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Letter to US and Allies Regarding Adherance to Laws of War

March 19, 2003

Secretary of State Colin L. Powell
Secretary of Defense Donald H. Rumsfeld

Rt Hon Jack Straw MP
Rt Hon Geoffrey Hoon MP

The Honorable Alexander Downer MP
Senator the Honorable Robert Hill

Dear Foreign Ministers and Ministers of Defense,

As hostilities loom in Iraq, we urge you to ensure your military forces fully respect international humanitarian law and protect civilian lives. The intense international debate surrounding this war means that the conduct of all warring parties will be under unprecedented international scrutiny.

The United States, its allies in this conflict, and Iraq are all parties to the 1949 Geneva Conventions. Although neither the United States nor Iraq is party to Protocol I to the Geneva Conventions, the United States recognizes many Protocol I provisions as expressive of rules of customary international law. Most of the United States’ potential allies are parties to Protocol 1.

Under this legal framework, you have important obligations for the protection of civilians and non-combatants which must be observed at all times in military planning and operations. Drawing upon our experience of monitoring other armed conflicts – including the 1991 Gulf War, NATO operations in the Balkans, and military action in Afghanistan – we wish to highlight the following critical issues which may arise in the course of the conflict.

  1. Chemical, biological, or nuclear weapons of mass destruction must not be used under any circumstances.

    You must not use weapons of mass destruction (WMD) in any circumstances, for instance to penetrate hardened Iraqi bunkers or to retaliate for actions by Iraq. Whether in first strike or retaliation, the use of WMD would be unjustified and illegal under international law. Any use of chemical or biological weapons would violate the 1925 Geneva Protocol, the 1975 Biological Weapons Convention and the 1993 Chemical Weapons Convention and customary international law. Any use of nuclear weapons, either offensively or in reprisal, would also be illegal. Under international law, the use of nuclear weapons is unlawful, except possibly in the “extreme circumstance of self-defense, in which the very survival of a State would be at stake.” At this time, no concrete evidence has been produced to show that Iraq could conceivably threaten the very existence of its opponents and thus justify the use of nuclear weapons.

  2. If Iraq uses human shields, you must still assess whether the potential harm to civilians is excessive in relation to the anticipated military advantage before carrying out an attack. You must not take hostages, even in reprisal.

    Judging by Iraq’s past conduct, there is reason to believe that Iraqi authorities may use civilians as shields for military targets. This would constitute a war crime, but it would not diminish your own duties under international humanitarian law. While a military objective protected by human shields remains open to attack, you must weigh the potential harm to civilians against the direct and concrete military advantage, and take all feasible precautions to avoid civilian harm or refrain from attack if the risks would appear excessive. Iraq also has a past record of taking hostages, including for use as human shields. While this would also constitute a war crime, your forces must never commit similar acts in reprisal for Iraq’s actions.

  3. In the event of urban warfare, your forces must provide adequate warnings and escape routes to civilians.

    Urban fighting inherently increases the risk to civilians and could result in substantial civilian casualties. During U.S. military operations in Panama in 1989, for example, civilians died at a rate of six-to-one to Panamanian soldiers and thirteen-to-one to U.S. soldiers. In a larger city like Baghdad with higher population density, this ratio could be much higher, especially if fighting is prolonged.

    There are reports that Iraq has in some cases deliberately located military objectives in the midst of civilian objects and encouraged civilians to act as human shields in the event of an attack. This is in violation of prohibitions in customary humanitarian law and Protocol I against placing military objectives in heavily populated areas without first moving the affected civilians to safer locations. To maximize the protection of civilians near any military target, your forces should provide effective advance warning of an attack. Adequate warnings must have such temporal and geographic specificity as to allow civilians time to take advantage of them. You should also consider measures that allow Iraqi civilians to voluntarily and safely leave urban areas where military objectives are targeted for attack, and be prepared to call on third parties to negotiate passage to non-military areas. Your forces must also be prepared to negotiate passage for medical personnel and equipment and religious personnel to and from besieged or encircled areas.

  4. You must not attack dual-use targets that are essential to the survival of the civilian population. Other dual-use targets should, insofar as possible, only be incapacitated, not destroyed. Armed attacks designed to undermine civilian morale are illegal.

    Some potential targets have a dual-use, serving the needs of the civilian population as well as military forces. A dual-use object may presumptively be a legitimate military target because it contributes, in part, to concrete military aims, yet the harm to the civilian population in its destruction may still be disproportionate to the military advantage gained, rendering an attack impermissible. In weighing potential targets, your military planners must examine carefully how immediate the military advantage of destroying these facilities is, as well as the long-term cost to civilian welfare and economy, including environmental consequences.

    This is particularly true in a modern, industrialized society such as Iraq in which the civilian population depends on dual-use infrastructure. Fully 60 percent of the Iraqi population requires monthly food distributions from the central government. An armed conflict may disrupt distributions, cause food shortages, and exacerbate existing malnutrition among children. Under customary humanitarian law and Protocol I, food, water, medical supplies, and other objects essential to the survival of the civilian population may never be attacked. When these resources are used directly or indirectly in support of the military, they still may not be attacked if such action would produce starvation or forced displacement of civilians.

    Attacks on electrical generation facilities used by the civilian population would also have a profound and long-term impact on the civilian population in Iraq. During the 1991 Persian Gulf War, for example, the failure of American war planners to accurately assess the cascading effects that attacks on electricity would have on the civilian population had serious humanitarian consequences, crippling basic services, including hospital-based medical care and water treatment and distribution. Subsequently in Kosovo, the U.S. attacked similar facilities in such a way as to cause only temporary incapacitation. In Afghanistan, coalition air forces attacked neither electrical generation nor and distribution systems. This trend should be continued. Equally, you should not target transportation infrastructure that is essential to the delivery of humanitarian relief, or the movement of civilians to safer areas, unless the anticipated military advantage is likely to outweigh the profound effects on civilian survival. In Afghanistan, for instance, U.S. military forces did not destroy bridges or roads.

    While you may seek to undermine civilian morale and political will through propaganda and other non-violent means, you should not launch armed attacks directed at civilian morale. Armed attacks that are principally designed to bring death, physical harm, or hardship to the civilian population as a method of warfare violate both the letter and spirit of international humanitarian law.

  5. You must make every effort to correctly identify targets before they are attacked.

    Precision-guided aerial munitions (PGMs), or so-called "smart bombs," are likely to play a significant role in hostilities against Iraq. As with other weapons, the precision technology of PGMs is only effective when it is used in conjunction with reliable intelligence. Other factors, such as human and technical error, can cause a PGM to strike something other than its intended target, but if targets are misidentified in the first place, civilians can be killed or injured as a result.

    Identification of mobile, or “emerging,” targets has proven to be a particularly risky. During the air war in Yugoslavia, Human Rights Watch found that five of the ten worst incidents involving civilian deaths were air attacks on presumed Yugoslav military convoys or transportation routes that turned out to include large numbers of civilians. In Afghanistan, for the first time the U.S. military systematically used special operations forces as ground spotters to determine the global-positioning system (GPS) coordinates for emerging targets to be attacked with satellite-guided Joint Direct Attack Munition (JDAM) bombs. Nevertheless, initial analysis suggests that more civilian casualties during the U.S. war in Afghanistan were caused by attacks on emerging targets than on fixed targets. The reasons for this are unclear, but highlight the need for a higher standard of care in identifying and evaluating emerging targets for attack.

    Your targeteers and aircrews must positively identify and correctly evaluate the nature of a target before engaging with lethal force. If such positive identification is not possible, the target should not be attacked. Commanders should scrutinize the identification of emerging targets more closely than has been the case before authorizing an attack.

  6. You should only use precision munitions in populated areas. You must not use cluster bombs in populated areas, or landmines under any circumstances.

    International humanitarian law prohibits attacks that strike military targets and civilians without distinction. You have a duty to take all feasible steps, including choosing the means of attack, that will minimize injury to civilians and civilian objects. Precision weapons can significantly enhance the ability of an attacker to discriminate between combatants and civilians, so you should favor their use over "dumb" bombs when planning an attack on a given military target located in or near populated areas. You should also take other precautions to mitigate civilian damage, such as choosing a time of attack when fewer civilians will be in the vicinity, or providing effective warnings. These measures must be evaluated and used in combination, if feasible, to produce the least harm to civilians consistent with achieving a military objective.

    Conversely, cluster bombs are weapons that are very difficult to target discriminately. Even the cluster bombs employing the more accurate Wind Corrected Munitions Dispensers (WCMDs) now used by the U.S. military still have a wide footprint. In addition to problems of accuracy, cluster bombs have an unacceptably high failure rate leaving unexploded bomblets which threaten civilians long after attacks, just like antipersonnel mines. In the Gulf War, the U.S. dropped about 61,000 cluster bombs containing some twenty million bomblets on Iraq and Kuwait. The U.S. dropped about 1,228 cluster bombs in Afghanistan between October 2001 and March 2002, leaving at least 12,400 explosive duds throughout the country. We urge you to refrain from using cluster bombs until the initial failure rate has been dramatically reduced, and certainly not in or near populated areas.

    Antipersonnel (AP) landmines are a serious problem in Iraq from previous wars, especially in northern Iraq (Iraqi Kurdistan). Human Rights Watch believes that the use of AP landmines is prohibited by customary international law since they are inherently indiscriminate weapons. In addition, the 1997 Mine Ban Treaty prohibits the use, production, transfer, and stockpiling of AP mines. While neither Iraq nor the U.S. is among the 131 states party to the Mine Ban Treaty, many U.S military allies are, and they risk violating the treaty’s ban on assisting with any act prohibited under the treaty.

  7. Facilitate the surrender of Iraqi troops and treat prisoners of war fully in accordance with the Geneva Conventions.

    We note the statement made by President Bush on March 17 encouraging members of the Iraqi military and intelligence services to surrender and indicating that US forces will give Iraqi military units clear instructions on actions they can take to avoid being attacked and destroyed. We urge you to take every step possible to facilitate the surrender of Iraqi troops both in advance and during hostilities, and to
    ensure surrendered and captured Iraqi personnel are treated as prisoners of war fully in accordance with the Geneva Conventions. The United States and its allies must also take steps to ensure that prisoners taken by allied local groups, for instance in Iraqi Kurdistan, also receive the protections due to them under the Geneva Conventions. There must be no repeat of the terrible deaths of Taliban prisoners in the custody of the Northern Alliance in the wake of fighting in Afghanistan in 2001.

  8. Prevent abuses by allied local groups. Protect civilians in occupied territory. Ensure protection for refugees and the internally displaced. Provide access to humanitarian agencies.

    You will have a special responsibility for the conduct of any allied forces that you enlist in support of military action, for instance Kurdish or other Iraqi opposition groups. You should make it clear that commanders and members of such groups will be held accountable for any abuses they may commit. No military assistance should be provided to armed groups or their commanders with a known record of human rights abuse.

    Should your forces assume effective control of Iraqi territory, they will have duties as the occupying power to restore and ensure public order and safety in the territory under their authority. Under the Geneva Conventions, the duty attaches as soon as the occupying force has any relation with the civilians of that territory, that is, at the soonest possible moment. This means using your personnel to secure public order as they advance through the country, leaving no security vacuum which might give rise to reprisals and revenge killings. This will be of special importance in the Shi'a heartland in cities such as Basra, Najaf and Karbala, where perceived supporters of the Iraqi government were killed during the 1991 uprising, and in the town of Kirkuk, where the return of ethnic Kurds systematically displaced by the Iraqi government could lead to violence. It will be essential that your forces patrol vulnerable neighborhoods and villages, proactively defend vulnerable populations, and then immediately secure prisons and jails where inmates may either suffer or inflict reprisals.

    Developments in the conflict may provoke Turkey to invade Iraq in order to prevent a KDP or PUK forces from occupying Kirkuk. In the course of the fifteen-year conflict with the Kurdish Workers’ Party (PKK) Turkish forces were responsible for grave human rights violations against civilians, including extrajudicial execution, “disappearance”, torture and a program of forced displacement that saw the burning of villages together with food, crops and livestock. In the event of such an invasion, you should do everything in your power to ensure that Turkish forces do not resort to such methods, which would amount to war crimes and crimes against humanity. As major suppliers of military equipment and other assistance to Turkey, the U.S. and U.K have a special responsibility to ensure that Turkish forces do not use this equipment to commit violations against civilian populations. They should ensure effective measures are in place to monitor Turkey's end-use of supplied weapons and ensure accountability for any misuse of this weaponry and other military assistance.

    You must provide secure and unimpeded access for humanitarian agencies to vulnerable populations and respect the independence and impartiality of humanitarian personnel. Fleeing civilians must also be provided with protection. In 1991, tens of thousands of fleeing Kurds became stuck on the closed Turkish border, many freezing to death. You should encourage and provide assistance to Iraq’s neighboring states to open their borders to refugees and provide them with adequate protection. The establishment of camps, safe havens, or “humanitarian zones” within Iraq should not be used as a justification for barring Iraqis from fleeing violence in their country or for failing to consider their asylum applications. When refugees or displaced people are held in camps, armed elements should be separated from civilians. The security of all refugees, displaced, and humanitarian workers should be guaranteed. Any restrictions on movement must not be excessive in impact or duration, be subject to regular review, and be imposed only when and to the extent that is absolutely necessary.

  9. You must ensure prompt investigations into alleged war crimes.

    In the event of allegations arise that your forces have committed war crimes or serious violations of international humanitarian law, you should take early steps to facilitate their investigation. In addition to internal investigations and courts martial, you should consider establishing commissions of inquiry into wartime violations that are comprised entirely or partly of experts outside the military establishment of the warring parties. One such panel already available is the International Fact-Finding Commission established under Protocol I to the Geneva Conventions, although ad hoc commissions may also be effective or acceptable to the parties (given that neither Iraq nor the United States is a party to Protocol I).

Once again, Human Rights Watch urges you and other parties to the conflict in Iraq to respect fully the provisions of international humanitarian law, to anticipate the risks to civilians and to maximize their protection. We will continue to closely monitor the conduct of hostilities and bring to public attention our concerns.

Yours respectfully,

Kenneth Roth
Executive Director