International law is a vital part of interactions between nation-states in the modern world. It is what allows states to emphasize sovereignty while simultaneously trading and interacting with other states with limited conflict. The emphasis on crimes against humanity and genocide in international law allows states and organizations like the UN to intervene when one state is violating the rights of its own citizens or those of other states. This does not mean, however, that the written international laws on these crimes are at all perfect, or able to address all international wrongdoings. International law generally fails to confront the pain and suffering inflicted upon populations during wartime. Violence perpetrated in the name of political ideals is left unpunished. Collateral damage and “unintentional” genocide occur frequently, but no state is held accountable for the extreme suffering of their “unintentional” victims. One solution to the loophole in international law for “unintentional” mass death, is to extend the definitions of intent used in domestic law to cover the definitions of intent in international law. The use and extension of the “domestic analogy” could be a solution for the lack of punishment states and state actors receive when they commit unintentional genocide, but still contains many flaws and does not fully account for the differences between domestic and international laws in regards to sovereignty, punishment, and the prevention of violence. Ultimately, accountability for unintentional civilian harm cannot be found through legal means.
In 1990 the United Nations imposed sanctions on Iraq that decimated their population. Published in 2012, the book, “Invisible War: The United States and the Iraq Sanctions,” by Joy Gordon summarizes:
While the United Nations (UN) Security Council was within its mandate to respond to Iraq’s invasion of Kuwait, the sanctions regime it imposed, in conjunction with the massive bombing campaign of 1991, destroyed nearly all of Iraq’s infrastructure…For the next twelve years the sanctions would prevent Iraq from restoring any of these to the level Iraq had achieved in the 1980s and would devastate the health, education, and basic well-being of almost the entire Iraqi population.
Gordon details the United States and UN involvement in the sanctions and essentially puts the actions of the United States on trial for genocide and crimes against humanity. The 1998 Rome Statute defines genocide as, “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, and crimes against humanity as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Using these definitions, Gordon finds the United States to be innocent. In the case of Crimes Against Humanity, the United States was aware that its actions were causing harm to civilians, but because the intent was to weaken the state and the military; therefore, the harm against civilians was collateral and not direct.
The United States is not guilty of genocide or crimes against humanity because it did not have the proper intent associated with these defined terms. The intent of state actors is important in determining whether they have committed acts of genocide or crimes against humanity. The claimed and publicized intent of the United States during the sanctions was to ensure that the Iraqi government did not rebuild its military. The United States had an issue with Saddam Hussein’s regime and the possibility of a militarily strong Iraq. Because of the perceived threat, the United States was able to claim that its intentions were not aimed at harming civilians. Gordon states:
It is true that U.S. officials found evidence of [WMD production] when it seems that no rational person would have, and that they gave no weight at all the the humanitarian consequences of their decisions, except when the suffering in Iraq created political problems for the United States. But that is not quite the same thing as calculating the destruction of Iraqi civilians; nor is it the same as an intent to annihilate Iraqis, because they are Iraqis.
In order for the United States to be found guilty of genocide, an open statement by the US claiming intent to either kill or displace the entire Iraqi population, or an ethnic group within the Iraqi population would be needed. Because it did not do this, it was able to avoid being held responsible for the decimation of the Iraqi people.
In the same way that the United States was able to skirt around the act of genocide, it dodged many claims of crimes against humanity. Gordon writes:
Just as the U.S. policies do not quite meet the intent standard for genocide, it can also be said that the infliction of conditions that brought about the destruction of so many people in Iraq was not actually ‘calculated’ to accomplish the goal of extermination, which is a crime against humanity, but was rather just the consequence of the United States’ very extreme interpretation of security concerns.
While the United States was certainly aware of the harm that was being done to the Iraqi people because of the sanctions, it was able to claim that its intentions were not to exterminate the population. The United States argued that the lifting of the sanctions was also a responsibility of the Iraqi regime. The United States was fighting the regime, not the people. This meant that any of the United States actions that harmed citizens could be brushed off as being aimed at controlling the regime or reducing the ability of the military. The United States also argued that it was up to the Iraqi regime to comply with demands in order to lift the sanctions.
Despite the United States’ apparent innocence when it comes to crimes against humanity and genocide, the Iraqi people suffered greatly between 1990 and 2003 as a result of the sanctions imposed by the UN, lead by the United States. Since the United States did not officially or directly commit acts of genocide or crimes against humanity, it has not taken any responsibility for the suffering of the Iraqi people. No member of the United States or its military has faced any sort of charges to account for the suffering, simply because the United States did not have the correct intent to be found guilty. It does not mean that the actions of the United States were righteous or should go unpunished. As Gordon says, “It is not that the U.S. government is innocent; but rather that international law has failed to account for this kind of culpability.” Even though the United States is currently considered to be legally innocent, it is not morally innocent. If it can be established that the actions of the United States were not genocide or crimes against humanity, how does the world hold the United States accountable for its actions?
One possible solution can be found in what is called the “domestic analogy.” In most cases, as explained in the 2016 book, “The Ethics of War and Peace: An Introduction” by Helen Frowe, the “domestic analogy” is used to find similarities between the actions of civilians under domestic law and the actions of combatants working in groups. This version of the domestic analogy contains two perspectives; the collectivist perspective and the individualist perspective. The individualist theory argues that, “the rules governing killing in war can be reduced to the rules governing killing in ordinary life, and that these rules are grounded in the rights and duties of individuals…According to the individualist view, killing does not take on a different moral character simply because it is practised on a large scale or has political ends.” Based on the individualist perspective, the actions of the United States and the members of its military can be viewed in the same manner as the actions of individuals living under the domestic laws of the United States. This makes it possible to compare intent’s role in the domestic laws of the United States to intent’s role in international law.
In the United States Code, Title 18, it is recognized that murder, in the first and second degrees, is defined by the intent to do harm, “Murder is the unlawful killing of a human being with malice aforethought…or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.” Murder, like genocide, is not accidental. It is intended and planned. The intentions of the killer are a large factor in determining their level of guilt. If someone intended to end another person’s life, they likely wanted their victim to suffer to die; this suggest a greater amount of guilt than if the guilty party had committed the act accidently. This leads to a fairly severe punishment. The United States Code states that “whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.” Like those who are found guilty of genocide, people who commit murder are punished severely.
Unlike in international law, in United States domestic law, a person can still be found guilty of killing another, even if that was not their intent. According to the United States Code, “Manslaughter is the unlawful killing of a human being without malice.” Manslaughter is killing someone without the premeditated intention of death. This is the difference between manslaughter and murder. As stated above, the punishment for murder can be very severe. Contrarily, the punishment for manslaughter is significantly reduced in the United States Code: “whoever is guilty of voluntary manslaughter, shall be fined under this title or imprisoned not more than 15 years, or both; Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than 8 years, or both.” The intention to kill can mean the difference between a life sentence and an eight year sentence. The lack of intent, however, does not absolve a United States resident from being held responsible, and punished for killing another person. Based on the theory presented by individualists, the idea of punishment for unintended harm should carry over to the international level. The United States punishes individuals who kill another person, despite their lack of intent to kill, or their claim to self-defence. Thus, in international law, the actions of the United States could be punished despite its apparent lack of intention to do harm. This argument is best understood under the individualist assumption that people belonging to civil society act under the same conditions as combatants or military leaders act under in wartime: the condition of a perceived threat. The assumption that international law can be practiced in the same manner as domestic law is a representation of a certain set of ideals, but does not necessarily reflect reality.
The collectivist view of the domestic analogy, also summarized in Frowe’s work, is “that war is to be understood as a relationship not between persons, but between collectives. We must thus treat the actions of the combatants as undertaken on behalf of the collective, which means that we cannot judge these actions by the standards we apply to individuals.” This view of the domestic analogy takes into account the influence of the state and the collective on individual combatants. The actions of a state, or a state’s combatants, are not necessarily enacted through complete free will. Those who carried out the sanctions on Iraq were acting as a collective toward a political goal. The individual combatants are not culpable for their actions in the same way that a noncombatant United States citizen may be culpable for their actions. The United States itself also cannot be compared to an individual, as it is above, due to the fact that it does not act in the same way. It may be obvious when a state intends to annihilate a group of people, making it easy to compare the intent involved in genocide to the intent involved in murder, but it is not as obvious when a state does not intentionally harm civilians, but rather harms them collaterally. If states were to be tried for their accidental or collateral killings of civilians, war would essentially be illegal. Frowe highlights this: “In other words, permitting only accidental harm to non-combatants seems to effectively prohibit the fighting of war altogether.” From the pacifist perspective, the concept of a warless world is perfect, but in practice it could lead to a much higher level of disorderly violence based on retributions and punishment.
There are more limits to the comparison between intent in international law and domestic law. To try or charge a state or state leaders for their unintentional harm of civilians can be considered a violation of sovereignty and, were it not a violation of sovereignty, would be difficult to enforce in practice. Sovereignty is an important part of what makes a state a state. Frowe states that: “Sovereignty can be summarised as the rights of political and territorial integrity. These rights require that outsiders do not try to interfere forcefully with the workings of a state’s political system, or to occupy or control its land.” Sovereignty is a state’s right to act without external intervention. On one hand, the actions of the United States in Iraq could be considered a violation of Iraq’s sovereignty, due to the extensive and lengthy involvement in Iraq, fighting against its regime. Though the United States and the UN first bombed Iraq because they believed Iraq was violating Kuwait’s sovereignty, the extreme sanctions that followed were a response to an Iraqi military threat that did not exist. The U.S. believed, or claimed to believe, that the Iraqi military was so dangerous that it must be destroyed in a way. This would leave it unable to ever rebuild without foreign aid.
Although U.S. action against Iraq was incredibly harmful, seeking to punish United States leaders for their actions during the sanctions could be considered a violation of sovereignty. The United States is not a party to the Rome Statute, so even if its actions were considered punishable, any attempt to arrest a United States citizen by the International Criminal Court , without the explicit permission of the United States government, would be illegal: “The Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. Also, a State not party to the Statute may decide to accept the jurisdiction of the ICC”. The International Criminal Court has a limited amount of power over nonmember states. Punishing United States leaders for their apparent collateral damage in Iraq could also lead to international courts punishing other state leaders for similar actions. This means that if a state has declared war on another state, leading to very inevitable civilian casualties, the leader of the state declaring war could be punished under the new pretense that accidental deaths must be punished. Though the United States’ actions are negligible in a moral sense, they are legally fair. If they were to become illegal, states that performed similar but less negligible acts would have to receive a similar punishment. This would likely lead to a great amount of conflict. States would not react well to their leaders being tried for unavoidable actions in pursuit of their goals. It is likely that any legal addition to the ICC of this kind would make the court illegitimate to many states.
States and state actors cannot be legally punished for the unintentional harm that they have committed against civilians. Solutions for immense collateral damages cannot be found in the legal sphere. The actions of the United States in Iraq between 1990 and 2003 were far from moral or righteous, but their lack of direct genocidal intent removes the possibility of punishment or retributions towards any individuals or state as a whole. In this place of helplessness, one could turn to the notions used in domestic laws to argue that those who commit genocide-like actions without intent should still be punished, in the way that United States citizens are still punished for manslaughter. This argument is idealistic and relieves the need for an international solution, but it does not accurately represent the realities or ideals of international law. It impairs the sovereignty of states by dismantling the idea that a state can and should act on behalf of their political ideals. In war, it is expected that there will be collateral damage. This is okay because it usually occurs in the defense of land or ideals. To try a state or state actor for their unintentional actions during times of conflict is to say that the conflict itself is illegal. In an ideal world, war itself could be illegal, but in reality, outlawing war could actually lead to more war – war based on punishing those who start wars. Trying states and individuals for unintentional damages can also be considered a violation of sovereignty and would be impossible to carry out, especially if that state is the United States, due to the lack of opposing power held by the International Criminal Court and other international courts. The inability to punish leaders and states for their unintentional killings does not mean that there is no way to stop unintentional killings, it just means that the approach may not be a legal one. Current international law cannot address the consequences of the sanctions imposed on Iraq by the United States between 1990 and 2003.
Emily Algeo is a sophomore Politics major with a concentration in International Studies at Ithaca College. Her interests are based in humanitarian issues, both domestic and abroad. She plans to possibly translate these interests into a career in law.