In recent years, the Security Council has given welcome attention to the impact of armed conflict on civilians and the best means of protecting them from the worst excesses of war. In a series of resolutions and statements, the Security Council has laid down fundamental principles on critical issues such as humanitarian access to vulnerable populations, the protection of refugees and the internally displaced, the use of landmines and the proliferation of small arms, the impact of conflict on women and children, and the longer-term imperatives of demobilization and rehabilitation.1

As the international community contemplates military action against Iraq, this agenda is especially pressing. The Security Council’s response to the Iraq crisis is a test of its commitments to protect human rights and ensure effective humanitarian action.

If the Security Council authorizes military action against Iraq, it must make explicit provisions for the protection of civilians and ensure these are effectively monitored and enforced. If war proceeds without Security Council authorization, the Council must insist that the governments of Iraq, the United States and all states participating in any conflict fully respect international human rights, humanitarian and refugee law and are held accountable for any abuses. In this context, Human Rights Watch urges the Security Council to give priority attention to the following concerns:

• Obligations of attacking forces: International humanitarian law forbids direct attacks against civilians, or attacks of an indiscriminate nature. It is imperative that all parties identify and distinguish civilians from combatants in every situation. Vigorous steps must be taken to avoid mistakenly targeting civilians because of inadequate reconnaissance or intelligence. In addition, all feasible precautions should be taken to avoid harm to civilians. Military force should not be used to attack civilian morale or to destroy civilian objects for symbolic purposes when there is no direct military advantage to be gained. Nor should there be any attack on humanitarian supplies or civilian infrastructure that, even if used by an opposing military, are necessary for the survival of the civilian population in the conditions of scarcity now prevailing in Iraq. It is also generally forbidden to direct attacks against civilian objects, such as homes and apartments, places of worship, hospitals, schools, or cultural monuments, unless they are being used for military purposes. Even then, civilian objects should not be attacked if the harm to civilians from that attack is excessive in relation to the concrete and direct military advantage anticipated.

• Possible Iraqi abuses: The prospect of fighting in urban areas in Iraq poses additional challenges for the protection of civilians. Judging by Iraq’s past conduct, there is a substantial possibility that Iraqi authorities may use civilians as shields for military targets. The international community should make clear that such tactics are prohibited under international humanitarian law and that Iraqi officials will be held accountable if they employ them. At the same time, they do not excuse the opposing forces from the duty to refrain from attacking if harm to civilians from an attack is excessive in relation to the concrete and direct military advantage anticipated. Equally, preventive action should be taken to protect civilians in the Kurdish areas in the north and Shia areas in the south should the Iraqi authorities strike out internally against these groups. A clear signal should be sent that anyone who carries out deliberate atrocities against Iraqi civilians will be prosecuted. The desire to encourage defections must not be allowed to obscure this essential message.

• Responsibilities of occupying forces: The United States and its coalition partners must be prepared to protect and provide assistance to all potential victims of such attacks in areas of the country under their effective control. If Turkish troops occupy areas of Iraq inhabited by ethnic Kurds, those troops must be particularly vigilant in protecting the Kurds from attacks by other groups. Furthermore, Turkish troops must ensure that they protect Iraqi Kurds as required by international law.

• Weapons of mass destruction and other indiscriminate weapons: We condemn unequivocally any use of weapons of mass destruction, including chemical, biological, and nuclear weapons, and the Security Council should make clear that any party which does so, whether in first use or reprisal, will be held to account. We also oppose the use of antipersonnel landmines as prohibited by the 1997 Ottawa Mine Ban Treaty, and the use of cluster munitions near populated areas or in any circumstance until the initial failure rate of submunitions can be radically reduced.

• Prevent abuses by Iraqi opposition groups: The United States and its coalition partners will have a special responsibility for the conduct of any allied forces, for instance Kurdish or other Iraqi opposition groups enlisted in support of military action. The US-led coalition will also have responsibility for the conduct of all forces in territory they seize. No military assistance should be provided to armed groups or their commanders with a known record of human rights abuse. Occupied territory should be vigorously patrolled to avoid the emergence of a security vacuum and to guard against retribution and revenge killing if war against Iraq triggers intense inter-ethnic fighting or attacks against supporters of the government. The Security Council should insist that all armed groups inside Iraq fully respect human rights and humanitarian law norms, including in the treatment of prisoners, and warn their leaders that those responsible for atrocities will be brought to justice.

• Safeguard children: The Security Council should impress upon all warring parties the fundamental importance of protecting children in armed conflict, and ensure their special needs are fully addressed in any military and humanitarian planning. No personnel under the age of 18 years should be deployed militarily by any party to the conflict.

• Prevent and punish crimes against women: The Security Council should also insist that all warring parties protect women from gender-specific violence, including rape and other sexual violence. The Security Council should commit the international community to investigating and punishing any such violations of humanitarian law.

• Ensure humanitarian preparations and access: As the Secretary-General has noted, Iraq’s civilian population is already in a precarious and vulnerable state, raising the potential for a humanitarian crisis. The humanitarian response will be greatly complicated by the limited humanitarian presence in the country, the Iraqi government’s tight controls, and the possible destruction of vital infrastructure. An occupying force is obligated under international law to ensure the security and welfare of the civilian population. Any planning for military action should be accompanied by a comprehensive and well funded humanitarian plan, providing secure and unimpeded access for humanitarian agencies to vulnerable populations and respecting the independence and impartiality of humanitarian personnel. In addition, the Security Council should continue to monitor closely the humanitarian consequences of the sanctions it has authorized in Iraq, and take into account the well-being of the civilian population when applying coercive measures.

• Open borders to refugees: Fleeing civilians may face closed borders blocking access to safety. In 1991, tens of thousands of fleeing Kurds became stuck on the closed Turkish border, many freezing to death. Iraq’s neighboring states must be encouraged and supported to open their borders to refugees and provide them with adequate protection. The establishment of camps, “safe havens,” or “humanitarian zones” within Iraq should not be used as a justification for barring Iraqis from fleeing violence in their country or for failing to consider their asylum applications. When refugees or displaced people are held in camps, armed elements should be separated from civilians. The security of all refugees, displaced, and humanitarian workers should be guaranteed.

• Ensure accountability for war crimes on all sides: The Security Council should commit now to an international process that will bring to justice those responsible for grave violations in the conduct of hostilities. Like the International Criminal Tribunals for Rwanda and the former Yugoslavia, this mechanism should have jurisdiction over all parties to the armed conflict. The Security Council should also appoint a special commission of experts to examine and recommend options for pursuing justice and accountability for grave abuses committed in the past in Iraq, including the establishment of an appropriate international tribunal.

Human Rights Watch notes the pledges floated by some individual governments that they would not prosecute Iraqi President Saddam Hussein and other members of his government if they were to leave Iraq. Whatever the merits of these potential pledges as a way of avoiding war, we vigorously oppose any formal amnesty, especially one endorsed by the Security Council. Amnesty is unnecessary; Iraqi officials considering exile would do so only if they already have little bargaining power. Moreover, amnesty would be an affront to the victims of the Iraqi government’s genocide against the Kurds and the countless victims of its war crimes and crimes against humanity against Iraqis of all ethnic and religious persuasions and others. It would also undermine efforts to deter future atrocities by signaling that even one of the world’s most heinous human rights criminals can, in the end, definitively avoid criminal liability.

The Security Council today carries a heavy responsibility to protect not only international peace and security but also the human security of Iraq’s long-suffering people. Over the past few years, the Council has made important commitments to the protection of civilians in armed conflict and has sought to implement these commitments through its interventions with respect to individual countries such as Sierra Leone and the Democratic Republic of Congo. It is essential that these human rights and humanitarian concerns be at the forefront of the Council’s response to the Iraq crisis.

Respectfully yours,

Kenneth Roth
Executive Director

1 In a statement on 15 March 2002, the President of the Security Council presented a comprehensive “aide memoire” summarizing the Council’s various decisions on the protection of civilians in armed conflict as guidance for future Council debates, S/PRST/2002/6
http://daccess-ods.un.org/doc/UNDOC/GEN/N02/288/93/IMG/N0228893.pdf?OpenElement