Hors de Combat: Are we shooting?
"Are we shooting? Are we shooting people or what?" At the beginning of the movie, Sergeant Troy Barlow (Mark Wahlberg) fired his M16 at an Iraqi soldier who’s waiving a white handkerchief or something.
Waiving a white flag is widely recognized as a signal of truce and request for negotiation. White flag as a “flag of truce” is codified in the Hague Convention IV Art. 32, though the primary purpose of this article is about parlementaire, not surrender. This is could be considered as a customary law.
Art. 32
"Are we shooting? Are we shooting people or what?" At the beginning of the movie, Sergeant Troy Barlow (Mark Wahlberg) fired his M16 at an Iraqi soldier who’s waiving a white handkerchief or something.
Waiving a white flag is widely recognized as a signal of truce and request for negotiation. White flag as a “flag of truce” is codified in the Hague Convention IV Art. 32, though the primary purpose of this article is about parlementaire, not surrender. This is could be considered as a customary law.
Art. 32
A person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany him.
---The Hague Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907.
According to the Art. 41 of the Additional Protocol I, a soldier making surrender should be treated as hors de combat, who should not be a target.
Art 41. Safeguard of an enemy hors de combat
According to the Art. 41 of the Additional Protocol I, a soldier making surrender should be treated as hors de combat, who should not be a target.
Art 41. Safeguard of an enemy hors de combat
1. A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.
2. A person is hors de combat if:(a) he is in the power of an adverse Party;(b) he clearly expresses an intention to surrender; or(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;provided that in any of these cases he abstains from any hostile act and does not attempt to escape.
---Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
In this case, the Iraqi Regular Army soldier showed his intention to surrender by waiving a white handkerchief, while he still carried a gun publicly, which constitutes one of the legal criterion for a combatant. (Art. 4, Geneva Convention III) Hence, there is room for the Sergeant to argue that shooting the Iraqi soldier did not violate Art. 41 of Protocol One.
Torture: What’s the problem with Michael Jackson?
Sergeant Troy Barlow, shot by the Iraqi rebel during the firefight outside the bunker and affected by the CS gas, was captured by the Iraqi soldiers. They locked him in the interrogation room, force him to drink oil and use electric shock on him.
Though the right of POW is granted in Geneva Convention III (esp.Art.13), in this case, Sergeant Barlow may not be granted the legal status of POW. The situation considered in Convention III is an international armed conflict, which does not seem to exist in between US and Iraq at that time. Nevertheless, with a gunshot in his chest and affected by the CS gas, Sergeant Barlow is wounded person that should be take care of according to the Common Article 3 and the Art.15 of Geneva Convention I:
Art. 15.
At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.
--- Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
Besides, CS gas is prohibited by the 1997 Chemical Weapons Convention. Although Iraq is not a party to the CWC, using the weapons that would cause superfluous injury and unnecessary suffering is forbidden by the Declaration of St. Petersburg of 1868 and the Protocol I Art. 35. This principle should be regarded as a customary law.
--- Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
Besides, CS gas is prohibited by the 1997 Chemical Weapons Convention. Although Iraq is not a party to the CWC, using the weapons that would cause superfluous injury and unnecessary suffering is forbidden by the Declaration of St. Petersburg of 1868 and the Protocol I Art. 35. This principle should be regarded as a customary law.
The Principle of Distinction: Unnecessary shot?
During the firefight in the village, an Iraqi rebel shot a woman to death. The Iraqi rebel violates the basic principle of IHL, the principle of distinction, which is codified in Art. 48 of Protocol I:
Art 48. Basic rule
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
---Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
---Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Three Kings also raised other issues such as IDPs and Anti-personnel mines. Part of this film reminded me of another war movie, Jarhead. When the US Army soldiers disarm Iraqi POW with a rude manner, I kind of see the absurdity of war that Three Kings and Jarhead tried to disclose with a sense of dark humor.
