Civilian casualties and international humanitarian law: Lessons from Iraq?

1. Civilian casualties and international humanitarian law: Lessons from Iraq? Presentation to UEL Center for Human Rights. November 2009 Prof. John Sloboda,PIR, Royal Holloway Oxford Research Group Iraq Body Count

2. Acknowledgments • Hamit Dardagan, Marc Herold, Madelyn Hicks, Mike Spagat, Susan Breau, Rosemary Forrest • Joseph Rowntree Charitable Trust • Sigrid Rausing Trust • Network for Social Change • The Funding Network • The ORG and IBC staff and advisory teams

3. Structure of presentation • Afghan civilian deaths: case study 1 • Iraq Body Count: case study 2 • Why casualty recording matters • The situation in international law • What can be done about it

4. Afghan Civilian Deaths 4

5. Coalition Casualties in Afghanistan to March 2009 Source: www.icasualties.org

6. Every name and date is known Source: www.icasualties.org

7. Afghan civilian casualties • No agreed total • No comprehensive list of names and date • Different figures from different organisations • No sustained and authoritative source

8. Some sources of partial information • ISAF • United Nations Assistance Mission to Afghanistan (UNAMA) • Human Rights Watch • Associated Press • Marc Herold PhD

9. . These sources disagree

10. Reasons for differences • Different start and end dates • Different categories of casualty included • (e.g. Coalition-caused, other-caused) • Disagreements about civilian status of victim • Different sources of information used • Different political motivations of data-presenters • Different (and unpublished) verification methods • Names of victims are not made public

11. NATO Secretary General’s video(Oct 2009) • question “For every taliban you kill how many of the civilian population do you kill or injure? Do you expect those injured will see you as liberators from the taliban tyranny?” • Answer“We take extra measures to avoid killing or injuring civilians. This approach has already shown results, civilian casualties are significantly down.” Where’s the evidence, and how can it be assessed?

12. What data is needed? • Incident or name based data • Open and transparent methodology - regarding source types inclusion criteria

13. 2. Iraq Body Count 13

14. 1. The IBC approach records violent civilian deaths in crosschecked media reports plus hospital, morgue, NGO, official sources documented in fullest possible detail constantly updated and open to revision

15. 2. Disciplinary background quantitative documentary research records-based capitalising on electronic data environment

16. 3. Data definite documentary accounts (e.g. where, when, how many or who) in: web-published news media in English (including Arabic translated) official records (including FOIA-requested)

17. 3. Data (cont.) • Database (as of 23 Oct 09) contains: • - 21,254 database entries (to 15 Aug 09) • - detailing 93-552 – 102,083 deaths • mean of 4 distinct media reports per entry (range 1-100) • - drawing from more than 200 media sources

18. 3. Data(cont.) Figure 1: Top 12 contributing media 2006–2008 IRAQ BODY COUNT Reuters National Iraqi News Agency Associated Press Voices of Iraq McClatchy Al-Sharqiyah TV Agence-France Presse LA Times Kuwait News Agency CNN New York Times Deutsche Presse-Agentur Xinhua News Washington Post BBC

19. 3. Data (cont.) best single media source covers just 43% of incidents and 60% of deaths in IBC database most sources cover only a small fraction of incidents and deaths all media prioritise larger incidents (with more victims), so have better coverage of total reported deaths than incidents

20. 3. Data (cont.) focus on incident and victim details along with where & when, weapons data is almost always available for incidents perpetrator group identified in 25% of cases incident details are intrinsically valuable, and guard against confusion/double-counting

21. 3. Data (cont.) Figure 2:Incident details extractable 2003–2009

22. 3. Data (cont.) identity is the most important datapoint regarding victims, but rare (c. one in 20) demographic data is also highly valuable, and more often available Figure 3: Victim details extractable 2003–2009

23. 4. Comparisons with other sources Figure 4: IBC vs Iraq Ministry of HR, 2004–2008 Miller McCune 15 Oct 2009 “Iraq’s Official Death Toll supports Unofficial Tally” Michael Todd

24. 4. Assumptions (cont.) Figure 4: IBC vs US Dept. of Defense, 2006–2007 Washington Post Oct 1 2007, “Counting Civilian Deaths in Iraq” Michael Dobbs

25. 5. Domains of application ill-suited for indirect (‘non-violent’) deaths does track violent, weapon-caused deaths needs an interconnected and active press needs a working ‘information infrastructure’

26. 6. Clarification not an ‘estimate’ of the total Lists specific events, and gives an account of the victims Not inferential statisical presentations (e.g. surveys). Every number can be specifically traceable complete list of deaths is the final aim

27. 7. Example users/uses Major universities and experts researching the Iraq conflict or modern conflict in general WHO, UNAMI, UNHCR, OCHA IMF and the World Bank European Commission International Criminal Court Human rights groups and law firms US and UK governments Australian government (cited by latter in explaining withdrawal of troops from Iraq)

28. 7. Example users/uses (cont.) trend & distribution analyses civilian impact of different weapon-types – e.g. Hicks et al, NEJM 2009:

29. 8. Political sensitivities parties to conflict may suppress, distort, delay, or exaggerate mortality data for political and tactical ends scientists and researchers should recognise and root out all biases and obstructions to truth core values reside in verifiable truths and public disclosure

30. 8. Political sensitivities (cont.) best journalistic practice shares these values bias is least present in empirical ‘what-where-when’ reporting bias is greatest in selection of what to publish prominently, and in commentary documentary research recovers the factual content – most successfully when this data is essentially quantitative, as in war deaths

31. 3. Why casualty records matter 31

32. Moral issues • All human lives are of equal value • Publicly acknowledging each death with respect is a basic human value, at the core of all human societies • This All transcends, race, nationality, or status.

33. Truth Truth is required for reconciliation • Provides acknowledgment for families • Takes issue out of arena of political controversy • No “acceptance” possible without it

34. Post-conflict reconstruction • Determination of survivor need • Determination of provision for survivors

35. Justice • Determination of responsibility • Determination of reparation • Determination of legal violations (war crimes etc.)

36. Military/planning and lesson-learning • Strategic and tactical evaluation • Evaluation of proportionality • Removing contested casualty totals as a source of hostile propaganda

37. Examples of what accurate casualty data affords • Ending of political debate over numbers (Bosnian Book of Dead) • Useful byproducts include comparative assessment of lethality/indiscriminateness of different weapons and actors (Iraq Body Count: Dossier of Civilian Casualties)

38. 4. The situation in International Law 38

39. Legal obligation of casualty recording – Sources International Humanitarian Law Geneva Conventions of 1949 Additional Protocols to the Geneva Convention of 1977 Customary International Law – ICRC Customary International Law Study (2005) Geneva Conventions now universally ratified and constitute customary international law, possibly applicable to non-international armed conflict

40. Primary omission No legal obligation to count the civilian dead or missing. Surprising because Primary obligation within IHL is to assess proportionality Loss of civilian life of the civilian population must be in direct proportion to the military advantage expected How can this be assessed if there is no accurate recording of the loss of life?

41. Customary Study Rules(in several docs inc. UK Military manual) • Rule 112 • Whenever circumstances permit, and particularly after an engagement, each part to the conflict must, without delay, take all possible measures to search for, collect and evacuate the dead without adverse distinction. • Rule 113 • Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited.

42. Rule 114 • Parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin. They must return their personal effects to them. • Rule 115 • The dead must be disposed of in a respectful manner and their graves respected and properly maintained. • Rule 116 • With a view to the identification of the dead, each party to the conflict must record all available information prior to disposal and mark the location of the graves.

43. Missing Persons • Rule 117 • Each party to the conflict must take all feasible measures to account for persons reported missing and as a result of armed conflict and must provide their family members with any information it has on their fate.

44. Possible responses to limitations on compliance Existing terminology ‘Whenever circumstances permit’ Proposed response the obligation to search for, collect and record the dead and wounded should be as soon as possible and that each party to the hostilities are under a legal obligation to seek regular interruption of the hostilities to search for causalities.

45. Existing terminology ‘Effective measures’ Proposed response A compilation be prepared of best practice to search for and collect the dead and that in every circumstances include a proper post-mortem examination to determine the cause of death including proper forensic exhumation. The main principles should be that there be a thorough, transparent and impartial system of casualty recording of every civilian and military casualty.

46. Existing terminology ‘Agreements between parties’ Proposed response Although the basis of international humanitarian law is reciprocity, as with human rights obligations, these obligations should be free standing and not depend on agreement or compliance by the other party.

47. Proposed response Missing Persons It is suggested that the missing must be included in any advocacy strategy and support expressed for organisations to take a lead in the search and identification of the missing. The missing can be either civilian or military casualties and both should be dealt with in a similar fashion.

48. 4. What can be done? 48

49. Commitment Progressive nations or alliances can • acknowledge the principle • adopt regulatory frameworks • ensure resources and access for practitioners

50. Key elements • Recording to level of name and date of each death is a minimum requirement • This data must be made public and data not shrouded behind “expert judgement” • Recording and analysis methods must be transparent and replicable • Inability to complete the task immediately is no excuse for not starting. • We should always do what is possible, as soon as possible, and continue for as long as necessary