May 01, 2004

By Nicolas De Torrenté, Executive Director of MSF-USA

Published in Harvard Human Rights Journal / Vol. 17
Nicolas de Torrente*

On October 27, 2003, suicide bombers slammed an ambulance packed with explosives into the compound of the International Committee of the Red Cross (ICRC) in Baghdad, killing eighteen civilian bystanders and wounding dozens more.1 Coming just two months after the bombing of the U.N. headquarters in Baghdad that claimed the lives of twenty-three people, including Special Representative of the Secretary-General Sergio Vieira de Mello, the attack on the ICRC sent shockwaves through the aid community.2 There was no mistaking the intentions of the bombers; the attack was a deliberate and targeted assault on civilians and aid workers, a blatant war crime.3

Most startling was the choice of the ICRC as the target of attack. Not only is the ICRC the preeminent humanitarian organization with a specific mandate based in international humanitarian law (IHL), but it, unlike most aid agencies, also has a long history of providing assistance in Iraq. The ICRC provided aid and cared for prisoners of war during the Iran-Iraq war and remained in Iraq throughout both the tumult of the 1990s and the U.S. war with Iraq in 2003.4 After the bombing, aid organizations had to wonder if the ICRC, with its strong record of principled humanitarian action, was not immune to attack, what organization was?

For many aid organizations, the attack on the ICRC jeopardized the possibility of keeping international staff in Iraq, particularly in the central part of the country where hostilities between the U.S. occupation force and insurgents were the most intense. Many organizations withdrew entirely from the country while others, like Médecins Sans Frontières/Doctors without Borders (MSF), scaled back their programs and temporarily withdrew international staff.5

The nature of the attacks on the United Nations and the ICRC raised a series of fundamental questions for aid organizations. In contexts like Iraq and Afghanistan, where the United States and other Western powers assertively project their military power in support of ambitious political goals, is there still a space to provide humanitarian aid directly to the population? Are aid organizations irrevocably intertwined with the U.S. and Western agenda in the minds of violent opponents and, even more alarmingly, of the local population? Are the fundamental principles that have typically characterized and guided humanitarian action, in particular impartiality, neutrality, and independence, still valid in such crises? Do aid organizations have choices left other than to seek armed protection and to work in full cooperation with Western military and political forces or to simply retreat?

While security risks immediately captured the attention of aid organizations, they are only one symptom of a much larger problem faced by humanitarian action in Iraq. A striking characteristic of the Iraq war and its aftermath is that at junctures when Iraqis have most needed humanitarian assistance, it has been both very difficult and dangerous for humanitarian organizations to provide it. At the height of the U.S. bombing and ground offensive, for example, Iraqi medical services were essentially left to fend for themselves in treating thousands of war-wounded patients in Baghdad and other besieged cities.6 Immediately after the fall of Saddam Hussein's regime, emergency relief efforts were paralyzed as basic services collapsed due to looting, political upheaval, and, in hospitals, administrative chaos.7 And now, months later, aid workers have become targets of attack, regardless of whether they work closely with the Coalition Provisional Authority.8

The fundamental aim of humanitarian action, to ensure that non-combatants are spared from undue violence and receive necessary and adequate assistance, is never easy to achieve during war. But why was the ability of humanitarian organizations to reach out independently and help victims, when and where they needed it the most, so limited and so compromised in Iraq?

The most immediate explanations highlight the most critical responsibilities. Saddam Hussein's government severely restricted humanitarian aid operations in violation of IHL, and violent opponents of the U.S. occupation are now deliberately attacking aid workers and civilians. Responsibility for the obstacles to humanitarian action, however, does not fall entirely on the former government or the insurgents. The manner in which the U.S.-led coalition made the minimization of harm and the provision of relief for Iraqis an integral part of its political and military agenda contributed significantly to the hostility towards humanitarian action and those who deliver it. Aid organizations themselves contributed to the perception that their assistance is an extension of the "hearts and minds" efforts of the United States by not clearly distancing themselves from the United States as a belligerent.

Humanitarian organizations do not have or claim to have a monopoly on assistance. On the contrary, the provision of essential services to the Iraqi people is the responsibility of the political authority in charge, currently the United States as the Occupying Power. To carry out its reconstruction responsibilities, the United States may partner with civilian relief agencies and private contractors. In contrast, humanitarian organizations become relevant and are directed to take action when civilians suffer unduly as a result of political failure, conflict, and crisis.

In Iraq, however, the U.S. government failed to preserve space for the politically independent and principled role of humanitarian organizations. Instead, the United States sought to bring humanitarian aid efforts under its control and claimed that all assistance supports its cause. For example, Secretary of State Colin Powell implied that the presence of nongovernmental organizations (NGOs) in Iraq is of strategic value for the United States when he declared, following the attack on the ICRC, that if NGOs left Iraq, it would be a victory for the terrorists.9 The U.S. efforts to associate assistance with its political objectives have jeopardized the ability of humanitarian organizations to distinguish themselves from all parties and to provide aid based solely on need during times of crisis.

This Article aims to describe how the U.S.-led coalition contributed to humanitarian action becoming thoroughly and intensely politicized before (Part II), during (Part III), and after the war between the United States and the Saddam Hussein government (Part IV). In addition, implications of the cooptation of humanitarian action during the Iraq crisis for other international crises are examined in light of the ongoing drive to increase the "coherence" between political objectives and humanitarian action (Part V). Before discussing the issues surrounding humanitarian action in Iraq, a brief conceptual discussion of the ambition, principles, and limits of humanitarian action is presented (Part I).

  1. Humanitarian Action: A Brief Overview of the Fundamental Principles and Their Limits

    The concept that "even wars have rules" emerged from the battlefields of the late nineteenth century.10 It was not until after the Second World War, however, that international political consensus cemented around the concept that non-combatants should be spared from the excesses of war by placing limits on the means and methods of warfare and by ensuring the delivery of life-saving assistance during wartime. The Geneva Conventions of 1949 place primary legal obligations on warring parties, but also legitimize the role of "impartial" humanitarian organizations, such as the ICRC, in promoting the protection of, and providing relief assistance to, non-combatants.11

    Humanitarian actors regularly face the dilemma that the immediate objectives of warring parties clash with their stated commitment to IHL. This contradiction arises most acutely when, as is so often the case today, wars are fought over, rather than around, civilians. While IHL seeks to remove noncombatants from the equation, warring parties are i creasingly placing them at its center. The fundamental principles of humanitarian action, based on the Geneva Conventions, recognize this tension and seek to overcome it.

    The most important principles of humanitarian action are humanity, which posits the conviction that all people have equal dignity by virtue of their membership in humanity, impartiality, which directs that assistance is provided based solely on need, without discrimination among recipients, neutrality, which stipulates that humanitarian organizations must refrain from taking part in hostilities or taking actions that advantage one side of the conflict over another, and independence, which is necessary to ensure that humanitarian action only serves the interests of war victims, and not political, religious, or other agendas.12

    These fundamental principles serve two essential purposes. They embody humanitarian action's single-minded purpose of alleviating suffering, unconditionally and without any ulterior motive. They also serve as operational tools that help in obtaining both the consent of belligerents and the trust of communities for the presence and activities of humanitarian organizations, particularly in highly volatile contexts. While humanitarian action itself is not a political project, assisting the neediest and most vulnerable in conflict is a politically charged act. The key humanitarian principles embody the (ever fragile) political agreement among belligerents about the conditions for humanitarian activity in the midst of crisis.

    Humanitarian action is a pragmatic, action-oriented endeavor, not a philosophical one, and its principles should not be understood as sacrosanct straitjackets. Wars are complex and evolving, and they repeatedly pose ethical and practical challenges to humanitarian organizations. As a result, differing views abound on the particular weight and proper interpretation of the principles.

    In recent years, for example, the meaning of the principle of neutrality has been hotly debated. Some critics have argued that neutrality implies passivity or indifference to suffering, while others contend that neutrality entails a misguided evenhandedness and a failure to recognize differences, mainly judged on a moral basis, among warring parties.13 Most practitioners of humanitarian action, however, understand neutrality to signify neither taking sides politically nor actively participating in a conflict.14

    Accordingly, for MSF, it is in keeping with the principle of neutrality to allocate aid to victims only on one side of a conflict if justified on the basis of needs, or to refuse to deploy aid operations on one side of a conflict if conditions there prevent aid from reaching and helping victims. Using IHL as a reference, MSF also believes that neutrality supports denouncing abuses committed by any belligerent with the aim of improving the protection and assistance afforded to victims. Neutrality does not mean that the impact of humanitarian action will be neutral in the way that a neutral compound, when inserted into an ongoing chemical reaction, does not affect it. Humanitarian organizations actively seek to alleviate suffering, and their actions and statements necessarily have an impact on the political dynamics of a conflict.

    Furthermore, no matter how the fundamental principles of humanitarian action are interpreted, applying them to a situation does not ensure infallible results. Securing access to the victims of conflict is often problematic and tenuous. Vast parts of many war zones around the world are off-limits either because fighting is too intense or because the warring parties do not tolerate or facilitate the presence of humanitarian organizations. When a particular warring party perceives that the delivery of aid or the condemnation of abuse undermines its cause, this may trigger hostility and rejection, even when organizations strive to remain impartial, independent, and neutral. In a wide variety of contexts, aid workers have been threatened, kidnapped, assaulted, injured, and killed.15 However, the experience of MSF, similar to that of many organizations, has been that establishing transparent relationships with local authorities and communities based on an unambiguous humanitarian identity and supporting that relationship with effective delivery of assistance— the so-called "acceptance" approach—is the most reliable means of minimizing safety risks.16 Although security concerns remain among the most prominent operational constraints, the fact that aid workers have been deployed to active war zones in increasing numbers during the past decade underscores the feasibility of principled humanitarian action.

    Clearly, there are limits to the application of the fundamental principles guiding humanitarian action; but, there is a considerable difference between recognizing these limits and jettisoning the principles altogether. Whenever principles are abandoned in the name of heightened effectiveness or on the basis of a moral choice, what is lost must be considered along with what is won. This Article argues that the costs of fundamentally compromising the guiding principles of humanitarian action through politicization, as occurred in Iraq, are significant.

  2. Before the War: The Integration of Politics and Humanitarian Action

    The intense politicization of humanitarian action in Iraq started well before the U.S.-led coalition launched its military attack in March 2003. In the tense months prior to the war, both proponents and opponents of military action utilized the war's likely impact on the civilian population as an element of support for their respective points of view. The fate of the Iraqi people in the impending confrontation emerged as a key issue in the battle for public opinion about the war's legitimacy.17 As a result of this focus on the potential human impact of the war, humanitarian emergency preparedness efforts were greatly affected by the political agenda, and the credibility and identity of humanitarian actors were weakened and compromised before the conflict began.

    1. The U.S. Government Makes Assistance Part of Its War Plan

      For months before the initial attack, President George W. Bush declared that concerns about the welfare of the Iraqi population were central to the decision to overthrow Saddam Hussein and integral to the way that war would be waged.18 Humanitarian concerns writ large—upholding human rights and promoting freedom and democracy—were evoked to justify the war, adding urgency to the security threats emanating from the purported Iraqi build-up of weapons of mass destruction and support for terrorism.19 President Bush painted a picture of the war that included precision bombs that would minimize the number of civilian casualties, and American soldiers who would liberate and bring "food and medicine" to a population living in grim conditions under Saddam Hussein's rule.20

      Anticipating and preparing for calamity are critical components of humanitarian work, and the looming conflict in Iraq warranted an emergency preparedness effort by aid organizations. Politics intervened with these efforts, however, and differences in opinion about the war stymied preparations for the potential humanitarian crisis in Iraq. European governments, reluctant to accept the inevitability of the U.S. attack, were loath to appear to be sanctioning the war by providing funding to organizations in order to address its likely consequences.21 In the United States, a reverse logic with similar consequences, was at play. Viewing humanitarian assistance as an integral part of its war plan, the U.S. government included funding provisions for aid within the war budget; but the budget was not presented for Congressional approval until March 25, six days after the United States launched its initial attack. 22 Before that time, over $100 million from other programs and crises were "scrubbed" to provide for Iraq preparations, but no fresh funding was actually made available until after the war had started.23

      The inclusion of humanitarian aid funding within the U.S. war budget is only one indication of the leadership role played by the U.S. military in what many viewed as secretive preparations for assistance.24 The creation of the Office of Reconstruction and Humanitarian Assistance (ORHA) within the Pentagon on January 20 was a further sign of the military's dominance in the government's plans for aid delivery.25 Led by retired General Jay Garner, ORHA brought military personnel alongside staff from civilian agencies such as the State Department, the United States Agency for International Development (USAID), and the Office of U.S. Foreign Disaster Assistance (OFDA). The government justified the creation of ORHA and the Pentagon's leadership over its aid efforts by emphasizing both logistical and operational effectiveness.26 The government argued that direct coordination between assistance efforts and the military command in charge of the overall campaign was critical for success.27

      The U.S. government outlined its planned aid effort for Iraq in the case of war and conquest on February 24, less than one month before the war began.28 Consistent with President Bush's general declarations, the premise of the U.S. approach was that military operations would be designed to minimize civilian casualties and to limit damage to infrastructure, thereby limiting the need for assistance.29 The military was not expected to take a lead role in the delivery of aid, but would support the work of civilian agencies.30 The government planned to field teams of expert government civilian personnel called Disaster Assistance Response Teams (DARTs) to work along side the military in newly secured areas.31 DARTs would assess the situation and quickly disburse grants to NGOs and other agencies to implement programs.32 U.N. agencies, particularly tho e with a long history in Iraq under the Oil for Food Program such as the World Food Programme (WFP) and UNICEF, were expected to quickly resume their activities under a U.S.-led occupation.33

      In essence, the U.S. government announced that its "hearts and minds" effort would be carried out by a variety of civilian agencies including NGOs and private contractors as well as U.N. and governmental agencies. Work would be delegated to each agency according to its comparative advantage. All of the civilian agencies would work closely with the advancing army and deploy quickly in its shadow.34 By announcing and detailing this partnership between the U.S. military and NGOs, the U.S. government portrayed NGOs as implementers of the assistance program it promised in the wake of its expected military victory.

    2. Aid Organizations Play into the Politics of the Impending War

      The U.S. government considered NGOs, particularly those based in the United States, as natural partners in the effort to provide relief during and after the war. Addressing NGOs during "Operation Enduring Freedom" in Afghanistan, Secretary of State Colin Powell clearly laid out the administration's view:

      As I speak, just as surely as our diplomats and military, American NGOs are out there serving and sacrificing on the front lines of freedom . . . . I am serious about making sure we have the best relationship with the NGOs who are such a force multiplier for us, such an important part of our combat team. [We are] all committed to the same, singular purpose to help every man and woman in the world who is in need, who is hungry, who is without hope, to help every one of them fill a belly, get a roof over their heads, educate their children, have hope.35

      In Iraq, as in Afghanistan, the message was clear: the U.S. government and NGOs share the same values and should combine their efforts. Many U.S.- based NGOs, in keeping with their "Wilsonian" tradition of finding a basic compatibility between humanitarian aims and U.S. foreign policy, agreed in principle.36 InterAction, the largest alliance of U.S.-based humanitarian and development organizations, has often emphasized the role of overseas assistance in promoting U.S. foreign policy goals, including national security.37

      The status of the United States as a potential unilateral belligerent did create some trepidation among NGOs and generated calls for the United Nations to coordinate relief efforts.38 Yet most American NGOs did not believe that their relationship with the U.S. government in Iraq should be fundamentally different than in other crises. In fact, American NGOs demonstrated a particular sense of responsibility to engage the U.S. government. NGOs not only wanted to remind the U.S. government of its obligations under IHL, but also wanted to jointly prepare a response to the war's likely humanitarian consequences.39 As George Rupp, President of the International Rescue Committee, stated, "humanitarian planning cannot be effective if organizations that are experienced in delivering relief and rehabilitation services are excluded from the process."40 Under the stewardship of InterAction, extensive consultations with U.S. aid and military officials were carried out on a weekly basis for more than six months befre the conflict.41 The rationale of NGOs for participating in these planning efforts was their need to explain their operating principles to the U.S. military and their desire to provide expertise in mitigating the effects of war.

      Provided that roles and responsibilities were clearly defined, many U.S.- based NGOs were interested in accessing U.S. government funding to work in Iraq, particularly in the immediate aftermath of the expected military victory.42 This interest reflects the U.S. government's status as both the largest international funder of relief efforts and the dominant funder of U.S.- based NGOs.43 As the war in Iraq drew closer, the chief concern among NGOs was that the U.S. government was not sufficiently facilitating their preparedness efforts.44 While USAID Administrator Andrew Natsios asserted that never before had the "humanitarian community" had so much time to prepare for an emergency, NGOs retorted that U.S. government funding was late and insufficient.45 Before framework agreements between USAID and a number of major NGOs were hastily put together days before the war began, the only U.S. government funding made available to NGOs was a grant of less than one million dollars to a coalition of five American NGOs called the Joint NGO Emergency Preparedness Initiative.46

      Even if funds had been made available to American NGOs prior to the war, the sanctions against Iraq left in place by the U.S. government would have prevented U.S.-based organizations, even those funded by the U.S. government, from sending resources to Iraq, including Kurdish-controlled areas.47 The sanctions, holdovers of the U.S. government's longstanding policy of linking humanitarian assistance to political objectives, thus prevented U.S.-based agencies from deploying to Iraq in anticipation of the conflict.

      As many U.S.-based NGOs were discussing possible cooperation with a potential belligerent, other NGOs, mainly in Europe, implicitly and explicitly opposed the war.48 A consortium of French NGOs, for example, questioned the necessity of going to war given the possibilities for the peaceful disarmament of Iraq.49 In an equally political statement, Oxfam called upon humanitarian arguments when it announced that "military action is unjustifiable" because "war in Iraq will have devastating humanitarian consequences for the civilian population."50 At the United Nations, uneasiness and trepidation at being cast in the role of a "clean-up service" following a preordained U.S. attack led to the leaking of a January contingency plan predicting a catastrophically high number of 500,000 "direct and indirect casualties" based on a "medium impact" scenario during three months of fighting.51

      The positions of both U.S.- and European-based NGOs were remarkable because while they generally reflected public opinion in the United States and Europe respectively, they also contradicted the accepted principles of humanitarian action. The neutral and impartial nature of humanitarian action is undermined when an organization agrees to cooperate with a belligerent or opposes a war because it will generate victims. These actions serve to compromise the credibility of humanitarian organizations in the eyes of belligerents and civilians, particularly in a highly volatile context like Iraq. For that reason, MSF adhered to its longstanding position that humanitarian action is predicated on the reality of armed conflict and aims to secure a space for humanity within war, and did not speak out on the "rightness" or "wrongness" of this or any other war.52

  3. During the War: Humanitarian Action Is Constrained

    For all the intensity of the pre-war debates around humanitarian issues, little assistance was actually available to support the efforts of the Iraqi medical services in addressing the critical humanitarian issue during the conflict: providing care to thousands of war-wounded patients in major cities such as Baghdad, Basra, and Nasariya.53 Playing a large role in this deficit were the withdrawal of most organizations, including U.N. agencies, just before the war, constraints posed by U.S. and U.N. sanctions, and above all, the restrictions placed on the activities of aid organizations by Saddam Hussein's government. On the other side of the frontline, intense publicity of relief operations carried out by coalition forces and NGOs in the few accessible areas of Southern Iraq served to highlight the "humanitarian" intentions of the coalition.54

    As the conflict neared, the United Nations, ICRC, and a few other aid organizations present in Iraq, such as the Cooperative for Assistance and Relief Everywhere, Inc. (CARE), prepared for the impending emergency by, among many other activities, donating generators and extra medical supplies to health centers.55 The Iraqi government increased its food rations so that families could accumulate some reserves.56 Very few outside aid organizations attempted to enter Iraq to augment these efforts and to assist the population during the conflict. Those that did, such as MSF, faced considerable barriers. Cumbersome U.N. Sanctions Committee procedures delayed the arrival of supplies and, more importantly, the Iraqi government was wary of authorizing humanitarian organizations to operate independently.57 Stating that "Iraq does not need any humanitarian assistance. We are a rich country," an Iraqi government spokesperson even publicly discouraged offers of aid.58 In MSF's case, it was only days before the war that a Memorandum of Understanding with the Iraqi Red Crescent was concluded. When negotiations at the U.N. Security Council collapsed on March 17, Secretary General Kofi Annan pulled all U.N. international staff out of Iraq.59 However, a few aid groups (ICRC, MSF, Première Urgence, Islamic Relief) decided to maintain international staff in Baghdad to enhance the activities of national Iraqi personnel.60 Their motivation to stay was strengthened by the fact that Western aid personnel had not managed to remain on the ground and provide assistance to victims during recent Western military operations in Kosovo and Afghanistan.

    Contrary to doomsday scenarios, the three-week-long war did not generate a humanitarian catastrophe. There were no significant population displacements or refugee flows, no famine or major epidemics, and no use of weapons of mass destruction.61 Aside from the disruption of Basra's water supply, the most critical humanitarian issue during the war was the provision of emergency medical and surgical care to thousands of war-wounded patients.62 That the worst was averted should not, however, obscure the fact that Iraqi medical personnel taking care of a large number of patients could only marginally be supported by humanitarian organizations.

    While most of the country's population was confined to major Iraqi cities encircled by advancing U.S. forces, the few humanitarian organizations in the country did manage to distribute supplies, but were otherwise highly restricted in their movements and capacity to assist. International staff was present only in Baghdad, and the intensity of the fighting made it impossible to reach cities such as Nasariya or Karbala. In addition, the Iraqi regime's strictures and sensitivities were only slightly diminished by the war. A presence on the other side of the conflict, for instance in Kurdistan or southern Iraq, could have put any Baghdad-based staff in serious danger.63 The Iraqi secret police's arrest of two Islamic Relief staff and two MSF volunteers, François Calas and Ibrahim Younis, on allegations that they were Western spies evidenced the Iraqi government's paranoia.64

    With supplies gradually running short, the Iraqi medical system was illequipped to provide appropriate medico-surgical care for the thousands of civilians wounded in the bombing and ground-level fighting.65 In most conflicts and crises, national medical personnel bear the brunt of the effort to provide care to civilians. Iraq was no different. From MSF's limited vantage point at Al-Kindi Hospital, the Iraqi staff acquitted themselves remarkably of their task. But international humanitarian personnel typically provide additional expertise, resources, and capacity to identify and respond to humanitarian needs as they emerge, thereby bringing an important added contribution. In the Iraq war, this was largely made impossible both by the intensity of the fighting and the restrictions on aid organizations imposed by the Iraqi government—which had long viewed outside assistance as a component of the international community's strategy to weaken and demean it.

    At the same time, advancing coalition forces were focused on military operations. Few relief efforts were carried out behind the troops as they progressed, but those that did occur were highly publicized. Humanitarian rhetoric was part of the coalition's psychological operations in which the embedded media played a critical role. The treatment of Iraqi civilians by U.S. military field hospitals was widely reported, as was the distribution of bottled water by British troops in southern Iraq.66 The first convoys of water and food sponsored by the Kuwaiti government traveling just across the border to Umm Qasr received an inordinate amount of attention.67 Even the demining of Umm Qasr port was presented as a humanitarian operation designed to allow the offloading of food aid, although the port was also important for military logistics.68 Coalition partners such as Japan and South Korea, keen to show their participation in the war effort without contributing troops, highlighted their "humanitarian assistance in the form of aid donations, field hospitals, and emergency civil-military teams.69

    With all of the publicity surrounding the coalition's activities, it is important to remember that the provision of relief such as medical care, water, and food to civilians in areas an advancing military brings under its control is not humanitarian action but part of a belligerent's obligations under the Geneva Conventions.70 The key issue is whether the relief is actually provided and whether it is effective and equitable. In the immediate aftermath of the war, particularly in Baghdad, this question would become acute.

Continued on page 2.

* Executive Director, Médecins Sans Frontières/Doctors Without Borders (MSF-USA). MSF is a private independent medical humanitarian organization that delivers emergency aid in nearly eighty countries to victims of armed conflict, epidemics, and natural and man-made disasters. Thanks in particular to Pierre Salignon, Kevin Phelan, Kris Torgeson, J. C. Sylvan, and Mike Beneditkson for their valuable contributions. [back]

  1. Baghdad Terror Blast Kills Dozens, BBC, Oct. 27, 2003, available at news.bbc.co.uk [back]
  2. See id. [back]
  3. Grave breaches of international humanitarian law (IHL) (codified in the Geneva Conventions and their Additional Protocols), such as the willful killing of non-combatants, are war crimes. See Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law, 414–29 (Laura Brav ed., 2002); IV Geneva Convention, Aug. 12, 1949, Oct. 21, 1950, 6 U.S.T. 3516, 75 U.N.T.S. 287. [back]
  4. International Committee of the Red Cross, The ICRC in Iraq, at icrc.org (last visited Feb. 11, 2004). [back]
  5. Red Cross to Cut Iraq Staff, BBC, Oct. 29, 2003, available at news.bbc.co.uk. [back]
  6. See, e.g., Colin Nickerson, Efforts Hindered by Battles, Loss of Aid Groups, Boston Globe, Mar. 24, 2003, at A23; Laurie Goering, Port City Trapped Between Regimes; With No One in Charge, Residents Fear the Unknown, Chi. Trib., Apr. 2, 2003, at C5. [back]
  7. Looting, Disorder Hit Hospitals, CNN, Apr. 10, 2003, available at cnn.com. [back]
  8. See, e.g., Ian Fisher & Elizabeth Becker, Aid Workers Leaving Iraq, Fearing They Are Targets, N.Y. Times, Oct. 12, 2003, at 18; Sonni Effron & Shweta Govindarajan, Aid Agencies Pulling Out of Iraq as Violence Rises, L.A. Times, Nov. 15, 2003, at A5; Vivienne Walt, Red Cross Staff to Evacuate Other Foreign Aid Workers May Leave Over Iraq Attacks, Boston Globe, Oct. 30, 2003, at A8. [back]
  9. John Shovelan, Powell Asks Red Cross to Stay in Iraq, World Today, Oct. 28, 2003, available at abc.net.au. [back]
  10. The ICRC was founded by Henry Dunant in 1863 after he witnessed the battle of Solferino in 1859. International Committee of the Red Cross, Handbook of the Int'l Red Cross and Red Crescent Movement, (International Committee of the Red Cross, 13th ed. 1994). The Hague Conventions of 1899 and 1907 were the first international treaties establishing the laws and customs of war. See Bouchet-Saulnier, supra note 3, at 319–20. [back]
  11. Article Three of the Fourth Geneva Convention establishes a "right of initiative" which entitles any impartial humanitarian organization (the ICRC is mentioned explicitly) to offer its services during a conflict. Bouchet-Saulnier, supra note 3, at 360. [back]
  12. Along with universality, unity, and voluntary service, these are the seven fundamental principles of the Red Cross and Red Crescent Movement. International Federation of Red Cross and Red Crescent Societies, Principles and Values, at http://www.ifrc.org/WHAT/values/index.asp (last visited Feb. 12, 2004). Of the seven principles, humanity, neutrality, and impartiality are considered the most widely accepted guiding principles for humanitarian action; they have been retained as the basis for codes of conduct such as the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, which has been agreed to by ICRC, the International Federation of Red Cross and Crescent Societies, and NGOs such as CARE, Oxfam, and the World Council of Churches. G.A. Res. 182, U.N. GAOR, 46th Sess., Supp. No. 49, at 49, U.N. Doc. A/RES/46/182 (1991); International Federation of Red Cross and Red Crescent Societies, Code of Conduct, at http://www.ifrc.org/publicat/conduct l ast visited Feb. 11, 2004).[back]
  13. For a summary of the critique of neutrality see Fiona Terry, Condemned to Repeat? The Paradox of Humanitarian Action 20–23 (2001). Fiona Fox, a British relief specialist, rejects the "traditional concept of neutrality as on the one hand morally repugnant and on the other hand unachievable in the complex political emergencies of the post–Cold War period." David Rieff, A Bed for the Night: Humanitarianism in Crisis 314 (2002). [back]
  14. Terry, supra note 13, at 20–23, 70, 221. [back]
  15. See Sheik, Gutierrez et al., Deaths Among Humanitarian Workers, 321 British Med. J. 166–68 (2000); Dennis King, Paying the Ultimate Price: Analysis of the Deaths of Humanitarian Aid Workers, at reliefweb.int (Jan. 15, 2002). [back]
  16. For a discussion of various approaches to security, in particular the "acceptance" model, see Koenraad van Brabant, Cool Ground for Aid Providers: Towards Better Security Management in Aid Agencies, 22 Disasters 109–25 (1998). [back]
  17. President George W. Bush, Remarks by the President in Address to the Nation (Mar. 17, 2003), available at whitehouse.gov; President George W. Bush, Radio Address to the Nation (Mar. 15, 2003), available at whitehouse.gov. [back]
  18. Well before the United States announced plans to make aid a central component of its strategy for the upcoming war, assistance was part of the international community's policy for dealing with Iraq. To mitigate the heavy toll borne by the Iraqi population under international sanctions, compounded by the military straitjacket enforced by American and British warplanes in the no-fly zones, an "oil-for-food" program, administered by the United Nations, was put in place in 1995 by the U.N. Security Council. U.N. SCOR, 50th Sess., 3519th mtg. at 101, U.N. Doc. S/RES/986 (1995). The ensuing infusion of assistance, particularly food rations and medical supplies, made the sanctions more palatable by allowing the Iraqi population to live on somewhat better terms than they had since the Gulf War. Prior to the Gulf War, Iraq was described as a high middle-income country. The 1991 war and its aftermath, however, resulted in a serious setback in health, nutrition, and sanitary conditions as well as an in rease in the number of internally displaced persons and refugees. Since 1991, the combined effect of the Iraqi government's policies and the twelve years of international sanctions have resulted in a dramatic decline in social and health indicators. After the start of the oil-for-food program in 1996, social services improved somewhat, but they were operating at only a fraction of pre-1991 capacity in early 2003. Ctr. for Economic and Social Rights, The Human Cost of War in Iraq, 13–14 (2003). [back]
  19. President George W. Bush, Radio Address to the Nation, supra note 17. [back]
  20. Id. [back]
  21. The United Nations only received $34 million, primarily from the United States and Britain, before the war started and had to draw on its emergency reserves to make preparations. Iraq's largest humanitarian aid donor over the past decade, the European Commission's humanitarian aid office (ECHO), made a 6 million Euro emergency allocation on March 20, the day after the initial U.S. attack (ECHO also redirected its planned budget of 15 million Euro for Iraq to emergency relief). Int'l Crisis Group, Middle East Report No. 12, War in Iraq: Managing Humanitarian Relief 9 (Mar. 27, 2003). Even Britain was reluctant to allocate money for emergency preparedness, and British NGOs complained of not receiving funding. See Tony Baldry, Chair, Discussion of Memorandum submitted by CARE International: Examination of Witnesses, British Parliament, at publications.parliament.uk (Feb. 12, 2003). [back]
  22. Press Release, Office of the Press Secretary, Supporting our Troops and Increasing Safety at Home, at whitehouse.gov (Mar. 25, 2003). [back]
  23. The supplemental budget request included $543 million for relief assistance and $1.7 billion for reconstruction activities. Int'l Crisis Group, supra note 21, at 9. [back]
  24. Id. at 11–12. [back]
  25. U.S. Department of Defense, Backgrounder on Reconstruction and Assistance in Post-War Iraq, at pentagon.mil (Mar. 11, 2003). [back]
  26. See Press Briefing, National Security Advisor Condoleezza Rice, Dr. Condoleezza Rice Discusses Iraq Reconstruction, at whitehouse.gov (Apr. 4, 2003). [back]
  27. Press Briefing, Office of the Press Secretary, Briefing on Humanitarian Reconstruction Issues, at whitehouse.gov (Feb. 24, 2003). [back]
  28. Id. [back]
  29. Id. [back]
  30. Id. [back]
  31. Id. [back]
  32. Id. [back]
  33. Id. [back]
  34. The U.S. military set up a Humanitarian Operations Center in Kuwait, the launch pad for the U.S. invasion, to coordinate with the United Nations and NGOs. Nicolas Pelham, Relief Workers Urge Closure of Coalition Aid Centre Humanitarian Operations, Fin. Times, Apr. 10, 2003, at 4. [back]
  35. Secretary of State Colin Powell, Remarks to the National Foreign Policy Conference for Leaders of Nongovernmental Organizations, at state.gov (Oct. 26, 2001). [back]
  36. Abby Stoddard, Humanitarian NGOs: Challenges and Trends, in 14 Humanitarian Policy Group Report 25, 27 (Joanna Macrae & Adele Harmer, eds., 2003). [back]
  37. InterAction, Foreign Assistance in Focus: Emerging Trends, available at interaction.org (last visited Feb. 11, 2004). [back]
  38. Letter from Mary E. McClymont, InterAction President and CEO, to President George W. Bush, at interaction.org (Dec. 20, 2002). [back]
  39. Statement, InterAction, US Unprepared For Humanitarian Response in Iraq, at interaction.org (Feb. 13, 2003). [back]
  40. International Rescue Committee, Lack of Preparedness for Humanitarian Crisis in Iraq Will Risk Innocent Lives, at interaction.org (Nov. 21, 2003). At the time, MSF was an InterAction member, but disagreed with these consultations and did not participate. Based on Iraq and other issues, MSF has decided not to renew its InterAction membership in 2004. [back]
  41. InterAction, supra note 39. [back]
  42. Joseph Zimet, Les ONG Americaines et Leur Administration dans le Contexte de la Crise Irakienne: Les Liaisons Infructueuses, 8 Humanitaire 61, 65–66 (2003). [back]
  43. Stoddard, supra note 36, at 25–26. The drive of NGOs to participate in the government's planning process was also fueled partly by concerns that the Bush Administration could more readily use private contractors for relief and reconstruction work in the war's aftermath. NGOs argued that they were more cost-effective and had a "comparative advantage" in terms of implementing programs requiring "soft skills" such as community involvement and support. Mark Matthews, US Defends Private Sector's Iraq Contracts, Baltimore Sun, Aug. 10, 2003, at 1A. [back]
  44. James Fallows, Blind into Baghdad, Atlantic Monthly, Jan.-Feb. 2004, at 53. [back]
  45. The NewsHour with Jim Lehrer: After the War (PBS television broadcast, Feb. 26, 2003), available at pbs.org. [back]
  46. International Medical Corps, International Rescue Committee, Mercy Corps, Save the Children/US, and World Vision created the Joint NGO Emergency Preparedness Initiative and received $883,000 towards its activities from USAID. A complete overview of USAID funding as of October 1, 2003 is available at usaid.gov (last visited Feb. 11, 2004). [back]
  47. Press Release, International Rescue Committee, American Aid Groups Are Being Shut Out of Iraq by US Sanctions, at theirc.org (Mar. 20, 2003). It was only on March 25, six days after the war had started, that the rules were relaxed: organizations funded by the U.S. government automatically received licenses from the Office of Foreign Assets Control (OFAC) to operate in "liberated" Iraq. This change did not affect privately funded organizations that still required OFAC approval, a long, cumbersome and uncertain process. Int'l Crisis Group, supra note 21, t 15. [back]
  48. Among the U.S.-based NGOs, the faith-based Church World Service and the American Friends Service Committee also notably opposed the war. Zimet, supra note 42, at 65. [back]
  49. Press Release, Action contre la Faim, Enfants du Monde–Droits de l'Homme, Handicap International, Médecins du Monde, Première Urgence & Solidarités, Irak: Face aux Menaces qui Pèsent sur les Populations Civiles, les ONG Signataires ont Décidé de Coordonner leurs Actions Selon des Principes Communs, at reliefweb.int OpenDocument (Mar. 3, 2003). [back]
  50. Oxfam International, Oxfam Briefing Paper: Protecting Iraq's Civilians, available at oxfam.org.uk (Mar. 2003). [back]
  51. United Nations, Office for the Coordination of Humanitarian Affairs, Integrated Humanitarian Contingency Plan for Iraq and Neighbouring Countries (unpublished working draft), available at casi.org.uk (Jan. 7, 2003). [back]
  52. MSF and a few other NGOs, such as Oxfam, also ruled out taking funding from any belligerent. Nick Cater, Oxfam To Shun Iraq Funds from Belligerent States, Reuters AlertNet, at www.org (Mar. 4, 2003). [back]
  53. Press Release, Physicians for Human Rights, Coalition Forces Must Protect Medical Facilities Ensure Safe Passage of Personnel and Supplies to Save Lives in Iraq, at phrusa.org (Apr. 9, 2003). [back]
  54. See infra notes 66–69 and accompanying text. [back]
  55. See, e.g., Press Briefing, International Committee of the Red Cross Director of Operations, http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5KUJSW?OpenDocument (Mar. 20, 2003). [back]
  56. Nadim Ladki, Iraq Increases Food Rations as Citizens Stock Up for Possible War With US, Irish Examiner, available at http://archives.tcm.ie/irishexaminer/2002/12/27/story609117539. asp (Dec. 27, 2002). [back]
  57. As is typical for authoritarian regimes keen on controlling their population, the Iraqi government was highly suspicious of the concept of independent humanitarian assistance delivered directly to the population. For example, since 1993, MSF had attempted numerous times to gain access to Iraq, but was never granted permission to assess needs independently and to distribute and monitor its assistance. The Iraqi regime required all aid to be provided through state structures, as the U.N. agencies implementing the oil-for-food programs (WFP, UNICEF) agreed to do (except in the three northern, Kurdishcontrolled directorates). Nicolas de Torrente, Humanitarian Concerns About a Possible War on Iraq, at http://www.doctorswithoutborders.org/publications/other/opinion_detorrente_iraq.shtml (last visited Feb. 11, 2004); United Nations Office of the Iraq Programme, Oil-for-Food: About the Programme, at http://www.un.org/Depts/oip/background/inbrief.html (last visited Feb. 11, 2004). [back]
  58. Mohammed Mehdi Saleh, quoted in Charlotte Denny and Rebecca Allison, War in the Gulf: Humanitarian Crisis: Troop Setbacks Hold Up Aid, Guardian, Mar. 27, 2003, at 4. [back]
  59. Press Briefing, United Nations, Press Encounter with the Secretary-General at the Security Council Stakeout, at http://www0.un.org/apps/sg/offthecuff.asp?nid=398 (Mar. 17, 2003). [back]
  60. See Scott Taylor, Red Cross Gets Ready for War; Stockpiling for Casualties, Toronto Sun, Mar. 7, 2003, at 41; Nicholas Pelham, Security Concerns Hinder Humanitarian Effort, Fin. Times, Apr. 8, 2003, at 6; Justin Huggler, The Iraq Conflict: French Medical Supplies Cross Border with Jordan on Long Journey to Baghdad, Independent, Mar. 27, 2003, at 6. [back]
  61. Press Release, Médecins Sans Frontières, MSF Medical Diagnosis on Iraq, at http://www.reliefweb.int/w/rwb.nsf/0/253f67c5f8e09bc249256d12000e3046?OpenDocument (Apr. 23, 2003). Had weapons of mass destruction been used, no humanitarian organization would have been prepared to deal with their impact. See Geoff Prescott et al., Programme for Evidence-based Humanitarian Aid, Hope for the best, prepare for the worst: how humanitarian organizations can organize to respond to weapons of mass destruction (2003), available at http://www.merlin.org.uk/uploads/files/charity/Hope%20for%20the%20best,
    %20prepare%20for%20the%20worst%20-%20January%202003.pdf
    (last visited Feb. 11, 2004). [back]
  62. Journalist Niko Price and colleagues surveyed ledgers at 64 of Iraq's 120 hospitals, including almost all the large ones, after the war. Their tally of 3240 civilian deaths caused by conflict between March 20 and April 20 is the best available figure supported by evidence, but it is not comprehensive and certainly understates the extent of civilian deaths. The war-wounded typically outnumber the dead several times over. Niko Price, Iraq: Counting the Dead, Assoc. Press Newswires, June 11, 2003. The Project on Defense Alternatives' analysis of available evidence indicates that between 11,000 and 15,000 Iraqis (combatants and non-combatants) were killed in the course of major combat actions (March–April 20, 2003), approximately thirty percent of whom (3200–4300) were non-combatants. Carl Conetta, Project on Defense Alternatives, The Wages of War: Iraqi Combatant and Noncombatant Fatalities in the 2003 Conflict, available at http://www.comw.org/pda/0310rm8.html (Oct. 20, 2003). [back]
  63. Personal communication with Pierre Salignon, Program Director for Iraq, Médecins Sans Frontières, Paris (May 2003). [back]
  64. As a result, MSF's support to Baghdad's Al-Kindi Hospital was suspended until their release following the collapse of the regime nine days later. Press Release, Médecins Sans Frontières, Doctors Without Borders Calls on Iraqi Authorities to Do All They Can to Bring About Immediate Release of Two Aid Workers Missing in Baghdad, at http://www.doctorswithoutborders.org/pr/2003/04-07-2003.shtml (Apr. 7, 2003); Press Release, Médecins Sans Frontières, Doctors without Borders Confirms Release of Two Missing Aid Workers in Baghdad, at http://www.doctorswithoutborders.org/pr/2003/04-11-2003.shtml (Apr. 11, 2003). [back]
  65. For the number of deaths and wounded, see supra note 62. [back]
  66. U.S. field hospitals garnered much media attention as places where Iraqi civilians could receive treatment. A CNN journalist/doctor even carried out an operation in one of them. See Sanjay Gupta: Docs Grasp War Through Wounded, CNN, Apr. 4, 2003, at http://www.cnn.com/2003/WORLD/meast/04/04/otsc.irq.gupta. This stood in sharp contrast to the portrayal of Iraqi hospitals solely as havens for the Fedayin and their military operations. The care provided to POW Jessica Lynch by Iraqi doctors was, for instance, blocked out in mainstream news reports about her rescue. John Kampfner, The Truth About Jessica, Guardian, May 15, 2003, at 2. [back]
  67. A LexisNexis search returned 106 articles from major newspapers on the convoy over the space of three days: March 27, 28, and 29, 2003. See, e.g., Peter Baker & Rajiv Chandrasekaran, Iraqi Militia, Elite Forces Roll South Into Fierce Attack by U.S. Warplanes, Wash. Post, Mar. 27, 2003, at A1; Charlotte Denny & Rebecca Allison, Humanitarian Crisis: Troop Setbacks Hold Up Aid, Guardian, Mar. 27, 2003, at 4. [back]
  68. UK Aid Ship Docks at Iraqi Port, BBC, Mar. 28, 2003, at http://news.bbc.co.uk/1/hi/uk/2894279.stm. [back]
  69. Doug Struck, Asia-Pacific Allies Forced to Defend Role in Iraq War, Wash. Post, June 4, 2003, at A14. [back]
  70. IV Geneva Convention, Oct. 21, 1950, art. 55, 6 U.S.T. 3516, 75 U.N.T.S. 287; see also Bouchet-Saulnier, supra note 3, at 260. [back]