To: Members of the ASIL-CFR Roundtable
From: Holly Burkhalter, U.S. Policy Directory, Physicians for Human Rights
Date: 12 December 2002
With the United States poised to go to war in Iraq, this is an important moment for the Council on Foreign Relations and the American Society of International Law to be exploring the issue of Old Rules and New Threats. In this brief paper I will discuss some of the humanitarian and human rights issues that arose during the U.S.-led war in Afghanistan that may have relevance to a future war in Iraq.
When the United States engaged militarily in Afghanistan, it was, in my view, judged by an evolving humanitarian standard, one that went farther than the expectation that American soldiers simply comply with the Geneva Conventions in the course of their operations. Representatives of human rights and humanitarian organizations, by raising concern about the potentially disastrous consequence of an aerial war in a country suffering an historic famine, promoted the notion that the U.S. could not go to war against the Taliban and al Queda and leave the Afghan people in worse shape than they were under the Taliban. International and domestic opinion about the seemliness of the worlds greatest military and economic power making the rubble bounce in Afghanistan added political pressure on the United States to do more than achieve its legitimate military objectives against the Taliban and al Queda.
The Bush Administration clearly understood the negative political and strategic implications of American bombs pulverizing an already destroyed and degraded country and determined that the military campaign against al Queda could not be conducted against a backdrop of mass starvation in Afghanistan. After an ill-considered spate of food air-drops, the U.S. made a more serious effort to flood Afghanistan with food at the same time as it conducted the air war against the Taliban and al Queda. With American dollars purchasing much of the food and the World Food Program and the local Afghan staff of nongovernmental groups leading an effort that was nothing short of heroic, the famine was largely averted.
Other evidence that the U.S. had to do more than achieve its military goals in Afghanistan may be seen in the efforts the Bush Administration made to put in place an interim government that respected human rights. It was strategically and politically crucial that the new government be led by a moderate Pashtun who respected womens rights and was untainted by past association with war or abuse. And it was vital as well that the interim government be eventually elected democratically. Those political exigencies served the human rights cause well in the person of President Hamid Karzai and most of the members of his cabinet.
The Bush Administration was less successful when it came to following through with promises to rebuild Afghanistan, which, after decades of war and misrule, is in ruins. The billions per year that are needed particularly funds for the Karzai government itself -- have not materialized. But the inadequate American response to the challenge of rebuilding Afghanistan has precipitated a hailstorm of criticism in the U.S. and European press. More importantly, in late November Congress enacted the Afghan Freedom Support Act, bipartisan legislation that sought to correct the Bush Administrations course by providing an additional third of a billion dollars a year for reconstruction and authorized an expansion of the multinational peacekeeping force to enhance security.
In the case of a possible war with Iraq, too, there are likely to be international and domestic expectations for American performance that go beyond the requirements of international humanitarian law. The Geneva Conventions do not require the U.S. to install a democratic regime to replace Saddam Hussein, but the U.S. public and the world expect it, and President Bush himself has announced it as a goal. The Geneva Conventions do not require that the U.S. prevent abuses by its foe, but leaders in the human rights community are even now calling upon the Bush Administration to anticipate and prevent attacks by Saddam Hussein on dissident Kurds and Shiite Iraqis. The Geneva Conventions permit a degree of collateral damage when legitimate military targets are attacked, but the U.S. and international public opinion will judge the United States harshly if American bombs and missiles kill civilians in the vicinity of Saddams forces or weapons caches. And if starvation or an outbreak of disease results from American bombardment of Iraqi infrastructure, military and strategic gains could be seriously compromised by international and domestic revulsion that can be predicted.
In Afghanistan, the U.S. military was reportedly under instruction to minimize damage to the civilian infrastructure and avoid killing noncombatants. It is our understanding that care was taken and high level approval required when fixed targets were selected for bombardment in order to avoid civilian casualties. Serious mistakes occurred, apparently, when ground commanders requested strikes for newly identified targets. The destruction of an ICRC warehouse (not once but twice) is a case in point, as is the well-known wedding party bombing. Even given these mistakes and errors, it is safe to say that the United States Air Force did not deliberately target civilians for attack. And there is considerable evidence that precision weapons were indeed precise on most occasions.
There are important lessons to be learned from the air war in Afghanistan that could help limit civilian casualties in Iraq. The need for better ground intelligence and more restraint in attacking emerging targets should be obvious, for example. The challenge of avoiding collateral deaths in Iraq is likely to be much greater than in Afghanistan, given the number of military targets in densely populated Baghdad and the Iraqi regimes apparent decision to embed military troops and installations within civilian neighborhoods. That the use of civilian shields is prohibited under humanitarian law and Saddam Hussein will be at fault if they are killed is true but irrelevant. The world should expect that Saddam Hussein will do nothing to protect the civilian population and do much to put them at risk. American pilots will likely have to avoid many tempting military targets if civilians are in or around them.
A significant source of civilian casualties in the Afghan theater that is likely to be a bigger concern in Iraq is the use by allied forces of cluster bombs. Cluster bombs, with their wide scatter radius and many dud bomb-lets that are later picked up by civilians and detonated on contact, should be eschewed if there is a war against Iraq. The Geneva Conventions do not outlaw cluster bombs per se and do permit proportionate collateral damage when attacking appropriate military targets. But human rights groups and governments allied with the United States are appealing to the U.S. Government to rule out the use of cluster bombs because they are inherently indiscriminate. Here again, humanitarian law may be more permissive than international and domestic public opinion.
Astonishingly, the United States reportedly also contemplates using antipersonnel landmines in a future war in Iraq and is stockpiling the weapon for that purpose. Physicians for Human Rights, a founding member of the International Campaign to Ban Landmines, views the use of this grotesquely indiscriminate and inhumane weapon to be morally wrong. It will be legally wrong, as well, for countries that have joined the Mine Ban Treaty (among whom can be counted virtually of the United States allies) to participate in joint operations with forces using antipersonnel landmines.
There is one important area where U.S. military performance in Afghanistan actually fell far short of its obligations under humanitarian law, and where war crimes were committed that could and should have been prevented. It is worth examining the issue and identifying lessons for a future war in Iraq.
U.S. forces in the field carried out operations against the Taliban in cooperation with the Northern Alliance, a force that before the American intervention had been virtually defeated by the Taliban. Suffering the loss of their long-time leader, General Massoud, just over a month before the war, Northern Alliance forces were restricted to a tiny portion of the country. American funding, leadership, logistical support, communications, and training after the terrorist attack on September 11, 2001 enabled the Northern Alliance to defeat the Taliban in a matter of weeks an accomplishment it could not contemplate on its own in five years of fighting.
Notwithstanding the role of its own special forces and intelligence agents in hostilities that resulted in the defeat of Taliban forces at Kunduz in November, 2001, the U.S. military apparently made a decision that the Northern Alliance forces would be responsible for the detention of captured, surrendered and wounded Taliban combatants, both Afghan and foreign. It appears that that decision led to the killing of a large number of surrendered combatants. Those who survived were detained in grossly inhumane facilities.
Physicians for Human Rights visited a major detention facility for surrendered Taliban combatants, Shebarghan Prison, in January 2002 and publicized its findings widely in the media. The prison was freezing cold, food was minimal, and sanitation was dangerously squalid. The facility was overflowing with ten times as many men as it was built to hold, and thousands depended upon a small trickle of water and a half dozen latrines. Many had died from dysentery and exposure by the time of the visit by PHR.
Physicians for Human Rights researchers made an even more disturbing finding within a few miles of Shebarghan Prison: a large patch of disturbed earth with remains of bodies on the surface suggesting a mass grave site. The United Nations Human Rights Commission conducted a preliminary investigation of the site, located at Dasht-e Leili in April 2002. Working with a forensic expert, seconded by PHR, the Commission investigators uncovered fifteen bodies who appeared to have been smothered, in a small test trench dug at the site. In late August, Newsweek magazine released a special report on the issue of war crimes in Afghanistan about how negotiations among the U.S. special forces, the Northern Alliance, and captured Taliban combatants after the fall of Kunduz should have led to the release of most of them, but instead resulted in the death of hundreds. Reportedly Northern Alliance forces under the command of General Dostum packed the Taliban combatants into airless and waterless containers for days. Newsweek obtained testimonial evidence that the drivers of the container trucks were prevented from providing ventilation or water to the captives.
It was Dostums forces who were responsible for the deaths of the surrendered combatants, but the United States definitely bears some responsibility for atrocities committed by its partners in Afghanistan. The U.S. did not delegate to the Northern Alliance the task of winning the war against the Taliban a task the Afghan forces could never have accomplished. It should not have delegated the task of transporting and detaining defeated enemy fighters, particularly given the Northern Alliances known record of committing war crimes against both civilians and surrendered combatants throughout years of civil war in Afghanistan.
The Bush Administrations view, as near as I can determine, is that it had no responsibility for the treatment of captured prisoners because it was not the detaining power in Afghanistan, nor did it have command and control over Northern Alliance forces. That argument is unpersuasive, given the fact that of American military superiority in Afghanistan, and those forces possession of the material resources to attend to the wellbeing of POWs captured in military operations involving Americans. Moreover, U.S. special forces and intelligence agents certainly knew of the life-threatening conditions at Shebarghan Prison; they interrogated the prisoners there, picking out al Queda suspects for relocation and further questioning at Guatanamo Bay. (Though conditions are not inhumane at Guatanamo, the indefinite detention of prisoners of war after cessation of hostilities is a dangerous precedent and an approach to avoid in a future war in Iraq.)
The practical implication of this stance is that the U.S. Government did not respond to appeals by Physicians for Human Rights to take responsibility for those detained in life-threatening conditions at Sherbaghan Prison. Instead, they consistently claimed that the prisoners welfare was the responsibility of the barely functioning Afghan government. Similarly, the Defense Department, when queried about the reports of possible war crimes by Americas partners in Afghanistan, professed ignorance of the allegations, saying that American personnel in the area were not involved and knew nothing of the incident. There was no investigation of the killing of surrendered combatants, to our knowledge, and to this day the mass grave site remains unguarded.
What are the United States legal obligations in situations like Afghanistan, where it goes to war alongside local partners like the Northern Alliance? Article 1 of all four of the Geneva Conventions states: The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. The International Committee of the Red Cross, which is the official interpreter of the Conventions, takes that to mean quite literally that all parties to the Convention must ensure compliance, even if they are not parties to the conflict. During the war between Iran and Iraq, for example, the ICRC regularly exhorted all parties to the Geneva Conventions to use their influence to try to ensure that the belligerents, Iran and Iraq, adhere to the Conventions.
This requirement to ensure respect, it seems clear, requires at a minimum that the United States take responsibility for its own and its allies adherence to humanitarian law. In Afghanistan, taking this provision seriously would have meant that the U.S. would not have turned captured enemy combatants over to forces that were likely to abuse them. It would have meant that the U.S. itself would have supervised the surrender, transfer, and detention of Taliban fighters, and ensured their humane treatment as required by the Geneva Conventions.
Interestingly, U.S. military doctrine is very thorough when it comes to compliance with Geneva Conventions standards by U.S. military personnel themselves. The Law of Land Warfare and the Defense Department Law of War Program contain exhaustive requirements on all aspects of detention of enemy combatants, for example. But military directives are almost silent on the question of U.S. obligations to ensure compliance with humanitarian law by others including its own allies and agents in the field. The only obligation that exists is that U.S. soldiers report violations by others that they witness. There is not even the requirement that such offenses be investigated.
This significant loophole in the humanitarian law provisions of American military doctrine, which permitted American soldiers to turn a blind eye to predictable war crimes by its Afghan allies, are a disservice to the American military and dangerous for those persons entitled to humanitarian law protection, including captured enemy combatants. The United States should learn from the terrible events following the surrender of Taliban combatants at the battle of Kunduz and conscientiously undertake to address this humanitarian law gap in its military doctrine to prevent a recurrence elsewhere.
In Iraq, Kurdish and Shiite fighters who might be allied with the United States in an attack against Saddam Hussein have experienced widespread abuses at the hands of Husseins military, police and intelligence officers. What can the U.S. do to prevent its Iraqi partners from committing acts of revenge once the tables are turned? American military planners must prepare for the capture and detention of Iraqi prisoners of war, and ensure that local forces are not given carte blanche, as they were in Afghanistan and take responsibility for ensuring all captured, surrendered, or wounded enemy combatants are humanely treated. Further, the engagement of the International Committee of the Red Cross at every stage, from surrender negotiations to incarceration or release, is essential.
Physicians for Human Rights insists that the Geneva Conventions provision requiring Parties to the Convention to ensure respect for humanitarian law oblige the United States to address the issue of potential abuses by local allies in Iraq. Moreover, we support the evolving international and domestic consciousness that the prosecution of armed conflict imposes the duty to care for the civilian population that will be adversely affected by hostilities.
It will not be enough for the United States to comply with the letter of humanitarian law when it comes to minimizing harm to civilians and captured combatants in the course of military operations in Iraq. If the war is to achieve the political aims that the Bush Administration is apparently pursuing, it must leave the Iraqi people a good deal better off than they were under Saddam Hussein. Given the degraded state of Iraq as a consequence of gross misrule and international sanctions and isolation, that will be a tall order indeed.
It is worth noting that Article 54 of Protocol I of the Geneva Conventions states: It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for the sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive. Even if all parties were to scrupulously comply with this humanitarian law requirement in the course of armed conflict in Iraq, a war there is likely to unleash exorbitant hardship against the unarmed population.
Iraqi civilians, like their Afghan counterparts, are particularly vulnerable to the hardship of war due to a decade of isolation from the rest of the world. But Iraqi noncombatants, in contrast to the people of Afghanistan, have suffered the impact of years of misguided and grossly indiscriminate economic sanctions that have taken a heavy toll on nutrition and public health. It is not enough to say, as the U.S. government frequently does, that Saddam Hussein is responsible for the isolation and poverty of his people. The sanctions regime has imposed gross hardships on the civilian population and enhance the prospect that they will suffer significant hardship in time of war.
For example, U.S. sanctions against Iraq and neighboring Iran have assured that almost no American relief or humanitarian groups have been able to work in the region. Neither they nor the United Nations have local staff on whom to depend for opening supply routes and delivering medicine, water, shelter materials, and food in the event of the massive dislocation that war almost always causes. At the present time, the people of Iraq are almost entirely dependent upon the Iraqi authorities for the distribution of food and medicine permitted under oil for food exemption in the sanctions regimen. If the United States goes to war, those networks will presumably be disrupted or eliminated. Allied forces, accordingly, must assume immediate responsibility for the health and well-being of the civilian population even while they pursue their military objectives.
In addition to taking responsibility for the food, shelter, and health requirements of the Iraqi people while waging war against the regime, the U.S. must assume the obligation to protect the civilian population associated with the Baath Party from reprisals by anti-Saddam forces. And, perhaps most difficult of all, the U.S. military must be prepared to respond to attacks on vulnerable civilians by Saddam Husseins forces, both at home and abroad. The Iraqi theater poses unique and extreme dangers to civilians given the possibility of the Baath regimes use of chemical and biological weapons. Protecting the Iraqi civilian population from the effects of chemical or biological weapons unleashed by Saddam Hussein in a war with the United States falls to America and its allies. Although gas masks have been distributed to Congressmen and Senators and their staff on Capitol Hill, I am unaware of any planning to distribute masks, antibiotics, or other supplies to the more likely potential victims of weapons of mass destruction inside of Iraq.
The expected war in Iraq will not be identical to Afghanistan, and not all lessons from Afghanistan will apply. But one thing the Bush Administration can depend upon is that neither the American people nor its allies will tolerate mass crimes, extensive collateral damage to civilians, or a humanitarian disaster that could occur in the context of a U.S.-led invasion. The Bush Administrations purpose in going to war in Iraq is to remove Saddam Hussein and eliminate the capacity to create or deploy weapons of mass destruction. Although Saddam Husseins horrendous human rights record has been invoked (most recently in a speech British Prime Minister Tony Blair) to justify a war against a regime, this is clearly not a war to secure the human rights of Iraqi citizens, nor is it a humanitarian intervention. But an emerging political consensus about the obligations a great power assumes when it goes to war may require it to be both. The war in Afghanistan offers best and worst practices from which to learn.