The character of the war in Iraq shows the way in which the normative legal framework of modern international law protects local (national, ethnic, religious, racial, or other) communities willing, at some level, to offer their leaders to the world community as payment in full for their (local) transgressions. In return, the local community, and its infrastructure for the production of cultural norms justifying violations of global human rights norms, is left intact. Thus, the international community did not stand in the way of the Americans when they sought to hunt, and Iraq to give up, a small group of government officials of the old regime, the most prominent member of which was Saddam Hussein. Each of these individuals will be tried for their own crimes, as well as for the crimes of the Iraqi people by proxy. Left substantially undisturbed in this great pacification have been those key Iraqi institutions – institutional Shi’a and Sunni Islam, organized intellectual elites, media, and ethnic, family and other collectives -- that together produce the content of Iraqi identity. To the extent recognized at all, Iraqi institutions were understood as part of a caricature – the passive tools of a diabolical trans-border criminals preying on a gullible population of the willing. Yet these collectives were not passive. Each played an important role in the construction of the norms shaping the conflicts in Iraq, as well as between Muslim and non-Muslim states. Each continues to play a similar role in shaping what it takes and what it means to be a member of the “Iraqi” collective.
The time has come to re-examine the current taboo against collective responsibility. To a large extent, modern global human rights regimes institutionalize the rejection of the excesses of traditional forms of collective punishment. Collective punishment is condemned as indiscriminately targeting people, property, land, and social organization. Traditional collective punishment is likewise condemned for its abhorrent methodologies: extermination, expulsion, wealth transfer, social reorganization or pacification of political and economic institutions, or conversion. Reduced to its essence, these criticisms point to the centrality of the protection of the ‘innocent individual’ in the context of group conflict. The ‘war’ against Mr. Hussein’s government, like the economic sanctions before the last invasion, provides a nice example of these limitations – war and economic sanctions had greatest effects on individuals least responsible for the conflict. A system of communal responsibility that minimizes the problem of the ‘innocent individual’ might permit action against institutions consistent with current notions of human dignity.
It is time to recognize explicitly in law what governments and other combatants have long understood: targeting culture is an important part of any form of modern warfare. It can also be a most useful method of holding communities to emerging international standards of human rights in the production of ideas and the subsidy of action. There has been some movement among national and transnational actors in this direction – the most important of which include ‘truth and reconciliation’ commissions, and the suppression of the institutional ‘infrastructure’ of ‘terrorist’ organizations. But these efforts remain tentative and unfocused. Emerging conceptions of human rights may provide the key to fashioning effective and acceptable systems of collective responsibility. A general normative basis for such action would be useful. Certain fundamental principles – democracy, accountability, human dignity and proportionality -- may provide a basis for constructing such systems. Whatever its form, cultural behavior modification consistent with basic international norms might serve as the appropriate goal of collective sanctions. Reorienting notions of collective responsibility along these lines may solve the problem exemplified by the perversity limiting the effectiveness of the overthrow of Mr. Hussein, while avoiding the pitfalls and unfairness of traditional conceptions of collective punishment.
For a discussion of a more modern approach to this traditionally taboo subject, see Larry Catá Backer, The Führer Principle of International Law: Individual Responsibility and Collective Punishment, 21 PENN STATE INT’L L. REV. 509 (2003).