THE MEANS AND METHODS OF ATTACK
Customary international law, and the U.S. Air Force's own rules, specify that all feasible precautions must be taken in the choice of means and methods of attack to protect civilian life (see Chapter One). The precautions must encompass both the selection of weapons and the way in which the weapons are used.1 The need for precautions in the choice of means and methods of attack is particularly relevant when targets are located in urban areas; one respected commentary notes that it "is an injunction to promote the maximum feasible accuracy in the conduct of bombardment of military objectives situated in populated places."2
Middle East Watch found that in some cases during the war, allied forces fell short of their duty to utilize means and methods of attack to minimize the likelihood of civilian casualties. This failure was particularly evident in decisions to execute daytime attacks on bridges in cities used by civilian pedestrians and motorists and on targets located near crowded urban markets. In such cases, it was inevitable that the civilian casualty toll would be higher than if the same targets were bombed at night when Iraqis typically were at home or in shelters.
In addition, it is still not clear why the nighttime bombing by the U.S. Air Force of the Ameriyya air raid shelter -- an attack which claimed some 200 to 300 civilian lives -- was not preceded by a warning to civilians that the allied forces considered this ordinarily protected facility to have become a legitimate military target subject to attack. Nor has the Pentagon revealed the steps that it took to verify that civilians were not taking shelter in this building during the nightly bombing raids of Baghdad -- an eventuality that should have been anticipated given the Pentagon's admitted knowledge of the facility's original use as a civilian shelter.
A key question therefore is: of the total number of attacks on targets located in proximity to civilian areas, what percent were executed with dumb bombs? The answer to this question may help explain the incidents of reportedly inaccurate bombing that caused Iraqi civilian casualties. Further, if munitions clearly known to be inaccurate were deliberately used in these cases, then the resulting deaths, injuries and damage were potentially avoidable -- given the possibility of selecting alternative and more accurate means and methods of attack. In the absence of additional information from the Pentagon on this subject, it is impossible to assess the allies' compliance with the laws of war in this respect.
Throughout the war, Bush Administration and Pentagon spokesmen repeatedly acknowledged the duty to protect civilian life, emphasizing that the means and methods of attack in Operation Desert Storm were carefully chosen to minimize civilian casualties and damage. U.S. Defense Secretary Cheney stated at a news briefing on January 23 that, in contrast to Iraq's use of "highly inaccurate" Scud missiles, "we've carefully chosen our targets and we've bombed them with precision."
Before Operation Desert Storm began, it was reported that the allies' air-war planning process included efforts to minimize damage to civilian objects:
U.S. experts have spent months planning ways to minimize "collateral damage." For example, military officials have plotted bomb runs so that munitions that fall short or long will miss hospitals, schools and the like. Senior defense officials have stressed recently that only military and military-industrial targets are at risk.3
Lt. Gen. Chuck Horner, commander of the U.S. Central Command Air Forces, was described by Gen. Schwarzkopf as "the architect of the entire air campaign."4 Gen. Horner said in a briefing on January 18 that the weapons chosen to attack every target in Iraq were examined with a view toward avoiding civilian damage:
Certainly one of the strongest guidance we had from the very start was to avoid any damage to civilian targets and to the holy shrines that happen to be located in Iraq. We've looked at every target from the outset for avenues of approach, the exact type of weapon to cause damage to the target but preclude damage to the surrounding area, and precision delivery.5
During the bombing campaign, Gen. Schwarzkopf and other military spokesmen continued to emphasize that the allied forces were taking great care to avoid damage to civilian objects. At a briefing on January 27, Gen. Schwarzkopf said:
I think we've stated all along that we're being absolutely as careful as we can not only in the way we are going about executing our air campaign, but in the type of armament we're using. We're using the appropriate weapon against the appropriate targets. We're beingvery, very careful in our direction of attacks to avoid damage of any kind to civilian installations.6
In response to Iraqi charges early in the war that civilian objects were being bombed, Gen. Schwarzkopf noted the means he said were being used by the allies to minimize civilian casualties:
[W]e are absolutely doing more than we ever have, and I think any nation has in the history of warfare, to use our technology...And everybody should clearly understand this, we are probably endangering our pilots more than they would otherwise be by following this course of action. This is something that hasn't been stated. But by requiring that the pilots fly in a certain direction of flight or use a certain type of munitions that requires them to go to altitudes that they normally wouldn't be required to go to, those pilots are at much more risk than they would be otherwise. But we have deliberately decided to do this in order to avoid unnecessary civilian casualties, in order to avoid destroying these religious shrines and that sort of thing....7
After this reply, a reporter asked why such care was being taken in the air war and why pilots were being put at risk to avoid civilian casualties. Gen. Schwarzkopf replied that the allied forces had the technological capability to minimize civilian damage:
The overwhelming part of it is the fact that we have the capability to do that today. Therefore, since we have the capability, the nations that make up this coalition, have deliberately determined to use that capability to limit thedamage against innocent people because we've felt all along our war is not against the people of Iraq.8
The same themes were repeated in the following weeks. At a briefing in Riyadh on February 2, Maj. Gen. Robert Johnston of the U.S. Central Command emphasized that the allies' aircraft were "scrupulously avoiding civilian targets," adding that weapons were being used to minimize the damage to civilians. On February 4, in an interview with U.S. correspondents, Gen. Schwarzkopf again said that precautionary measures were being taken -- such as choice of aircraft, ordnance and flight paths toward targets -- to minimize civilian damage.9
President Bush: Allied Bombing "Fantastically Accurate"
I'd like to emphasize that we are going to extraordinary, and I would venture to say unprecedented, length toavoid damage to civilians and holy places. We do not seek Iraq's destruction, nor do we seek to punish the Iraqi people for the decisions and policies of their leaders. In addition, we are doing everything possible and with great success to minimize collateral damage, despite the fact that Saddam has now relocated some military functions, such as command and control headquarters, in civilian areas such as schools.13
On February 12, President Bush, at the White House with British Defense Minister Tom King, dismissed Iraqi reports of large-scale civilian damage as a "one-sided propaganda machine cranking out a lot of myths and falsehoods."14 He quickly turned the subject to Iraqi treatment of prisoners-of-war, Scud attacks and environmental terrorism. Defense Minister King added that "tens of thousands of civilians" must have died during the Iraqi occupation of Kuwait.15
Radio Baghdad's early claim that the allies' bombing was expelling Iraq from the 20th century was echoed in the report following the war prepared by United Nations Under Secretary General Martti Ahtisaari, who conducted field investigations in Iraq from March 11 to March 16 with representatives from various U.N. agencies to assess urgent humanitarian needs. The report of the mission stated that the war "has wrought near-apocalyptic results upon the economic infrastructure" of Iraq and that the country was "relegated to a pre-industrial age."16 In response, White House spokesperson MarlinFitzwater stated on March 22 that there was "no way of knowing" if the damage in Iraq was as extensive as described in the Ahtisaari report, and added "that certainly was not our intent."17 He also said: "We fought the war decisively, we fought it well, and we fought it as discriminatingly as we could. You will not find America feeling guilty for Saddam Hussein's invasion and destruction of his own people."
The Pentagon's Preliminary Self-Assessment
[T]he Coalition restricted the use of weapons employed near civilian areas, permitting some attacks only during the night when most civilians would be home and not near the target area. Other restrictions included not allowing attacks if targets could not be positively identified and avoiding valid military targets in close proximity to civilian areas, including combat aircraft parked in civilian housing areas or near historic sites.19
As indicated in the previous section of this chapter, U.S. military spokesmen repeatedly emphasized during the war that precautions werebeing taken to avoid unnecessary Iraqi civilian casualties. However, bombing by coalition forces during daytime hours of bridges and other targets in populated areas of Iraq suggests a failure to use all possible means to spare the civilian population, particularly because allied aircraft had the capacity to, and did, fly sorties at night. As indicated by the testimony below, a greater number of civilians reasonably could have been expected to be using bridges and shopping in market areas during the day. The lack of electricity in most of Iraq during the war, coupled with the difficulty of securing gasoline for private automobiles, meant that by the time darkness fell most civilians were at home or in air-raid shelters.
The Pentagon's first public report on Operation Desert Storm recognized the importance of nighttime bombing in populated areas as a means of saving civilian lives when it stated that "some attacks" were permitted only "during the night when most civilians would be home and not near the target area." In the incidents described below, however, such restrictions obviously were not applied, resulting in hundreds of needless civilian deaths and injuries. Middle East Watch calls on allied forces to explain this deviation from stated allied policy.
One Hundred Killed in Daytime Attack on Bridge in Southern City
"I was in my office" at 3 pm, he said, just as thousands of civilians were walking home, many of them trekking across the bomb-cratered Euphrates River bridge because it would no longer support vehicles, when the bomb struck. "By the time I got there, there were hundreds of people in the river," Dr. Thamer said.
Describing the same incident, one journalist wrote during the war:
At 3 pm, when traffic was heavy, several fighter bombers appeared from nowhere and began to nosedive. By the time the sirens let out their warning wail, it was too late. The arch of the bridge, torn from the support of its metal pillars, fell into the muddy waters of the Euphrates, taking with it lorries, cars and people. Witnesses said 47 bodies have been found.21
British Royal Air Force Tornado fighters were among the allied aircraft used to bomb bridges. One Tornado squadron leader who bombed a suspension bridge on February 5 admitted that the bridge was in the center of a populated area and that his aircraft dropped its laser bombs in the morning.22 "Yes, there will be civilian traffic," the pilot said, purporting to justify the daytime attack by speculating, "but they could well be civilian contractors working on an airfield."
Scores of Civilians Killed in Flawed Attack on Bridge in Western Iraq
The Sudanese saw the aftermath of the inaccurate bombing of a second bridge in Falluja on February 14, in which bombs landed in the main market in the center of Falluja. He said the incident was still vivid to him. During the day, he was outside his house, about two to three km from the market, when he saw three planes at high altitude, too high to see the color. He watched the planes dive down and then rise twice, bombing each time. He said it looked like two of the aircraft dove and bombed, and the third was there to protect the other two. He heard three explosions. He ducked for cover and did not go to the market until about two hours later, because he was afraid.
A steel bridge for vehicles and pedestrians spanned the Euphrates not far from the market; a post office tower was nearby. (The post office was bombed three days later, he said.) The market had hundreds of vendors, mostly women, selling a variety of products: vegetables, food, clothes, shoes, and spare parts. Two bombs fell in the center of the market, according to the Sudanese.
When he went to the site, he saw collapsed stores, some concrete, some cinderblock, and others constructed of flimsy material. By the time he arrived, the authorities were not allowing anyone inside the market because they feared there was an unexploded bomb. He saw many of the injured and dead when the army removed them; Red Crescent ambulances were still carrying away the wounded.
He said it was "a terrible sight" -- people had lost hands, legs, or eyes; others "had their internal organs outside their bodies."25 There were hundreds of dead and injured, "too much people," he said. The market building's zinc roof had collapsed; some walls were completely destroyed and others were still standing. About 200 to 300 meters from the market were homes with damaged doors and windows; civilians had been injured from shrapnel and flying glass.
A journalist who visited the site on February 16, two days after this bombing, told Middle East Watch he learned that the first bridge in Falluja, a modern concrete bridge, was hit earlier, on February 10 or 11. The bombers returned to attack that bridge and also targeted the old bridge about 500 to 600 meters from the market, which they missed. The resulting damage was "quite spectacular," he said. A row of modern concrete five- and six-story apartment houses near the market was destroyed, as well as older clay houses with stores on the first floor onthat side of the street and across the street. All buildings for 400 meters on both sides of the street, houses and market, were flattened.26
Denials and then Admissions by the Allies about the Attack
RAF Group Capt. Niall Irving said that several of the laser-guided bombs dropped had been "direct hits" on the bridge, but that three "didn't guide for one reason or another," and two fell short into the river and a third veered "off towards the town."30 Capt. Irving also described the precautions taken by the pilots to minimize civilian damage or casualties:
Irving said that because the target was in a populated area, pilots had taken extra care to aim their bombs at the center of the bridge, rather than the ends as is normally the case. In addition, he said, the pilots flew straight down the river, "so that if the bombs [didn't]glide in their normal trajectory they [would] either fall short or long, and, one would hope, safely.31
Capt. Irving also said that there was no evidence to support the Iraqi claim of civilian casualties from the errant bomb, but that if this was verified, Britain "very much regretted" the losses.32
Hamid Mehsan, a Falluja merchant who was an eyewitness to the attack and lost his son, brother and nephew, described what he saw:
It was the first attack here. A bomb hit just over there and as soon as it exploded, the old buildings fell down. The people were buried, and I saw the men digging with their shovels to bring out the dead. I saw people without their throats. Some they did not find: my son Omar was never found, we found only his head.33
Mr. Mehsan, who sells kettles, glasses and other household goods at the market, disputed that the bombs from the British aircraft missed:
This pilot said he had come to hit the bridge, on the television, and it was a mistake. But we're a distance of 1½ kilometers from the bridge. In our minds, we are convinced that the attack was to the market, to kill our people. But anyway, we consider this to be God's will for us.34
The London Financial Times reported that other laser-guided bombs dropped by Tornado aircraft "fell wide" of their targets; Britishdefense officials provided a broad accuracy range of 75 percent to 90 percent.35
Scores of Civilians Killed in Daytime Attack on Bridge near Market in Southern City
According to former residents interviewed by Middle East Watch, there are three bridges in Samawa, a city on the Euphrates River. During a daytime attack on one of the bridges in February, two eyewitnesses, interviewed separately, described the civilian casualties when bombs fell in an open area at the edge of the river, near a crowded market.
A Sudanese driver who had lived in Samawa for 18 months told MEW that he was in the main market in the city center about 20 to 22 days after the war began when there was an airstrike on the bridge over the Euphrates River that links the market with the residential al-Baath neighborhood, where he lived. (According to testimony taken by MEW, the largest bridge in Samawa, a steel bridge for cars and trucks, was bombed four times. The bridge could no longer be used by vehicles because one attack left a large hole in the middle of the span. The steel bridge is 500 meters from a floating wooden bridge for pedestrians. The steel bridge was bombed before the pedestrian floating bridge was attacked.36)
The Sudanese told MEW that the floating bridge had a railing on the side; it was not large enough for trucks. The Sudanese saw two aircraft that did what they usually do: first they passed over to be sure there were no antiaircraft guns and then they dived and bombed. One dived at a right angle and the other appeared to be protecting thebomber from antiaircraft fire. He watched the plane dive twice and bomb. The Sudanese was one km inside the market and could not see the bridge at the time it was bombed. After the bombing stopped, he went immediately to see what happened.
He said that the bridge had collapsed in the water and disappeared. He saw "too many" dead floating in the water and on both sides of the bridge. He saw many ambulances and civilian cars helping the wounded to the hospital. He was told that over 200 people had been killed.
Residents of Samawa make their purchases in the market during the day and the area was crowded. The Sudanese saw bodies on the side of the bridge near the market. There is an open area from the bridge to the market of about 10-15 meters before the covered portion of the market begins. Most of the fatalities he saw were in this open space on the street, near the bridge. He estimated that he saw about 80 people --children, men and women; some had lost hands or legs and some were severed in two parts. The injured were nearer to the market. All over there were women and children crying. The Sudanese said that this was the first time this area was bombed; there was a siren 15 minutes before the attack.37
Another Sudanese, who lived and worked for two years as a truck driver for a construction company hauling cement, gave Middle East Watch a similar account in a separate interview. He was about a half kilometer away from the site where the bombs fell. First there was an air raid siren, followed by two explosions. He looked up and saw two small white planes flying up, together. It was a clear day, he said.
He ran to the site of the bombing to try to help; there was "general chaos." At least two bombs had fallen in an open area at the edge of the river, between the river and the market. He saw two craters -- each about seven meters wide and four meters deep. The area extended about 75 meters from the river to the place where the market's shops began. People usually did their washing at the edge of the river, he said. There were many women there, washing clothes, and children fetching water and playing.
He saw many injured and many dead, "human pieces," as he put it. This spot was about 1.5 km from another bridge which had been totally destroyed before the bombing. There were no military installations near the area between the market and the riverside where the women and children were killed, he told MEW.38
A group of journalists visited Samawa on February 17. One of the group interviewed by MEW said that when they had passed through Samawa on February 10 from Basra to Baghdad, the bridges -- or at least the one they crossed -- were intact. They reported that by February 17 the three bridges had been completely destroyed and people were crossing the river in small boats. They were told that over 100 people were killed when the footbridge was bombed during the day.39
Another bridge, in the Shuhada quarter of Samawa, was also bombed during the day, for the first time at 3:00 in the afternoon, according to testimony taken by Middle East Watch from two Sudanese truck drivers who had lived in Samawa for 18 months.40 The bridge did not collapse, but two nearby houses were damaged. Two days later, the bridge was bombed again at the same time of day. Once again, it did not collapse, but one house and a restaurant were completely destroyed. During a third attack, at 2:00 in the morning, a bomb hit the middle of the bridge and it collapsed into the water. MEW does not have information about the number of casualties, if any, from these subsequent attacks.
Scores of Workers Killed in Market Area of Southeastern City
He was in Baghdad on the day of the attack, but learned about it from fellow workers when he returned the next day and visited the site himself. At about 8:30 am, two planes dropped ordnance on an open yard adjacent to the market area in al-Kut where workers from the factory stop for coffee before reporting to work. He was told that one bomb or missile landed in the open area where the workers were sitting and killed about 150 people, many of them Egyptians and Sudanese.
The mechanic saw a crater in the middle of the area about five meters wide and two meters deep. He also observed that some of the buildings in the market, cinderblock with concrete roofs, had been damaged. He talked to people who had helped evacuate the injured the day before; they told him that 150 people had been killed and over 70 injured, all of whom were taken to the local hospital.
The yard had stands for coffee and tea in one corner. Workers also bought food at the stalls in the market; the workers were accustomed to sitting in the open area and eating between shifts. There were no tall buildings anywhere near the area; all the buildings were one or two stories. The post office was "far away. There were no government or military buildings or emplacements...there was nothing but a market there," the Sudanese said. He said that the weaving factory -- the only factory in al-Kut -- employed 3,000 workers in three shifts. The factory itself, a one-story building, is located about six km from the site of the bombing. The tallest building in al-Kut is three stories.
The Sudanese told MEW that the market area was the only site that was bombed that day, but added that al-Kut had been bombed several times before, sometimes with raids almost on the hour: "We hear the sirens. We do not know if the bombs are targeting this town oranother. In the bombings, houses have been hit. The road has not been hit."41
Morning Bombing Near Crowded Market Area in Basra
During the first raid, the market was full of people shopping for vegetables, food, clothing, jewelry. Although they insisted that there were no military installations near the market, the Tunisians had a theory: they thought that the planes were aiming at an unfinished construction site in the market whose columns might have appeared to be rockets. They had seen the site before it was bombed. The construction had commenced four years ago but was never completed. The vegetable market was across the street from this site. Other than this construction site there was no bridge, post office or other conceivable military target or governmental structure anywhere in the vicinity.
One of the Tunisians was about 500 meters away from the market when it was bombed on or about February 6. There was a very strong explosion and he saw the doors of several stores flying in the air. He heard the sound of the plane as it bombed the market and then ascended. A second Tunisian went to the scene shortly after the bombing and said that the people there were panicked, crazy, running around in utter confusion.
There was no one in the abandoned construction site itself when the attack took place. The columns at the site were destroyed and the foundations were heaved up. The damage to civilians was less than might be expected because the construction site was surrounded by a concrete wall, about two meters high, which contained some of the blast. But pieces of concrete and shrapnel flew into the market; the blast also blew off doors and the zinc roof of the structure. Vegetables, meat, and other products were scattered everywhere. Worst hit were the street vendors, according to the Tunisians, who saw blood on the sidewalk after the bombing. They heard there were injured and dead, but they did not see any casualties. The market cleared out and no one was there when bombs dropped the next day, at the same location, they told MEW.42
Yemeni students interviewed by Middle East Watch said that this market was bombed about four times before they left Basra on February 7.43 One student remarked that some of the craters were as large as swimming pools; in a film made of his trip to Iraq from February 2 to 8, Ramsey Clark photographed a swimming-pool-sized crater half-filled with water in the market of Basra, where it was reported that eight were killed and 40 injured. The crater size suggests that the ordnance dropped may have been a 2,000-pound guided bomb: the GBU-14, one of the 2,000-pound "smart bombs" used during Operation Desert Storm, "can blast away more than 8,500 cubic feet of material, leaving a hole the size of a large suburban swimming pool."44 Press reports also noted the bombing of vegetable markets in Basra. Dharm Paull, a 30-year-old accountant, was interviewed by The Washington Post after he evacuated to Jordan. He said that several bombs had hit Basra's vegetable market.45 Indian evacuees interviewed by The Guardian said that a vegetable market and food warehouses had been bombed in Basra, in addition to Shu'aiba refinery, military sites, roads, the port and two television towers.46
Daytime Bombing of Bridges in Basra
Tunisian workers described an attack on a bridge that meets al-Kornash Street near the General Teaching Hospital in Basra at around 7:30 in the morning on or about January 26. Three bombs were dropped and none of them hit the bridge, according to the Tunisians. One of the off-target bombs, which left a crater five meters wide, landed near the back of the hospital, killing three patients. The next attack on the bridge was carried out the following night at 8:30; four bombs were dropped, and once again all of them missed the bridge (see Chapter Five for details of this account).
Scores of Civilians, Waiting for Cooking Gas, Killed and Injured During Daytime Attack
The Sudanese visited the site the next day and saw a large crater 30 meters from the storage tanks. "Everything in the vicinity wascompletely burned," he said, including all eight storage tanks. The windows in some cars about 30 meters outside the station were shattered from the blast. There were no houses nearby.48
In a separate interview, a 25-year-old Egyptian who worked at a cinderblock factory in Karbala confirmed aspects of the account provided by the Sudanese. He visited Hilla on or about February 17 and he, too, saw damage from bombing that had occurred, he was told, a few days before, at the gas distribution station at the entrance to the town. He said that the station had oil storage tanks on large columns. The bombs fell on the tanks, which exploded and burned, destroying much of the area. He saw about 15 to 20 charred cars. The Egyptian was told that over 75 civilians were killed and 15 injured when the site was attacked.49
A Sudanese worker who had lived in Hilla described the attack in an interview with MEW. He said that the government-owned, one-story plant, which manufactured cotton and polyester underwear, was bombed at 2:00 in the afternoon on the third day of the air war.51 The factory employed about 800 workers on successive shifts. The manager of the factory had told the workers at noon on the day of the bombing to leave and return in five or six days, so the normal shift of about 200 workers was away when the factory was attacked. The Sudanese said that he visited the factory the day after the bombing; he said that the roof and a corner of the building were destroyed from two bombs, killing seven administrative workers. A third bomb landed on six workers' shacks some 50 meters from the building, completely destroying them. There were no casualties because the shacks were not occupied at the time. The Sudanese said that there was nothing of military or strategic significance near the factory, and that the nearest post office was some 1.5 km distant.
By way of comparison, the ICRC Commentary to Article 57 of Protocol I notes that during World War II factories in occupied German territory were bombed on days or at times when the buildings were empty, in order to destroy the structures without killing the workers. It states: "It is clear that the precautions prescribed here will be of greatest importance in urban areas because such areas are most densely populated."53
Allied air forces clearly had the capability to execute attacks with precision-guided weapons at night. In fact, it was announced in mid-February that U.S. fighter-bombers, equipped with "enhanced night-vision sensors," were dropping laser-guided bombs on Iraqi military targets such as armored and mechanized Republican Guard divisions.54 The technique was reportedly new, and had been tested first with a few aircraft; the results reportedly were so successful -- 70 to 80 percent of the targets said to have been destroyed -- that additional sorties of this nature were flown.55
In its July 1991 report, the Pentagon noted that thousands of coalition sorties were flown at night and stressed the importance during the air war of this night-flying ability:
On the basis of the evidence presented above, Middle East Watch calls on the Pentagon and allied forces to answer the following questions about daytime attacks on targets in populated civilian areas of Iraq:
· Who was responsible for decision making about the time of day to execute attacks against specific military targets in or near cities and towns in Iraq? Were civilian casualties foreseeable in such cases, and was the varying likelihood of civilian casualties taken into account in the decisionmaking process about the time of day to attack?
· In the cases of bridges used by civilian vehicular and pedestrian traffic, was consideration given to launching attacks at night? If not, why not?
· Why were the attacks on the bridges in Nasiriyya, Falluja and Samawa carried out in the afternoon, particularly when aerial reconnaissance would have indicated that the bridges in Falluja and Samawa had crowded public market areas nearby? Similarly, why were daytime attacks executed near crowded market areas in Basra and al-Kut? Were pilots ordered to examine the target area visually prior to releasing their munitions to determine whether civilians were present in large numbers? If not, why not?
· Why was the factory in Hilla attacked at approximately 2:00 in the afternoon? Was the likelihood of civilian casualties anticipated from this attack, given the timeof day that the mission was executed? If so, were civilian casualties deemed acceptable and, if so, why?
· Regarding all daytime attacks launched by allied air forces against fixed targets in or near populated areas, did the circumstances permit prior warning of the attack in order to protect the civilian population? If not, what specific circumstances were prevailing that would have jeopardized the success of the attacks, had warnings been given?
ON TARGETS IN CIVILIAN POPULATION CENTERS
The munitions used by the allies to attack targets in Iraq and Kuwait included precision bombs guided by infrared, electro-optics or laser systems -- "smart" bombs -- as well as conventional high-explosive bombs, known as "dumb" bombs because they are unguided.57 However, numerous public statements and televised video footage released by U.S. spokespersons appeared designed to reinforce the public's perception that Operation Desert Storm was prosecuted exclusively with precision weapons, with minimal "collateral" civilian damage and casualties. The use of precision weapons, of course, reduces the level of civilian casualties because there is a greater likelihood ofhitting the target, and because of this greater accuracy fewer bombs are needed to do the required level of damage. British Royal Air Force Group Captain David Henderson described the advantage of precision bombs this way: "The whole concept of precision-guided munitions means you can attack tight targets like bridges because the weapon is going specifically at these targets and not for a target area."58
In testimony before the Armed Services Committee of the U.S. House of Representatives in June, Gen. Schwarzkopf praised the "technological edge" enjoyed by the allied forces during Operation Desert Storm.59 In an April 1991 report, the U.S. Air Force stated that during the war precision weapons were used "with deadly effectiveness."60 The report also noted that "not every target requires a precision weapon .... When it was important to avoid collateral damage, civilian casualties, or to directly hit a target, PGMs [precision-guided munitions] were the right choice. F-117 attacks over Baghdad demonstrated the ability to precisely kill military targets while minimizing civilian casualties."61
It was not until the war was over that the U.S. Air Force disclosed that coalition forces relied overwhelmingly on unguided general-purpose bombs to attack Iraqi targets. Air Force chief of staff Gen. Merrill A. McPeak released information at a briefing in Washington, D.C., that precision-guided bombs accounted for only 7,400 tons (or 8.8 percent of the approximately 84,200 tons of ordnance dropped by the allies during Operation Desert Storm.62 Some of these precision munitionsreportedly were used against Iraqi military targets in the Kuwaiti theater of operations, away from any civilian population, leaving an even smaller percentage for use in populated areas. MEW is unaware of any detailed information released by the Pentagon about the relative proportion of precision-guided and unguided munitions used on targets in or near populated areas of Iraq.
When asked the percentage of smart bombs that hit their targets, Gen. McPeak said: "I don't have any good data on that. If I had to give you a guess, I would say on the order of 90 percent."63 He did not provide an evaluation of the performance of the unguided dumb bombs. But a senior Pentagon official told The Washington Post that dumb bombs had an accuracy rate of about 25 percent.64 During the war, the Post reported that several U.S. officials said the estimated accuracy rate of many unguided bombs was lower than 50 percent.65 Former U.S. Army Col. David H. Hackworth wrote that the unguided bombs "were the same dumb iron bombs that fell on Berlin, Pyongyang and Hanoi."66 Pentagon officials told the Post that unguided bombs were frequently missing their targets:
Several Pentagon officials, speaking on condition they not be named, said unguided munitions frequently have missed such military targets as bridges or armored revetments, a circumstancethat delayed successful prosecution of the air war against Republican Guard forces around the Iraqi-Kuwaiti border.67
According to Aviation Week & Space Technology, "conventional bombs were less effective than anticipated."68 The Pentagon's director of tactical warfare programs, Frank Kendall, said: "Dumb bombs were not all that effective. One of the lessons that came out of this, and I'll quote the science adviser to the commander-in-chief, is that dumb bombs are just that."69 Gen. John M. Loh, the head of the Tactical Air Command, acknowledged that dumb bombs were used with full knowledge that half would miss. According to Aviation Week, Gen. Loh "said planners never expected more than one-half the unguided bombs to fall within the established circular error probable (CEP). So the fact that a large number missed was consistent with expectations."70 Dumb bombs equipped with technological adaptations also were said to perform poorly: "Even with improvements in aircraft avionics and computerized continuous impact point (CIIP) systems, accuracy with conventional bombs was disappointing."71
Former Undersecretary of Defense for Research and Engineering William J. Perry noted that the accuracy of precision-guided munitions "is independent of the altitude of delivery," which is not the case for general-purpose bombs. According to Perry: "Because of the high density of antiaircraft guns in Iraq most of the bombs were released at medium orhigh altitudes, which decreased the accuracy of delivery of the `dumb bombs.'"72
All these assertions stand in sharp contrast to public statements made throughout the war by Administration and Pentagon officials, particularly President Bush's reassuring words on February 6 that the bombing campaign was "fantastically accurate" and on February 11 that "this war is being fought with high technology."
In the section of the Pentagon's July 1991 report that addresses the use and performance of munitions during the war, there is not one mention of conventional unguided bombs, either in terms of their use or accuracy.73 In fact, the report misleadingly reinforces the impression that much of the ordnance used was precision-guided bombs:
Virtually every type of combat aircraft operated by the Army, Navy, Air Force, and Marine Corps took part in Operation Desert Storm. These aircraft -- both fixed and rotary wing -- delivered a wide variety of munitions, many of which were precision guided....According to the Air Force, over 80% of the precision guided bombs released were hits, limiting collateral damage.74 (Emphasis added)
The post-war disclosure by the Pentagon of the amount of general-purpose high-explosive bombs used in the air campaign, combined with reports of the inaccuracy of these bombs, gives addedweight to the accounts taken by Middle East Watch from former residents of Iraq who provided testimony about inaccurate bombing that caused civilian deaths and destroyed civilian property (see Chapter Five for these accounts).
The Need for a Definition: What Constituted a "Successful" Attack on a Target?
In the early days of the war, allied spokespersons consistently claimed an 80 percent "success rate" for combat sorties over Iraq.75 "Success," however, was not necessarily a measure of the accuracy an aircraft achieved in destroying or even hitting an assigned target and --importantly -- did not foreclose the possibility of civilian casualties and damage from such an attack. The Independent reported from Saudi Arabia that the 80 percent success rate was not an indication that a target had been destroyed:
The 80 per cent is the statistic for the number of times aircraft unload their bombs over the target -- not the accuracy of the hit. Air force personnel in Saudi Arabia's Eastern Province...state this bluntly enough when they are certain of anonymity.76
And in a story the same day from Washington, The Independent noted that the use of the word "effective" did not mean that a target was destroyed, explaining that the terms used by military briefers were technical concepts, capable of creating false impressions for an uninformed public:
They have been using military jargon, and in that case, words such as "performance" and "effective" are strictly technical terms. A different set of accounting words assess actual damage to the targets.
For a missile, for example, good performance means it got off the ground, flew faultlessly to its target and landed on or around the target. Each missile has what is called "circular error probable" or CEP, a circle within which it is supposed to land. But, that does not mean it destroyed the target, or even disabled it.77
Further, U.S. military officials interviewed by The Washington Post admitted that the "success rate" of bombing missions was a reflection of "the judgment of returning pilots that they correctly sighted their targets and released their munitions."78 Several sources told the Post that the assessment of targets successfully destroyed was "much lower" than the reported success rates.79
The Pentagon should release information about the actual performance of the allies' bombs and missiles during the air war, including -- importantly -- a clear definition of the terms used to measure performance. Filling this information gap is an important step in assessing the claims of "success" in attacking targets, and in evaluating the accounts of inaccurate attacks on targets in proximity to civilian population centers in Iraq, such as those included in Chapter Five of this report.
Munitions Used to Attack
Targets in Civilian Population Centers: The Need for Public
If munitions known to be inaccurate were used to attack military targets located in civilian population centers, then the resulting civilian casualties were potentially avoidable. That is, the civilian casualties and damage were likely to have been avoided or reduced had the allies made the choice of using the precision weapons in their arsenal instead of conventional ones. Middle East Watch believes that the United States and other allied forces should explain the reasons for their decision to use conventional bombs and to outline in greater detail how this choice squared with the allies' duty and often-stated goal of minimizing Iraqi civilian casualties.
The choice of weapons was the responsibility of personnel on Gen. Schwarzkopf's staff at Central Command. Once identified for attack, targets in Iraq and Kuwait were categorized into "target sets."80 The target sets then were "weaponeered" by specialists working under Gen. Schwarzkopf, whose task was to match targets and ordnance, based on the type of damage that was sought.81 For example, bombs or missiles selected to completely destroy a building would be different from those chosen if the goal was simply to damage a structure and disable itsfunctions.82 Similarly, targets such as hardened troop bunkers and command-and-control centers were matched with 1,000- or 2,000-pound bombs to produce one powerful explosion, while cluster bombs were chosen if many smaller explosions were needed over a wide area.83
Public statements by Bush Administration and Pentagon officials during the war suggested that the choice of weaponry took into account the need to minimize civilian casualties. But this claim is yet to be squared with the Pentagon's public admission that less than nine percent of the total tonnage of ordnance dropped during the air war was precision-guided bombs. The critical question still unanswered is, of the total number of targets attacked in close proximity to the civilian population, what percentage of attacks were executed with dumb bombs as opposed to smart bombs?
It is not yet known, for example, the extent to which cost and availability were factors in the choice of weapons used in civilian areas. Precision munitions are costly, ranging from $50,000 to $100,000 each,84 while each Tomahawk cruise missile has a price tag of $1.6 million.85 In contrast, conventional high-explosive bombs are less expensive and available in "vast quantities."86 One Pentagon officialsaid a dumb bomb "costs less than $1 a pound--it's cheaper than hamburger."87
Whether precision-guided or conventional, high-explosive munitions of the type used in Operation Desert Storm have enormous destructive power at the point of impact. One-thousand-pound bombs can create craters 35 feet wide and blast shrapnel in a 600-foot radius.88 Two-thousand-pound bombs are capable of blasting a crater 50 feet wide and 36 feet deep, and throwing deadly shrapnel within a 1,200-foot radius.89 One precision bomb in use was the GBU-15, a 2000-pound bomb which can be guided by an infrared system or an electro-optical system that includes a television camera in its nose.90 The bomb "can blast away more than 8,500 cubic feet of material, leaving a hole the size of a large suburban swimming pool."91 The reports of journalists in Iraq and the accounts of former residents of Iraq interviewed by Middle East Watch indicate that bombs with similar cratering power fell in populated areas of Basra, Iraq's second-largest city.
One factor in evaluating the likelihood of civilian casualties is a bomb's "lethal blast range," which varies with the weight of the bomb's explosive material. For example, a 200 kg bomb has a lethal range of 9.7 meters -- that is, 100 percent mortality can be expected for anyone withinthis range.92 Beyond the immediate lethal range, there is the additional danger of secondary injuries from shrapnel travelling at high velocity:
Secondary blast injuries are those that result from projectiles set in motion by the blast. Many types of material may act as missiles, including stones, splinters of wood or glass, and pieces of metal. The pieces may range in size from fine dust to large chunks. These projectiles may or may not penetrate the body.93
A Sudanese worker interviewed by Middle East Watch said that when a bomb fell on the evening of February 7 in the residential area where he lived 45 km north of Basra, neighbors told him that the shrapnel was "like knives." Another former resident of Basra who fled the city on February 9 told MEW that civilians feared injury from flying shrapnel as much as they feared the consequences of a direct attack.
Another factor that can be used to assess likely civilian casualties is the "effective casualty radius" -- ECR -- of a bomb or missile. The U.S. Army defines ECR as "the radius of a circle about the point of detonation in which it may normally be expected that 50 percent of the exposed personnel will become casualties."94 Based on the ECR, a "safety zone" can be calculated for each type of munitions -- the area beyond the detonation point in which civilians or friendly forces can be considered safe from harm. The Stockholm International Peace Research Institute described the safety-zone range for a bomb of 250 kilograms as follows:
[A] typical 250 kg bomb has an effective casualty radius of about 30 meters against troops in the open (i.e., it is expected to incapacitate 50% of persons within 30 meters of the explosion), but individual fragments may travelmuch further. To cope with the dispersion of fragments and aiming errors, a safety zone of about 1000 to 3000 meters is required, depending on bombing tactics (high or low level), type of aircraft and other factors."95
Although figures of this sort can vary depending on a host of operational factors, those selecting weapons during the allied bombing campaign would have had access to information of this sort. Allied commanders have given no indication of how such information was used to determine the likelihood of civilian casualties from the use of a particular weapon and the resulting appropriateness of using that weapon.
The Inaccurate Bombing of
Bridges in Iraq: Avoidable Civilian Losses
Iraq's bridges were attacked early in the air war: the bombing of the bridges, particularly across the Euphrates River, was a key tactic in the allies' effort to disrupt or sever supply lines to Iraqi troops massed in Kuwait and north of the Kuwait-Iraq border. In the war's first week,however, The Washington Post reported that "relatively few" precision bombs were used to attack bridges:
Many Navy "dumb" bombs dropped by F/A-18 and A-6 bombers flying from the Persian Gulf to the Basra area missed their targets, a senior Pentagon official said, and as a result supplies continued to pour into Kuwait until early [February].96
Gen. Schwarzkopf reported at a briefing on January 30 that 36 bridges in Iraq were targeted and 33 of them had been attacked with over 790 sorties. "Obviously," he said, "by shutting off the bridges, we shut off the supply lines that supply the forces in southern Iraq and Kuwait."97 He then showed a video of an attack on a railroad bridge. "We try to hit right near the shore," he said, "because that's the most difficult to repair and does the most damage if you get in at that point."98
What Gen. Schwarzkopf failed to mention was that pilots' instructions to hit "right near the shore" must be balanced against the greater likelihood of civilian casualties in such attacks in the event that ordnance fell wide of the intended target. Since over 20 sorties were launched per bridge, it is obvious that a fair number of the bombs missed their targets. For example, in the daytime attack on a bridge near the bank of the Euphrates River in Samawa -- described in the previous section of this chapter -- over 100 women and children who were washing clothes and playing "right near the shore" are believed to have been killed.
Gen. Neal said on February 6 that at least 42 bridges in Iraq had been attacked and "apparently have suffered major damage."99 Military officers interviewed by The New York Times provided more details. They said that F-15E, F-16 and F/A-18 fighter-bombers flew over 100 missions against 42 key bridges in Iraq, but the aircraft used unguided bombs which did not destroy the targets.100 Military planners later directed F-117s and F-111s -- equipped with 500-pound laser-guided bombs -- to attack the bridges; seven bridges were reportedly destroyed or severely damaged during the first night in which precision-guided weapons were used.101
The evidence collected by Middle East Watch about the inaccurate bombing of bridges -- while not comprehensive -- indicates that the initial decision to use unguided, general-purpose bombs against these targets when they were in close proximity to Iraqi civilians caused avoidable casualties and damage. Given the U.S. Air Force's knowledge that "dumb" bombs lack the accuracy of precision weapons, the choice of this ordnance for attacking bridges in populated areas should be explained, particularly in view of the Air Force's own rules that requiring "all feasible precautions" to be undertaken in the choice of means and methods of attack to avoid or minimize the incidental loss of civilian life and damage to civilian objects.
The critical question is whether the allied air forces did everything feasible in choosing means and methods of attack to minimize civilian casualties and damage, as required by the laws of war. Given the well-publicized technologically advanced munitions available to the allied forces in this conflict, Middle East Watch believes that the most discriminating weapons should have been used in attacks against military targets in populated civilian areas. However, although U.S. military spokespersons fostered the public impression during the war that only precision bombing was being used in these cases, no hard facts have emerged from the Pentagon to substantiate this view.
A first step in understanding the civilian casualties that did result is for the allied forces to come forth with a public accounting of the types of weapons used in these cases and to explain its use of non-precision weapons in urban areas. The accounting should include information about the ordnance used by all branches of the allied air forces, since an accounting of weapons used only by the U.S. Air Force, for example, would obscure the fact that Navy aircraft -- which, together with Marine aircraft, flew 23 percent of the total number of sorties, according to Adm. Frank B. Kelso, the U.S. chief of naval operations102 -- used mostly conventional unguided bombs. As The Washington Post noted:
The Navy...which dropped primarily "dumb bombs" and had only a limited number of the high-technology, precision-guided missiles, is now using the success of the Air Force's "smart" weapons in lobbying to expand its own arsenal.103
As noted above, during the war Gen. Schwarzkopf stated that the allied forces "deliberately determined" to use their technological capabilities to limit civilian damage. However, what is not yet known is the extent to which smart bombs were used against military targets located in or near civilian population centers in Iraq. It is important to know whether the allies' technological edge from precision weapons wasfully employed to maximize the protection of Iraqi civilians, and if it was not, why it was not.
If unguided "dumb" bombs were used to attack military targets in cities and towns, Middle East Watch raises the following questions:
· Who was responsible for the selection of the munitions to be used against military targets in close proximity to the Iraqi civilian population?
· What factors were considered and weighed in the decisionmaking process? Was cost a factor in the choice of munitions, and, if so, how significant a factor?
· Was the relative inaccuracy of "dumb" bombs part of the decisionmaking calculus?
· If so, was it expected that there might be an
incidental loss of civilian life or damage to civilian objects during
attacks if such munitions were used? Was the civilian loss judged
acceptable, and, if so, what expected military advantage guided such
judgments? By what criteria were expected civilian casualties balanced
against the reasons for using "dumb" bombs?
The bombing of the air raid shelter in the residential Ameriyya quarter of western Baghdad took place at approximately 4:30 am on February 13, killing between 200 and 300 civilians, according to various Iraqi reports -- the highest reported death toll from a single allied attack during the entire air war. Under the principles established in international humanitarian law, the U.S. should have taken steps to ensure that what at least previously was known to be a civilian defense shelter was no longer considered a safe haven by the civilian population. Specifically, under the principles of the laws of war, the Ameriyya shelter should have been protected from attack until such time as U.S. forces gave a warning to the Iraqi civilian population that the facility was no longer considered a protected shelter and provided sufficient time to elapse so that warning could be heeded.
The attack on the shelter occurred in the course of
what was described as some of the most intense bombardment of Baghdad
since the war began, during a 12-hour period from the evening of February
12 to the early morning of February 13. The Associated Press reported from
Baghdad that "dozens of other targets" were hit in the city during the
nighttime raids, including the Conference Center, across the street from
the Rashid Hotel.105
The building was attacked with two 2,000-pound bombs from F-117A aircraft: the first reportedly hit the air vent of the facility, weakening the structure; the second tore through the roof and exploded inside. Dr. Fayek Amin Bakr, the director of the Baghdad Forensic Institute, put the death toll at 310, some 130 of whom were children.107 In a report to the United Nations Human Rights Committee in June 1991, Iraq stated that 204 citizens were killed in the attack.108
After the attack, Abdel Razzaq Hassan al-Janabi, who identified himself as a supervisor of the shelter, described how the building was used by civilians:
Each evening since the start of the war, local people would come along with their food, blankets, pillows and their things to the bunker. Nothing had ever fallen on [al-Ameriyya], but people preferred to spend the night down there for safety's sake. Last night, there must have been at least 400 people inside....There are shelters like this in lots of parts of Baghdad. They have room for2,000 people. We always thought they were the best civilian shelters in the city.109
Hassan Ali Hussein, a local resident, told the press about his 14-year-old son Ahmad who was in the building:
The boy went to spend the night in the shelter. They'd linked up a television to the generator and used to show videos. Clint Eastwood, Bruce Lee. That sort of thing....We were sure nothing could have happened to him. It's a nuclear shelter with walls of cement three metres thick.110
It was suggested that the bombing of the shelter may have been an attempt to strike against Saddam Hussein or other top Iraqi leaders. Senior U.S. officials interviewed by The Washington Post said that the structure was a "leadership bunker," thought by intelligence experts to be one of some 20 similar facilities in Baghdad residential neighborhoods reserved for senior Iraqi government officials and their families for use during air raids.111 A U.S. official who had been stationed in Baghdad said: "We watched them build those things. Our understanding was that these were VIP shelters, built for government cadres and party people."112 After the war, Dr. Baghos Paul Boghossian, director of Baghdad's Yarmuk Hospital which treated victims of the bombing, told a visiting U.S. delegation that the shelter "had been reserved for `V.I.P.s'until two weeks before the bombing [January 30 or January 31], when the local population was admitted."113
One resident of the Ameriyya neighborhood interviewed by The New York Times in June said that the shelter initially was reserved for the elite when the war began:
At the beginning of the war, only the elite with special badges could go there. Other things [not further identified in the article] went there as well. I don't know what. When the people nearby complained that they couldn't use it, the authorities let more people in. Then it was bombed. Maybe the allies thought only the leaders were there.114
Another resident told the Times that a friend had told him that there was communications equipment in the building: "It was not a main communications center when the allies bombed it. There had been some kind of equipment there until a couple of days before. Then they scaled it down and let the civilians in." But, as the Times reported, this resident "had not personally seen communications equipment inside the building or being removed."
Civilian Use of the Shelter:
Middle East Watch Accounts
Middle East Watch interviewed Fawzi Muhtasseb, whose entire immediate family -- his wife and five children, aged six to 15 years, four sons and a daughter -- perished in the attack.115 Mr. Muhtasseb, a Jordanian of Palestinian origin, had lived in Kuwait for 16 years, where he owned a small retail textile business. He and his family relocated to Iraq on January 10 because his business was no longer profitable in Kuwait, and rented a house in the Ameriyya neighborhood. According to Mr. Muhtasseb, two or three days after the aerial bombardment of Baghdad began, he and his family began to spend the night in the Ameriyya shelter because the bombing was so intense.
He told Middle East Watch that he spent the first few nights at the shelter with his family, but that he and other men soon stopped going, in order to afford greater privacy to the women and children. (It is uncomfortable for Muslim men and women to share, and sleep together in, close quarters with individuals who are not related to them by blood or marriage, particularly in a space where there are no partitions to separate families and to provide privacy.) Mr. Muhtasseb would take his family to the building at about 5 pm and they would return at about 7 am the next day. Mr. Muhtasseb said that the building was a public shelter, with a sign outside describing it as a shelter; other signs in the neighborhood gave directions to the building. He described the building as a three-story structure: one above ground and two underground. The top floor contained the sleeping area, configured as one large hall without partitions. There were triple bunkbeds for children, enclosed areas for bathrooms, a kitchen and a television. Food and water were kept on the middle floor; food was not prepared at the building, and families would eat at home during the day. They would, however, bring sandwiches in case the children became hungry.
The building's bottom level contained standby electrical generators and other building equipment. Mr. Muhtasseb insisted that although there were several technicians to manage the building and operate the generators, the building was only used for civilians and he never noticed any military use. He said that it looked like a simple large concrete building from the outside. From the street, he said, he never saw camouflage paint on the building.
Middle East Watch also interviewed a 22-year-old Egyptian retail worker, who was a resident of Iraq for three years and lived near the shelter.117 He arrived at the building before the police cordoned it off and assisted in the rescue effort. He said that it took 15 minutes to open one of the doors, because of the heat and smoke. Once inside the building, he said he saw three-tiered bunk beds that were melted from the high temperatures; he also said he saw three children completely burned and another whose back was burning. He told Middle East Watch that he knew of one Egyptian and two Iraqi families who were killed inside the building. The sole survivor was the father of the Egyptian family, who did spend the night of February 12 at the shelter.
A Sudanese student of veterinary medicine at Baghdad University told Middle East Watch that he had lived in the Ameriyya neighborhood because it was close to his college, where he had studied since 1986.118 He said that he had never been inside the building, but that "everyone knew it was a shelter." He said the sign outside, marking it as a civilian shelter, was very old; the same sign was there during the Iran-Iraq war. The building was concrete and square-shaped, and looked like a very large hall. He told Middle East Watch that the wife and six children ofone of his neighbors were killed in the bombing, and that he visited the homes of other neighbors in mourning.
The U.S. Position on the
We knew this to be a military command-and-control facility and targeted it for that reason....We targeted it, we bombed it very accurately, we bombed a building that had barbed wire around it, not an indication of a bomb shelter. We bombed a building that had a camouflage roof painted on it for whatever reason, again, didn't look like a bomb shelter.119
Gen. Kelly further noted that the building was the only one in the Ameriyya neighborhood "that had the roof painted camouflage." Pentagon officials also said that the building was "EMP" -- electromagnetic pulse -- hardened with special equipment, in order to protect communications in the event of nuclear attack.120
MEW interviewed a
European journalist who had rushed to the shelter immediately after he
learned of the attack. He disputed Gen. Kelly's contention that the
building was camouflaged: "I immediately asked to go to the roof. There
was no camouflage paint on the roof," he said, adding that he saw the
evidence of the incoming bomb. He told MEW that there was "no barbed wire"
around the building. "There was no doubt at all that it was a civilian
shelter, and there were road signs showing directions to the shelter," he
White House press secretary Marlin Fitzwater said in a statement on February 13 that "[t]he bunker that was attacked...was a military target....We don't know why civilians were at this location, but we do know that Saddam Hussein does not share our value in the sanctity of life." However, U.S. Brig. Gen. Richard Neal acknowledged at a briefing in Riyadh the same day that the U.S. knew that the shelter was originally built for civilians:
As to air raid shelters, my understanding is that [the Iraqis] do have air raid shelters. In fact, this was an air raid shelter in 1985, but then was upgraded. We had talked to folks that had worked in the construction area that this one was upgraded to a hardened shelter used for command and control.122
Two reasons were offered by U.S. military spokesmen to justify placement of the building on the bombing target list: the interception of military communications from the building, and aerial and satellite photographic intelligence that revealed the presence of military vehicles and personnel. Gen. Neal described the activity that had been noticed there in previous weeks: "We are able to intercept an active communications mode. There [were] military folks in and around the facility on a routine and a continuous basis." He also explained why the shelter was not attacked earlier in the air war:
It became an active command-and-control bunker. We knew it was a military target, a military bunker during the work-up to the actual execution of the air campaign. But we haven't really seen any activity out of this bunker until the last two or three weeks...and so it was added to the target list as a result of this analysis and assessment by our J2 (military intelligence) folks.
Senior military sources in Saudi Arabia also said that near al-Ameriyya was "a significant bunker in the series of bunker complexes that [Saddam Hussein] has. He moves frequently. He has a series of bunkersin the Baghdad suburbs."123 Capt. David Herrington, deputy director of intelligence for the Joint Chiefs of Staff, said that "over a period of time, military vehicles...leadership vehicles...[and] a whole range of other equipment" were seen outside the building.124 Military officials also said U.S. intelligence revealed that military trucks and limousines used by senior Iraqi leaders were seen entering and leaving the building in early February.125
Gen. Neal added: "[W]e have no explanation at this time really why there were civilians in this bunker." Nevertheless, he insisted that the facility was not attacked in error: "[W]e don't feel we attacked the wrong bunker or that we made a mistake."
* * *
The videotape of the victims pulled out of the Ameriyya shelter was sanitized by television stations before it was aired. An American journalist who is a medical writer said that charred and severely burned bodies were evident in the unedited tapes:
[T]hey showed scenes of incredible carnage. Nearly all the bodies were charred into blackness; in some cases the heat had been so great that entire limbs were burned off. Among the corpses were those of at least six babies and then children, most of them so severely burned that their gender could not be determined.126
Rabah Rousan, a Jordanian television anchor who also saw the unedited tapes, put it this way: "All my life I will remember these things in vivid detail. I was educated in the States -- I lived there seven years when my father was ambassador, in the sixties -- and I was expecting the American people to say, `We made a mistake, we're so sorry.' But they didn't."127
Legal Standards and Conclusions
· a warning should have been given prior to the attack: Middle East Watch recognizes that civilian objects may lawfully lose their immunity from direct attack if they are used to make an effective contribution to enemy military action, although civilians in those objects are still protected. However, to strengthen the customary law principle of civilian immunity, Protocol I contains certain specific rules giving special protection to civilian defense shelters. As noted in Chapter One, the U.S. supports the principle in Protocol I that civilian defense organizations and their personnel should be respected and protected as part of the civilian population.
The United States also accepts as a matter of customary international law the principle that "all practicable precautions, taking into account military and humanitarian considerations, be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects, and that effective advance warning be given of attacks which may affect the civilian population, unless the circumstances do not permit."128 Article 65 of Protocol I builds on these principles by providing that the special protection afforded civil defense structures ceases in the event that a shelter is used for military purposes "only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded."
Although the United States has not commented on whether it considers this rule set forth in Article 65 to be binding as a matter ofcustomary international law, Middle East Watch believes that the rule is a fair interpretation in the context of civil defense shelters of the duties to which the United States has subscribed regarding the need to take "all practicable precautions" to avoid civilian injury, including, when possible, by giving "effective advance warning" of an attack. In our view, regardless of the possible military use of the facility at the time of the attack, the United States should have issued a public warning that it considered the one-time civil-defense shelter to be a military target and should have provided time for civilians to heed that warning. Because such a warning was not given in the case of the attack on the Ameriyya facility, despite conceded U.S. knowledge that the building had at least in the past been used as a civil defense shelter, between 200 and 300 civilian lives were needlessly lost.
· neither iraq's failure properly to mark the shelter, nor the presence per se of military personnel at the site, deprived it of its protected status: Protocol I recommends that civil defense facilities be clearly marked with an internationally recognized symbol. Article 66 instructs parties to the conflict to "endeavour to adopt and implement methods and procedures which will make it possible to recognize civilian shelters as well as civil defence personnel, buildings and materiel on which the international distinctive sign of civil defence is displayed." The international civil defense symbol is an equilateral blue triangle placed on an orange ground. Annex I of Protocol I recommends that the symbol "shall be as large as appropriate under the circumstances. The distinctive sign shall, whenever possible, be displayed on flat surfaces or on flags visible from as many directions and from as far away as possible....At night or when visibility is reduced, the sign may be lighted or illuminated; it may also be made of materials rendering it recognizable by technical means of detection."
Middle East Watch is not aware that Iraqi civilian shelters have been marked with the international blue-and-orange symbol; regarding the Ameriyya building in particular, one U.S. official said that three black circles, resembling bomb holes, had been painted on its roof, to suggest that it already had been attacked.129 However, Iraq's failure properlyto identify civilian civil defense buildings in itself did not relieve the U.S. military of its obligation to take appropriate precautions to avoid harming civilians who had taken refuge in the facility because the U.S. military admitted knowledge of the building's prior use as a strictly civilian shelter.
Article 65 of Protocol I states that the protection afforded to civilian civil defense buildings, shelters and personnel terminates if "they commit or are used to commit, outside their proper tasks, acts harmful to the enemy." However, the presence of military personnel at civil defense facilities -- which the U.S. claims was the case at al-Ameriyya --does not per se lift the immunity of such buildings from attack unless the military personnel are engaged in military activity unrelated to civil defense. Article 65 states in pertinent part: "The following shall not be considered as acts harmful to the enemy: (a) that civil defence tasks are carried out under the direction or control of military authorities; (b) that civilian civil defence personnel co-operate with military personnel in the performance of civil defence tasks, or that some military personnel are attached to civilian civil defence organizations...."
· no demonstration that adequate precautions were taken prior to attack: In public statements, U.S. military officials repeatedly emphasized the basis for their judgment that the Ameriyya building was used for military-related activity and therefore was a legitimate military target. Gen. Kelly said on February 13: "We didn't know that the Iraqis had civilians in there." He posited the notion that U.S. reconnaissance did not observe civilians using the building because they moved inside under the cover of darkness: "[W]e did see military people going in and out. Why didn't we see civilians going in and out? Maybe they didn't go in and out until after dark last night and we didn't have a picture of it....They could have gone in after dark last night when we weren't up there looking."130
Testimony taken by MEW provides evidence that civilians in fact used the shelter since the bombing of the Baghdad began. Even if they entered the building once darkness fell, what is left unexplained by U.S.military briefers is why aerial reconnaissance did not detect civilians leaving the building in the daylight of morning.
Gen. Kelly said on February 13 that "we did take all the precautions we could." He did not, however, spell out the specific nature of the precautions that were and were not taken -- including why morning photos were apparently not taken -- in sharp contrast to the disclosure of specific information to support the contention that the building was used for military purposes. The need for such disclosure is particularly important in view of the U.S. military's acknowledgment that the building originally served as a civilian shelter during the Iran-Iraq war and its contention that the building only recently "became" an active command-and-control bunker.
The need for such precautions is underscored by the doctrine that, in the case of any uncertainty that a civilian object is being used for military purposes, it should be presumed to be used by civilians. This principle is reaffirmed in Article 52 of Protocol I, which provides:
In the case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.
The accompanying official ICRC Commentary states:
The presumption established here constitutes an important step forward in the protection of the civilian population, for in many conflicts the belligerents have "shot first and asked questions later."131
Importantly, the U.S. Air Force also expressly accepts this presumption. Air Force Pamphlet states that "location as well as prior uses are important factors in determining whether objects are militaryobjectives."132 The Commentary further describes the exacting nature of this presumption, which extends to front-line areas where armed forces are present:
[E]ven in contact areas there is a presumption that civilian buildings located there are not used by the armed forces, and consequently it is prohibited to attack them unless it is certain that they accommodate enemy combatants or military objects. Strict compliance with the precautions laid down in Article 57 (Precautions in attack) will in most cases bring to light the doubt referred to in this provision or the certainty that it is a military objective.133
Article 57 of Protocol I codifies principles of pre-existing customary and conventional law concerning precautionary steps which an attacking party must take prior to launching an attack to avoid or minimize civilian casualties and damage to civilian objects. It states, in part, that those who plan or decide upon an attack must "do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects". The Commentary on Article 57 notes that "the identification of the objective, particularly when it is located at a great distance, should be carried out with great care."
Further, the Commentary states that "in case of doubt, even if there is only slight doubt," those who plan or decide on an attack "must call for additional information and if need be give orders for further reconnaissance....The evaluation of the information obtained must include a serious check of its accuracy, particularly as there is nothing to prevent the enemy from setting up fake military objectives or camouflaging the true ones."134
As clarifications and reaffirmations of existing customary law, these precautionary measures are binding on the United States, as the U.S. State Department has recognized:
We support the principle that all practicable precautions, taking into account military and humanitarian considerations, be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects, and that effective advance warning be given of attacks which may affect the civilian population, unless circumstances do not permit.135
In addition, the Air Force Pamphlet expressly adapts and incorporates the precautionary measures specified in Article 57 (2)(a) through (c) of Protocol I and notes pointedly that "precautionary measures are not a substitute for the general immunity of the civilian population, but an attempt to give effect to the immunity of civilians and the requirements of military necessity."136
Unfortunately, the U.S. military has remained silent on the steps it took to ensure that the Ameriyya facility was no longer being used as a shelter. The U.S. thus has not demonstrated that it acted in strict compliance with the standards set forth in Article 57 -- particularly the process used to verify that the building was not being used by civilians --at the time when the Ameriyya building was placed on the target list, and at the time when the bombing attack was planned and then executed. The importance of such a showing is only heightened by the U.S. military's assertion that following the onset of the war Iraqi command-and-control facilities were decentralized and placed in civilian structures. MEW calls on the Pentagon to provide this information so an independent assessment can be made of U.S. compliance with the duty to take precautions to avoid civilian casualties.
· the use of civilians to shield military targets is prohibited: U.S. military and civilian spokesmen claimed that the shelter was a legitimate military target because they believed it was being used as a military command center. Iraqi military command-and-control facilities were targeted and attacked since the first days of the air war. Gen. Kelly said on February 13 that the Iraqis moved their command centers to alternative facilities as a result of the allied bombing campaign: "What you are seeing on TV today [the Ameriyya building] is one of those alternate command-and-control facilities that we knew was active."137
This implicitly raises the issue of shielding, a violation of the rules of war. In order to give effect to the principle of civilian immunity, Article 28 of the Fourth Geneva Convention, ratified by all parties to the Gulf conflict, effectively enjoins the parties from using civilians "to render certain points or areas immune from military operations." This means that civilians may not be used to shield a defensive position, to hide military objectives, or to screen an attack. These principles are reaffirmed and codified in Article 58 of Protocol I. By using foreign civilians and prisoners-of-war to shield military targets from attack, Iraq violated its obligations under the Third and Fourth Geneva Conventions. Iraq thus would have borne the primary responsibility for civilian casualties that might have resulted from legitimate attacks by coalition forces against shielded military objectives. However, even if it were shown that the Ameriyya building was in part a military facility, civilians in the shelter still retained protection under the rule of proportionality.
· the continuing relevance of the rule of proportionality: A statement by Gen. Schwarzkopf in the context of the Ameriyya bombing raises concern about whether U.S. forces applied the rule of proportionality in selecting targets. On February 13, after the shelter bombing, he said in reference to Iraqi efforts to shield military forces behind civilians:
[R]ight now they've dispersed their airplanes into residential areas, they've moved their headquarters into schools, they've moved their headquarters into hotelbuildings, they've put guns and things like that on top of high-rise apartment buildings. Under the Geneva Convention, that gives us a perfect right to go after those things if we want to do them. We haven't done it.138 (Emphasis added)
Gen. Schwarzkopf was correct when he stated that legitimate military targets, even when shielded by civilians, are subject to direct attack. However, he was incorrect when he suggested that the legitimacy of a target provides unlimited license to attack it. Individual civilians and civilian objects located within or near the target still retain the benefits of the rule of proportionality as it applies to collateral civilian casualties and damage to civilian objects. Article 51 (4) and (5)(b) of Protocol I, in codifying customary law, characterizes and prohibits as "indiscriminate" an attack that
may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated.
Similarly, the customary principles embodied in Article 57 (2)(a)(iii) and (b) of Protocol I bound Gen. Schwarzkopf and his subordinates to refrain from launching, or to cancel, such a disproportionate or indiscriminate attack. In this respect, Gen. Schwarzkopf's February 13 comment was an erroneous interpretation of the principles of customary law.
In this context, Middle East Watch notes that the Air Force Pamphlet states, inter alia, the following regarding minimizing civilian casualties:
....Attacks are not prohibited against military objectives even though incidental injury or damage to civilians will occur, but such incidental injury to civilians or damage to civilian objects must not be excessive when compared tothe concrete and direct military advantage anticipated. Careful balancing of interests is required between the potential military advantage and the degree of incidental injury or damage in order to preclude situations raising issues of indiscriminate attacks violating general civilian protections. An attack efficiently carried out in accordance with the principle of economy of force against a military airfield or other military installations would doubtless not raise the issue. On the other hand, attacks against objects used predominately by the civilian population in urban areas, even though they might also be military objectives, are likely to raise the issue.139
The day after the bombing, White House spokesman
Marlin Fitzwater refused to discuss the incident further: "We said
yesterday that we didn't know there were civilians [in the building]. I
don't see any reason to go through all this again. The data and the
information have not changed, nor have our conclusions."140 Pressed by reporters, Mr. Fitzwater
remained firm: "The issue is settled." The same day, Pentagon spokesman
Pete Williams indicated that he was barred from providing additional
information: "We have gone as far as we can. It would be a lot easier for
me to get you all off my back if I could just stand up here and lay it all
out for you, but I can't do that."141
Nor, to date, has the Bush Administration and the Department of Defense made public any evidence -- such as satellite photographs or electronic data -- to support their claim that the building functioned as a military command center. The Pentagon's July 1991 public report devotes a mere six lines to the Ameriyya bombing and does not provide any estimate of the number of civilians who were killed:
The most notable incident of Iraqi civilian casualties occurred when a penetrating bomb destroyed a hardened shelter in Baghdad used for military command communications. Many civilians who had, unbeknownst to the Coalition, taken shelter inside, were killed or injured.142
Since the war is now over, the rationale that the release of photographs and transcripts of intercepted Iraqi military communications would compromise military security in a manner advantageous to Iraq is no longer as pressing. Although MEW recognizes that the Pentagon has an interest in concealing the means and methods of intelligence acquisition, the tragedy of the Ameriyya bombing presents a compelling case for release of pertinent information. Middle East Watch calls on the U.S. government to investigate fully the targeting of the shelter and the surprise attack on it, and urges that the findings of the investigation, including any additional information to substantiate the U.S. position that the building was a legitimate military target, be publicly released.
15 Although a substantial number of Kuwaitis missing since the occupation have not been accounted for, Middle East Watch believes that the final tally of Kuwaitis killed by Iraqi forces is unlikely to be significantly greater than 1,000.
16 "Report to the Secretary-General on humanitarian needs in Kuwait and Iraq in the immediate post-crisis environment by a mission to the area led by Mr. Martti Ahtisaari, Under Secretary-General for Administration and Management, dated 20 March 1991," Annex to Letter Dated 20 March 1991from the Secretary-General Addressed to the President of the Security Council, S/22366, 20 March 1991 at 5 [hereinafter Ahtisaari Report].
23 Middle East Watch notes that accounts vary about the number of civilians killed in this attack. One journalist reported after the war: "Official estimates have put the death toll at between 40 and 73, the bush telephone in Falluja counts 200." (See Ed Vulliamy, "Limbs and lives blasted away by allied bombs," The Guardian, May 3, 1991.) Vulliamy interviewed members of theMehsan family in Falluja; in addition to 12-year-old Abdullah Mehsan, whose legs were crushed and amputated from injuries during the attack, three family members were killed in the attack, including Abdullah's father and his 24-year-old brother.
52 Regarding factories directly involved in military production, civilians working there must assume the risk of possible attack. The New Rules states: "By being within, or in the vicinity of a military objective, these civilians assume the risk of collateral injury from the effects of attack. It is also doubtful that incidental injury to persons serving the armed forces within a military objective will weigh as heavily in the application of the rule of proportionality as that part of the civilian population which is not so closely linked to military operations." See New Rules at 295.
57 "Dumb" bombs -- or low-drag, general-purpose bombs -- are "the most common type of air-to-ground munition in service today. A general-purpose (GP) bomb is a medium-case weapon in which the explosive filler amounts to some 40-50 percent of total weight, as opposed to 60-75 percent in light-case `demolition' bombs or as little as 20 percent in heavy-case armor-piercing bombs. Relying on a combination of blast and fragmentation, GP bombs are effective against most soft and `semi-hardened' targets." Edward Luttwak and Stuart L. Koehl, The Dictionary of Modern War (Harper Collins:1991) at 350.
62 McPeak Briefing, Transcript at 6. General McPeak said: "Coalition air forces dropped about 84,200 tons of ordnance." Confusingly, a visual aide used at the briefing, titled "Tonnage Expended, US--Only," indicated that thetonnage figure referred to ordnance dropped by the U.S., not allied forces as a whole. Gen. McPeak, however, spoke in terms of allied forces.
73 The report notes that "an evaluation of the employment and performance of military equipment, weapons and munitions ... requires a thorough, systematic analysis of all available data....The data collection efforts and preliminary analyses are underway. When complete, this will provide a basis for continuing, more detailed analyses designed to allow the Department to draw conclusions about weapons' performance." (Pentagon Interim Report at 6-1.)
108 Third Periodic Report submitted by Iraq under Article 40 of the International Covenant on Civil and Political Rights covering the period from January 1, 1986 to May 31, 1991; United Nations CCPR/C/64/Add.6, June 24, 1991 at 9.
120 R.Jeffrey Smith, "Design Convinced U.S. Analysts Building Was a Bunker," The Washington Post, February 14, 1991; William J. Broad, "Baghdad is Heart of Iraq's Complex Military Communications Structure," The New York Times, February 15, 1991.