INTRODUCTION AND SUMMARY OF CONCLUSIONS
According to U.S. Secretary of Defense Richard Cheney, the 43-day U.S.-led international military campaign to oust Iraq from Kuwait, Operation Desert Storm, was spearheaded by "the most successful air-campaign in the history of the world." In some respects, this claim seems justified. The allies assembled a gigantic airborne armada that quickly and easily established air superiority over Iraqi military forces. Allied aircraft bombed wherever and whenever they wanted. Their arsenals were equipped with technologically sophisticated weapons that proved capable of astonishing precision. By means of the bombing campaign, the allies overwhelmed the foe to the point where -- once the long-dreaded ground war got underway -- it quickly became a rout and coalition forces suffered mercifully few casualties.
Yet Secretary Cheney's assertion of unequalled success went even further. Implicitly it included the contention -- made explicit by President Bush and other Pentagon officials -- that never before had such care been taken to avoid harm to the opposing side's civilian population. Further, U.S. and other allied spokespersons claimed at every turn that the effort to minimize damage to civilians had succeeded. Though occasionally acknowledging that some civilian casualties were inevitable, the impression was created by statement after statement and television image after image that, so far as the allied performance was concerned, it was a near-perfect war, with as little harm to civilian life and property as humanly possible.
This impression was reinforced by a deliberate policy on the part of the United States and its allies to manage the news of the war in a manner designed to suggest that all feasible precautions in fact had been taken to avoid harm to civilians. Restrictions placed on journalists attempting to cover the war and the selective presentation of information about the conduct of the war, in part through elaborately rehearsed military briefings, left the press unable to probe the extent of the precautions actually adopted. Parallel curbs on the foreign press imposed by Iraq exacerbated the difficulty of penetrating the veils that blocked the view of the actual conduct of the war.
We have evaluated the allied bombing campaign under the laws of war, primarily the standards set forth in the First Additional Protocol of 1977 to the 1949 Geneva Conventions. Although the United States has not ratified Protocol I, it has recognized most of the pertinent provisions as declarative of customary international law and thus as legally binding. As is our practice, we have also examined the performance of the other side -- the Iraqi missile attacks, primarily against Israel and Saudi Arabia. We hold all sides in military conflicts to the same standards, because the laws of war impose an independent duty of compliance regardless of deviations by the other side.
This study is part of a series of reports relating to the Persian Gulf conflict which have been issued by Middle East Watch and the other divisions of Human Rights Watch. In February 1990 -- six months before the Iraqi invasion of Kuwait -- Middle East Watch issued Human Rights in Iraq, which detailed systematic abuses committed by Saddam Hussein's forces against Kurds and perceived and actual dissidents in Iraq. Once the invasion took place, Middle East Watch issued several reports documenting Iraqi abuses in occupied Kuwait and toward foreigners under Iraqi control. Middle East Watch also issued reports addressing the humanitarian-law limits to the U.N.-mandated sanctions against Iraq, and describing war-related restrictions on human rights in Egypt, the United Kingdom and the Israeli occupied territories. Once hostilities betweenIraq and the allied coalition began, the Fund for Free Expression, another division of Human Rights Watch, issued a report on restraints placed by the allies on press coverage of the war. Following the end of the war, Middle East Watch issued an appeal to allied and Iraqi forces regarding the release of prisoners of war and other detainees and the duty to provide proper documentation and burial of the dead. In September 1991, Middle East Watch published A Victory Turned Sour: Human Rights in Kuwait Since Liberation. Middle East Watch is also completing research into abuses committed by Iraqi and resistance forces during the uprising in March 1991.
In assessing allied conduct of the air war as it affected civilians, Middle East Watch starts from the following premises:
· The standard to which the United States and its allies publicly aspired, and which they claim to have met, was the appropriate one: to take every feasible measure to avoid harm to civilians.
· The overwhelming air superiority quickly established by the United States and its allies heightened their ability to take all feasible steps to avoid harm to civilians. That is, from early in the war the allies were never driven by urgent military imperatives to take steps that might have imposed greater risk of harm on civilians. They had the opportunity and resources to plan and carry out their attacks with scrupulous care to avoid civilian casualties.
· The precision weapons and surveillance technology available to the United States and its allies increased their capacity still further to avoid harm to civilians.
Despite this exceptional opportunity to conduct the allied bombing campaign in strict compliance with the legal duty to take all feasible precautions to avoid civilian harm, we find that the actual conduct of the war fell short of this obligation in several significant respects. This divergence between legal duty and actual practice emergedboth in the choice of the means and methods to prosecute the air war and in the selection of targets for attack. All of these shortcomings appear to have involved deliberate decisions by allied commanders to take less than the maximum feasible precautions necessary to avoid harm to civilians.
In noting these discrepancies between duty and conduct, we do not suggest that the allies in general violated the requirements of the laws of war. To the contrary, in many if not most respects the allies' conduct was consistent with their stated intent to take all feasible precautions to avoid civilian casualties. At the same time, the existence of these shortcomings in allied conduct reveals that the effort of U.S. and allied commanders to portray the bombing campaign as a near-perfect attempt to avoid civilian harm was not entirely accurate, and that in some instances coalition forces appear to have violated the laws of war. We believe these findings are important both for understanding the extent to which the suffering of Iraqi civilians might have been lessened and for avoiding similar deficiencies in any future air war.
The following summarizes our findings of deficiencies in the allies' choice of the means and methods of attack:
Daytime v. Nighttime Bombing
· A mid-afternoon attack on a bridge in Nasiriyya in southern Iraq killed scores of people -- 100, according to a local doctor, with 80 others injured -- who were crossing the bridge at the time.
· A daytime British attack on a bridge in Falluja, a town west of Baghdad on the Euphrates River, killed 130 civilians, according to Iraqi authorities.
· During a daytime attack on one of the bridges in Samawa, a city on the Euphrates River in southern Iraq, bombs fell near a crowded market, in an open area at the edge of the river, killing over 100 civilians and injuring others.
· An attack on an underwear-manufacturing plant in Hilla at 2:00 in the afternoon killed seven administrative workers. The casualty toll would have been considerably higher had the normal shift of 200 workers not been dismissed by management at noon that day and told to report back to work five or six days later.
· At 3:30 in the afternoon an oil-storage tank was attacked near a gas-distribution point where civilians were lined up to purchase fuel for cooking and heating. Some 200 people at the site were killed or injured.
The failure in all of these cases to launch the attack at night when fewer civilians were likely to have been in the vicinity -- or, at the very least, to have issued a warning that a target in the area was to be attacked -- suggests a failure by the allies to live up to the duty to take all feasible precautions to avoid civilian casualties, and thus a violation of the laws of war.
"Dumb" v. "Smart" Bombs
Yet according to Gen. McPeak, precision-guided bombs accounted for only 7,400 of the 84,200 tons of munitions dropped by the allies during Operation Desert Storm, or a mere 8.8 percent, some of which was used to attack hardened targets in the Kuwaiti military theater. The remaining 91.2 percent consisted of unguided weaponry -- so-called "dumb" bombs -- with a reported estimated accuracy rate of only 25 percent.
While downtown Baghdad was said to have been attacked with only precision weapons, the Pentagon and its allies have remained silent about the type of munitions used in other urban areas. It appears likely that at least some of the munitions used in urban areas outside of downtown Baghdad were unguided -- "the same dumb iron bombs that fell on Berlin, Pyongyang and Hanoi," in the words of one former U.S. army officer. For example, Basra, which was largely off-limits to foreign reporters during the air war, appears to have suffered considerably more damage to civilian structures than Baghdad, where a small international press force was present.
Middle East Watch calls on the Pentagon and other allied commands, first, to reveal the extent to which dumb bombs were dropped in populated urban areas and, second, to explain how such use accords with the customary-law duty to "take all feasible precautions" to avoid civilian harm. While we recognize that cost and availability are factors in the preference for dumb bombs -- unguided munitions are available in vast quantities and, in the words of one Pentagon official, are "cheaper than hamburger" -- we have asked allied commanders to explain how cost and availability were balanced against the duty to take all feasible precautions to avoid civilian harm. In our view, decisions of this sort, with their potentially deadly consequences for the civilian population, should be subject to independent review now that hostilities have ended.
The Attack on the Ameriyya Air Raid Shelter
The attack raises several questions about the precautions taken by the United States to verify that the shelter was an appropriate military target. For example, the Pentagon concedes that it knew the Ameriyya facility had been used as a civil-defense shelter during the Iran-Iraq war, but U.S. officials gave no warning that they considered its protected status as a civilian shelter to have ended. Article 65 of Protocol I provides 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 one way or the other on whether it views the warning requirement of Article 65 to be a matter of customary international law, a fair interpretation of the recognized customary-law requirement that all feasible precautions be taken to avoid civilian casualties, including by giving "effective advance warning" of attacks which may affect the civilian population unless circumstances do not permit (Article 57 of Protocol I; U.S. Air Force Manual, pp. 5-11), would suggest that such a warning should have been given. The United States' failure to give such a warning before proceeding with the disastrous attack on the Ameriyya shelter was a serious violation of the laws of war.
The United States also has been disturbingly silent about the steps taken to determine that the Ameriyya shelter was an appropriate target for attack. The silence has precluded independent assessment of whether these steps complied with U.S. obligations. It is now well established, through interviews with neighborhood residents, that the Ameriyya structure was plainly marked as a public shelter and was used throughout the air war by large numbers of civilians. That military personnel were observed at the facility is not conclusive in labeling it amilitary target because Article 65 makes clear that civil-defense functions can be carried out under the control of or in cooperation with military personnel without the facilities used losing their protective status. Although the United States has charged that the civilians were difficult to observe because they must have entered the shelter after dark, U.S. officials have not explained why large numbers of civilians were not observed in the daylight of the morning when they exited the shelter.
In addition to these deviations from the laws of war in the means and methods of attack, Middle East Watch has documented a series of apparent shortcomings in the allied selection of targets for attack. The following summarizes our findings:
Food, Agricultural and Water-Treatment Facilities
· Four government food warehouses in Diwaniyya, a city south of Baghdad, were bombed.
· A new dairy factory about 30 km north of Basra was attacked.
· Flour-milling facilities and grain-storage warehouses were destroyed.
· Several water-treatment facilities in Basra were damaged, including the destruction beyond repair of the facility serving the densely populated Bratha'iyya quarter of the city.
In none of these cases does the facility appear to have been a legitimate military target, in that it was not making an effective contribution to the enemy's military action and its destruction did not offer a definite military advantage in the circumstances ruling at the time,as required by the customary-law principle reaffirmed in Article 52 of Protocol I. Attacking such targets in itself is a violation of the laws of war.
Moreover, Article 54 of Protocol I, which the United States has accepted as customary international law, states that attacks on foodstuffs and other facilities necessary for the survival of the civilian population (including, according to the International Committee of the Red Cross, drinking-water installations) are prohibited if the purpose of the attack is to deny the "sustenance value" of these objects "to the civilian population...whether in order to starve out civilians, to cause them to move away, or for any other motive." The only exception to this rule is for objects used "as sustenance solely for the members of [an adverse party's] armed forces" or "in direct support of military action," and even then, attacks are prohibited if they "may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement." In light of the lack of any evidence that these facilities were being used solely by or in direct support of Iraqi troops, these attacks appear to violate the principle set forth in Article 54, particularly in the context of the serious deprivations of food caused by the U.N. embargo.
The Crippling of the Electrical System
However, the cost to the civilian population of these attacks on the electrical system was severe. Iraq was quickly transformed from a modern, energy-dependent society into, in the now-famous words of the Ahtissari report, a "pre-industrial age." Shortages of food due to the U.N. embargo were exacerbated by the lack of refrigeration and the impairment of Iraq's highly mechanized, irrigation-based agriculture. The nation's electricity-dependent water-purification and sewage-treatment facilities were crippled, creating a serious health hazard. Hospitals and clinics were forced to meet this growing health emergency,and to treat the war wounded, with, at most, erratic electricity supplied by back-up generators. Vaccines and medicines requiring refrigeration deteriorated and were difficult to replace. A UNICEF representative in Iraq noted in late May the "vicious circle" of "poor hygiene, contaminated water and poor diet," which he said left about 100,000 Iraqi children under one year of age vulnerable to diarrhea and dehydration.
Given these serious costs to the entire civilian population, it is appropriate to ask whether allied commanders engaged in the proportionality analysis required by the customary principle codified in Articles 51 and 57 of Protocol I. Did they assure themselves that the civilian costs were not "excessive in relation to the concrete and direct military advantage anticipated"?
At a briefing on January 30, Gen. Norman Schwarzkopf, the U.S. commander in the Gulf region, seemed to recognize that at some point during the destruction of the electrical system the civilian cost indeed did become excessive in relation to the concrete and direct military advantage. He reported that in less than two weeks of bombardment the allies had rendered 25 percent of Iraq's electrical-generating facilities "completely inoperative" and an additional 50 percent "degraded." He went on to say:
I think I should point out right here that we never had any intention of destroying all of Iraqi electrical power. Because of our interest in making sure that civilians did not suffer unduly, we felt we had to leave some of the electrical power in effect, and we've done that.
But the allied attacks continued -- including the destruction, following Gen. Schwarzkopf's statement, of two of the four hydroelectric facilities hit by allied bombers -- and Iraqi civilians did suffer unduly.
Comments by Pentagon officials since the war give rise to questions about whether inappropriate goals in attacking the electrical system may have yielded an improper balance in applying the rule of proportionality. U.S. Air Force officials involved in planning the air war have indicated that one purpose of destroying the electrical system was to harm civilians and thus encourage them to overthrow Saddam Hussein. For example, one Air Force planner stated in an interview with TheWashington Post that the attacks on the country's electrical system were intended to send a message to the Iraqi people: "We're not going to tolerate Saddam Hussein or his regime. Fix that, and we'll fix your electricity."
Whether or not one shares the goal of overthrowing Saddam's regime, it is clearly inappropriate to target the civilian population as a means for achieving that goal, since such attacks conflict with the customary-law duty to distinguish between military targets and the civilian population. As Article 51 of Protocol I provides: "The civilian population as such, as well as individual civilians, shall not be the object of attack." Direct attacks of this sort on civilian morale and well-being are clearly impermissible under the rules of law.
Insofar as the allies wrongly deemed the causing of suffering among Iraq's civilian population to be a legitimate military goal of the attacks on the electrical system, it may have caused allied commanders to misapply the rule of proportionality by giving undue weight to the perceived military advantages of the attacks while according insufficient weight to their civilian cost. To allay suspicions that the civilian cost of the destruction of the electrical system was not properly taken into account, the allies should fully disclose the proportionality calculation undertaken in choosing to continue the attacks on the electrical system.
· Some 30-35 Sudanese fleeing Iraq to neighboring Jordan were killed when their bus was bombed 18 miles east of Rutba, in western Iraq.
· At 2:00 p.m. on February 9, a Jordanian bus carrying fleeing Kuwaiti civilians was attacked with rockets by allied planes near the Kuwaiti border, killing 27 in the bus and another four in two cars traveling with the bus. The bus had luggage on the roof.
Even if it is assumed that these civilian vehicles were not deliberately targeted, these allied attacks appear to have been indiscriminate, in that they failed to distinguish between military and civilian objects on the highway, as required by the customary-law principle set forth in Article 48 of Protocol I.
The drivers of Jordanian civilian oil tankers were a frequent target of these attacks. Prior to the war, Jordan had imported half of its oil from Saudi Arabia and the remainder from Iraq. When Saudi Arabia cut off oil to Jordan on September 20, citing a financial dispute over payments for previously imported oil, Jordan became dependent on Iraqi oil. On October 15, as its oil reserves were running low, Jordan informed the U.N. Sanctions Committee that it would be importing oil from Iraq, noting that Iraq would generate no income from the sales because the oil would be sold in satisfaction of an Iraqi debt to Jordan.
On February 4, five days after a formal protest from Jordan over attacks on its civilian tankers, U.S. State Department spokeswoman Margaret Tutwiler said that although Iraq's oil exports to Jordan "do violate the sanctions, it is not coalition policy to attack civilian trucks exporting petroleum to Jordan." At the same time, she charged: "[W]e have credible information that war material, including some related to Scud missiles, has been transported in convoy with civilian oil trucks. Such material contributes to Iraq's occupation of Kuwait and is a legitimate military target."
On February 5, Lt. Gen. Thomas Kelly, director of operations for the U.S. Joint Chiefs of Staff, stated that "If a truck chooses to operate in that environment, there is some risk. We're not purposely going after civilian vehicles. [I]f one got hit, it was certainly by mistake." Similarly, Maj. Gen. Robert Johnston, chief of staff at U.S. headquarters in Riyadh, said at a briefing the same day that "we are not specifically targeting Jordanian civilian tankers."
These statements implicitly assert that the allies were capable of distinguishing civilian oil tankers from tankers used to supply Iraqi missiles, particularly after they received formal notice from Jordan that such civilian vehicles were being hit. In light of that assertion, the repeated attacks on Jordanian civilian oil tankers -- in some instances by low-flying aircraft -- evidence a failure to live up to the duty to discriminate between civilian and military objects.
Bedouin tents, as objects which are "normally dedicated to civilian purposes," should fall within the category of objects to which a presumption of civilian use attaches under the customary principle codified in Article 52 of Protocol I. The presumption requires that in case of doubt, pilots should refrain from attacking these objects. It may be that the pilots fired at the long, black tents thinking that they wereconcealing Iraqi missiles or other war-related materiel. However, given the distance of the tents from a highway (mobile missile launchers are large and presumably would have had considerable difficulty traversing 100 km of undeveloped desert) and the signs of civilian life surrounding the tent compound, there is reason to question whether the pilots, as they dove toward the ground, did "everything feasible to verify that the objectives to be attacked [were] neither civilians nor civilian objects," as required by the customary-law principle reaffirmed in Article 57 of Protocol I.
During the war, military briefers emphasized the allies' observance of the rules of war and persistently projected the image of a squeaky-clean bombing campaign. U.S. military spokesmen refused to concede that any of the allies' combat sorties were flawed. Maj. Gen. Robert B. Johnston, Gen. Schwarzkopf's chief of staff, said on February 4: "I quite truthfully cannot tell you of any reports that I know of that would show inaccurate bombing, particularly north of the Saudi-Kuwaiti border....I cannot tell you of any that I know of that have grossly missed the target."
But the view from the ground in Iraq clearly differed from the images of a near-perfect war promoted by the Pentagon on television screens in the United States and around the world. The reassuring words of allied military briefers and Bush Administration spokesmen about successful pinpoint strikes did not match the often-bloody results of allied bombing in populated areas. In the course of Middle East Watch's fact-finding alone, we found the following civilian objects were damaged or destroyed during the air war: some 400 one- and two-story homes, often in poor neighborhoods;1 19 apartment buildings and several hotels; two hospitals and two medical clinics; two schools and one mosque; restaurants and other commercial buildings; and market areas in four cities -- Basra, Falluja, Samawa and al-Kut. By far, the greatest numberof civilian objects damaged in Iraq during the war were residential buildings.
In many of these cases, witnesses said that they were unaware of any conceivable military target in the vicinity that might have justified the attacks, suggesting that the attacks may have been indiscriminate. In other instances, the presence of a nearby military target suggests that allied bombers and missiles simply missed. Some damage cannot be definitively linked to the allied air campaign, and may have resulted from Iraqi defensive weapons falling back to earth.
Despite persuasive evidence of the messy human dimensions of the bombing campaign, specific damage and casualties sustained by Iraqi civilians from allied bomb and missile attacks have barely been noted by the Pentagon. This silence appears to reflect a deliberate policy not to disclose information in the Pentagon's possession about the extent of harm to civilians and damage to civilian property. Evidence supporting this conclusion includes the following:
· The allies clearly were equipped with the technological capacity to monitor and evaluate the destruction caused by bomb and missile attacks. Bomb-damage information, necessary for continuing military operations, was obtained from a variety of sources: pilots' reports, video and still photographs taken by gun cameras on bombers, and photographs and computer data from satellites and reconnaissance aircraft. Indeed, according to The Washington Post, "senior [Pentagon] officers viewed extensive footage of bombs that missed targets -- or hit targets selected in error, such as the civilian building across the street from the Iraqi Interior Ministry -- but the Pentagon has released none of the footage." U.S. Defense Secretary Cheney dismissed the need to release video footage of bombs that missed their targets on the basis that such film would have been "pretty dull, boring stuff."
· To date, the Pentagon has released virtually no information about the war's impact on Iraqi civilians. This silence has extended even to the public version ofthe interim report, released in July, in which Congress had required the Pentagon to estimate the civilian casualties suffered by Iraq. The two exceptions to this policy of silence were the U.S. justifications for the bombing of the Ameriyya air raid shelter in Baghdad and the British admissions of error in the bombing of a bridge in Fallujah west of Baghdad.
· By contrast, the Pentagon has released highly detailed information about successful "kills" of Iraqi military targets such as individual military trucks and tanks, even though Pentagon spokesman Pete Williams acknowledged that bomb damage to structures was easier to evaluate than damage to dug-in troops and equipment. On January 30, for example, Gen. Schwarzkopf said that among the military targets destroyed or damaged from 12:00 noon on January 29 until 3:00 a.m. on January 30, were 178 trucks, 55 artillery pieces and 52 tanks.
· Similarly, after the war Pentagon officials were not at all reluctant to leak highly detailed bomb-damage-assessment data about damage to civilian objects caused by the Iraqi military in its suppression in March of anti-government insurgents in southern Iraq. On March 19, The New York Times, citing one official who said that U.S. air reconnaissance had revealed damage to mosques in the southern city of Karbala caused between March 11 and March 17, reported: "At the al-Hussein mosque, there is a hole in the dome of the mosque and at least two craters from artillery or mortar fire in the courtyard."
Given the numerous U.S. statements about the allied forces' intent to comply fully with the rules of war requiring steps to minimize Iraqi civilian casualties, Middle East Watch believes that the extent of bombing in populated areas inside Iraq in which civilian casualties occurred and civilian property was damaged should be acknowledged, investigated and publicly explained by U.S. and other allied air forces. As part of this process, Middle East Watch calls on the Pentagon to disclose the evidence from U.S. bomb-damage assessments.
THE EXTENT OF CIVILIAN CASUALTIES IN IRAQ
Like the issue of damage to civilian property, the issue of the number of Iraqi civilians killed by allied bombardment was carefully --and deliberately -- side-stepped by U.S. military officials during the war. To date, neither the U.S. nor other allied forces have offered public estimates of the number of Iraqi civilian casualties during Operation Desert Storm.
Compounding the problem of gaining an accurate assessment of Iraqi civilian casualties from allied bombing and missile attacks was the Iraqi authorities' failure to provide consistent or detailed information during the war. Part of this failure was due to the country's crippled communications system, destroyed by aerial bombardment of telephone and telegraph exchanges. But even during the first days of the air war, the Iraqi government did not issue reports of civilian casualties or damage.
· In a January 24 letter to the United Nations Secretary General from then Foreign Minister Tareq Aziz, Iraq provided an accounting of civilian damage and casualties from January 17 to January 21, citing examples from Baghdad and other parts of the country. The details in the letter varied from incident to incident; the total civilian casualties during the five-day period were 324 dead and 416 injured. The letter noted that many of the casualties occurred on January 21, during the bombing of two cities south of Baghdad.
· On February 5, Iraqi newspapers published a letter to the UN Secretary General from Tareq Aziz, in which he stated that 108 civilians had been killed and 250 injured in the bombing that took place between January 21 and January 30. By February 3, Iraq's count of civilian casualties numbered 428 dead and 650 wounded.
· On February 6, Iraq announced additional civilian casualty figures, stating that about 150 people, including 35 children, were killed in a bombing raid on Nasiriyya, a city south of Baghdad on the Euphrates River. U.S. Gen. Richard Neal and British Group Capt. Niall Irving denied that any bombing had taken place in the vicinity of Nasiriyya, which they said included a petroleum refinery and storage facilities. The same day, the Iraqi daily newspaper al-Thawra reported that 349 people had been killed in Basra since the war began.
· After the bombing of the Ameriyya civilian shelter in Baghdad on February 13, Iraq began to release figures indicating that civilian casualties had, inexplicably, jumped into the thousands. Substantiation for the dramatic increase in the reported civilian toll was not provided. For example, Iraq's ambassador in Tokyo said on February 14 that an estimated 7,000 civilians had been killed in the allies' bombing raids to date, which had totaled 70,000 sorties.
· Iraq's first deputy minister of health told The Washington Post in June that there were "thousands and thousands" of civilian casualties, but refused to provide more specific numbers; he said that the government would announce a figure and that it would be "based on correct data."
In contrast to the statistics issued during the war by government officials, Iraqi doctors provided more modest figures in post-war interviews with visitors and journalists about the number of civilian casualties treated during the war, shedding some light on the extent of injuries from the bombing in Baghdad, though not in other parts of the country. Doctors at Yarmuk Hospital, Baghdad's second largest hospital and a major surgical facility, reported that approximately 600 "war victims" were treated at the hospital. The director of Yarmuk Hospital told members of a visiting U.S. group that, in addition to those injured in the bombing of the Ameriyya air raid shelter in Baghdad, about 1,000 civilians were treated during the war and that between 150 and 200 of them died. According to one member of the U.S. group, the doctor later revised his estimate downward to between 100 and 150 dead. In asubsequent interview with The Washington Post in June, he said that he was not allowed to release statistics about the number of people who had died at the hospital during the air war.
The director of the 400-bed al-Kindi Hospital in the Nahda quarter of Baghdad told a representative of the U.S.-based Physicians for Human Rights in March that about 500 civilians were brought to the hospital during the war; about 25 percent were dead on arrival and another 50 percent died of their injuries or septicemia. At Saddam General Hospital, located in the Saddam City suburb of Baghdad, another 400 people were said to have been treated. Statistics were not provided about the number of these patients who died, nor about the total number of civilians treated in the hospitals.
Middle East Watch believes that the truth about civilian casualties may lie somewhere between the high-end statistics provided by Iraqi government officials in February and the modest figures noted by Baghdad doctors after the war ended. Clearly, Baghdad's civilian population was not as hard-hit during the air war as the residents of cities and towns in other parts of the country, especially Basra and other areas of southern Iraq, so the dead and injured in Iraq's largest city are not necessarily indicative of the civilian toll nationwide. Testimony collected at random by Middle East Watch from former residents of Iraq reveals numerous allied attacks in which scores of civilians were killed. In each of six incidents described in this report, the civilian death toll was put at 100 or more.
As noted, these accounts provide only a partial view, not a comprehensive survey, of the civilian casualties during the air war. Middle East Watch concludes that the number of Iraqi civilians killed as a direct result of injury from allied bombs and missiles will ultimately be calculated in the thousands, not the hundreds. At the same time, we are reasonably confident that the total number of civilians killed directly by allied attacks did not exceed several thousand, with an upper limit of perhaps between 2,500 and 3,000 Iraqi dead. These numbers, we note, do not include the substantially larger number of deaths that can be attributed to malnutrition, disease and lack of medical care caused by a combination of the U.N.-mandated embargo and the allies' destruction of Iraq's electrical system, with its severe secondary effects (see Chapter Four).
IRAQ'S MISSILE ATTACKS
Unlike the allied bombing campaign, it is not possible to say that most Iraqi missile attacks against Israel and Saudi Arabia complied with the requirements of the laws of war. It is worth noting, however, that this conclusion in no way depends on the nature of the conflict between Iraq and the countries targeted. While the missile attacks on Saudi Arabia were part of a classic armed conflict between two nations, the strikes against Israel have been subject to various characterizations. Some view the assaults as part of the continuing state of war between Iraq and Israel dating back to the termination of the British Mandate in Palestine and the declaration of the State of Israel in 1948. Quite apart from any formal state of war, others note the long-term military competition between the two nations, usually conducted clandestinely but occasionally, as in Israel's attack on an Iraqi nuclear reactor in 1981, breaking into the open. Still others view Iraq's missile strikes as an act of aggression designed to draw Israel into the Gulf war and split the allied coalition against Iraq.
Middle East Watch takes no position on this issue, both because it is beyond the organization's mandate and because the principles discussed below do not depend on its resolution. We ask not whether the attacks should be condemned as acts of aggression, but rather, whether they complied with the requirements of humanitarian law. The answer to that question is unaffected by how one characterizes the nature of the conflict between Iraq and Israel.
Applying the principles of humanitarian law, we find that, although a substantial number of attacks on Saudi Arabia and even some on Israel appear to have been aimed at or near military targets, Iraq's missile campaign as a whole was characterized by serious violations of humanitarian law. The following summarizes our findings in this regard:
The Use of Indiscriminate Missiles
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 respected commentator said, "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."
The Iraqi-modified Scud missiles used against Israel and Saudi Arabia had a circular error probable (CEP) of 1000 meters, meaning that 50 percent of the missiles launched could be expected to fall within a 1000-meter radius of the point targeted. While a CEP of this magnitude may be adequate if the military object targeted is either very large or is located in a desolate area without a surrounding civilian population, it is wholly inadequate if used against a relatively small target in a populated urban area, since 50 percent of the missiles would not come within even one kilometer of the target, and additional missiles would miss theirtargets by lesser amounts. Accordingly, while Iraqi missile attacks on the huge Dhahran air base in Saudi Arabia or the Dimona nuclear facility in the northern Negev Desert in Israel could have been expected to be adequately discriminate, the missile attacks on small military targets in Riyadh and Tel Aviv should have been expected to be indiscriminate given the inaccuracy of Iraq's missiles.
It is worth noting that this conclusion in no way depends on an assessment of Iraq's goals in attacking Israel or Saudi Arabia. Although Iraq might claim in the case of Israel that it sought a military advantage from its missile attacks -- to split the military coalition against it by prompting Israel to attack Iraq -- those objectives do not justify indiscriminate attacks on civilians. Just as it would be illegal for allied forces to harm Iraqi civilians with the aim of encouraging them to overthrow Saddam Hussein, as explained above, so it is improper for Iraq to target or launch indiscriminate attacks against civilians in Israel or Saudi Arabia with the aim of furthering Iraq's military or political objectives.
Terrorizing the Civilian Population
The language accompanying the attacks on Saudi Arabia, though perhaps somewhat less vivid, was comparable. For example, the Iraqi Armed Forces General Command stated that the missiles launched atRiyadh on February 8 were intended "to punish the traitor al-Sa'ud family" and "to disturb the sleep of the tyrants."
These comments, when coupled with ongoing missile attacks against Israel and Saudi Arabia and the ever-present possibility that these missiles might be armed with chemical weapons, appear to have been made deliberately to spread terror among the civilian populations, in violation of the customary-law principle codified in Article 51. Such spreading of terror is a violation regardless of whether any particular attack was aimed at a military or civilian target.
Although Article 51 prohibits "[a]ttacks against the civilian population or civilians by way of reprisals," this is new law to which many countries, including the United States, have objected on the grounds that it may encourage violations of humanitarian law by leaving the victim nation without any strong deterrent. In outlining when reprisals might be appropriate by nations who do not subscribe to Article 51, a leading commentary would require, among other things, that the reprisals be in response to specified "grave and manifest violations of the law of armed conflict committed by the other Party," the reprisals be taken for the sole purpose of enforcing future compliance with the laws of war, and the reprisals be preceded by reasonable warning that retaliation will follow if illegal acts do not cease (see Chapter Six).
It is utterly implausible, when judged against these criteria, that Iraq's attacks on civilians could qualify as lawful reprisals. Israel did not even participate in the hostilities during the Gulf conflict, let alone commit the "grave and manifest" violations of the laws of war against Iraq that might have justified reprisals. In the case of Saudi Arabia, even if Iraq believed that the coalition of which Saudi Arabia was a part was committing illegal acts against the Iraqi population, Iraq had a duty both to detail those alleged violations and to issue a warning to the coalition that reprisals might follow unless the alleged illegal acts ended. No such itemization or warning was ever given.