|Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)|
|The Laws of War: Problems of Implementation in Contemporary Conflicts|
|III. Problems of Implementation in Wars since 1980|
The laws of war issues in the 1990-91 Gulf conflict - that is, the August 1990 Iraqi occupation of Kuwait, and the war of January-February 1991 which brought it to an end - have been considered in several official US publications. There has also been much analysis, official and unofficial, in a wide range of other publications, and from other national perspectives.
During the occupation and war there was extensive public reference to well-estabhshed international norms about particular aspects of the conduct of occupations and armed conflicts, not least in the matter of seizure and treatment of hostages, treatment of prisoners of war, attacks on civilians, non-use of chemical weapons, and wanton destruction including damage to the environment. Further, this war threw light on some general questions. First, did Iraq's violations of the Geneva Conventions and other rules of war, and the strong political reaction that these violations caused, contribute to the hardening of opinion against it, and thus to the formation of the multi-national coalition? Second, can conducting operations on a basis of acceptance of the laws of war assist in maintaining the unity and coherence of a coalition action with United Nations authorization? Third, can the laws of war contribute significantly to the maintenance of restraints in war? Fourth, what can be done about the post-war punishment of violations?
The 1990-91 Gulf Conflict is an interesting case of a war in which one side, by and large, took laws of war restraints seriously on a wide range of matters, dealing both with combat and with the treatment of prisoners and others under the control of a belligerent. The other side, while not in principle rejecting all idea of the laws of war, did ignore them on a range of issues. The case therefore confirms that in practice implementation does not always have to be a matter of reciprocity between the parties; there are other reasons - legal, political and practical - for one side to implement them even if its adversary does not
The twenty-eight member military coalition probably gained from its attention to the laws of war in a number of ways. First, in the months after the Iraqi occupation of Kuwait on 2 August 1990, the widespread public attention to illegal Iraqi policies, including seizure of hostages, helped to reinforce support for the coalition cause. It did so both domestically within the coalition countries, and internationally in helping to mobilize support for their position. Second, once Desert Storm began in January 1991, the emphasis on restraint and accuracy in targeting had similar benefits so far as the international consensus was concerned. Third, the promise of good treatment of Iraqis who left their vehicles and/or surrendered, a promise backed up by a major leaflet campaign, may have encouraged many Iraqi soldiers to end their participation in hostilities.
The first two of these points suggest the particular salience of the laws of war to coalition warfare under UN auspices. They also suggest that there are in fact some complex and subtle connections between ius in bello and ius ad bellum. Iraq's violations of ius in bello helped to weld the coalition together, reinforcing its sense of the legitimacy of its cause. The laws of war provided one means for harmonizing the different practices of states and justifying them to anxious publics. Curiously, there was no serious suggestion in the 1991 Gulf War that forces acting in the name of the UN ought to be in some way privileged, and to have greater rights in some matters than their adversaries. That issue would come up in Somalia.
This is not to assert that, in laws of war terms, coalition conduct was perfect. There were many defects. As in the 1982 Falklands War, some battle incidents raised the question of what is proper evidence that troops wish to surrender. For example, on the second day of the war US forces attacked an oil platform on which Iraqi forces were allegedly trying to surrender. A US Navy board of investigation concluded that the US commanding officer's actions did not violate the law of armed conflict, but his failures to investigate, evaluate and report on the Iraqi white flags represented a serious lapse of judgement. This US Navy investigation was an instance of implementation of aspects of the laws of war being seen as a national responsibility, and being handled in the context of maintaining professional military standards.
Perhaps the most questionable acts by the coalition were those resulting in civilian deaths. In the Amariya bunker attack on 13 February 1991 there were approximately 300 civilian casualties. It can be claimed that this was not clearly, perhaps not at all, a violation of the laws of war, as it had not been the intention of the coalition to bring about such a terrible result. This disaster appears to have been due to reliance on faulty intelligence.
Many other events in the war similarly suggest the inherent difficulty, perhaps impossibility, of maintaining a clear line between attacks on the military and attacks on civilians. The coalition's use of accurate air-delivered weapons undoubtedly did something to increase the chances of air warfare conforming to a greater extent than hitherto with basic principles of the laws of war, especially as regards discrimination in attacks. On the other hand, in this war there were many coalition attacks on military targets such as bridges and power stations which also served civilian functions. There was also much collateral damage, faulty intelligence, and so on. Suggestions that we might be entering a new era of clinical warfare are probably misplaced.
Iraq violated the laws of war in countless ways: looting, taking of hostages, treatment of prisoners, Scud attacks on cities, and attacks on oil installations resulting in damage to the environment. Most of these acts would have been violations in any circumstances, but were particularly egregious cases on account of the absence of a serious strategic rationale. In the event, they achieved few military results. The judgement that Iraq derived no serious military advantage from its violations is persuasive. Many Iraqi war crimes involved the coalition in considerable effort, for example in dealing with the Scud threat during the war and in restoring the oilfields after the war, but they were never likely to be militarily decisive.
After the suspension of coalition military activities on 28 February 1991, the coalition governments suddenly became quiet on the subject of the responsibility of Saddam Hussein and colleagues for major war crimes. This contrasted with the earlier emphasis on war crimes in Security Council Resolution 674 of 29 October 1990. After the cessation of hostilities, the Security Council passed some long and very detailed resolutions on the cease-fire, reparations, dismantling of Iraq's capability for chemical warfare, and so on. One of these, Security Council Resolution 687 of 3 April 1991, is the longest ever passed by the Security Council. Yet. nothing was said on the subject of personal responsibility for war crimes. Similarly, in less than three months after the cessation of hostilities some 64,000 Iraqi prisoners of war were repatriated without any attempt to sift out those suspected of war crimes - a process which might have delayed repatriation by years.
There were genuine difficulties in pursuing the war crimes issue First and foremost, Saddam Hussein would have been difficult to arrest even had the coalition military action had more offensive goals. After the end of hostilities, it would have been awkward to call for his arrest as a war criminal at the same time as negotiating cease-fire terms with his government. Further, outside powers were reluctant to press for trials if local powers would not join them in doing this. There were hazards in limiting trials to the conflict of 1990-91, as the Iraqi regime had engaged in criminal activities externally and internally both before and after that episode.
However, the failure to take any action against the Iraqi leaders exposed a serious problem regarding the laws of war, namely, the difficulty of securing enforcement even after clear evidence of violations The Pentagon ended its Final Report pointedly: "A strategy should be developed to respond to Iraqi violations of the law of war, to make clear that a price will be paid for such violations, and to deter future violators". At a minimum, it would have been possible to make a statement to the effect that major war crimes occurred, involving grave breaches of the Geneva Conventions, that there is personal responsibility for these crimes, and that under the Geneva Conventions any state is entitled to prosecute. Such a statement could have been made by the coalition powers, the UN General Assembly, or the Security Council. The United States did eventually, in a little-noted war crimes report prepared in 1992 and issued by the UN in March 1993, say all of these things, but did not put great political emphasis on the matter. The absence of a coherent coalition policy on major war crimes was highlighted by the fact that some junior figures - Iraqi officers who happened to have been caught in Kuwait at the time of the cease-fire - had been put on trial in Kuwait for lesser offences.
The failure to hold a major war crimes trial after the 1991 Gulf War exposed a central problem of the laws of war. When a state is not willing to prosecute its own government leaders and officers, there is frequently no other practical mechanism for bringing alleged offenders to justice. It is not scarcely responsible to think in terms of some form of supranational justice being applied, when the power, the mechanisms and/or the will are lacking. Even when an opportunity for a trial presented itself, there was no rush to take action. When in August 1995 Lt.-Gen. Hussein Kamel, a senior Iraqi leader implicated as a war criminal, defected to Amman, there were not many calls for his trial. Governments were evidently more concerned to encourage defections from the Iraqi regime than to punish past misdeeds.
When a war ends, especially if it is seen as having resulted from an illegal and aggressive act by one side, or was characterized by widespread damage or looting, there is often a demand - which has a basis in the conventions - for reparations, compensation, and the return of stolen goods. Following this tradition, the UN Security Council, in the second paragraph of its Resolution 686 of 2 March 1991, demanded that Iraq:
"b) Accept in principle its liability under international law for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq;
d) Immediately begin to return all Kuwaiti property seized by Iraq, to be completed in the shortest possible period ".
The wording of this resolution implied that compensation was demanded principally on account of considerations of ius ad bellum - i.e. Iraq's initiation of the conflict by its invasion of Kuwait, and all that flowed from that. Iraq was considered to have state responsibility. This approach meant that it would not be necessary to show that all damage was directly committed by Iraqis as distinct from the coalition forces repelling them; nor that any Iraqi acts complained of were necessarily violations of the laws of war (ius in bello).
The idea of compensation was given flesh by the subsequent establishment of the United Nations Compensation Commission under the terms of Security Council Resolution 692 of 20 May 1991 This is based on the principle that Iraq is internationally responsible for its unlawful acts. By April 1995 2.6 million claims had been filed for a total of approximately US$ 174 billion. Since Iraq has so far been unwilling to sell oil, the only funds available to the Commission have come from the partial liquidation of Iraq's assets abroad.
Neither in the Iraqi case, nor more generally, are reparations and compensation necessarily an alternative to war crimes trials. Both paths can be pursued simultaneously, as they were, disastrously, in the 1919 Treaty of Versailles at the end of the First World War.
Some saw the post-war demands for reparations, and the sanctions on Iraq, as part of a great opportunity to shape a fair method of compensation, and a bold application of UN Charter procedures. The approach of seeking financial redress on the basis of state responsibility has some obvious advantages: matters can be settled in negotiations between states, sometimes relatively quickly. However, the fact of a country as a whole being held liable for the entire costs of a war is intensely problematic. It is likely to involve a whole population in paying for offences committed by a minority among them. The process of payment may drag out for decades and cause dangerous political resentments against those imposing the penalties. If submitting a few individuals to trial and punishment seems dangerously selective when a larger number may be responsible, punishing the whole population over a long period is open to the accusation of being indiscriminate.
The 1990-91 Gulf Conflict also raised important questions about neutrality. In different ways, the idea of neutrality has had a significant place in provisions regarding the implementation of the laws of war, including the provisions for Protecting Powers, and for action by the ICRC. Further, the idea that states can be neutral vis-is particular conflicts is fundamental to the laws of war; and 1907 Hague Convention V on Neutrality in Land War firmly associated neutrality with impartiality.
The whole idea of neutrality is undergoing significant change as a result of a number of factors, including the collective character of international action, especially sanctions, under the UN Charter. Following the Iraqi invasion of Kuwait in August 1990, various Security Council resolutions imposed a range of obligations on all states to take part in sanctions and even to provide a measure of assistance to the coalition military actions to enforce the blockade. Security Council Resolution 678 of 29 November 1990, which authorized the use of force, did not call on, still less require, all UN member states to take part in military action, but it did request them to provide appropriate support. Subsequently, some traditionally neutral states, including Switzerland and Austria, went so far as to permit overflights by US military aircraft. In summary, UN resolutions and the practice of states in the crisis suggested that there was still some space for neutrality in the sense of non-participation in hostilities, but less space for neutrality in the sense of complete impartiality.
The policy of the Swiss government regarding the Iraq-Kuwaconflict had an influence on debates within the International Committee of the Red Cross (ICRC) about the ICRC's status. The ICRC is of course one of the principal bodies concerned with monitoring implementation of the Geneva Conventions. Both Switzerland and the ICRC (which had always been a quintessentially Swiss body, and remains based in Switzerland) are committed to policies of neutrality, but the policies are not identical. In the wake of UN decisions, Switzerland - autonomously, as it is not a UN member - decided to apply wide-ranging economic and financial sanctions against Iraq. This may have fed Iraqi suspicions about the impartiality of the ICRC's operations. These events connected with the 1991 Gulf War form part of the background to a key change in the ICRC's status. On 19 March 1993, the ICRC and the Swiss government signed an agreement on the ICRC's legal status, in which the Swiss government recognized the ICRC as an international, rather than Swiss, organization. The ICRC has simultaneously become involved in various UN activities, including participation in the UN's Department of Humanitarian Affairs, established in March 1992. In this connection, the ICRC has had to specifically reiterate its independence and impartiality.
The developments described do not invalidate conceptions of neutrality, whether of states or of the ICRC, nor do they suddenly destroy the roles of neutral entities in application of the laws of war. What they demonstrate clearly is that notions of neutrality are changing. In a wide range of matters - including implementation of sanctions, conduct of military operations, and organization of humanitarian relief the UN framework has become more important than before. The UN may well not be neutral, or not be perceived as neutral, in a particular conflict. To some extent at least, the idea, enshrined in treaties, of implementation by neutrals may be becoming overlaid by the idea of implementation by UN-related bodies.