President William J. Clinton
The White House
Washington, DC 20500
Dear President Clinton,
We are writing to urge you to give full U.S. government support for a United Nations inspection of the site of the bombed al Shifa Pharmaceutical factory in Khartoum for signs of the production or storage of chemicals related to the nerve agent VX. The U.S. government should use this opportunity to broaden the scope of a chemical weapons inspection beyond a single plant and seek inspection of other suspected sites of materials relating to chemical weapons in Sudan. We also urge the U.S. to disclose information it used to determine that the factory was an appropriate military target, and to reveal what consideration was given to warning civilians in or near the facility of the impending attack. Finally, as a humanitarian matter, we ask that the U.S. compensate the civilians injured and the relatives of the person killed. This compensation may be made without any concession that U.S. conduct was improper.
Human Rights Watch condemns the bombings of the U.S. Embassies in Kenya and Tanzania which led to the deaths of hundreds, and injuries to thousands, of Africans and Americans. Those responsible should be brought to justice, and accorded full rights to a fair trial so there remains no doubt of their guilt.
In Human Rights Watch's 1996 report, Behind the Red Line: Political Repression in Sudan, we condemned the gross violations of human rights and international humanitarian law in the fifteen-year-long civil war in Sudan. In our August 1998 report, Global Trade, Local Impact: Arms Transfers to All Sides in the Civil War in Sudan, we called for an international arms embargo on both the government of Sudan and Sudanese rebels on account of these violations.
For almost two decades Human Rights Watch has examined whether the rules of war, or international humanitarian law, have been followed in the conduct of wars around the globe. We do not examine the legality of the reasons for going to war, and we do not take sides in military conflicts, in order to maintain a neutral posture vis-a-vis the conduct of all parties in the course of a conflict.
Human Rights Watch has urged the Sudanese government to sign and accede to the 1993 Chemical Weapons Convention and the 1972 Biological Weapons Convention - steps that might allay the world's concerns about Sudan's chemical capacity by permitting regular inspections. In our report, Arms Transfers to All Sides in the Civil War in Sudan, we refer to allegations by Sudanese opposition National Democratic Alliance sources that Sudan has stored chemical weapons for Iraq at the Yarmouk Military Manufacturing Complex, located in Sheggera, twelve kilometers south of Khartoum, and that Sudan established a special committee in early 1995 to investigate the possibility of manufacturing chemical weapons.
Although we were unable to reach any conclusion as to the Sudanese government's actual possession, manufacture, or use of chemical weapons, we remain vitally interested in its chemical weapons capacity not only for the threat it poses to non-Sudanese, but also because we are concerned that, if it had such capacity, the government of Sudan might employ chemical weapons in its current war against its own citizens.
During our investigation into possible Sudanese chemical weapons capacity, we met with Dr. Mustafa Osman Ismail in November 1997 in Khartoum; he was then deputy minister and is now minister of external relations. He denied all allegations regarding chemical weapons in Sudan and told our representative, "Anybody who wants to come and check on whether we have chemical weapons can do so, including a United Nations technical mission. But they would have to make a clear declaration at the end that there is nothing there."
It is therefore with dismay that we learned that the U.S. government is resisting a proposal to send U.N. chemical weapons investigators to Sudan to examine the al Shifa factory. This is inconsistent with U.S. support for such inspections in Iraq and with U.S. concern about the proliferation of chemical weapons and terrorism in general. Instead, it suggests that the U.S. government itself has something to hide. We urge the U.S. government to accept the inspection and to ask the Security Council to take advantage of the Sudanese government's desire for this inspection by asking for simultaneous inspection of other Sudanese locations believed to house chemical weapons or their precursors. The inspections should be conducted by the Organisation for the Prohibition of Chemical Weapons (OPCW), the U.N. agency charged with monitoring the implementation of the Chemical Weapons Convention of 1993. Such an opportunity for inspection may not present itself again for a long time.
Legitimate Military Targets
We have long denounced the Sudanese government's bombing of civilians and civilian objects in its war in southern and eastern Sudan and in the Nuba Mountains. For example, we have testimony of eyewitnesses describing how the Sudanese government bombed a hospital in Yei in rebel-held southern Sudan in March 1998, killing seven and injuring many more. There are many other reports of illegal bombing by the Sudanese government. We note that if the Sudanese government were to apply to its ongoing bombing campaign the standards it seeks to apply to the U.S. government, Sudanese civilians living in the war zones would be spared enormous suffering and death.
We are committed to holding all who engage in military actions in Sudan to the same international standards we apply to the government of Sudan and Sudanese rebel forces. We thus urge you to order the release of information necessary to establish that these standards were respected.
The U.S. Navy, which conducted the bombing of the al Shifa plant, already accepts and incorporates into its rules all relevant provisions of international humanitarian law that appear in the four Geneva Conventions of 1949 and their First Additional Protocol of 1977. These appear in its Annotated Supplement to the Commander's Handbook on the Law of Naval Operations ("Naval Handbook"). This Handbook and the international law it reflects are the standards we apply in examining the target selection process engaged in prior to the August 20 bombing of the al Shifa plant in Khartoum.
Section 8.1.1 of the Naval Handbook states: "Proper economic targets for naval attack include . . . industrial installations producing war-fighting products . . . ." It also defines military objectives as those objects which, by their nature, location, purpose, or use, effectively contribute to the enemy's war-fighting or war-sustaining capability and whose total or partial destruction, capture, or neutralization would constitute a definite military advantage to the attacker under the circumstances at the time of the attack.
A leading authority states that the requirement of a "definite military advantage . . . under the circumstances at the time of the attack" imposes a time limitation on those who select military targets. It recognizes that in the dynamic circumstances of armed conflict, "objects which may have been military objectives yesterday, may no longer be such today and vice versa. Thus, timely and reliable information of the military situation is an important element in the selection of targets for attack." (Michael Bothe et al, New Rules for Victims of Armed Conflicts (Martinus Nijhoff Publishers, Boston; 1982, p. 326) Another authority states that those planning an attack will have to determine whether, say, the destruction of a particular bridge, which would have been militarily important yesterday, does, in the circumstances ruling today, still offer a "definite military advantage": if not, the bridge no longer constitutes a military objective and, thus, may not be destroyed. (Frits Kalshoven, "Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974-77," 9 Netherlands Yearbook of International Law 107, 111 (1978).)
The Naval Handbook accepts the principles set forth in Protocol I, article 57 (2) regarding precautions to be taken by those planning or deciding on attacks to spare the civilian population, civilians and civilian objects. (Naval Handbook, Section 18.104.22.168.) Protocol I, article 57 (2) provides that those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them.
The requirement to do "everything feasible" to verify that the target selected is a military objective involves "a continuing obligation to assign a high priority to the collection, collation, evaluation and dissemination of timely target intelligence." (New Rules, p. 363)
It has not yet been established by the evidence in the public domain that the U.S. military planners did everything "feasible" to establish that the al Shifa factory met the definition of a legitimate military target, or even that it was a legitimate military target at the time of the attack. According to U.S. government statements, a soil sample taken at the factory was found to contain Empta, a chemical used in the manufacture of the deadly nerve gas VX. There have also been references made to contacts between plant personnel and Iraqi officials believed to have the technical knowledge to produce chemical weapons.
But the U.S. government has not explained why its investigation of the site was sufficiently diligent in light of the fact that U.S. officials now admit that they did not know the plant manufactured legitimate pharmaceuticals. The evidence these officials cite for their belief that the plant had no legitimate civilian purpose - unlike the web sites of other known pharmaceutical manufacturers in Sudan, this company's web site did not mention any products - is hardly conclusive. As is now known, the al Shifa factory did in fact produce and sell pharmaceuticals under its name in Khartoum. Why was sufficient investigation not done to learn this before the attack? We recognize that a plant producing legitimate goods may at the same time be producing prohibited chemical substances. But that the planners did not know about the factory's legitimate activities suggests a lack of diligence in intelligence gathering. These and other facts raise serious concern in the minds of many about the thoroughness of the target-selection process. The U.S. government should attempt to ease these concerns by providing further elaboration of the diligence of its pre-bombing investigation of the plant.
Moreover, the U.S. government's disclosure that a soil sample taken months before the attack contained Empta shows only that this chemical had been present in the past, not that it continued to be present. The soil sample would have been compatible, for example, with the past, discontinued storage of Empta, or the past production of Empta, and does not necessarily suggest that the plant continued to store or produce the chemical. The law requires that for a target to be legitimate it must be serving a military purpose "at the time of the attack." The U.S. government should disclose whatever additional information it has to suggest that the factory remained involved in some way with Empta at the time the attack was launched. It would also be useful in this regard to disclose any prior conversations that U.S. officials had with the Sudanese government about its involvement in the production or storage of chemical weapons.
The duty when possible to warn noncombatants of an impending attack is set forth in Section 8.5.2 of the Naval Handbook:
Where the military situation permits, commanders should make every reasonable effort to warn the civilian population located in close proximity to a military objective targeted for bombardment. Warnings may be general rather than specific warnings lest the bombarding force or the success of its mission be placed in jeopardy.
It seems clear from statements you made, Mr. President, on August 28 and at other times, that consideration was given to the possibility that Sudanese civilians might be in the area bombed, and that you wanted to avoid injuring them. We believe the public is entitled to know whether consideration was given to the feasibility of warning civilians, and if that alternative was rejected, the reasons for its rejection.
It would seem that a mere phone call fifteen minutes in advance might have given the Sudanese civilians enough time to evacuate the area. Given the type of weapons employed by the U.S. Navy, it would seem that this might have been done with no risk to U.S. personnel or to the success of the mission.
In light of your stated concern with civilian injures, it would be entirely appropriate as a humanitarian matter for the U.S. government to compensate those Sudanese injured and the survivors of the civilian killed in the bombing. There is already precedent for the U.S. to compensate civilians injured in a U.S. military attack without any concession of negligence or culpability. The U.S. provided compensation to the families of the persons on an Iranian civilian airliner mistakenly shot down over the Persian Gulf, even though an internal U.S. investigation established that its forces did not act negligently. In Sudan, also, the U.S. should compensate civilians who for no fault of their own were injured in the U.S. military strike.
Finally, we wish to draw your attention once more to the famine gripping southern Sudan, where the U.N. estimates that 2.4 million people are at risk of starvation. Unfortunately for this devastated population, the U.S. bombing has had the unintended effect of leading to a disruption in assistance. For instance, all U.N. agencies based in Khartoum have evacuated their American staff, as have many other relief organizations. As a result, many relief efforts have been postponed indefinitely, including a crucial one run by the U.S.-based International Rescue Committee in the government garrison town of Wau in southern Sudan, where more than fifty southerners are dying daily. We urge you to remain mindful of this terrible crisis as you continue to assess U.S. policy in Sudan.