Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies “[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” as a serious violation of the laws and customs of war applicable in both international and non-international armed conflicts.
In its judgment in the Al-Anfal case in 2007, the Iraqi High Tribunal listed the following elements for the crime of attacks against civilians:
1. When the perpetrator of the crime implements an attack.
2. The target of the attack must be civilians as their status, or civilians who are not directly participating in the military operations.
3. When the perpetrator of the crime is intentionally targeting civilians as their status, or civilians who are not directly participating in the military operations.
4. When the conduct of the perpetrator performed within non-international armed conflict or linked with it.
5. The perpetrator of the crime acknowledges the factual circumstances which prove the existence of an armed conflict.
The Tribunal further stated:
The war crime as attack against the civilians requires the availability of numbers of evidence such as a proof of the death or the injuries among the civilians, the proof that the main picture of the victims is non combatants. Also, no distinction between the combatants and civilians, a proof that the case exceeds being only an internal turbulence, a proof that the insurgent side possesses an organized armed force and an authority responsible for its actions and performing activities in a certain region and having all the methods of respecting and guaranteeing the compliance with the Geneva Conventions, proof that the committed action was executed in a time and geographic frame during a military conflict, a proof that the military conflict played a vital role in the perpetrator’s capability to commit the crime, and on his decision to commit the crime, and the purpose of committing it, a proof that the perpetrator knows at least some of the circumstances.
The attack directed against the civilians as a crime of the war crimes, requires a premeditation of directing attacks against civilians who do not take part directly in the war activities … and also requires an attack, and the purpose of this attack the civilian inhabitants … and this conduct occurs in during a non-international armed conflict … and the crime perpetrator is aware of the factual circumstances which prove this conflict.
The elements to prove this crime:
It is the proof of death or injured among the civilian inhabitants, and that the general scene of the victims, were not military, and proof of no distinction between civilians and combatants, and evidence that the situation exceeds the fact of being a mere internal disturbance … and proof that the rebellious party possesses organized armed force which operates in a defined region, and owns the methods to respect the (Geneva) Conventions … and the proof that the perpetrated action is done in a specific time and geographic limit during the conflict.
The legal requirements needed to prove the crime basics and how much it corresponds with the perpetrator’s act to be able to prosecute him are: First, the crime perpetrator must carry [out] an attack; the purpose of the attack must be civil residents or civil individuals not directly involved in war operations. The elements of proof [pertaining to the two requirements] are the evidence that the victims’ general view indicates that they are not military individuals.
The Report on the Practice of Iraq refers to several military communiqués issued by the General Command of the Iraqi armed forces during the Iran–Iraq War, one of which states: “Our Armed Forces have strictly adhered to the decision of the leadership by not shelling the purely civilian centers, and in accordance with the agreement made through the UN Secretary-General.”