Posted by andreas from p3EE3BFB2.dip.t-dialin.net (62.227.191.178) on Sunday, September 15, 2002 at 5:33PM :
In Reply to: Iraq Sanctions & Accusation of Genocide posted by andreas from p3EE3C52D.dip.t-dialin.net (62.227.197.45) on Sunday, September 15, 2002 at 1:07PM :
OK, article snipped here - full text available from Assyrian News Watch
(Restriction b'cause of this forum's posting limitations, not from ANU)
In case of interest, request your copy from ANU per email to:
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: ... 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
: * * * * * * * * * * * * * * *
: 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 m
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