Posted by andreas from p3EE3C52D.dip.t-dialin.net (62.227.197.45) on Sunday, September 15, 2002 at 1:07PM :
... into the press kits of the journaille and to other needy destinations.
Lengthy but worthy article.
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A N U
Assyrian News Watch
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Assyrian Chaldean Syriac Aramean
Source: Yale Human Rights & Development Law Journal, Volume 5, 2002
Date: July 2002
When Intent Makes All the Difference in the World:
Economic Sanctions on Iraq and the Accusation of Genocide
Joy Gordon†1
The U.N. Security Council responded to Iraq's invasion of Kuwait with a
comprehensive regime of sanctions. This Article examines the claim that the
highly planned policy contains elements of genocide and critically examines
the international legal definition of genocide and its central requirement
of specific intent. It argues that the conception of genocide contained in
the 1948 Genocide Convention ignores whole categories of atrocities,
exculpating certain actors who have committed acts of massive human
destruction and removing the acts themselves from the sphere of moral
judgment and accountability. The Article describes the devastating human
costs that the Security Council and the United States have knowingly
imposed upon the people of Iraq through the sanctions regime. It suggests
that because the policy is justified with claims of international peace and
security or denials of moral agency, it cannot meet the Genocide
Convention's requirement of specific intent. Drawing upon the work of
philosophers such as Arendt and Nietzsche, the Article concludes by
charging the Security Council and the U.S. Government with something that
will not fit within the Genocide Convention at all, something best
described by Plato's concept of “perfect injustice,” which occurs when
atrocities are made at once invisible and good.
In the winter of 1990, Iraq invaded Kuwait without provocation. The U.N.
Security Council responded by imposing on Iraq the most comprehensive
sanctions regime ever deployed in the name of international governance.
Twelve years later, the sanctions remain in place despite dubious
effectiveness, staggering humanitarian consequences, and ethical objections
from peace activists in the United States and Europe, international
organizations such as the Red Cross, U.N. agencies such as UNICEF and WHO,
and both permanent and nonpermanent members of the Security Council itself.
I would like to examine the fairly provocative claim (made by former
U.N. Humanitarian Coordinator Denis Halliday, among others) that the
systematic, highly planned imposition of a policy with such devastating
effects can rightly be termed genocide. The magnitude of the deaths and of
the suffering of the population (including widespread malnutrition,
epidemics of diseases that had previously been eradicated, and lack of
treatment for many illnesses) is no longer seriously in dispute, although
the particular figures vary.
Yet genocide is the largest atrocity of which we can conceive. Is there
legitimacy to the claim that the measures imposed upon Iraq contain the
elements of such a crime? And if so, how is it possible that genocide could
take place under the auspices of international governance? The sheer
magnitude of this accusation makes this question urgent.
I will assume throughout this Article that the sanctions on Iraq,
although imposed by the U.N. Security Council, also represent U.S. foreign
policy.2 Indeed, while there was initially considerable international
support for the sanctions (at least within the Security Council), at this
point the United States is nearly alone in its continued support for
comprehensive sanctions.3
The question that is particularly complicated, under the Convention on
the Prevention and Punishment of the Crime of Genocide,4 is intent. It is
an extremely stringent requirement, derived in large measure from the model
of the Holocaust and the explicit anti-Semitism that informed the Nazi
extermination policies against Jews. The Holocaust atrocities have often
been depicted as events whose immorality is irrefutably obvious to any
moral and rational person. Such a view has not prepared us to address the
large-scale, systematic destruction of an innocent population, the authors
of which are not patently “monstrous” or hate-mongering, especially when
the rationality and moral legitimacy of these events are defended by
well-spoken international leaders using language of neutrality and concern.
Under these circumstances, how do we address the matter of intent?
I do not want to diminish the centrality of intent in our conception of
genocide. Kant's insistence that the moral content of an act be measured
purely by its intent, not by its consequences remains influential.5 Our
moral intuitions, criminal and tort law, and the Kantian ethical tradition
all incline us to give significant weight to intent and to attribute
considerably greater moral responsibility for intended acts than for
unintended ones. We want to say that there is indeed a moral distinction
between acts of violence that are driven by a willful hatred and those acts
that have identical effects, but contain no such motivation. The intent
requirement articulated in the Genocide Convention reflects this intuition.
This notion of intent operates much like that found in the Just War
tradition concerning the commission of war crimes. Yet there is a
significant difference: there is no sheer quantity of human damage that is
sufficient to show genocidal intent. The definition of “intentional”
genocide is exceedingly narrow and difficult to prove. As a consequence,
the Genocide Convention effectively places no limit on the amount of damage
that may be indirectly intended. By contrast, in the context of warfare,
the notion of intent that allows for the legality of “collateral damage”
puts a limit on the amount of human destruction. It is limited, at least in
theory, by the principle of proportionality, which holds that destruction
that is indirectly intended (deliberate and planned, but nevertheless
“unintended”) is permissible, but only up to a point; it can not be
disproportionate to the military advantage to be gained from it.
Thus, I will argue, the conception of genocide contained in the
Convention has nothing to say about whole categories of atrocities,
including some that are deliberate and planned and where the actor
knowingly inflicts massive, indiscriminate human damage. There is a
compelling argument for this exclusion: even where the harm is deliberate
and massive, aren't there circumstances in which such harm is justified as
a means of preventing some greater harm from taking place? The intent
problem, I will suggest, informs how we conceptualize genocide--what kinds
of things we recognize as atrocities and what we do not even grasp as
atrocities, regardless of the magnitude of the damage. When acts of mass
destruction are understood from the outset to bear a thoroughgoing legal
and moral legitimacy, then the utilitarian calculation does not make it to
the table. Thus, the nature of the intent requirement is such that it not
only exculpates certain categories of actors who have committed acts of
massive human destruction but also serves to remove the acts altogether
from the most important domains of moral and legal judgment, and
consequently from the kind of accountability that would permit evidence and
reasoned debate over whether in fact such damage will with some certainty
be outweighed by the harm prevented.
I. The Notion of Intent in the Genocide Convention
Article 2 of the Genocide Convention, adopted by the U.N. General
Assembly in December 1948 and ratified by the United States in 1988,
provides:
[G]enocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial, or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part . . . .6
With the Holocaust clearly in mind, the drafters of the Genocide
Convention, in particular Raphael Lemkin (who coined the term “genocide”),7
sought to distinguish between genocide and homicide and to articulate as a
new crime under international law the notion of the extermination of an
entire people and the obliteration of both their past and present by
exterminating their culture, their property, and their children. That this
was the intent of the Nazis was clear from their acts, the voluminous
documentation of the Final Solution and its plans, and the anti-Semitic
propaganda that was disseminated. The original draft of the convention
defined genocide as acts that occurred “on grounds of the national or
racial origin, religious belief, or political opinion.”8 An attempt to
substitute a more inclusive standard failed.9 One delegate proposed the “as
such” language as a substitute, which was accepted, though it hardly
offered more clarity.10 The “as such” language effectively creates a
requirement of specific intent, as opposed to ordinary intent.11 By
contrast, in criminal law (at least in Anglo-American law), an actor is
presumed to intend the natural and foreseeable consequences of his or her
acts.12 While the presumption may be rebutted,13 no further evidence is
needed to demonstrate intent, so long as the act was not involuntary or
unknowing. Thus, in ordinary intent cases, motive is quite irrelevant to
demonstrating the elements of the case (although it may, for example, be
introduced at the sentencing stage to ask for leniency or to show
justification or defenses, such as the defense of necessity):
One who intentionally kills another human being is guilty of murder, though
he does so at the victim's request and his motive is the worthy one of
terminating the victim's sufferings from an incurable and painful disease.
One who sends an obscene writing through the mails is guilty of the federal
postal crime of depositing obscene matter in the mails, although he is
activated by the beneficent motive of improving the reader's sexual habits
and thereby bettering the human race.14
By contrast, specific intent requires that it be shown that an act is
motivated by a prohibited motive. In treason, for example, where it must be
shown that the purpose of an individual's act was to aid the enemy;15 and
it is also true in hate crimes, where the penalties for assault and battery
are higher.16
Specific intent in individual crimes is difficult to prove absent
explicit statements on the part of the actor.17 However, that requirement
hardly seems a reliable way of identifying hate crimes. It seems as though
a sophisticated perpetrator who wants to avoid prosecution (or at least the
enhanced penalties) could be quite successful if he just avoided announcing
his motive, while nevertheless planning his crimes as systematically as he
wished. The same problem holds in regard to genocide. As Kuper explains:
“Governments hardly declare and document genocidal plans in the manner of
the Nazis. The intent requirement provides easy means for evading
responsibility.”18 Indeed, the Convention's drafters anticipated this
particular problem. The representative of the Soviet Union proposed
alternative language that would address “acts that resulted in the
destruction of groups,” and others, particularly the French delegate,
argued that such language would guard against the possibility that the
intent requirement would be invoked as a pretext to avoid culpability for
mass killings on the grounds that the specific intent was absent.19
Intent is a thorny issue in part because of the evidentiary problem.
Unless the perpetrator happens to generate racist propaganda urging, for
example, the extinction of a group that was then harmed, it will be
difficult to show that the ethnic or racial group was targeted “as such.”
In the recent prosecution conducted by the International Criminal Tribunal
for Rwanda regarding the genocide by the Hutus against the Tutsis, the
court relied on statements by political leaders, news media depictions of
the Tutsis as “enemies,” and songs and slogans that explicitly anticipated
the extermination of the Tutsis altogether.20 Essentially, prosecution for
genocide requires an act of confession; and, as with individual hate
crimes, it seems possible that someone who is truly dedicated to the cause
of exterminating an entire people, if he is at all sophisticated, can for
the most part avoid culpability for that particular crime as long as he
remains somewhat oblique when stating his intentions.
However, the matter of intent is more than an evidentiary one. There is
also a fundamental conceptual problem, insofar as the Convention relies
heavily on the presence of a pure--and entirely gratuitous--kind of desire.
The specific intent demanded by the Genocide Convention, which requires
that the actor must intend to destroy the group “as such,” has generally
been interpreted to mean that the actor must want to destroy Jews, for
example, simply because they are Jews and for no other reason. If there is
anything about that desire which has any other element to it--such as
economic self-interest or political goals--then the intent is not to
destroy the group “as such,” but only because it happens to be there or
because it is a means to a further end. “Berlin, London, and Tokyo were not
bombed because their inhabitants were German, English, or Japanese, but
because they were enemy strongholds.”21
Thus, the Genocide Convention implicitly permits fragmentation of
intent. This fragmentation can be seen in the situation of the Ache Indian
nation of Paraguay, many of whose members were, pursuant to government
policy, killed in organized “Indian hunts,” while others were captured and
used for slave labor or prostitution. The remainder were forcibly relocated
to reservations lacking medical facilities, adequate shelter and food,
where the use of their language, customs, and religion were suppressed.22
The particular motives for the massacres of Ache Indians and the decimation
of the Ache nation were economic: the Aches occupied land that domestic
military officials and foreign corporate interests wanted to access in
order to explore for oil, develop hydroelectric and forest resources, and
clear pasture land for cattle. Thus, Lippman observes, their extermination
appears to have been based on their residence rather than their race.23
Under the Genocide Convention, there is nothing that prohibits the
extermination of any groups other than those named. The mass killing of
political opposition, for example, does not violate the Genocide
Convention. More importantly, it does not prohibit the extermination of
racial, ethnic, or religious groups, so long as it is done for some other
reason. There is nothing that prohibits their extermination for economic,
political, or military purposes. The common reading of the Convention is
that it provides that groups of people may not be killed simply because of
who they are; but does not prohibit their extermination because of where
they are, or what they have, or further purposes that might be served by
their extermination. Thus, one could say--as the government of Paraguay did
(and as the drafters of the Convention feared):
Although there are victims and victimizers, there is not the third element
necessary to establish the crime of genocide--that is “intent.” Therefore,
as there is no intent, one cannot speak of “genocide.”24
The Doctrine of Double Effect (DDE), which articulates the intent
element in Just War Doctrine, permits a similar fragmentation of intent.
Perhaps more accurately, the DDE contains a distinction between motive and
intent that makes it permissible in warfare to subject the innocent to acts
of extreme violence, so long as the motivation is acceptable. The DDE, as
formulated by Walzer, provides that:
[I]t is permitted to perform an act likely to have evil consequences (the
killing of noncombatants) provided the following four conditions hold.
1) The act is good in itself or at least indifferent, which means, for our
purposes, that it is a legitimate act of war.
2) The direct effect is morally acceptable--the destruction of military
supplies, for example, or the killing of enemy soldiers.
3) The intention of the actor is good, that is, he aims only at the
acceptable effect; the evil effect is not one of his ends, nor is it a
means to his ends.
4) The good effect is sufficiently good to compensate for allowing the evil
effect; it must be justifiable under Sidgwick's proportionality rule.25
So long as the primary intent is permissible (or in the context of
genocide, not prohibited by the convention or statute), the actor is not
culpable for the humanitarian consequences. This verdict is true no matter
how extensive the consequences may be, provided that they are not
disproportionate to the primary goal. A great deal is contained in that
caveat. Indeed, despite the attempts of the Geneva Conventions to codify
the standards for proportionality, the matter may in the end come down to
two questions. First, who will determine whether a cost (to others) is
disproportionate in relation to (one's own) goals and interests? In other
words, who will determine whether the risk is “worth it”--those conducting
the military or state campaign, or those who will be subject to its violent
excesses? Second, before what tribunal, if any, will the actors need to
account for their judgment? If it is up to the military to determine what
constitutes acceptable collateral damage in a given campaign, it is hard to
see the requirement of proportionality as providing any restraint at all or
by the same logic distinguishing between intent and motive. If it is up to
the state to determine whether it has an economic or political goal other
than the destruction of a group “as such,” it is hard to imagine that the
Genocide Convention will serve as a restraint on conduct (though it may
well shape the state's rhetoric).
Because of the inclusion of the proportionality requirement, the
magnitude of harm should--at least in principle--serve as a check against
the possibility that collateral damage of indefinite scope could be done
without committing a war crime. However, even that safeguard is not true of
the Genocide Convention, because what is required is specific intent rather
than ordinary intent. And because there is no proportionality requirement,
there is no magnitude of human damage that in itself will trigger the
application of the Genocide Convention. This is true so long as the actor
can plausibly argue that massacres or devastation were not done to a racial
or national group because of their race or nationality, but because of some
secondary characteristic or further purpose.
This problem is not an abstract one. It was raised explicitly in the
context of the Vietnam War and was examined in some detail in Jean-Paul
Sartre's argument that the U.S. war against Vietnam was genocidal and Hugo
Bedau's rejoinder to Sartre's comments.
II. The Sartre-Bedau Debate
In his essay On Genocide26, written during the Vietnam War, Sartre
argues that the U.S. war against Vietnam is genocidal. He grounds his
accusations in the larger context of his moral objections to colonialism,
under which a powerful nation secures unrestricted access to the labor,
natural resources, and wealth of nations unable to resist the overwhelming
military might of the colonizing power. Sartre suggests the United States'
particular justifications for war on Vietnam--i.e. Dean Rusk's statement of
the military objective that “We are defending ourselves” and Westmoreland's
statement of the moral objective that “We are fighting the war in Vietnam
to show that guerilla warfare does not pay”--are not plausible.27 Sartre
suggests, rather, that it was an “admonitory” massacre intended as an
object lesson for the Third World, toward the larger project of ensuring
that six percent of the world's population continues to control, directly
or indirectly, the other ninety-four percent.28 In the face of this larger
project, nationalism or popular resistance on the part of weaker Third
World nations presents itself as an impediment to access and to control. It
is an impediment that is most effectively overcome by systematic, massive
destruction, since the primary deterrent effect is intertwined with raw
intimidation. The racism is found in part in the language of the soldiers
(e.g., using the term “gooks” to describe the Vietnamese), but it also
underlies the dehumanization reflected in the willingness to inflict so
many deaths so methodically. Sartre describes the American military actions
against Vietnam in stark terms: “villages burned, the populace subjected to
massive bombing, livestock shot, vegetation destroyed by defoliation, crops
ruined by toxic aerosols, and everywhere indiscriminate shooting, murder,
rape, and looting.”29 He adds, “This is genocide in the strictest sense:
massive extermination.”30
Massive extermination is not in fact “genocide in the strictest sense.”
It satisfies the requirements in the latter part of Article 2 of the
Genocide Convention, without at all resolving whether the Vietnamese as a
racial, ethnic, or national group, were killed “as such”--i.e., because
they were Vietnamese, with the purpose of obliterating the Vietnamese as a
group. Sartre maintains that the intent requirement is met because “[t]he
genocidal intent is implicit in the facts.” He elaborates, holding that the
acts are: “necessarily premeditated . . . . [T]he anti-guerilla genocide
which our times have produced requires organization, military bases, a
structure of accomplices, budget appropriations. Therefore, its authors
must meditate and plan out their act.”31
This is evidence of ordinary intent only--that the acts were voluntary,
deliberate, and chosen. The stronger argument Sartre makes for genocidal
intent is in his discussion of the lack of discrimination. He describes,
for example, the tendency of soldiers and military leaders to conflate the
Vietnamese and the Vietcong, to hold the view that all Vietnamese are
potential Vietcong, or to consider any resistance or hostility by the
peasants to constitute “subversion.” His description suggests there is no
essential distinction between the enemy Vietnamese and the general
populace, and therefore all Vietnamese are either the actual, current enemy
or the potential enemy and thus may be targeted indiscriminately. It
follows that the Vietnamese people have become “the enemy,” and when an
entire people is the target, they constitute a group that is targeted “as
such.”
Bedau responds to Sartre's argument with some sympathy as well as
respect for the attempt. But he rejects Sartre's claim that genocidal
intent (at least as it is formulated in the Genocide Convention of 1948)
can be implicit in the facts. “[F]rom the fact that a certain series of
actions in Vietnam are deplorable, unnecessary, inexcusable, involve
killing thousands and laying waste to the country, and are done
intentionally, it still does not follow that they are done with genocidal
intention.”32 He then examines four possible models for genocidal intent:
constructive malice, implied malice, express malice with bare intention,
and express malice with further intention.
Constructive malice involves imputing intent, in the way it is done with
felony murder: where an individual intends to commit a felony with no
intention of killing anyone, but in the course of the felony he or his
partner does in fact kill someone, he is guilty of murder.33 Constructive
malice is a way of imputing intent precisely where there is not in fact any
actual intent.
Implied malice is similar, found in situations where an individual
intentionally does serious harm to others, but without meaning to kill
them. Nevertheless, the harm kills them, and because of the actor's
reckless indifference to the results of his act, he is found to have
implied malice sufficient to meet the intent requirement for murder.
“Express malice with bare intention” may be enough conceptually to prove
intent and qualify as genocide, but this theory does not appear to apply to
the American military actions against Vietnam. The particular massacres
that took place in Vietnam, such as those done at My Lai and Kien Hoa under
the orders of relatively low-level officers, may have been directed at
Vietnamese “merely because they [were] Vietnamese”; 34 and there may in
fact have been attempts at concealment at higher levels in the military.
That is, however, still quite different from proving that the war and its
overall strategy was undertaken in order to exterminate the Vietnamese
people. Sartre is mistaken, Bedau suggests, by confusing “the false
proposition that the United States armed forces killed Vietnamese peasants
because they were Vietnamese, with the true proposition that the Vietnamese
peasants were killed because they were in the way, because they were
there.”35
“Express malice with further intention,” which suggests that genocide
was explicitly undertaken for some further end, likewise lacks evidentiary
support in the case of Vietnam. Sartre's claim, Bedau says, is that
genocide was adopted as the policy of the United States in order to fight
successfully an anti-guerilla war. But Bedau argues that there is no
evidence that this was the objective of the United States and, further,
that there is no reason to think that the U.S. government was sufficiently
insightful to design such a strategy, given its manifest ignorance of
“almost every fundamental aspect of Vietnamese history, society, and
politics relevant to our government's policies.”36 Thus Bedau arrives at
his “Scottish verdict”: “Not proven, not quite.”37
The extent of the problem of genocidal intent under the Genocide
Convention should be clear at this point. Because of the specific intent
requirement, it is not enough to show that a large-scale massacre was
planned carefully, executed methodically, with consequences that were
easily foreseeable (and sometimes actually foreseen) and results that are
identical in nature and scope to the human damage done in “real” genocide.
Because specific intent requires proof of motive, in addition to what
normally constitutes “intent,” there is a recurring evidentiary problem,
except on the occasion where the genocidal actor announces that his scheme
is driven by a desire to obliterate one of the protected groups identified
in the convention. Because of the “as such” requirement, large-scale
killings directed at ethnic, racial, religious, or national groups still do
not meet the requirement for genocidal intent, if the destruction is
motivated by an economic or political interest, such that the protected
group is unfortunately “in the way,” is an unfortunate bystander that
suffered collateral damage or has possession of wealth or natural resources
that others desire. The “as such” requirement can be met only if the intent
to destroy the group is quite arbitrary--because “that's who they are,” and
for no other reason.
These conceptual problems of genocidal intent under the convention are
well known, and could be largely resolved by two proposals. Alexander
Greenawalt proposes a knowledge-based interpretation of the intent
requirement:
In cases where a perpetrator is otherwise liable for a genocidal act, the
requirement of genocidal intent should be satisfied if the perpetrator
acted in furtherance of a campaign targeting members of a protected group
and knew that the goal or manifest effect of the campaign was the
destruction of the group in whole or in part.38
I am not certain that this proposed interpretation is fully successful.
It is easy to envision virtually any perpetrator taking refuge in the term
“targeting” in the way that has been done with “as such”: “We were not
'targeting” the group, they just happened to live in the area where we were
bombing.” But to substitute the knowledge element for specific intent is an
important change; indeed, if a perpetrator were culpable where he “knew the
manifest effect of the campaign,” we would nearly be at the ordinary notion
of intent used in murder and other crimes, without having to address the
far more difficult task of proving motive as well.
A second proposal is that of Israel W. Charny, whose redefinition of
genocide places primary weight on the fact of mass killings. His “generic
definition” is:
Genocide . . . is the mass killing of substantial numbers of human beings,
when not in the course of military action against the military forces of an
avowed enemy, under conditions of the essential defenselessness and
helplessness of the victims.39
This view permits us to recognize all events of mass murder as
genocide40 and then to categorize them further based upon their particular
characteristics and degree of premeditation and cruelty. Thus,
“intentional genocide,” requiring the kind of specific intent found in the
Genocide Convention, is one type of genocide; while others include
“genocide in the course of colonialization or consolidation of power,”
“genocide in the course of aggressive war,” and “genocide as a result of
ecological destruction and abuse.”41 Within each of these categories, it is
possible to establish whether the genocide is first, second, or third
degree, based upon factors such as premeditation; resoluteness in executing
the policy; efforts to overcome resistance; devotion to barring escape by
the victims; and persecutory cruelty.42 Leo Kuper, who likewise looks to
the acts themselves and their consequences, rather than the motive, holds
that the atomic bombing of Hiroshima and Nagasaki would constitute
genocide, as well as the Allied blanket bombing of Hamburg and Dresden, and
the firebombing of Tokyo.43
I have no expectation that a Genocide Convention revised in either of
these two ways would have the slightest chance of ratification in the
United States, or much likelihood of widespread adoption internationally.
It would, however, be the kind of document which--were it miraculously to
become enforceable--would serve to identify and provide a framework for the
prosecution of much of the massive, indiscriminate carnage done to innocent
populations which now is permissible, at least under some circumstances,
under international law.
The problems surrounding the intent issue, and the consequent
possibility that atrocities might evade not only punishment but
recognition, is not an abstract or speculative concern. The economic
sanctions imposed on Iraq raise precisely this issue. The next section
considers these concerns. I will conclude by returning to the conceptual
problem of genocidal intent, which is in fact far greater than I have
stated thus far.
III. The Economic Sanctions on Iraq
Many have begun to raise ethical objections to the humanitarian
consequences of the economic sanctions imposed on Iraq by the U.N. Security
Council, as well as political questions about their justification.
The value of maintaining a highly intrusive arms control regime has come
into question. In 1998 the International Atomic Energy Association (the
agency authorized by the Security Council to inspect Iraq's nuclear weapons
system) certified that: “On the basis of its findings, the Agency is able
to state that there is no indication that Iraq possesses nuclear weapons or
any meaningful amounts of weapon-usable nuclear material or that Iraq has
retained any practical capacity (facilities or hardware) for the production
of such material.”44 As of the late 1990s, it appeared that Iraq's other
weapons programs had been significantly undermined as well.45
At this juncture, there is little global support for the sanctions.46
The sanctions are at this point held in place only by the “reverse veto” of
the United States.47 Although the imposition of the sanctions required the
assent (or abstention) of all five permanent members, they now cannot be
terminated as long as a single permanent member wants to keep them in
place. In addition to the erosion of support within the United Nations,
there is also growing public protest. Activist organizations, such as
Voices in the Wilderness and Campaign Against Sanctions in Iraq, have
sprung up in the United States and Europe, and their members engage in
lobbying, demonstrations and civil disobedience. Three career U.N.
officials who held responsibility for meeting humanitarian needs in Iraq
have resigned in protest, on the grounds that they could not in good
conscience participate in the imposition of conditions so antithetical to
the U.N.'s stated commitment to human rights and basic needs. Denis
Halliday, former humanitarian coordinator in Iraq at the United Nations,
has explicitly called the U.N.'s policy “genocidal.”48
The humanitarian damage has been extensive. There are some “humanitarian
exemptions” built into the sanctions regime. However, dual use goods were,
for most of the 1990s, generally prohibited. “Dual use” includes virtually
everything that is necessary for the country's infrastructure, such as
communication, transportation, and the generation of electricity.49 In
addition, the bureaucratic requirements imposed by the Security Council's
committee on Iraq sanctions have been so cumbersome as to significantly
impede all purchases by Iraq, even of goods that are clearly permitted,
such as medicines and foodstuffs.50 The delays and holds by the Iraq
sanctions committee are so extensive that over $5 billion of contracts for
humanitarian goods are currently on hold--about one-quarter of all
humanitarian goods purchased in the last six years.51 The result has been
large-scale and long-term damage to every aspect of life in Iraq--for all
except the very wealthy, and the political and military elite--with severe
damage to education, health care, and employment. The shocking and extreme
harm is reflected in child mortality rates and public health figures.
Prior to the Persian Gulf War, Iraq had one of the highest standards of
living in the Arab world. The Iraqi government had invested heavily in
social and economic development, both before and during the Iran-Iraq war.
Prior to the Gulf War, Iraq had made impressive strides in health,
education, and development of the infrastructure. In 1980, the Iraqi
government initiated a program to reduce infant and child mortality rates
by more than half within ten years. The result was a rapid and steady
decline in childhood mortality.52 Prior to the Gulf War, there was good
vaccination coverage; the majority of women received some assistance from
trained health professionals during delivery; the majority of the adult
population was literate; there was nearly universal access to primary
school education; the vast majority of households had access to safe water
and electricity; and there was a marked decline in infant mortality rate,
and in the under-five mortality rate.53 According to the World Health
Organization (WHO), ninety percent of the population had access to safe
water.54
The Gulf War and the economic sanctions, on top of the devastation of
the infrastructure, changed these conditions dramatically. Immediately
prior to the Persian Gulf War, the incidence of typhoid was 11.3 per
100,000 people; by 1994 it was more than 142 per 100,000. In 1989, there
were zero cases of cholera per 100,000 people; by 1994, there were 1,344
per 100,000.55 The untreated water and sewage generated a large increase
in other gastrointestinal diseases. Of these, dysentery had a particularly
high impact on infants and children under five. Both the infant mortality
rate (IMR) and the mortality rate of children under five years of age
(U5MR) began to increase shortly after the Gulf War. Between 1990 and 1998,
IMR went from 40/1000 to over 100/1000; U5MR went from 50/1000 to 125/1000.
56 UNICEF estimates that if the public health trend from 1960-1990 had
continued throughout the 1990s, there would have been a half million fewer
deaths of children under five in Iraq from 1991 to 1998.57 In addition,
there will also be fatalities among older children and adults, which cannot
be measured with precision.
In the fall of 1999, a Defense Intelligence Agency (DIA) memorandum
entitled, “Iraq Water Treatment Vulnerabilities” was declassified. The
January 18, 1991 document focused on how the impending air war would
undermine Iraq's infrastructure:
1. Iraq depends on importing--specialized equipment--and some chemicals to
purify its water supply, most of which is heavily mineralized and
frequently brackish to saline.
2. With no domestic sources of both water treatment replacement parts, Iraq
may continue attempts to circumvent United Nations sanctions to import
these vital commodities.
3. Failing to secure supplies will result in a shortage of pure drinking
water for much of the population. This could lead to increased incidences,
if not epidemics, of disease and to certain pure-water-dependent industries
becoming incapacitated, including . . . pharmaceuticals and food processing
. . . .
4. Although Iraq is already experiencing a loss of water treatment
capability, it probably will take at least six months (to June 1991) before
the system is fully degraded.
5. Unless water treatment supplies are exempted from the UN sanctions for
humanitarian reasons, no adequate solution exists for Iraq's water
purification dilemma, since no suitable alternatives, including looting
supplies from Kuwait, sufficiently meet Iraqi needs. . . .
. . . .
11. Iraq's rivers also contain biological materials, pollutants, and are
laden with bacteria. Unless the water is purified with chlorine epidemics
of such diseases as cholera, hepatitis, and typhoid could occur. . . .
. . . .
14. . . . Recent reports indicate the chlorine supply is critically low.
Its importation has been embargoed, and both main production plants either
had been shut down for a time or have been producing minimal outputs
because of the lack of imported chemicals and the inability to replace
parts. . . .
. . . .
20. Iraqi alternatives. Iraq could try convincing the United Nations or
individual countries to exempt water treatment supplies from sanctions for
humanitarian reasons. It probably also is attempting to purchase supplies
by using some sympathetic countries as fronts. If such attempts fail, Iraqi
alternatives are not adequate for their national requirements.
21. Various Iraqi industries have water treatment chemicals and equipment
on hand, if they have not already been consumed or broken. Iraq possibly
could cannibalize parts or entire systems from power to higher priority
plants, as well as divert chemicals, such as chlorine. However, this
capacity would be limited and temporary.58
Thus, the DIA anticipated not only the damage to the infrastructure and
water system, but anticipated as well that Iraq would be unable to take
effective measures to provide potable water afterward. The DIA then
anticipated the epidemics and loss of life that would follow. Has there
been genocide? It would seem that the following requirements for genocide
under the Convention have been met:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part . . . 59
Is there enough here to show genocidal intent on the part of the United
States? Elias Davidsson argues that there is. He suggests that “[a]n
assessment of the acts committed, the degree of premeditation available to
the defendants, the foreseeability of the consequences, the feedback
received regularly by the defendants regarding the consequences of their
deeds and the span of time in terms of months or years of the act” are
sufficient to constitute a prima facie case of genocide.60 Certainly the
planning was deliberate and thorough, and the sanctions have been
maintained systematically and deliberately for more than a decade now.
Certainly, the impact on public health, particularly for young children,
was the natural and foreseeable consequence of the damage done to the
infrastructure, particularly to the water treatment system. Indeed, the
impact was not only foreseeable, it was in fact foreseen by the Department
of Defense prior to initiating the Gulf War. The central question, of
course, is: Are the Iraqis being killed “as such”--because they are Iraqis,
and not for some other reason?
The U.S. State Department would not say so. Indeed, U.S. policymakers
have said with some consistency that they mean no harm to the Iraqis, and
that they act reluctantly, or regretfully, or even benevolently. A
September 1999 report on U.S. policy towards Iraq states that “[s]anctions
are not intended to harm the people of Iraq.”61 “We want to see Iraq return
as a respected and prosperous member of the international community.”62 In
her capacity as Secretary of State, Madeleine Albright maintained: “The
United States, in the person of me, in fact authored a [Security Council]
resolution [concerning the imposition of sanctions on Iraq] because I was
concerned about the children of Iraq.”63 Sartre might say that the intent
could be inferred from the planning, if not the actual impact. I disagree.
Bedau could respond, correctly, that foreseeability was never the issue;
thus, demonstrating that the consequences were actually foreseen does not
get us any further towards genocidal intent than we were when the
consequences were merely likely and obvious.
In the face of increasing accusations of callousness, and indeed
genocide, the response of U.S. policymakers has not been that the Iraqis
should suffer simply because they are Iraqis. Rather, U.S. policymakers
look to justifications based in claims of international peace and security,
or in flat denials of moral agency. The international security argument
holds that Saddam Hussein's capacity to produce weapons of mass destruction
must be eliminated, or else he will be a threat to his neighbors and the
Mideast in general.64 The moral agency argument holds that “it is not our
doing,” since if Saddam Hussein cooperated, the sanctions would be
lifted.65 Neither argument is particularly persuasive. Iraq acquired its
capacity to produce weapons of mass destruction in the 1980s in part
because the United States and the other permanent members of the Security
Council sold nearly $80 billion in arms to Iran and Iraq during their war,
including sales by U.S. entities of bacteria for the production of
biological weapons to Iraq.66 After the Anfal campaign of 1988-89 and the
chemical bombing of Halabja in which 5000 were killed, the White House
opposed any form of economic sanctions on the grounds that they were
“terribly premature.”67 Although there were reports of massive destruction
against the Kurds in the late 1980s, the U.S. administration refused to
support the sanctions, even after the chemical bombing of Halabja, on the
grounds that they were “terribly premature” and would affect “billions of
dollars” of U.S. business.68 The “weapons of mass destruction” argument
seems questionable for another reason as well. There are plausible grounds
to suggest that economic sanctions are themselves weapons of mass
destruction. A 1999 article in Foreign Affairs, written by a military
historian and a military strategist, observes that economic sanctions have
produced more casualties in the Twentieth Century than every use of every
weapon of mass destruction combined.69
The moral agency argument seems equally dubious. It has its roots in the
denial of agency found in situations of siege warfare. Siege warfare has
the effect of targeting women, children, infants, the elderly and the
ill--those least able to defend themselves and those least responsible for
political and military policy. In the face of this patent violation of the
most basic principles of the laws of war, the moral justification given by
the besieging force is to deny agency. In his chapter on siege warfare,
Walzer describes the Roman siege of Jerusalem:
Titus [the general of the besieging army] . . . lamented the deaths of so
many Jerusalemites, “and, lifting up his hands to heaven . . . called God
to witness, that it was not his doing.” Whose doing was it? After Titus
himself, there are only two candidates: the political or military leaders
of the city, who have refused to surrender on terms and forced the
inhabitants to fight; or the inhabitants themselves, who have acquiesced in
that refusal and agreed, as it were, to run the risks of war . . . . [These
arguments] make[] Titus himself into an impersonal agent of destruction,
set off by the obstinacy of others, without plans and purposes of his
own.70
It is a problematic theory, since by any ordinary conception of agency,
Saddam Hussein did not impose any of these restrictions himself--the U.N.
Security Council did. Based upon Iraq's consistent investment in public
welfare in the 1970s and 1980s, there is no reason to think that Hussein
would have chosen to impose such conditions on the general population of
Iraq in the 1990s. The denial of moral agency suggests that Hussein somehow
coerced the Security Council into acting, such that it was no longer
accountable for its policies and decisions. Yet there was no “coercion” of
a sort that would normally fit our conception of the circumstances in which
an individual's acts, through coercion, can no longer be deemed voluntary.
There was an act of aggression by Iraq against Kuwait, of the sort that the
Security Council has witnessed numerous times since its inception,
sometimes taking action other than sanctions and sometimes doing nothing at
all.
I mention the claims of international security and moral agency because,
however unpersuasive they are, they provide a stated justification for the
sanctions, which is other than “the destruction of the Iraqi people, as
such.” Thus, whatever the unspoken intent may be, we are faced at most with
concessions of the sort made by the Paraguayan government in the case of
the Ache Indians: there may be acts which have harmed the innocent, and
they may have been done quite deliberately, but the intent concerned
political or legal goals regarding the enforcement of international
security (or, as some might suggest, concerned the U.S. interest in
protecting its access to Saudi oil). Hence, the argument goes, the fact
that so many Iraqis have suffered and died as a consequence of these
policies is unfortunate, but comes about for other reasons than simply
their identity as Iraqis.
At this point it should be clear that two of the primary limitations of
the Genocide Convention, foreseen during its drafting and manifested on
occasion since then, are at work here as well. There is the evidentiary
problem found in situations where there is neither propaganda that
conveniently uses the necessary language, nor confession in some other
form. There is also the conceptual problem that the crime is framed in such
narrow terms that the presence of any other goals, actual or putative,
vitiates the intent, such that, in the end, few instances of mass killing
are ever likely to qualify, regardless of how deliberately they may be
done, or how extensive the suffering and death may be.
What was probably not foreseen was the possibility that atrocities might
be committed by institutions of international governance, acting in the
name of international law and human rights. The question of intent in the
case of the sanctions against Iraq is fundamentally different than was the
case with the United States in the war against Vietnam, the Paraguayan
treatment of the Ache Indians, or the Holocaust, because the sanctions
against Iraq were imposed by an institution of international governance,
for the stated purposes of ending a war of ag
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