US genocide in Iraq

Notes on genocide in Iraq, Part I:

What is Genocide?

Abstract
The United States has committed and sponsored the crime of genocide in Iraq. Outlining the legal meaning of genocide and following Jean-Paul Sartre’s analysis of the nature of colonial war, this paper asserts that on the basis of patterns of purposive action a case for intentional genocide can and should be made under the provisions of the Genocide Convention. While the United States has destroyed the state of Iraq, contaminating its environment and creating conditions of mass societal trauma, including the killing of 2,500,000 over 17 years, it has failed and cannot succeed to destroy the nation of Iraq. Being the lynchpin of US attempts to pursue empire by military means, it is the duty of all who struggle for justice to oppose the US genocide wrought on Iraq, move to ensure the prosecution of all those responsible and complicit, and stand firm in solidarity with the Iraqi people and its legal and legitimate resistance.
Forthcoming in Christian Sherrer, Comparative Genocide Studies, Hiroshima Peace Institute, 2007.A full pdf version is available here
PART II continues herePART III continues here
Notes on genocide in IraqIan Douglas
1. Summary2. Introduction3. Definitions
a) What is genocide?b) What is intent?
4. Beyond law
a) The genocidal logic of neo-colonial warb) Genocide by occupation
5. The destruction of the Iraqi state and national identity
a) The strategic context for genocide
i. Asserting US geopolitical, global hegemonyii. US policy aimed to break Arab unityiii. The US national emergency and corporate interestsiv. A unified strategy of genocide
b) Implementing genocide in Iraq
i. Destroying Iraq physically and permanentlyii. Substituting the Iraqi state and nationiii. Resistance to genocide
6. Interpreting genocide in Iraq7. Conclusion8. Appendix
Does anyone believe there isanother way to steal a country?— Eduardo Galeano
1. Summary— The United States has committed and sponsored the crime of genocide in Iraq.
— Responsibility for genocide rests on specific intent and given or probable consequences of actions. The 2003 US invasion of Iraq was the culmination and intensification of a consistent US policy, spanning over 17 years, of destroying Iraq as a national and state entity.
— The United States attempted and succeeded to destroy the state of Iraq, but has failed and cannot succeed in its attempt to destroy the nation of Iraq.
— The Iraqi people have the legal right to resist occupation, colonialism and genocide by all available means, including armed struggle.
— The national popular resistance in Iraq is combating genocide directly where international law as a preventative and protective mechanism has failed.
— In defence of civilisation, people the world over should rise up in support of the national liberation struggle of the Iraqi people.
— In defence of international law, jurists and law associations should work to bring the charge of genocide against the United States, its leaders and its allies.
— The world must criminalise all forms of war. Defensive wars would not be necessary in the absence of wars of aggression.2. IntroductionThe illegal US invasion of Iraq was and is a humanitarian catastrophe. Some try to explain this catastrophe as a by-product. They justify their concept on the absence of intent. Reviewing applicable principles of international law and American policy towards Iraq, this paper aims to prove that the humanitarian catastrophe present in Iraq is an essential component of US policy, constituting premeditated genocide against the people of Iraq. The intent that some propose is absent is flagrantly evident.
Consequently, this paper constitutes a call to jurists, law associations, and individuals from all walks of life to act on ending genocide in Iraq. This study was made not only because of the horrid consequences of the illegal US invasion of Iraq, but to lay a basis for stopping imperial adventures and to enrich the political thinking of instruments that can save our civilisation.
3. DefinitionsThe prohibition and prevention of genocide is a peremptory norm of international law. No derogation is permitted: states are obliged, individually and severally, to prevent genocide from occurring and to prosecute perpetrators, conspirators, those complicit and those who incite it. When a crime is ongoing the duty of authorities to enforce law by halting the crime is of special urgency. Enforcing law means protecting potential victims and apprehending suspected perpetrators.
That the international community not only failed to prevent the illegal US invasion and subsequent occupation of Iraq, but also supported what from 1990 has been a gathering US-led genocide in Iraq, is a catastrophic betrayal for the Iraqi people and an injury to us all.
The reasons are multiple and include: 1) Structural inequalities of power in world politics, epitomised in the UN Security Council, that assure domination for the few and subservience for the many; 2) Structural inequalities of power in the world economy, characterising capitalism on a world scale, that scare dependent states from speaking out on imperial crimes; 3) The general subordination of human rights to “peace and security” (i.e., pacification and impunity) illustrated in the perpetuation of a toothless, complicit and apologetic UN human rights system; and 4) The success of Zionist ideology in making the concept of genocide a synonym for “the holocaust”, thus both its own exclusive preserve and the model against which all alleged genocides must be compared.
The blanket of silence surrounding this grievous international crime contributes to the deaths of hundreds of Iraqis every day. If genocide cannot be prevented, the UN and its high ideals serve no function. At present nothing exists to prevent future atrocities on this scale or worse from occurring.
a) What is genocide?Of all terms in the lexicon, genocide is the true word for what is happening in Iraq. The controversy the word elicits reveals its potential. Some warn against using the term so as not to “debase its currency”. This is a misunderstanding of what genocide means. Others fear that if used wantonly, antiwar protest may appear sensationalist. In reality, any other word for US actions in Iraq is dishonest.
Looking closer, we find that the word genocide has two lives: its common meaning and its legal substance. Commonly, genocide is taken to mean the total annihilation of a people. Nothing less counts, hence scepticism in using the word. On rapid reading, UN General Assembly Resolution 96 of 1946 authorising the drafting of a genocide convention suggests the same understanding: “Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings.”1 But this definition bears reading again, for it is not the fact of annihilation that constitutes the crime of genocide, but rather denial of the right of existence of an entire given group. This nuance is important.
Article 2 of the 1948 Genocide Convention — now the legal standard2 — makes this point clear by focusing on the concept of intent, supplementing this with the important phrase, “in whole or in part”, thus grounding genocide not in numbers annihilated, but in the iniquity of a rationality that intends massively destructive consequences. This qualification is what ensures that the Genocide Convention is a preventative mechanism and not simply a reactive instrument. It also means that guilt is a moral determination.
Indeed, in origin the term itself — coined in the inter-war period by Raphael Lemkin, a Polish legal scholar — emerged from the effort to make “barbarity” and “vandalism” crimes under international law. It is intent to destroy that is the basis of the crime of genocide, illustrated in definable acts that constitute — or would — genocide.
Article 2 of the Genocide Convention reads:
In the present Convention, genocide 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;(d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group.
Article 3 notes that punishable acts include:
(a) Genocide;(b) Conspiracy to commit genocide;(c) Direct and public incitement to commit genocide;(d) Attempt to commit genocide;(e) Complicity in genocide.
From Article 2 a number of questions emerge: 1) what qualifies as “in part”? 2) What qualifies under each enumerated group? 3) What is the meaning of the destruction of an enumerated group “as such”? 4) What qualifies as “serious bodily or mental harm”? 5) What timeframe might “physical destruction” properly be determined on? 6) What qualifies as “destruction”? and 7) What is “intent”?
Given that the last question is the most important, I will address it separately below.
On the first question, though the convention itself simply says “in part,” which reasonably could be understood to mean one person (and indeed this is the way it is understood in the Elements of Crimes adopted by State Parties to the International Criminal Court, wherein, in Article 6 (a)-(e), corresponding to the acts enumerated in the Genocide Convention, it is simply noted that enumerated acts concern “one or more persons”3 ), general jurisprudential custom deems it necessary to demonstrate that “in part” means a “substantial part” as, for example, stated in the United States Code.
Given that it is the United States that has perpetrated genocide in Iraq, it is fitting to use US Code definitions of the crime of genocide. Under Title 18, Section 1093 of US Code, dealing with definitions of genocide, it is stated: “the term ‘substantial part’ means a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part.”3 This definition is nuanced, but arguably contains one element that may prove important in making the claim of US genocide in Iraq: the phrase “as a viable entity”.
“Viable entity” expands the qualification of what otherwise is often restricted to destruction as such: i.e., that the substantial part must be large enough to lead to the destruction of the whole group. Viable entity does not denote destruction — and certainly not physical destruction — necessarily. It simply denotes that the group would no longer function viably if a “substantial part” of it were destroyed or “lost”.
As to enumerated groups, US Code states:
(2) the term “ethnic group” means a set of individuals whose identity as such is distinctive in terms of common cultural traditions or heritage;(5) the term “national group” means a set of individuals whose identity as such is distinctive in terms of nationality or national origins;(7) the term “religious group” means a set of individuals whose identity as such is distinctive in terms of common religious creed, beliefs, doctrines, practices, or rituals
The qualification “as such” in the Genocide Convention is an element of purposive specificity: that any of the acts enumerated are conducted against individuals as part of a group understood as a group as such. Thus one is obliged to provide some level of proof that: 1) the group was targeted as such (which can be established on the basis of a pattern of accumulated actions and not necessarily any stated objective or intent); and 2) the targeting of the group could be understood within the context of “specific intent” to perpetrate genocide, either of that group as such or, arguably, of the nation “within which such a group is part.”
As this paper aims to establish overall, a complex genocide has unfolded in Iraq involving the targeting of several definable groups in order to destroy a “substantial part” of the nation of Iraq “of such numerical significance” that the state and nation of Iraq would cease to exist a “viable entity”.
Strictly on the definition provided under US Code of ethnic group, the nation of Iraq as a whole would qualify (notwithstanding the category of national group), and within that nation, arguably, the Iraqi middle class and the impoverished Iraqi rural class. As a targeted “national group”, members of the Iraqi Baath Party, while political, may qualify. As a targeted religious group, it is clear that Sunni Arabs have been and remain, at present, the predominant target of the US occupation.
Finally, concerning what constitutes “serious bodily or mental harm”, what timeframe upon which “physical destruction” might properly be determined, and what qualifies as “destruction”, international jurisprudence and incorporations of the Genocide Convention into the national law of states varies. In some instances, specific aspects are named as to what might be deemed serious bodily or mental harm4, while little in the way of jurisprudence defines the timeframe on which destruction ought properly to be viewed. Similarly with destruction itself; thus, in any given case, it is largely down to argument. And again, given that the Genocide Convention is designed also to be a preventative instrument, destruction may not even have taken place or begun as such.
Article 3 — as well as the focus on intent — indeed ensures that the Genocide Convention is not simply a reactive instrument to be invoked after a given genocide, but may be invoked before a single death has been recorded, particularly in section (b) where “conspiracy to commit” would appear to most strongly criminalise intent itself rather than the execution of that intent.
Reference to the crime of “complicity in genocide” also assures that the reach of the Genocide Convention is potentially very broad — in the case of Iraq, perhaps even criminalising the silence of the international community and responsible state leaders in the context of US actions that at the very least constitute — as defined by the Elements of Crimes of the ICC — the crimes against humanity of murder, extermination, imprisonment, torture, rape, sexual violence, persecution, enforced disappearance and other humane acts, and the war crimes of wilful killing, torture, inhuman treatment, wilfully causing great suffering, destruction and appropriation of property, denying fair trial, unlawful confinement, attacking civilians, attacking civilian objects, of excessive incidental death, injury or damage, of attacking undefended places, of killing or wounding a person hors de combat, of attacking protected objects, of destroying or seizing the enemy’s property, of depriving the nationals of the hostile power of rights or actions, of pillaging, of employing prohibited gases, liquids, materials or devices, of outrages upon personal dignity, of rape, of sexual violence, of starvation as a method of warfare, of murder, of cruel treatment, of torture, of taking hostages, of sentencing or execution without due process, of displacing civilians, and of treacherously killing or wounding, and which arguably constitute a pattern amounting to genocide.
In combination, from Articles 2 and 3 of the Genocide Convention we can conclude: 1) There is no threshold of genocide as such; rather, it is qualified on the basis of a determination of the moral degradation contained within qualifying acts that are conducted with the intent that destruction, or the rendering “unviable” of an enumerated group, whether in whole or in part, or substantial part, will be the consequence; 2) That genocide concerns an existential threat to a given group in intent, even if actual destruction of the group is not achieved; 3) That genocide also concerns the intent to annul the positive biological development of a group, whether by mental or bodily harm or by interceding to prevent propagation or disrupt social generation; 4) That intent alone is imputable under international law; and 5) That complicity with consequences that qualify as genocide is imputable under international law.
Once the complexity and flexibility of the operative articles of the Genocide Convention has been digested it is easier to understand what Lemkin opined when commenting on the incorporation of his concept into international law:
Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.5
Lemkin’s prose definition of genocide is practically word for word what has happened in Iraq since 1990. The possibility of reading Lemkin’s definition into the Genocide Convention denotes that the convention is undoubtedly an undervalued instrument that could be used to pressure an end to US aggression on Iraq and potentially form the basis of reparative prosecutions. What is at issue, simply, is the burden of proof relative to specific intent, and substantiated argument relative to qualifying acts and enumerated groups “as such”.
Again, states are obliged, individually and severally, to prevent genocide from occurring and to prosecute perpetrators, conspirators, those complicit and those who incite it. After four years of US carnage and 13 years of prior US-UN sanctions, the antiwar movement, in connection with jurists and legal associations, has the material, expertise and organisational skills to ensure that this obligation is met.
b) What is intent?Prosecution under the provisions of the Genocide Convention demands the demonstration of purposive or “specific intent”. Referred to also as the mens rea (“guilty mind”, “guilty or wrongful purpose”, or criminal intent), specific intent usually, though not always, must infer an understanding that the action undertaken would lead to the destruction, or rendering unviable, in whole or in part, or substantial part, of an enumerated group; that as such would constitute an unlawful act, and that the consequence is desired. It is perhaps fair that the gravest of international crimes sets the burden of proof so high, but in the case of Iraq it is not unreachable.
In criminal law there are traditionally five levels to intent, differentiated according to different degrees of foresight and criminal desire: 1) Purposive intent, where an unlawful consequence is foreseen, desired and planned for. In this category it is not strictly required that the actus rea — the given act or set of acts constituting genocide — is present, though if it is it adds significantly to the weight and charge of the offence; 2) Oblique intent, where simply the consequences can be seen as an assured outcome of a given act or set of acts; 3) Knowingly, where the accused knows or reasonably should know the certainty of the outcome of a given act or set of acts; 4) Recklessness, where the consequences are seen to be possible but the act or set of acts is undertaken anyway; and 5) Negligence, where liability is centred on a firm sense that the consequences should have been foreseen but where the accused did not foresee the consequences.
Purposive and oblique intent and knowingly undertaking a given act are all under the umbrella of “specific intent”, whereas recklessness and negligence are deemed “general intent”. In a sense, knowingly undertaking a given act within the framework of specific intent is akin to negligence in general intent, where both oblique intent and clear purposive intent could constitute the degree of specific intent necessary to secure conviction under the provisions of the Genocide Convention. On the other hand, recklessness might be deemed a grave disregard for human life, and thus constitute the “requisite mental element” required for prosecution under the Genocide Convention. Negligence would fail the test of specific intent.
Simply put, the argument that the occupation of Iraq has been one blunder after another is contrary to the elements of the crime of genocide, which perhaps explains its present currency in popular discourse. On the other hand, if it could be established that the consequences of US actions in Iraq were certain, or even that the US administration ought reasonably to have known, specific intent, and hence conviction for genocide could be established. Without doubt, if it could be shown that there was a strong desire — even undeclared — to bring about the consequences that constitute genocide, responsibility for the crime of genocide would be unavoidable.
In jurisprudence there are three essential categories for how intent is judged: 1) the objective test, where mens rea is imputed on the basis that any reasonable person would have had the requisite mental element in the same circumstances. Here the continuum between “inevitable, probable, possible and improbable”, related to projected consequences of acts, is explored relative to the specific circumstances of a given case; 2) The subjective test, where a given court must be satisfied that the accused had the requisite mental element, or either direct intent or knowingly undertaking the act, or recklessly undertaking the act; and 3) A hybrid of objective and subjective determinations. The essence of the act of adjudication is to determine the relation between foresight (or foreseeability) and desire for the given consequences to occur.
In time of war, “intent to destroy” may appear indistinguishable from warfare. This is not the case. While in restricted circumstances warfare may permit so-called “legal killing”6, in all instances it is governed by international humanitarian law. Not everything is permitted in so-called “legal war”. In the case of Iraq, all use of US force was and remains illegal under international law7; but at issue here is under what conditions might the use of force constitute “intent to destroy” as defined by the Genocide Convention.
In general, there are two conditions: 1) When the use of force is substantially disproportionate and indiscriminate (a determination based an assessment of the level of force necessary to achieve a military objective, and the extent to which the obligatory distinction between military and civilian targets has been observed in the action); and 2) When patterns of given consequences destroy — or could reasonably be foreseen to destroy — in whole or “substantial part” an enumerated group.
Relative to substantially disproportionate and indiscriminate force, as illustrations of the principle, the massive and overwhelming destruction of Fallujah, Tel Afar, Al-Qaem, Haditha and Ramadi, among other cities and towns destroyed, qualifies. In Fallujah, 75 per cent of the city was levelled. In the words of 1st Lieutenant Ben Klay, who took part in the decimation of Ramadi, “We’re used to taking down walls, doors and windows, but eight city blocks is something new to us.”8 Added to the illegal use of white phosphorus and napalm equivalent MK-77 in Fallujah and Tel Afar, these wilful illegalities reveal the mens rea of desire to destroy.9
Alternatively, the notion of “Shock and Awe” — 800 missiles raining down on Baghdad in the first 48 hours of a bombing campaign that lasted 300 hours — appears to declare outright intent to use disproportionate force, mortally targeting Iraqis as a national group as well as causing trauma and serious mental harm. As one Pentagon strategist boasted to CBS News, “There will not be a safe place in Baghdad.”10 This is also prime facie evidence of the mens rea of specific intent.
On whether the distinction between civilian and military targets has been respected and upheld, with credible studies reporting as many as 1,000,000 Iraqi civilian deaths since 2003 alone, a number that is increasing rapidly, US use of force would appear clearly indiscriminate.11 Alternatively, the use of depleted uranium (DU) ordnance — about 2,000 tons to date since 2003, around 10 times what was used in the 1991 Gulf War — illustrates unequivocally indiscriminate and disproportionate force in that DU, which is airborne and waterborne, has a half-life of 4.7 billion years, causing sterility, cancer, leukaemia and birth defects, as well as rendering swathes of Iraqi land permanently lethal and unusable. Indeed, the United States has not only attacked living Iraqis, but also the unborn generations of Iraq.
Shuna Lennon makes an important point when stating: “desire to bring about the illegal result is not an essential component of intention, and that bringing something about because it is a means to a quite different end can be sufficient.”12 This illustrates the principle noted above of knowingly undertaking an act where the perpetrator claims either not to have known, or desired, the consequent outcome. In the instance of DU, it is simply unconvincing that US commanders could be unaware of the disproportionate and indiscriminate impact of its use. At best, it illustrates grave disregard for human life, and at worst oblique intention or direct intention. A strong argument could be made for the case of direct intent on the basis that many targets of US DU use are not military vehicles or other heavily armoured installations but rather civilian districts in Mosul, Basra, Samawa and Baghdad, among other towns and cities.13
On the other hand, specific intent can be inferred in the accumulated “pattern of purposeful action”. If the sum of the whole creates as a consequence the destruction, in whole or substantial part, of an enumerated group, and if these consequences are known or can be reasonably foreseen in advance, or even if brought to the attention of commanders mid-operation and ignored, this may be deemed genocide and mens rea specific intent. As Lennon states: “where a consequence is foreseen as a matter of moral certainty, intention can be said to be present.”
Ongoing attempts to impose a military solution on Iraq should be seen in this light, while the 13-year US-imposed UN sanctions regime that led to the “excess deaths” of 1,500,000 Iraqis is a clear example of “patterns of given consequences” where foreseeability was present and the policy continued, suggesting at the least oblique intention (which is sufficient for conviction on genocide in being a category of specific intent), but more plausibly — given constant US bullying in the UN to maintain the clearly destructive sanctions regime — purposive intent.
Sanctions also illustrate the principle of complicity in genocide. Lennon opines:
Even if it is arguable that the UN did not know as a matter of moral certainty from the inception of the sanctions that they would bring about civilian starvation and deaths, it certainly knew from the time when its own investigations revealed to it the extent to which the sanctions were causing civilian deaths. The earliest date on which that occurred is perhaps open to debate. It may be as late as 1995. However, the fact that the blockade / sanctions regime inherently targets civilians must have been known to its architects from its inception and accordingly criminal liability attaches under the Geneva Protocol.14
This conclusion formed the basis of Francis Boyle’s petition for relief from genocide submitted to the secretary general of the UN and other relevant bodies 18 September 1991. In this petition, after listing (paragraphs 5-18) the risks faced by the applicants of the petition (4.5 million Iraqi children), Boyle states:
Only the “specific intent” of Respondent George Bush to commit genocide against Applicants remains to be proven beyond a reasonable doubt to establish his criminal responsibility under United States municipal law and international criminal law. The open publication and widespread dissemination of the Harvard Report on 22 May 1991 makes that task possible. Any Bush administration official responsible for implementing the economic sanctions policy against Iraq who has knowledge of the conclusions of the Harvard Report would possess the “specific intent” required to serve as the mental element or mens rea of the international and municipal crime of genocide against Applicants, The 4.5 Million Children of Iraq. Applicants assert that Respondent George Bush has full knowledge of the genocidal consequences of the continuation of economic sanctions against Iraq and therefore has the mens rea necessary for committing the crime of genocide as recognized by the Genocide Convention and the Genocide Implementation Act.15
Boyle’s conclusion is echoed in an article by Elias Davidsson wherein the relationship between “knowledge” and intent in international criminal law is discussed. Davidsson concludes:
The conjunction of foreseeability, general intent to cause hardships, detailed and compelling notice served on a regular basis, and a protracted neglect to monitor the consequences, strongly suggests a specific criminal intent to cause the observed harm in Iraq.16
So specific intent can also be established on the basis of reasonable foreknowledge of the consequences of a given action or pattern of actions; most especially when destructive consequences are identified midway into an action, or pattern of actions, and the concerned party fails to prevent these consequences, or continues to perpetrate them. In this instance not only are the consequences certain in and of themselves (oblique intention), and not only does the party know of them (knowingly undertaking a given act), but it cannot constitute reckless intent because the consequences are certain, not simply a possibility. It can only infer direct intent, or the highest level of criminal intent.17
Importantly, it would be for a court to decide if the pattern of consequences known and ignored or addressed insufficiently amounted to specific intent, not the individuals who perpetrated the acts. As explained by international law expert Roger O’Keefe, bodies like the International Court of Justice (ICJ) “can decide to convict on the balance of probabilities, rather than beyond all reasonable doubt.”18
In all events, it is unlikely that direct intention will be declared openly.19 Jean-Paul Sartre in his essay “On Genocide”, written in the context of the Vietnam War, discusses the question of intent when direct proclamations are absent. His analysis is sentient in the context of the current occupation of Iraq and US attempts to break resistance to that occupation.
Cognizant that Hitler was an exception to the rule when it came to candour, Sartre writes:
The declarations of American statesmen are not as frank as those that Hitler made in his day. But honesty is not indispensable; the facts speak for themselves … it can only be premeditated. It is possible that in the past genocide was committed suddenly, in a flash of passion, in the midst of tribal or feudal conflicts. Anti-guerrilla genocide, however, is a product of our times that necessarily entails organisation, bases and, therefore, accomplices (from a distance) and the appropriate budget. It needs to be thought over and planned. Does this mean that those responsible are fully aware of their own intentions? It is difficult to decide: to do so one would have to probe the latent ill-will of puritanical motives … [But] we do not have to worry about this psychological hide-and-seek. The truth is to be found on the field … The young Americans torture without repugnance, shooting at unarmed women for the pleasure of completing a hat-trick: they kick the wounded Vietnamese in the testicles; they cut off the ears of the dead for trophies … Whatever the lies or nervous hedging of the government, the spirit of genocide is in the soldiers’ minds. This is their way of enduring the genocidal situation in which their government has put them.20
Sartre’s understanding of premeditation is reflected in the Elements of Crimes of the ICC that stands as a legal reference point in developing definitions of genocide.3 This document contains illustrations of the kinds of conduct that would immediately qualify under subsections (a) to (e) of Article 2 of the Genocide Convention. Alongside intent is added “context”, which in all cases reads: “The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.”
Indeed, a review of the strategic context of US Middle East policy, and Iraq policy specifically (see below), suggests that the 2003 invasion was but the “execution phase”, or “endgame” of a general strategy of destroying the state and nation of Iraq predicated on the premeditated destruction of a “substantial part” of the Iraqi population, rendering the state and nation unviable as entities.
As Sartre might say, the facts speak for themselves. In the words of John Pace, former human rights chief of the UN Assistance Mission in Iraq: “The country has been blown apart in terms of its social structures and social fibre.”21
4. Beyond lawLegal definitions by nature favour the exigencies of order. Ultimately, there is a second level — moral, civil and political — embodying the calling of common sense and conscience. While it is important, if the antiwar movement is to take up the term genocide, to understand in outline the legal issues, comprehending the broader context and its immediate manifestation is indispensable.
a) The genocidal logic of neo-colonial warIn his essay, “On Genocide”, Jean-Paul Sartre goes beyond legal definitions to place genocide as a “thing” in an evolving historical context. There is not one society that has not practised genocide, Sartre says, but the form that genocide takes is different relative to the nature of the state and states system from which it emerges, and the nature of warfare each suggests and produces.
From the 19th century, with the development of mass industry and the democratic evolution of bourgeois societies, Western states increasingly engaged one another in strategies of “total war”, entailing not only the industrial development of the machinery of war, but the breaking down of the distinction between the civilian population and the military, and the extension of competition between states into imperial acquisition worldwide. The logic of “total mobilisation” is the mirror of total war, in that defence of the nation becomes synonymous with defence of the “way of life” it expresses and embodies.22 International laws — in particular the laws of war — are but a “vain” attempt to humanise total war.
Total war between “advanced” states, however, rarely becomes genocide. On the one hand, total war finds comfortable expression in industrial competition, only coming to actual war when powers reach parity that in duration blocks the dynamic of competition and wealth production that are based respectively in inequality and exploitation. More importantly, the general equality of advanced states forestalls outright genocide because of the possibility of retaliation it embodies.
A different logic exists in the imperialist process. Here there is no parity of forces, so no military consideration prevents wars of conquest from being genocidal. On the other hand, the colonial endeavour in nature, at least to some extent and not always, protected the populations of colonies from outright genocide. Colonialism is a system whereby natural resources are plundered and manufactured goods are sold back to colonised populations at world market prices. The destruction of colonised peoples undermines the very logic of that colonial exchange.
The problem is that, generally, no people can accept to be the slaves of others for long. Thus, constant massacres and torture were embedded in the colonial system, in order to keep the numerically superior colonised subservient to the colonial settlers. At the same time, the colonial system destroys pre-existing social structures; constituting genocide of a different kind and building pressures within the colonial system that ultimately break out in wars of national liberation. By the mid-20th century, bolstered by their experience as proxy armies for colonial states, and increasingly aware of the nature of the international colonial system, numerous former colonies seized their independence.
Neo-colonialism has been the response of the former colonial powers; on the one hand subjecting newly post-colonial states to an institutionalised system of unequal exchange, and on the other hand staking their existence within political frameworks that open the way to military occupation and re-colonisation. The Cold War was such a system, and the “War on Terror” is its successor. In general, neo-colonial wars are different because what is at stake in each instance is the example that must be set to all other post-colonial states: that the colonial relation did not end, but can and will be reasserted at will.
Principally, it is the instrumentalisation of international financial, economic and political relations that allows for neo-colonisation. Such was the role of the UN sanctions regime and weapons inspections programme for Iraq. Only when the United States was assured there were no weapons of mass destruction in Iraq was it possible to wage the war it had long prepared; only when it was certain that economically and socially Iraq was on its knees could it invade. The US war on Iraq is not the conduct of politics by other means in any classical sense, nor even a classical war, but rather a neo-colonial war: a war of liquidation, genocide and plunder.
Neo-colonial war is “total war waged to the end by one side and with not one particle of reciprocity.” And it is this inequality that — akin to colonial suppression, only greater — contains within it the logic of genocide.
Sartre writes:
the scarcity and quality of weapons [on the side of the invaded state] … dictates the nature of the fighting: terrorism, ambush, harassing the enemy, and the extreme mobility of the combat groups which [have] to strike unexpectedly and disappear immediately. This [is] not possible without the participation of the entire population … Against partisans backed by the entire population, [neo-colonial] armies are helpless. They have only one way of escaping from the harassment which demoralises them … this is to eliminate the civilian population. As it is the unity of a whole people that is containing the conventional army, the only anti-guerrilla strategy which will be effective is the destruction of that people, in other words, the civilians, women and children … A determined population, unified by its fierce and politicised partisan army, will not let itself be intimidated, as it was in the heyday of colonialism, by a massacre ‘as a lesson’. On the contrary, this will only increase its hatred. It is no longer a matter of arousing fear but of physically liquidating a people.
Sartre clarifies the point by exploring the psychology of the colonial soldier in Vietnam:
In these confused American minds the Viet Cong and the Vietnamese tend to become more and more indistinguishable. A common saying is ‘The only good Vietnamese is a dead one’, or, what comes to the same thing, ‘Every dead Vietnamese is a Viet Cong’ … Originally, they were probably disappointed: they came to save Vietnam from Communist aggressors. They soon saw that the Vietnamese actually disliked them. Instead of the attractive role of the liberator they found themselves the occupiers. It was the beginning of self-appraisal: ‘They do not want us, we have no business here.’ But their protest goes no further: they become angry and simply tell themselves that […] there is not a single Vietnamese who is not really a Communist: the proof is their hatred of the Yankees. Here, in the shadowy and robot-like souls of the soldiers, we find the truth about the war in Vietnam: it matches all of Hitler’s declarations. He killed the Jews because they were Jews. The armed forces of the United States torture and kill men, women and children in Vietnam because they are Vietnamese.
In neo-colonial “wars of example”, especially — as in Vietnam — where the economic interests are minimal, the “innate contradiction” in colonial logic that once forestalled genocide (keeping the natives alive as consumers for industrial goods), no longer pertains. In this case, Sartre writes, “Total genocide then reveals itself as the foundation of anti-guerrilla strategy. And, under certain circumstances, it would even present itself as the ultimate objective, either immediately or gradually.”
This is not to say that the people aggressed have no choice. There is always submission. But submission is simply the revitalisation of colonialism, and as such is genocide by another name. As Sartre explains: “One cannot colonise without systematically destroying the particular character of the natives, at the same time denying them the right of integration with the mother country and of benefiting from its advantages … It naturally follows that the colonised lose their national personality, their culture, their customs, sometimes even their language, and live in misery like shadows.”
So the commencement of physical genocide is used as blackmail to force the aggressed to accept another genocide. Here “substantial part” loses all meaning, for its annihilation is but a means to force the rest into submission. That the choice is posed between death and submission doesn’t stop the act from being genocide by intention. As Sartre writes:
Let us say that there is only a choice between immediate violent death and a slow death after mental and physical degradation. In fact, say the American government, we have done nothing but offer the Vietnamese this choice: either you stop your aggression or we break you. This absurdity is not uncalculated: it is clever to formulate a demand which the Vietnamese cannot possibly satisfy. In this way, America remains the master of the decision to stop the fighting. But, one might read the alternatives as: declare yourselves conquered, or ‘we will take you back to the Stone Age’. It does not cancel out the second term of the alternative, which is genocide. They have said: genocide, yes, but only conditional genocide. Is this legally valid? Is it even conceivable?
Until submission: “villages are burnt, the population has to endure massive and deliberately destructive bombardments, the cattle are shot at, the vegetation is ruined by defoliants, what does grow is ruined by toxic elements, machine guns are aimed haphazardly, and everywhere there is killing, rape and pillage.” And not only the daily risk of death and environmental destruction, but also “the systematic destruction of the economic system, from the irrigation ditches to the factories of which ‘there must not be a brick left upon another brick’; destruction of hospitals, schools, places of worship, consistent effort towards wiping out [national] achievements.”
After submission: “most elementary needs are ignored. There is under-nourishment and complete lack of sanitation. The social structure is destroyed … family life no longer exists. As the homes are broken up, the birth rate diminishes; all possibility of cultural or religious life is abolished. Even work that will improve the standard of living is denied … The elder sister or the young mother, without a breadwinner and with so many mouths to feed, sinks to the utmost degradation in prostitution to the enemy.”
In reality, neo-colonial strategy presents the aggressed population with one choice: resistance or collective death or disintegration. So long as it resists, it faces massive deliberate attacks or the possibility of extinction in an overwhelming genocidal campaign, while if it submits, it faces conditions of life that amount to genocide of another kind. Insofar as there is no choice except resistance and survival, popular resistance wages its struggle in the hope of debilitating the aggressor sufficiently enough as to slow him down and spark unrest within his domestic population, while not overly provoking him into launching an all out campaign of extermination. This cat and mouse war of attrition will last so long as a political solution is absent (i.e., the withdrawal of the colonial state) and so long as the political will of the resisting population remains firm.
From the vantage point of the neo-colonial state, either the aggressor “gives way, makes peace and recognises that a whole nation is opposing him,” or else, realising that classical colonial repression will not work, resorts — if he can do so without damaging his own interests — to “extermination pure and simple.”
The resisting population, on the other hand, can only choose resistance, as resistance — to the extent to which the full discharge of the neo-colonial state is avoided, and to the extent to which the effects of colonial terror “in its psycho-social consequences”23 can be ameliorated — is the only possible path to liberty and independence.
b) Genocide by occupationOne can surmise that because this equation must be understood in advance, the very waging of neo-colonial war is genocidal in that success amounts to cultural genocide for the colonised, while failure presents genocide as a solution for the colonial state. A logic of genocide is inherent to neo-colonial war in all respects: in its duration in the face of popular resistance; in the tactics it must resort to in order to quell popular resistance; in the possibility of massive escalation in the face of popular resistance; and in the outcome if submission is achieved.
The principle of genocide by duration is currently exhibited in occupied Iraq. Under international humanitarian law, the United States as an occupying power is obliged to provide for the wellbeing of Iraqis. Yet so long as they are occupied, the Iraqi people, naturally set against the occupying power in resistance and embodying as such the continuity of the state, have no interest in pursuing anything but bare survival lest the situation of occupation become normalised.
This mode of resistance is illustrated well in how quickly sabotage, especially of strategic infrastructure like oil pipelines, took hold in Iraq following the onset of the US occupation.24 Naturally, any resistance movement to occupation has an interest in making the occupation as difficult and as costly as possible for the occupying power. Given that US officials, in order to get American public backing for the war, stressed that Iraqi oil would pay to rebuild the country they would imminently destroy25, oil production has been constantly targeted by Iraqis themselves in order to drain the pocket of the American taxpayer.
Thus it is not simply the incompetence, corruption and punitive mentality of the United States and its local proxies that explain why four years into the US occupation even basic services like access to water and electricity are debilitated. The overall level of reconstruction is held at zero not only as a collective punitive measure, but also because the Iraqi resistance prevents Iraqi oil from reinforcing the occupation or paying for America’s war of aggression. The $50 billion in Iraqi assets that the US seized along with revenues from oil possibly exported has funded no real reconstruction in four years. Money is used, rather, on military and police operations, sunk into political corruption, or funding propaganda campaigns.
It is in this context that the intransigence of the US occupation — its unwillingness to accept its defeat and withdraw — suggests additional genocidal intent. So long as the US occupation continues, the overall suppression of Iraqi wellbeing persists, development and life-sustainability impeded. Intransigence leading to arrested development augments the toll of excess deaths and the general psychosis experienced by those living in continual fear of imminent annihilation, and steals from Iraq, every day the US occupation remains, countless productive life hours and life years.
Given that the US must be aware that Iraqi reconstruction is impossible so long as it remains an occupying power, the fact that it remains an occupying power is further evidence of the US “knowingly” committing genocide, or, if used as blackmail and punishment, “purposely” committing genocide as outlined above.
PART II continues herePART III continues here
A full pdf version is available here
NOTES
UN General Assembly Resolution 96, 11 December 1946, http://un.org/documents/ga/res/1/ares1.htm↩
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277, 280. http://unhchr.ch/html/menu3/b/p_genoci.htm↩
Elements of Crimes, 3-10 September 2002, http://amicc.org/docs/Elements_of_Crimes_120704EN.pdf↩
Reservations lodged by the United States to the Genocide Convention stipulate that for the United States: “the term ‘mental harm’ in Article 2 (b) means permanent impairment of mental faculties through drugs, torture or similar techniques.” http://unhchr.ch/html/menu3/b/treaty1gen.htm. These reservations remain controversial and would be irrelevant in a court of universal jurisdiction where the court exercises judgement relative to what would constitute a crime in the state of its location.↩
Raphael Lemkin, “Genocide,” in A L Hinton (ed), Genocide: An Anthropological Reader (Oxford: Blackwell Press, 2002), p. 27.↩
International humanitarian law limits what is deemed acceptable in warfare, but the majority of the world’s legal scholars put the right to life as paramount, thus criminalising war in all circumstances. In the Anglo-American legal community, there is a split, with some supporting this majority decision and a majority arguing that killing is permissible in restricted circumstances. There is little jurisprudence.↩
Clearly the Iraqi government is not a sovereign entity that can credibly request the continued presence of US forces in Iraq. Rather, it is an extension of an illegal occupation established after an illegal war of aggression. In this sense, UN Security Council Resolution 1546, which is the basis of subsequent extensions of the mandate for Multinational Force-Iraq, is contrary customary international law, in particular the Draft Articles on State Responsibility that prohibits states from recognising as legal the consequences of a serious breach of international law.↩
Arab Commission for Human Rights, et al., “War and Occupation in Iraq,” http://globalpolicy.org/security/issues/iraq/occupation/report/index.htm↩
http://brusselstribunal.org/WMD.htm↩
In the words of Harlan Ullman, chief architect of the shock and awe “regime”: “This ability to impose massive shock and awe, in essence to be able to ‘turn the lights on and off’ of an adversary as we choose, will so overload the perception, knowledge and understanding of that adversary that there will be no choice except to cease and desist or risk complete and total destruction.” http://alternet.org/story/15027/ and http://commondreams.org/views03/0127-08.htm↩
http://brusselstribunal.org/Lancet111006.htm. In the Report of the UN Sub-Commission on Genocide, the special rapporteur stated that “the relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Articles II and III of the Genocide Convention, is strong evidence to prove the necessary intent to destroy a group in whole or in part.” Paragraph 93, Prosecutor v. Clement Kayishema & Obed Ruzindana, Case No. ICTR-95-1-T (21 May 1999). Further, in the recent ruling of the International Court of Justice on Srebrenica, 8,000 deaths was deemed sufficient to constitute genocide.↩
Shauna Lennon, “Sanctions, Genocide and War Crimes,” http://hartford-hwp.com/archives/27c/437.html↩
Souad Al-Azzawi, “Depleted Uranium Radioactive Contamination in Iraq,” http://brusselstribunal.org/DU-Azzawi.htm. As Al-Azzawi rightly states, “Existing DU contamination in the surrounding environment is a continuous source of (low level radiation) exposure to civilians which can be considered systematic attacks on civilians in an armed conflict.”↩
As early as March 1991, the UN secretary-general dispatched to Iraq an inter-agency mission to assess Iraq’s humanitarian needs. The mission reported that “the Iraqi people may soon face a further imminent catastrophe, which could include epidemic and famine, if massive life-supporting needs are not rapidly met.” http://un.org/Depts/oip/background/reports/s22366.pdf. UN sanctions began in August 1990 and didn’t end until May 2003.↩
Francis Boyle, “On Behalf of Iraq’s 4.5 Million Children: A Petition for Relief from Genocide,” 23 November 2002, http://counterpunch.org/boyle1123.html↩
Elias Davidsson, “United States Foreseeability, Awareness and Knowledge of the Consequences of the Sanctions Against Iraq,” http://aldeilis.net/english/images/stories/economicsanctions/knowledge.pdf↩
Relative to UN sanctions as a specific case, the question would be to assess the extent to which humanitarian exemption, on the one hand, and the so-called Oil-for-Food Programme, on the other, ameliorated the overall debilitative effect of total international isolation, and whether the degree to which they did ameliorate those effects was reasonably sufficient in the face of given and known consequences. Other papers in this volume discuss the case of sanctions in detail (see chapters by Hans C Von Sponeck and Christian Scherrer).↩
In the case of former Rwanda Prime Minister Jean Kambanda, the International Criminal Tribunal for Rwanda found that intention could be inferred from actions and omissions, though Kambanda claimed he did not have the intention to destroy an enumerated group in whole or in part. Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S (4 September 1998). Kambanda was convicted and sentenced to life imprisonment.↩
Madelaine Albright’s infamous statement that the price of 500,000 dead children was “worth it” is an exception, and almost certainly could have formed the basis of a petition to the International Court of Justice. Indeed, the renowned legal expert Francis Boyle offered to the Iraqi government to do just that. President Hussein decided not to proceed.↩
Jean-Paul Sartre, “On Genocide”, http://brusselstribunal.org/GenocideSartre.htm↩
http://uruknet.info/?p=21095↩
Michel Foucault makes a complementary point in his essay, “Right of Death and Power over Life”, in The History of Sexuality, Volume 1 (London: Allen lane, 1979), p. 137: “Wars are no longer waged in the name of the sovereign who must be defended; they are waged on behalf of the existence of everyone; entire populations are mobilised for the purpose of wholesale slaughter in the name of life necessity: massacres have become vital. If genocide is indeed the dream of modern powers, this is not because of a recent return of the ancient right to kill; it is because power is situated and exercised at the level of life, the species, the race, and the large-scale phenomena of population.”↩
http://brusselstribunal.org/DeathAnxiety.htm↩
http://iags.org/iraqpipelinewatch.htm↩
When General Jay Garner, chief of the Office for Humanitarian Relief Assistance (ORHA), in February 2003 decried the fact that his team was allocated only $27 million to rebuild Iraq where Garner forecasted the cost of reconstruction to be upwards of $12 billion, Donald Rumsfeld told him: “If you think we’re spending our money on that, you’re wrong. We’re not doing that. They’re going to spend their money rebuilding their country.” Echoing the same attitude, in April 2003 Pentagon spokesman Lawrence Di Rita told ORHA officials: “We don’t owe the people of Iraq anything. We’re giving them their freedom. That’s enough.” See also http://commondreams.org/headlines03/0110-01.htm↩
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