Iraq. The structure of the conflict is, as I said, too fragmentised and it is fought too secretly, in order to qualify as a civil war. The distinction however is a hard one, because a secretly fought war of course can qualify as civil war, the issues are, if the incidents occur often enough and if it is clearly fought one group against another or a group against the government. Both seem to be tricky issues, concerning Iraq.
One big issue in my argumentation so far was that the terrorist attacks don’t count. It seems however, that a major share of the violence in Iraq can be attributed to Militias of either Shiite or Sunni allegiance. The New York Times had a good article written by Jeffrey Gettleman and John O’Neil on this issue. That makes the decision concerning the civil war even harder. It seems clear that to destabilize Iraq is a major objective behind most of the attacks, but to what end? I think, taking all I know together, that the threshold for a civil war has not been reached jet, but it’s a close call.