|By Frank Smyth
Attitudes toward international humanitarian norms and law by the belligerents in the Gulf War could not have been more distinct. The U.S.-led coalition commander, Gen. Norman Schwarzkopf, frequently consulted with law of war experts, including members of the International Committee of the Red Cross (ICRC), to ensure that specific military operations would not be seen later as violations. In fact, Schwarzkopf’s aides requested so much guidance from the ICRC that its representatives eventually stopped providing it, protesting that they were not legal counsel for the coalition. Iraqi President Saddam Hussein, on the other hand, declined to meet with ICRC representatives.
U.S. and Iraqi leaders were responding to different considerations in their attitude toward international humanitarian law (IHL). U.S. commanders feared that any perceived violations by coalition troops might undermine the strong support for the war being expressed back home. Elsewhere, they feared that such violations might break up the U.S.-led coalition of twenty-seven countries against Iraq, and, in particular, compel Arab States to withdraw from it. U.S. leaders feared as well that any coalition intervention during Iraq’s civil uprisings might also split the coalition. Saddam, meanwhile, has never demonstrated much concern for Iraqi public opinion, though, during the Gulf War, he did try to appeal to Pan-Arab sentiments. Saddam’s targeting of civilian population centers in Israel, in particular, was designed to bring Israel into the Gulf War and then, hopefully, split Arab States from the U.S.-led alliance.
Each side in the Gulf War has been accused of violations of IHL; in some cases, the violation is legally clear-cut, while in others experts still debate.
Allied forces destroyed many electrical power stations in Iraq. The attacks adversely affected Iraq’s civilian population, as they rendered sewage plants in many civilian areas inoperable and left many hospitals without power. This led some observers like Human Rights Watch (HRW), a private monitoring organization based in New York, to ask whether the attacks violated IHL and its provisions against attacks on civilian objects. In particular, was the subsequent civilian toll excessive in relation to the concrete and direct military advantage anticipated from the attack? Other observers, however, including the ICRC, saw the same attacks differently. While concerned about the civilian suffering they created, the ICRC nonetheless recognized that electrical power stations can be, and traditionally have been, legitimate military targets.
Coalition forces also launched attacks that killed many civilians, raising questions about indiscriminate attacks involving needless civilian casualties. On February 14, for example, a British plane fired a laser-guided missile at a bridge in the Al-Fallujah neighborhood west of Baghdad. It missed and hit a residential area, killing up to 130 civilians. Some observers, including former U.S. Attorney General Ramsey Clark, claim that all such coalition attacks that resulted in Iraqi civilian casualties constitute war crimes. But without evidence that the neighborhood was intentionally, or negligently, targeted or that it was part of a broader pattern of indiscriminate attacks, this incident does not stand either as a grave breach or as a serious violation of the Geneva Conventions.
Another tragedy had occurred the day before, when a U.S. cruise missile penetrated the Ameriyaa air-raid shelter in Baghdad, killing up to three hundred civilians, including at least ninety-one children. CNN broadcast the carnage. U.S. Brig. Gen. Richard Neal in Riyadh later admitted that allied forces had intentionally targeted the shelter. He also said that coalition commanders knew that the shelter had been previously used by civilians in the mid-1980s during the Iran-Iraq War, but that it had since been converted to “a hardened shelter used for [military] command and control.” HRW refers to Neal’s statements to argue that the attack on the shelter was a laws of war violation. Before they fired at it, allied forces, according to HRW, were obligated, to first warn Iraq that they now considered the former civilian shelter a legitimate military target. HRW added that, in its view, the evidence of the shelter’s alleged conversion to a military purpose was insufficient to overcome the presumption that it was still being used by civilians. Other observers, however, including lawyers for coalition forces, disagree. They point out that the shelter had been used solely for civilian purposes several years previously in the Iran-Iraq War, so allied commanders were not obligated to warn Iraq that they now considered the shelter to be a legitimate military target in the Gulf War. Coalition partners, however, have yet to make their evidence public about the shelter’s alleged conversion to military use.
U.S.-led forces also killed many civilians when coalition planes, including B-52 bombers, launched heavy strikes in and around the port of Basra. Coalition forces sought to destroy several specific military targets there. Some critics claim coalition forces had resorted to the kind of carpet bombing often seen in World War II, constituting indiscriminate attack, by treating a whole area containing several targets as a single target, in violation of Article 51 of Additional Protocol I. No one disputes that the attacks killed many civilians (though no reliable figures are known) living in residential areas around the port. The question is whether such attacks violated IHL. A U.S. Army spokesman in Riyadh later described Basra as a “military town,” which was quartering, among other forces, a strong contingent of elite Republican Guard troops. Lawyers for coalition forces blame Iraq for the subsequent civilian toll. They point out that Iraq was legally obligated to separate military forces from civilians and not to use the latter as a shield, and that the presence of civilians around military targets does not render such targets immune from attack. Nonetheless, coalition forces, critics argue, could have used more precise arms, such as cruise missiles or laser-guided weaponry, that might have accomplished the same objective with less collateral damage to civilians. U.S. military lawyers have noted in response, however, that the obligation to use more precise weapons systems is qualified by considerations of military necessity, including availability and need for their deployment in missions against other military objectives. Both HRW and the ICRC concluded the resort to saturation strikes claimed needless civilian lives and damage, but the controversy continues.
Another controversial incident involving coalition forces occurred on the last day of the ground campaign, as an entire column of Iraqi troops was retreating from Kuwait. These troops had not surrendered, making them legitimate military targets. Yet, they put up only minimal resistance, while coalition aircraft dropped Rockeye fragmentation bombs and other antipersonnel arms, killing thousands. The ICRC concluded that the attacks “cause[d] unnecessary suffering and superfluous injury,” and that they were tantamount to “a denial of quarter.” Many other observers, however, counter that the concept of denial of quarter does not apply to forces that have not surrendered.
The ICRC also singled out some U.S.-led coalition partners for not devoting enough resources to properly register all their Iraqi prisoners with the ICRC or any other “central tracing agency.” Saudi Arabia, for one, registered none of its prisoners.
Other forces associated with the U.S.-led coalition as well violated humanitarian norms, though it remains unclear whether the violations took place within the context of an internal or international conflict, and which international norms or laws, therefore, would apply. Following the Gulf War, Kuwaiti authorities committed many human rights violations upon their repatriation. Mobs acting with the blessing of authorities harassed, detained, tortured, and sometimes summarily executed thousands, including Palestinians and others suspected of having supported the Iraqi occupation.
Nevertheless, Iraq is responsible for far more violations of humanitarian norms and laws, as its forces entirely disregarded them throughout the Gulf War and its aftermath. On many occasions, Iraq intentionally targeted civilians, which is a grave breach of the Geneva Conventions. During its occupation of Kuwait, Iraqi troops also harassed, tortured, and sometimes summarily executed thousands of Kuwaitis. Other Iraqi abuses also stand as clear rules-of-war violations. Before the Gulf War, Iraq used civilians, typically foreign nationals, as human shields to seek to protect military targets in both Kuwait and Iraq. In Kuwait, this practice was clearly a war crime under Article 51 of Additional Protocol I, because a state of war and occupation clearly existed with respect to Kuwait. Using foreign nationals as human shields within Iraq before the opening of hostilities between Iraq and the coalition forces is a less clear-cut case. In an unmistakable violation, Iraq, during the war, failed to register coalition prisoners of war with the ICRC. Iraq as well humiliated and tortured some coalition prisoners. (Though one U.S. soldier who was a prisoner of war later admitted that he had abused himself to avoid being shown on Iraqi television.)
Iraqi forces also fired Scud missiles that hit civilian population centers in Saudi Arabia and Israel, an act which some claim was the war crime of directly targeting civilians or indiscriminately attacking population centers. Nonetheless, for these attacks to constitute war crimes, it must first be proven either that Iraq intentionally targeted the civilian centers in order to attack civilians directly or else failed to take measures to insure that military objectives were targeted. Though some of the thirty-seven missiles directed into Saudi Arabia appear to have been aimed at military targets, others appear to have been aimed at cities like Riyadh, the Saudi capital. Most of the thirty-nine Scud missiles fired into Israel and the occupied West Bank seem to have been aimed at cities like Tel Aviv, the Israeli capital. Three questions remain open. Could the missiles Iraq fired at population centers reasonably be shown to have been aimed at legitimate military targets in those cities within the limits of Iraqi technological capabilities? Did anticipated specific and concrete military benefit of such attacks for Iraq outweigh civilian costs (excluding from the calculation the illegal military advantage gained from terror attacks on civilians themselves)? On the other hand, did coalition authorities violate their IHL duties by commingling civilians with military targets in Saudi Arabia? It would appear in fact as difficult to prove illegality in the Scud attacks on Saudi Arabia as it would the coalition attacks on Basra and Baghdad.
But the Scud attacks on Israel would appear to be the most difficult for Iraq to justify, given that coalition forces were not present in Israel, nor was Israel a party to the conflict. Absent some substantial evidence showing that Israel was about to enter the war against Iraq, thus justifying a preemptive military strike against legitimate military targets, the Scud attacks against Israel would appear to have been terror attacks directed against civilians. It is widely acknowledged that Iraq’s aim was to draw Israel into the conflict by attacks on its civilian population; although IHL is silent with respect to how a war starts or spreads, Iraq’s method appears in this case illegal.
Iraq also committed several acts of environmental warfare as part of its military strategy. The ecological impact of the attacks, which provided Iraq with perhaps a slight and only fleeting military advantage, will no doubt be felt for years. During the Gulf War, Iraq released millions of liters of crude oil into the Persian Gulf in an attempt to undermine seawater desalination plants that were being used by coalition forces. Toward the end of the war, Iraq set fire to as many as 950 oil wells, which discharged tons of toxic gases into the atmosphere. To be considered a violation of IHL, such acts must cause the environment widespread, long-term, and severe damage. Experts still disagree whether the above acts meet this threshold.
Iraqi forces committed human rights violations against many of its own citizens, principally in the Shia- and Kurdish-led insurgencies immediately after the end of the coalition-led campaign, which is at least inconsistent with international humanitarian norms. Here U.S. President George Bush also played a key role. On March 1, Bush called upon Iraqis “to put [Saddam] aside” and bring Iraq “back into the family of peace-loving nations.” The same day, Shias in southern Iraq began calling for insurrection, while Kurds in northern Iraq rebelled two weeks later; coalition forces stood by as Iraqi troops, backed by tanks and helicopter gunships, decimated the insurgents through scorched-earth campaigns. In many of these attacks, Iraqi forces appear to have made no attempt to distinguish between civilian and military targets. On March 20, in As-Samawah in southern Iraq, Iraqi units advanced behind a human shield of captured Shia women, as they shot Shia men on sight. On March 28, in Kirkuk in northern Iraq, Iraqi helicopter gunships and multiple-rocket launchers dropped a blanket of fire on fleeing Kurdish guerrillas and civilians, again without appearing to distinguish between them. Iraqi Army Special Forces, which led the assault, also summarily executed many Kurdish combatants (as well as Newsweek freelance photographer Gad Gross) after capture.
Iraq further violated humanitarian norms and human rights in its treatment of foreign detainees at the Abu Ghraib prison west of Baghdad, where captured journalists were also held. Though captured journalists were treated as prisoners of war, in accordance with Article 4 of the Third Geneva Convention, Iraq generally failed to acknowledge holding them until their release, in violation of the rules of war. At least one journalist, CBS News correspondent Bob Simon, was physically tortured.
Iraq as well violated the human rights of many Iraqi detainees in Abu Ghraib prison. I was detained there along with photojournalist Alain Buu for two weeks beginning about one month after the end of the Gulf War. Though we were not physically harmed, we saw and heard many Iraqis being tortured by prison authorities: hitting a man on the buttocks with a flat board intermittently all night long, while making him crow like a rooster; hosing down a stripped prisoner outside on a cold day, and then stunning him repeatedly with an electroshock weapon; and beating a sixteen-year-old boy, accused of sedition, with rubber hoses. Sometimes we just heard, coming from another cellblock in the prison, the long screams of men in extreme, sustained pain. Some of the violence was perpetrated capriciously by guards; other acts were executed under orders from higher authorities to extract information.
The Gulf War and its aftermath demonstrate the strengths and gaps of international humanitarian norms and law. Though the U.S.-led coalition in some cases at least encroached upon the rules of war, the allies in most cases did make a conscious effort to adhere to them. Saddam Hussein chose to ignore them nearly altogether.