ASIL Insights

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On August 26, 2003, the U.N. Security Council unanimously adopted Resolution 1502, which (among other things) characterized the attack on August 19 against the headquarters of the United Nations Assistance Mission in Iraq as a violation of international humanitarian law, condemned all forms of violence against those participating in humanitarian operations, and urged states to ensure that crimes against such personnel do not remain unpunished. The preamble to the resolution also emphasized "that there are existing prohibitions under international law against attacks knowingly and intentionally directed against personnel involved in a humanitarian assistance or peacekeeping mission undertaken in accordance with the Charter of the United Nations which in situations of armed conflicts constitute war crimes" and recalled the need for states to end impunity for such criminal acts.

The resolution, as originally proposed by the government of Mexico, mentioned the Statute of the International Criminal Court (ICC) as a source of the prohibitions in the quoted provision from the preamble, above. Because of U.S. opposition to the ICC and its Statute, the resolution, as adopted, did not mention the ICC or identify the sources of the prohibitions in international law against such attacks. But the resolution in its preamble did "welcome" the U.N. General Assembly's adoption of Resolution 57/155 (2003), which refers to "the inclusion of attacks intentionally directed against personnel involved in a humanitarian assistance or peacekeeping mission in accordance with the [U.N.] Charter as a war crime in the Rome Statute of the International Criminal Court." General Assembly Resolution 57/155 also noted the role that the ICC could play in appropriate cases in bringing to justice those responsible for serious violations of international humanitarian law.

The Statute of the ICC identifies, as a war crime, "[i]ntentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict." ⁽¹⁾ Under the Fourth Geneva Convention on the law of war, civilians are protected from the outset of any international armed conflict or occupation until one year after the general close of military operations, if "in any manner whatsoever" they find themselves in the hands of a party to the conflict or occupying power. ⁽²⁾

The Fourth Geneva Convention and Protocol I to the Geneva Conventions provide further direct sources of the prohibitions mentioned in Resolution 1502. Under Article 27 of the Fourth Geneva Convention, protected persons are entitled to be humanely treated and protected from all acts of violence. Under Protocol I, civilians are given more specific protections. They "shall not be the object of attack." ⁽³⁾ In addition, "Attacks shall be limited strictly to military objectives." ⁽⁴⁾ Under the Protocol, an attack against civilians is a war crime. ⁽⁵⁾ Although the United States and some other countries have objected to certain aspects of Protocol I and thus have not become parties to it, the provisions in it on protection of civilians and civilian objects are widely regarded as reflections of customary international law. Resolution 1502 would appear to strengthen that view.

If the perpetrators of the bombing of the U.N. Assistance Mission were Iraqis, there is very little prospect that they would be prosecuted in the ICC even if they can be identified and detained. The ICC's jurisdiction can be exercised only if the U.N. Security Council refers the case to it (extremely unlikely because of the U.S. veto power); or if the crime was committed in the territory of a state party to the ICC Statute or by a national of a state party; or if either the territorial state or the state of the accused's nationality, though not a party to the Statute, makes a declaration accepting the jurisdiction of the Court with respect to the crime in question. ⁽⁶⁾ Iraq is not a party to the ICC Statute. Clearly, the United States (also a nonparty to the Statute), as the occupying power in Iraq, would not make a declaration accepting the jurisdiction of the Court. It is unclear whether the Iraqi Governing Council could make such a declaration, but in any event it is unlikely that it would try to do so or that it could effectively deliver anyone to the Court's custody while the United States is the occupying power.

The multilateral Convention on the Safety of United Nations and Associated Personnel, adopted in 1994, ⁽⁷⁾ requires or allows every state party to the Convention to establish its jurisdiction over an attack on U.N. or associated personnel engaged in a U.N. operation when (a) the crime is committed in that state's territory; (b) the alleged offender is a national of that state; (c) the alleged offender, though stateless, resides in that state; (d) a victim is a national of that state; or (e) the attack was an attempt to compel that state to do or abstain from doing any act. In addition, each state party in whose territory an alleged offender is present is required to take appropriate measures under its national law to ensure that person's presence for prosecution or extradition.

The Convention, however, is unlikely to be useful in the present situation. Neither Iraq nor any state to which anyone responsible for the bombing of the U.N. Mission might be likely to flee is a party to the Convention. But this would not necessarily preclude any such state from prosecuting or extraditing a suspected offender; it simply means that the multilateral treaty designed specifically for this situation, itself, would neither require nor authorize prosecution or extradition. Under generally accepted international law principles, the state where the offense was committed or of which the alleged offenders are nationals could prosecute them.

Any other state that gains custody of the alleged offenders might argue that it could prosecute them on the ground that this sort of terrorist act is so universally condemned that it is a matter of every state's legitimate concern to punish it. The counter-argument would be that terrorism is too ill-defined in international law to support a claim of universal jurisdiction, especially when the alleged terrorist acts are not directed against the personnel or facilities of a particular government or a coalition of a few governments.

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1. ICC Statute Art. 8(2)(b)(iii).

2. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Arts. 2 & 6. The occupying power is bound by certain provisions of the Convention for the duration of the occupation, even if that extends beyond a year.

3. Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, Art. 51(2).

4. Id. Art. 52(2).

5. Id. Art. 85(3)(a) & (5).

6. ICC Statute Arts. 12 & 13.

7. The Convention was adopted as an annex to U.N. General Assembly Res. 49/59 (1994), and may be found in 2051 U.N. Treaty Series 363.

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About the Author: 
Frederic L. Kirgis is Law Alumni Association Professor at Washington and Lee University School of Law. He has written books and articles on international law, and is an honorary editor of the American Journal of International Law.
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