10/19/2004

Human Rights Watch World Report 2004: War in Iraq: Not a Humanitarian Intervention

Human Rights Watch has on rare occasion advocated humanitarian intervention—for example, to stop ongoing genocide in Rwanda and Bosnia.

In our view, as a threshold matter, humanitarian intervention that occurs without the consent of the relevant government can be justified only in the face of ongoing or imminent genocide, or comparable mass slaughter or loss of life. To state the obvious, war is dangerous... Only large-scale murder, we believe, can justify the death, destruction, and disorder that so often are inherent in war and its aftermath. .. Only mass slaughter might permit the deliberate taking of life involved in using military force for humanitarian purposes.

... because of the substantial risks inherent in the use of military force, humanitarian intervention should be exceptional—reserved for the most dire circumstances.

If this high threshold is met, we then look to five other factors to determine whether the use of military force can be characterized as humanitarian. First, military action must be the last reasonable option to halt or prevent slaughter; military force should not be used for humanitarian purposes if effective alternatives are available. Second, the intervention must be guided primarily by a humanitarian purpose; we do not expect purity of motive, but humanitarianism should be the dominant reason for military action. Third, every effort should be made to ensure that the means used to intervene themselves respect international human rights and humanitarian law; we do not subscribe to the view that some abuses can be countenanced in the name of stopping others. Fourth, it must be reasonably likely that military action will do more good than harm; humanitarian intervention should not be tried if it seems likely to produce a wider conflagration or significantly more suffering. Finally, we prefer endorsement of humanitarian intervention by the U.N. Security Council or other bodies with significant multilateral authority. However, in light of the imperfect nature of international governance today, we would not require multilateral approval in an emergency context.

There were times in the past when the killing was so intense that humanitarian intervention would have been justified—for example, during the 1988 Anfal genocide, in which the Iraqi government slaughtered some 100,000 Kurds. Indeed, Human Rights Watch, though still in its infancy and not yet working in the Middle East in 1988, did advocate a form of military intervention in 1991 after we had begun addressing Iraq. As Iraqi Kurds fleeing Saddam Hussein’s brutal repression of the post-Gulf War uprising were stranded and dying in harsh winter weather on Turkey’s mountainous border, we advocated the creation of a no-fly zone in northern Iraq so they could return home without facing renewed genocide. There were other moments of intense killing as well, such as the suppression of the uprisings in 1991. But on the eve of the latest Iraq war, no one contends that the Iraqi government was engaged in killing of anywhere near this magnitude, or had been for some time. “Better late than never” is not a justification for humanitarian intervention, which should be countenanced only to stop mass murder, not to punish its perpetrators, desirable as punishment is in such circumstances.

But if Saddam Hussein committed mass atrocities in the past, wasn’t his overthrow justified to prevent his resumption of such atrocities in the future? No. Human Rights Watch accepts that military intervention may be necessary not only to stop ongoing slaughter but also to prevent future slaughter, but the future slaughter must be imminent. To justify the extraordinary remedy of military force for preventive humanitarian purposes, there must be evidence that large-scale slaughter is in preparation and about to begin unless militarily stopped. But no one seriously claimed before the war that the Saddam Hussein government was planning imminent mass killing, and no evidence has emerged that it was.

There were claims that Saddam Hussein, with a history of gassing Iranian soldiers and Iraqi Kurds, was planning to deliver weapons of mass destruction through terrorist networks, but these allegations were entirely speculative; no substantial evidence has yet emerged. There were also fears that the Iraqi government might respond to an invasion with the use of chemical or biological weapons, perhaps even against its own people, but no one seriously suggested such use as an imminent possibility in the absence of an invasion.

That does not mean that past atrocities should be ignored. Rather, their perpetrators should be prosecuted. Human Rights Watch has devoted enormous efforts to investigating and documenting the Iraqi government’s atrocities, particularly the Anfal genocide against Iraqi Kurds.

In stating that the killing in Iraq did not rise to a level that justified humanitarian intervention, we are not insensitive to the awful plight of the Iraqi people. We are aware that summary executions occurred with disturbing frequency in Iraq up to the end of Saddam Hussein’s rule, as did torture and other brutality. Such atrocities should be met with public, diplomatic, and economic pressure, as well as prosecution. But before taking the substantial risk to life that is inherent in any war, mass slaughter should be taking place or imminent. That was not the case in Saddam Hussein’s Iraq in March 2003.


The Last Reasonable Option

The lack of ongoing or imminent mass slaughter was itself sufficient to disqualify the invasion of Iraq as a humanitarian intervention. Nonetheless, particularly in light of the ruthlessness of Saddam Hussein’s rule, it is useful to examine the other criteria for humanitarian intervention. For the most part, these too were not met.

As noted, because of the substantial risks involved, an invasion should qualify as a humanitarian intervention only if it is the last reasonable option to stop mass killings. Since there were no ongoing mass killings in Iraq in early 2003, this issue technically did not arise. But it is useful to explore whether military intervention was the last reasonable option to stop what Iraqi abuses were ongoing.

It was not. If the purpose of the intervention was primarily humanitarian, then at least one other option should have been tried long before resorting to the extreme step of military invasion
—criminal prosecution. There is no guarantee that prosecution would have worked, and one might have justified skipping it had large-scale slaughter been underway. But in the face of the Iraqi government’s more routine abuses, this alternative to military action should have been tried.

U.S. officials also spoke of a democratic Iraq transforming the Middle East. In this tangle of motives, Saddam Hussein’s cruelty toward his own people was mentioned—sometimes prominently—but, in the prewar period, it was never the dominant factor. This is not simply an academic point; it affected the way the invasion was carried out, to the detriment of the Iraqi people.

To begin with, if invading forces had been determined to maximize the humanitarian impact of an intervention, they would have been better prepared to fill the security vacuum that predictably was created by the toppling of the Iraqi government. It was entirely foreseeable that Saddam Hussein’s downfall would lead to civil disorder... Other sudden changes of regime, such as the Bosnian Serb withdrawal from the Sarajevo suburbs in 1996, have been marked by widespread violence, looting, and arson.

In part to prevent violence and disorder, the U.S. army chief of staff before the war, General Eric K. Shinseki, predicted that “several” hundreds of thousands of troops would be required. But the civilian leaders of the Pentagon dismissed this assessment and launched the war with considerably fewer combat troops—some 150,000. The reasons for this decision are unclear... The result is that coalition troops were quickly overwhelmed by the enormity of the task of maintaining public order in Iraq. Looting was pervasive. Arms caches were raided and emptied. Violence was rampant.

The problem of understaffing was only compounded by the failure to deploy an adequate number of troops trained in policing. Regular troops are trained to fight—to meet threats with lethal force. But that presumptive resort to lethal force is inappropriate and unlawful when it comes to policing an occupied nation. The consequence was a steady stream of civilians killed when coalition troops—on edge in the face of regular resistance attacks, many perfidious—mistakenly fired on civilians. That only increased resentment among Iraqis and fueled further attacks. Troops trained in policing—that is, trained to use lethal force as a last resort—would have been better suited to conduct occupation duties humanely. But the Pentagon has not made a priority of developing policing skills among its troops, leaving relatively few to be deployed in Iraq.

To top it all off, L. Paul Bremer III, the U.S. administrator in Iraq, disbanded the entire Iraqi army and police force. That left the occupying authorities without a large pool of indigenous forces that could have helped to establish the rule of law. We recognize that security forces or intelligence agencies that had played a lead role in atrocities, such as the Special Republican Guard or the Mukhabarat, should have been disbanded and their members prosecuted. Some members of the Iraqi army and police were also complicit in atrocities, but the average member had significantly less culpability; there was no penal justification for disbanding these forces en masse rather than pursuing the guilty on an individual basis. The blanket dismissal took a toll on Iraqi security.

The lack of an overriding humanitarian purpose also affected Washington’s attitude toward the system of justice to be used to try Iraqi officials’... . The administration has insisted that accused Iraqi officials be tried before an “Iraqi-led process.” In theory, it is certainly preferable for Iraq to try its own offenders. But after three-and-a-half decades of Ba`th Party rule, the Iraqi judicial system has neither a tradition of respect for due process nor the capacity to organize and try a complex case of genocide or crimes against humanity...

The obvious solution to this problem is to establish an international criminal tribunal for Iraq—either a fully international one such as those established for Rwanda and former Yugoslavia, or an internationally led tribunal with local participation such as the special court created for Sierra Leone. ..

Compliance with Humanitarian Law

.. The invasion of Iraq largely met this requirement, but not entirely. Coalition forces took extraordinary care to avoid harming civilians when attacking fixed, pre-selected targets. But their record in attacking mobile targets of opportunity was mixed.

As Human Rights Watch reported in detail in its December 2003 report on the war, U.S. efforts to bomb leadership targets were an abysmal failure. The 0-for-50 record reflected a targeting method that bordered on indiscriminate, allowing bombs to be dropped on the basis of evidence suggesting little more than that the leader was somewhere in a community. Substantial civilian casualties were the predictable result.

U.S. ground forces, particularly the Army, also used cluster munitions near populated areas, with predictable loss of civilian life. After roughly a quarter of the civilian deaths in the 1999 NATO bombing of Yugoslavia were caused by the use of cluster bombs in populated areas, the U.S. Air Force substantially curtailed the practice. But the U.S. Army apparently never absorbed this lesson. In responding to Iraqi attacks as they advanced through Iraq, Army troops regularly used cluster munitions in populated areas, causing substantial loss of life. Such disregard for civilian life is incompatible with a genuinely humanitarian intervention.

Better Rather than Worse

Another factor for assessing the humanitarian nature of an intervention is whether it is reasonably calculated to make things better rather than worse in the country invaded. One is tempted to say that anything is better than living under the tyranny of Saddam Hussein, but unfortunately, it is possible to imagine scenarios that are even worse. Vicious as his rule was, chaos or abusive civil war might well become even deadlier

Conclusion

In sum, the invasion of Iraq failed to meet the test for a humanitarian intervention. Most important, the killing in Iraq at the time was not of the exceptional nature that would justify such intervention. In addition, intervention was not the last reasonable option to stop Iraqi atrocities. Intervention was not motivated primarily by humanitarian concerns. It was not conducted in a way that maximized compliance with international humanitarian law. It was not approved by the Security Council. And while at the time it was launched it was reasonable to believe that the Iraqi people would be better off, it was not designed or carried out with the needs of Iraqis foremost in mind.

In opening this essay, we noted that the controversial invasion of Iraq stood in contrast to the three African interventions... Significantly, all [African interventions] were welcomed by the relevant government

In the absence of international consensus on the conditions for such intervention, governments inevitably are going to abuse the concept, as the United States has done in its after-the-fact efforts to justify the Iraq war. Human Rights Watch calls on intergovernmental organizations, particularly the political bodies of the United Nations, to end the taboo on discussing the conditions for humanitarian intervention. Some consensus on these conditions, in addition to promoting appropriate use of humanitarian intervention, would help deter abuse of the concept and thus assist in preserving a tool that some of the world’s most vulnerable victims need.

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