Iraq: protection, legitimacy and the use of armed force
by James Darcy May 2003

In January 2003, the HPN hosted a seminar at ODI on the legal and protection questions around a possible attack on Iraq. The meeting began by asking if the legitimacy or otherwise of the use of armed force was relevant to humanitarians. On the face of it – at least on a traditional understanding of the humanitarian role – it is not. To use the legal jargon, the humanitarian protection agenda is concerned with issues of jus in bello, governing the way in which war is waged, rather than with jus ad bellum, governing the resort to war in the first place. Yet even on the traditional view, the question of legitimacy – moral, legal, political – cannot be ignored. The label ‘humanitarian’ has been applied by political actors to recent armed interventions, most explicitly in the case of Kosovo, justified as a humanitarian intervention or even (to the horror of the sector) ‘humanitarian war’. It was invoked also in Afghanistan, as a secondary rationale for an intervention justified mainly on the grounds of self-defence by the US. In short, humanitarian objectives have increasingly become a part of the claim to legitimacy. To that extent at least, humanitarians should concern themselves with arguments about legitimacy, if only from a concern that the humanitarian agenda may be hijacked by (and subordinated to) political agendas.

The grounds for …

This is not to say that there may not be, in exceptional circumstances, a case to be made for armed intervention on humanitarian grounds. Such intervention may be justified – indeed required – to stop genocide. The inspiration for the commission that resulted in the report The Responsibility to Protect of 2001 was precisely the imperative to prevent another Rwanda. The report sets a high threshold for military intervention, restricting it to cases where it is necessary to prevent:

Large scale loss of life (actual or apprehended), with genocidal intent or not, that is the product of deliberate state action, or state neglect or inability to act, or a failed state situation; or … large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, act of terror or rape.

Although little serious attempt has been made to justify a war against Iraq on such grounds, there are signs that a humanitarian or human-rights rationale is now being invoked by those who support war. There is certainly a retrospective human-rights case to made, based on the current regime’s treatment of the civilian population over recent years. Yet few argue that this justifies armed intervention now. Another more forward-looking if non-specific argument is made: that the predictable consequence of failing to act to prevent the development of weapons of mass destruction will be further acts of aggression by Iraq on neighbouring and other civilian populations, resulting in human disaster.

… and the grounds against

Humanitarian agencies have tended to turn this argument on its head: that the directly foreseeable result of a war against Iraq would itself create a humanitarian catastrophe. Whether or not this is argued as a legitimacy point, it is certainly a matter of humanitarian concern as an issue of protection, and one explicitly covered by international humanitarian law. Indeed, in a letter to the Financial Times from the directors of some of the UK’s leading aid agencies in December 2002, it is argued that ‘It is hard to see how a war [against Iraq] could be waged without violating international humanitarian law and increasing suffering among the civilian population’.

Any international armed conflict in Iraq would be governed by the four Geneva Conventions of 1949 and the first Additional Protocol of 1977. The UK agencies cite part of Article 54 of Protocol I in particular:

  1. Starvation of civilians as a method of warfare is prohibited.
  2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

The same article goes on to stipulate that ‘in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement’. The provisions of Article 54 have clear implications for both sides of any war. The US has not ratified Protocol I, but the provisions it contains are generally considered to form part of customary international law, and so are binding on all parties.

Humanitarian agencies cite Iraq’s food-distribution system and fragile water and sanitation infrastructure as a particular cause for concern. With a population made vulnerable by years of sanctions and their abuse, with high malnutrition levels and already catastrophic infant-mortality rates, further damage to the infrastructure could only precipitate a human disaster. What is striking about these arguments is that they highlight not the direct but the indirect consequences of war on the civilian population. There were significant numbers of direct civilian casualties from the bombing campaigns in Kosovo/Serbia (an estimated 500 people) and in Afghanistan (between 1,000 and 1,300 people). The US military puts the civilian death toll from the 1991 Gulf conflict at 3,200. But the potential indirect impact of war on the civilian population, though perhaps less dramatic and less visible, may indeed be a greater cause for humanitarian concern.

The principles of war

Concerns about possible indirect effects do not, of course, mean that civilians face no real immediate dangers in the event of conflict. The course of war is unpredictable, but the principles governing the treatment of civilians are clearly established in the Geneva Conventions and Additional Protocols. First among them is the principle of distinction, set out in Article 48 of Protocol I:

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

The distinct but related principles of precaution and proportionality are set out in Articles 57 and 58, which stipulate a requirement to minimise the potential for what is now called ‘collateral damage’. Again, these articles impose responsibilities both on the party attacking, and the party attacked. Other provisions relate to the protection of sick and wounded combatants and prisoners of war, which are also of course of significant humanitarian concern.

The Fourth Geneva Convention imposes specific obligations on an occupying power in ensuring the welfare of the civilian population. Article 69 of Protocol I usefully summarises the relevant provisions, including those relating to relief actions:

  1. In addition to the duties specified in Article 55 of the Fourth Convention concerning food and medical supplies, the Occupying Power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship.
  2. Relief actions for the benefit of the civilian population of occupied territories are governed by Articles 59, 60, 61, 62, 108, 109, 110 and 111 of the Fourth Convention, and by Article 71 of this Protocol, and shall be implemented without delay.

There are, of course, protection concerns relating to a potential war on Iraq that may extend beyond that country’s borders. The Gulf War of 1991 saw the mass movement of people displaced by the conflict into neighbouring states – which are now wary of a similar exodus. According to UNHCR, more than 600,000 Iraqis could be forced to flee to neighbouring countries if a war breaks out. It is hard to see them being welcomed as asylum-seekers. But again, some basic principles of international law –most importantly the principle of non-refoulement – provide a framework for the protection of such people.

In setting the parameters for the legality of specific military actions in the context of war, these provisions also provide a moral framework within which the broader questions of political legitimacy are judged. Adherence to the rules of war matters to politicians in part because the perception that they are being breached can undermine the political case for what may be a protracted military engagement. Wars of this kind are fought in a media spotlight, with governments called upon to justify their actions at daily press briefings. Whether or not one accepts the argument that any attack on Iraq would inevitably be in breach of international humanitarian law, it is certain that the way in which such a war is waged – by both sides – has a bearing on the question of political legitimacy that ultimately may be the most important factor in ensuring compliance with the laws of war.

Principles and legitimacy

Questions of legality and legitimacy are of concern to the humanitarian community in part because they have a real-world bearing on the conduct of war. But the basic distinction between the legitimacy of the resort to armed force, and the way in which that force is used, remains important. Ultimately, as Henri Dunant recognised on the battlefield of Solferino a century and a half ago, the humanitarian agenda is set by what actually happens, not what ought to happen. Our main concern must be with limiting the effects of war – justified or not – on defenceless people.

James Darcyis an international lawyer and a Research Fellow in the Humanitarian Policy Group at ODI.

The report of the ODI seminar ‘Iraq: War, Law and Humanitarian Protection’ and a list of related resources are available on the ODI website at www.odi.org.uk.

The Responsibility to Protect, the Report of the International Commission on Intervention and State Sovereignty, is available on the website of the Canadian Department for International Affairs and Trade: www.dfait-maeci.gc.ca/iciss-ciise/report-en.asp.