PART III:IRAQ'S MISSILE ATTACKS AGAINST ISRAELAND THE GULF STATES
In contrast to the military role of Saudi Arabia and other Gulf states,1 the State of Israel was not a member of the international military coalition to oust Iraq from Kuwait. Nevertheless, beginning with an initial attack at 2 am on January 18, Iraq reportedly launched 39 ground-to-ground ballistic missiles into Israel and the occupied West Bank, killing a total of 13 people, according to official Israeli government statistics. A majority of the missiles were aimed in the vicinity of Israel's largest city, Tel Aviv.
Saddam Hussein was asked during a CNN interview on January 28 about the missile attacks and he commented: "We said that if Baghdad were hit, we would strike Tel Aviv." Iraq's attacks were widely regarded as designed to provoke Israel into joining the war and thus precipitating a split in the Arab participants in the allied military coalition. On January 18, Middle East Watch condemned the Iraqi missile attacks on residential neighborhoods in Israel as a "blatant violation of humanitarian law, which prohibits the targeting of civilians."2
At dawn on January 18, Iraq also fired a missile at the allied air base in Dhahran in eastern Saudi Arabia, the first of the 37 missiles launched at that country during the war. In late February, Iraq also launched one missile at Bahrain and and one at Qatar, two Gulf states that participated in the war against Iraq and whose territory served as bases for allied air force units. According to statistics from the official Saudi Press Agency, there was only one civilian fatality from these attacks-- in Riyadh on January 25 -- and some 77 civilians injured, most of them slightly.
The possibility of the use of deadly chemical warheads on the Iraqi missiles generated fear among the Israeli and Saudi civilian populations and extensive civil defense preparations for the eventuality of such attacks. Saddam Hussein refused, in the CNN interview on January 28, to rule out the use of chemical weapons during the war. Asked about Iraq's possible use of chemical weapons against the allied forces, he replied evasively : "I said that we will use weapons that are equivalent to those used against us." In answer to a further query about the use of chemical warheads on the missiles launched at Israel, Saddam offered the same reply: "I have said that we use weapons that match those used by the opposite side." Despite the fact that the chemical attacks never materialized, the uncertainty and fear about Iraq's capabilities and intentions lingered throughout the war.
Lingering, too, and a cause for deep concern, were Saddam's comments in a lengthy speech on April 1, 1990: "We do not need an atomic bomb. We have the binary chemical. Let them take note of this. We have the binary chemical. According to our information, only the United States and the Soviet Union have it."3 Later in the speech, Saddam proclaimed that Iraq would not be intimidated and should not fear an attack by the West: "They will be deluded if they imagine that they can give Israel a cover in order to come and strike at some industrial metalworks. By God, we will make fire eat up half of Israel if it tried against Iraq."4 These comments, taken together, were widely regarded as a threat to use chemical weapons in the event of an Israeli attack on Iraq.
Numerous public Iraqi military communiques issued during the war used very explicit language to indicate that the missile attacks were intended to terrorize the civilian populations of both Israel and Saudi Arabia (see Chapter Six). Following a missile attack on Israel on February 12, for example, a communique stated that the attack was "tospread death and terror among those who terrorized our nation."5 On January 23, Iraq stated that a missile attack on Israel the previous night was "to disturb the sleep of the Zionists and blacken their night." In a similar vein, the object of the missile launched at Riyadh on February 8 was "to disturb the sleep of the tyrants."6
THE TARGETS OF IRAQ'S MISSILES
Although Iraqi statements often left the impression of wholly indiscriminate attacks, in fact not all of Iraq's missiles were indiscriminately fired at urban population centers. U.S. Air Force Chief of Staff Gen. Merrill A. McPeak acknowledged this at a press briefing in March:
Some of these were actually launched against military targets. For instance, King Khalid Military City was attacked in the northern part of Saudi Arabia.7
The majority of the missiles directed at Riyadh also were aimed at military targets, according to a U.S. Army official:
One Army official said most of the Scuds fired at Riyadh, Saudi Arabia's capital, would have hit an airbase or other high-value target -- possibly destroying U.S. aircraft on the ground -- if they had not been intercepted.8
The Defense Department's July 1991 report confirmed that "a number" of the 41 Iraqi missile attacks on Saudi Arabia were against military targets. More precise information was not provided:
There were a number of Scud missile attacks on Coalition forces within the Kuwait Theater of Operations during Operation Desert Storm. We do not know the number of casualties caused by particular weapon systems. However, the largest single cause of American losses was the 25 February Scud missile attack that hit a US barracks in Dhahran, Saudi Arabia, killing 28 US military personnel and injuring 97.9
But during the war allied military spokesmen appeared reluctant to acknowledge that Iraq might be launching any missiles at legitimate military targets. The direct hit on the U.S. military barracks was discounted at the time as a fluke. Brig. Gen. Richard Neal of the U.S. Central Command, explaining why the missile had not been intercepted by Patriots, stated at the time that the missile had disintegrated when itentered the atmosphere.10 Gen. Neal said: "Our investigation looks like this missile broke apart in flight. On this particular missile it wasn't in the parameters of where it could be attacked."11
Subsequent investigations by the U.S. Army revealed that, contrary to Gen. Neal's initial public assertions, the Iraqi missile did not disintegrate. It was intact when it slammed into the U.S. barracks --Patriots had not been fired at the missile because the radar system's computer had been shut down at the time of the attack.12 The New York Times reported that the Army learned about the malfunction quickly: "Army experts said in interviews that they knew within days that the Scud was intact when it hit, and that a technical flaw in the radar system was probably to blame." Nevertheless, this information was not publicly reported. The Times aptly commented:
The Army investigations raise questions why the Pentagon and Central Command perpetuated the explanation that the Scud broke up....During the war, American military officers were reluctant to discuss any weapon failings. But even after the cease-fire, many officers were averse to say anything that might tarnish the one-sided allied victory over Baghdad's forces.13
In contrast to the post-war public acknowledgments by the U.S. military that Iraq fired missiles at military targets in Saudi Arabia, Middle East Watch is aware of no public statements by U.S. military briefers or Israeli government spokespersons that described possible military targets in Israel that may have been the object of attack. On January 25, President Bush said in a news conference that the missiles launched atIsrael constituted "brutal, senseless, non-military-value attacks on civilian populations." As discussed in Chapter Eight, given Iraq's choice of targets and the limited accuracy of its missiles, most of the attacks on Israel support the President's conclusion.
The Iraqi missile attacks against Israel and Saudi Arabia must be analyzed under legal standards prohibiting the targeting of civilians, the use of indiscriminate weapons and the issuance of threats of violence intended to cause terror among civilians.
As noted in Chapter One, customary international law enjoins attacks against the civilian population and requires that parties to the conflict at all times distinguish between military targets and civilian objects. The prohibition of indiscriminate attacks, as codified in Article 51(4)(b) of Protocol I, includes, inter alia, "method[s] or means of combat which cannot be directed at a specific military objective" and thus "are of a nature to strike military objectives and civilians or civilian objects without distinction." The provision was designed to forbid, among other things, long-range missiles with rudimentary guidance systems that cannot with any reasonable assurance be directed against a military objective,14 such as the V2 rockets used at the end of the Second World War.15
Whether the use of a particular missile is indiscriminate, assuming the object selected for attack is a military target, depends in part on the accuracy of the weapon, the size and location of the military objectives and the target's proximity to civilians and civilian objects. As one commentator observed, "Those methods and means of combat which would be indiscriminate in a densely populated city, might be lawful in an unpopulated area such as a forest or a desert."16
Although Iraq might claim that it sought a military advantage from its missile attacks -- splitting the military coalition, either by prompting Israel to attack Iraq or by encouraging Saudi civilians under attack to rise against their leaders -- those objectives do not justify targeted or indiscriminate attacks on civilians or efforts to terrorize civilians. Just as it would be illegal for allied forces intentionally to target Iraqi civilians with the aim of encouraging them to overthrow Saddam, so it was illegal for Iraq to target civilians in Israel and Saudi Arabia with the aim of furthering Iraq's military or political objectives. Acts violative of the laws and customs of war cannot be justified or made lawful by a military necessity argument.
As described in the next chapter, some Iraqi statements accompanying the missile attacks might be taken to justify the attacks as reprisals for alleged allied violations of the laws of war. The lack of validity in this possible justification is explained in that chapter.
During the eight-year Iran-Iraq war, surface-to-surface ballistic missiles were used by both sides, although a greater number of missiles were launched by Iraq. The missiles used by both Iraq and Iran "had severe limitations in accuracy/range payload, and neither side had any abilities to target the weapons accurately," according to military experts.19 Some 750 to 900 long-range rockets and missiles were used by both sides during the conflict, although these weapons "did not play a major role until the end of the war."20 Despite the rhetorical bravado used by both sides, the missiles had indiscriminate effects rather than distinct military advantages:
[T]he net impact of using Scud missiles against urban targets was roughly similar to randomly lobbing a 500-pound bomb into a city every few days or weeks. The Scud strikes usually did little more than produce a loud bang, smash windows, and kill a few innocent civilians. The most lethal attacks on both sides seem to have occurred when missiles hit targets like a school or a large funeral by sheer accident.21
The number of Scud missiles fired by Iraq during the Iran-Iraq war is a matter of dispute among military experts, as is the year the first Scuds were launched into Iranian territory (some say 1982, while others put the date at 1980).22 Experts do agree, however, that commencing in 1987 the tempo of attacks picked up rapidly. Although Iraq fired no Scuds in1986, it launched at least 15 in 1987 and at least 189 in 1988, the last year of the war. Iraq's initial attacks were mostly directed at Iranian urban areas, particularly cities along the border, since the missile's limited range at this time prevented attacks on major cities in the interior, including Tehran:
Iraq began to use Scud largely to conduct sporadic terror attacks on urban areas or military concentrations, and its strikes seem to have been designed largely to try to put political pressure on Iran. Most of the time, Iraq used its Scud missiles against Iranian populations centers to the rear of the battlefield.23
It was not until May 1985 that Iraq began to attack Tehran and other major cities with aircraft, long-range artillery and surface-to-surface missiles.24 Iraq noted publicly that civilian morale was an objective of its missile attacks on Iranian urban areas. The commander of Iraq's Fourth Corps, Major-General Thabit Sultan, stated in April 1985 that Iraq wanted to bring the war home to the Iranian people:
We want to bring the Iranian people into the front lines of the war. We hope this will encourage the Iranian people to rebel against their government and bring the war to an end.25
Iran did not use surface-to-surface missiles until 1985, when up to 14 Soviet Scud-Bs were launched.26 The Iranians launched eight Scuds in 1986, 18 in 1987 and 77 in 1988.27 Iran's advantage in use of themissiles was geographic, since the weapons could reach Iraq's largest cities. During the 52-day "War of the Cities" in 1988, Iran fired 61 Scuds at Baghdad, nine at Mosul in the north, Iraq's third-largest city, and five at Kirkuk, the center of the northern oil-producing region.28 Like Iraq's missile attacks, the missiles launched by Iran were militarily insignificant:
[M]any of the Iranian Scuds fired at Baghdad hit in the outskirts of the city. Further, even the missiles that did hit inside the city often hit in open spaces, while hits on buildings rarely produced high casualties. Iran never hit any of its proclaimed major targets, which included the Iraqi Ministry of Defense and Iraqi oil facilities.29
Iraq began to use its own modified longer-range missiles in 1988, when 16 al-Husayn missiles30 were fired at Tehran between February 29 and March 1.31 Between the initial attacks and April 20, a total of 200 missiles were fired at Tehran and other cities, resulting in 2,000 civilian deaths, according to one count.32 In a 40-day period during this time, the Iraqis "would normally fire their ballistic missiles in salvoes of three, and averaged just under two salvoes a day."33
Iraq's Armed Forces General Command issued military communiques throughout the war, and among the subjects of these communiques were Iraq's missile attacks against Israel and Saudi Arabia. The communiques typically described the missile attacks in political and propagandistic terms. Iraq never specified any military targets in Tel Aviv that were the objects of attack, in contrast to the communiques that claimed missiles were directed at the port of Haifa and at Israel's nuclear facility at Dimona in the northern Negev desert.34 Similarly, in announcing missile attacks against Riyadh, Saudi Arabia's capital city, there was no mention of military targets, as discussed below.
After the first attack on Israel on January 18, an Iraqi military communique stated that missiles had "pounded political, economic and scientific targets in Tel Aviv, Haifa and elsewhere in Israel." Subsequent statements were equally vague, mentioning "blows against selected targets in occupied Palestine" and "selected targets in Haifa port." A communique issued by the Iraqi Armed Forces General Command on January 23, after the third attack, stated that "our missiles slammed against the city of Tel Aviv."
TARGETING ISRAEL'S CIVILIAN POPULATION
Rather than stressing possible legitimate military objectives of the missile strikes, Iraqi statements throughout the war made clear in many cases that the civilian population in Israel was the target of attack -- a clear violation of the customary law principle codified in Article 51(2) of Protocol I. Many of the statements appear to have been made deliberately to spread terror among Israeli civilians -- again a violation of the customary-law principle codified in Article 51(2) of Protocol I --regardless of the actual object of the attack (see Chapter One, xx-xx).
An official Iraqi military communique on January 19 used utterly ghoulish language -- clearly suggestive of deliberate attacks on the civilian population -- to describe a missile attack: "These missiles poured out of the sky, making Tel Aviv and other targets a crematorium last night, the night of January 18."35 (A similar image was created by Saddam Hussein in his April 1, 1990 speech, when he threatened to "make fire eat up half of Israel" if it attacked Iraq.) A military communique issued on January 23 stated that a purpose of an attack the previous night was "to disturb the sleep of the Zionists and blacken their night." Following a missile launching on February 11, Radio Baghdad said that the strike was intended "to sow death and alarm in the hearts of those who have isolated our women and children in the occupied land." The Iraqi Armed Forces General Command stated that the missiles launched against Israel on February 12 were intended "to spread death and terror among those who terrorized our nation."
OTHER THEMES: REVENGE, PUNISHMENT AND PALESTINE
Much of the bombast from Baghdad clearly was designed for propaganda purposes among the Arab masses. Revenge against "Zionists" also figured prominently in the language of Iraqi statements about the attacks, as did mention of Palestine. On January 22, missiles were launched at Israel "in revenge for the crimes of Zionism." In describing two missile attacks against Tel Aviv on January 25, the Iraqi Armed Forces General Command said the intent was to "pour fire on the headsof the arrogant Zionists to avenge what their hands have committed." Radio Baghdad said that the ninth attack on Israel, on February 2, was "to avenge the Arab blood in Iraq and Palestine." Similarly, the eleventh attack, on February 8, was "to avenge the intifadah and Iraqi martyrs," according to an Iraqi military spokesman. On February 23, after the 16th attack on Israel, Iraq said that missiles were launched "with the aim of punishing the Zionist scoundrels."
Other official Iraqi statements noted that missiles were fired at Israel "for the sake of Palestine" and "in implementation of the will of the children of the intifadah and the will of their brothers in Iraq." A military communique on January 24 stated: "If they insist on denying the rights of our people in Iraq and Palestine...we will continue to strike until they stop their aggression."
TARGETS IN THE GULF: MILITARY AND CIVILIAN
Iraqi military communiques about the missiles fired at Saudi Arabia included progagandistic language and statements about both civilian and specific military targets that were the objects of attack.36 The most frequently mentioned military target was the allied forces' base at Dhahran, the largest in the region, described by the Iraqis as "one of the staging posts for the aggression on our country." Other targets noted in Iraqi communiques included the huge oil complex at 'Ibqaiq southwest of Dhahran, the Saudi port of Jubail on the Gulf, King Khalid Military City, a large Saudi military base and military airport adjacent to the town of Hafr al-Batin in northeastern Saudi Arabia near the Kuwait border, and 'Isa military airport in Bahrain. The Iraqi communiques also notedthat missiles were fired at the "men, weapons and equipment" in various locations in Saudi Arabia, including Hafr al-Batin.37
Despite this, the communiques often used highly general language to describe some of the missiles launched at Saudi Arabia. For example, on January 20 "Iraqi missiles pounded...the city of Riyadh, the capital of the agent Sa'udi clan, and in the town of al-Dammam, where the corrupt and ignorant Sa'udi clan has gathered".38 The Iraqi Armed Forces General Command described Riyadh as the target of an attack on January 25: "Before midnight last night, with God's help, a violent missile strike was directed at the city of Riyadh, capital of the corrupt Saudi rulers."39
THEMES: PUNISHMENT AND RETALIATION
As with statements about the attacks on Israel, themes of punishment and revenge appeared in Iraqi military communiques describing missiles fired at Saudi Arabia. For example, the aim of an attack on Riyadh on January 21 was to teach "the agents of Al Sa'ud...a lesson in good conduct."40 The missiles fired at the city on February 11 were "to punish the agent traitors, infidel apostates, the rulers of Saudi Arabia...and to harass the traitors."41 The Iraqi Armed Forces General Command stated that missiles launched at Riyadh on February 8 wereintended "to punish the traitor Al Sa'ud family" and "to disturb the sleep of the tyrants."42 Such language suggests that at least some of the time Saudi cities and their civilian population were targets of attack, in violation of the customary-law principle codified in Article 51(2) of Protocol I. Moreover, because the language was also apparently intended to spread terror among Saudi civilians, it also violated the principle set forth in Article 51(2).
Iraqi statements also said that missiles were fired at Riyadh to avenge allied attacks on Iraq. An Iraqi military spokesman stated that missiles were launched at Riyadh on February 8 "[s]o that the rulers of the Sa'ud family may know that their masters' attacks on our civilian targets will not pass unpunished, a destructive missile strike with al-Husayn missiles was directed after midnight last night at the capital of the agents and traitors, the city of Riyadh."43
Iraq's claim that some of its missile attacks against Israel and Saudi Arabia were in reprisal for the allied bombing of Iraq is a tacit admission that it had in fact deliberately targeted civilians and civilian objects in those countries.
Conventional and customary international law prohibit direct attacks against the civilian population and civilian objects, and Article 51 (6) of Protocol I prohibits even "[a]ttacks against the civilian population or civilians by way of reprisals." However, this ban on reprisals is new law and not recognized by the United States and many other nations as binding customary law.44
Reprisals during armed conflicts are "acts of retaliation in the form of conduct which would otherwise be unlawful, taken as a last resort, by one Party to the conflict against enemy personnel and property in response to grave and manifest violations of the law of armed conflict committed by the other Party, for the sole purpose of enforcing future compliance with" the laws of war.45
The New Rules notes that for reprisals to be legally justifiable they must satisfy, among other things, the following customary-law requirements:
(a) other reasonable means to secure compliance must have been undertaken and have failed,
It is utterly implausible, when judged against these criteria, that Iraq's attacks against civilians and civilian objects in Israel could qualify as lawful reprisals. Israeli armed forces at no time during the Gulf conflict participated in the hostilities, much less committed any grave and manifestly illegal violation of the laws of war against Iraq -- the key requirement for valid reprisals. In fact, the initial missile attacks against Tel Aviv occured at 2 am on January 18, approximately 24 hours after the beginning of the allied air assault against Iraq. Instead, the purpose of Iraq's attacks was unquestionably to goad Israeli forces into activelyjoining the conflict and, thereby, split the Arab members of the coalition. The inflammatory and punitive tenor of Iraq's rhetoric attending these attacks similarly belies the credibility of any claim of legitimate reprisals.
As in the case of Israel, the Iraqi government's own words with respect to its attacks on Saudi Arabia are the best evidence of its true intentions. These statements demonstrate that the attacks directed toward civilian areas were not undertaken to compel coalition observance of the laws of war, but rather for the impermissible purpose of punishing and terrorizing Saudi Arabia's civilian population.
1 The air forces of the following Gulf states, for example, flew sorties against Iraq during the war: Saudi Arabia, Kuwait, Bahrain, Qatar and the United Arab Emirates. (Saudi Press Agency Daily English Service, February 25, 1991, citing information from a military spokesman at the Joint Forces Command.)
5 Armed Forces General Command Communique No. 45 stated: "First, to punish the Zionists whose base methods and conspiracies sparked off this war, and who were behind it and participated in it, who occupy Jerusalem, who seek the assassination of the existence of our Palestinian Arab people, who deal death and oppression to our kinfolk in the occupied lands, and who have participated in the air raids on our cities and villages, our heroic missile force yesterday evening pounded the city of Tel Aviv, the capital of the Zionist entity, with al-Husayn missiles to spread death and terror among those who terrorized our nation, defied its will, and descrated its holy shrines. Second, after midnight last night, our missiles forces once again pounded the city of Tel Aviv with al-Husayn missiles." (Baghdad Domestic Service, February 12, 1991, as reported in FBIS, February 13, 1991 at 18.)
6 "To punish the traitor Al Sa'ud family...our heroic missile force after midnight last night directed a destructive missile strike at the city of Riyadh, the capital of the atheist Al Sa'ud family, to disturb the sleep of the tyrants." (Armed Forces General Command Communique No. 41, February 8, 1991, Baghdad Domestic Service, February 8, 1991, as reported in FBIS, February 11, 1991 at 34.)
34 For example, Communique No. 52 on February 17 stated in part: "[O]ur heroic missile forces directed the following strikes [sic] missiles at the Zionist entity: A) Three destructive strikes on Dimona, in the south of occupied Palestine, where the Israeli reactor dedicated to war purposes is located, yesterday evening....B) One strike on the port of Haifa, on the Mediterranean, in occupied Palestine, yesterday evening, with al-Husayn missiles." (Baghdad Domestic Service, February 17, 1991, as reported in FBIS, February 19, 1991 at 46.)
36 In contrast to the language of the military communiques announcing missile attacks on Israel, military targets in Saudi Arabia often were specifically noted. For example, Communique No. 57 stated in part: "To take revenge on the treasonous Saudi family and to deal with the military effort of the enemy alliance, our heroic missile force directed two destructive strikes with Iraqi missiles on the Saudi Khalid town [King Khalid Military City] and Khalid military airport last night." (Armed Forces General Command, Baghdad Domestic Service, February 22, 1991, as reported in FBIS, February 22, 1991 at 38.)
44 Matheson at 426; also see Judge Abraham D. Sofaer, Legal Adviser at the U.S. Department of State, "The Position of the United States on Current Law of War Agreements," 2 The American University Journal of International Law and Policy, Fall 1987 at 469.
47 See, for example, Letter dated January 24, 1991 from Tariq Aziz, Deputy Prime Minister and Minister for Foreign Affairs of Iraq, addressed to the United Nations Secretary-General, included as an annex to Note Verbale dated January 25, 1991 from the Permanent Mission of Iraq to the United Nations addressed to the Secretary-General, U.N. Security Council S/22154, January 28, 1991. The letter stated in part: "The States that endorsed those [United Nations] resolutions for the motives indicated and you, personally, bear responsibility to history and to mankind for the heinous crimes being committed against the noble people of Iraq who are fighting for their freedom. Examples are given hereunder of the savage and premediated acts of aggression committed by the aggressor forces between 17 and 21 January 1991." (at 3.) The letter then lists incidents of bombing in residential areas and of bombing of other civilian objects, in some cases indicating deaths and injuries.