Sound familiar? In 2002 and early 2003 it was the prospect of Iraqi use of weapons of mass destruction, which we were told existed, along with mushroom clouds that were used to justify Operation Iraqi Freedom. Now dire predictions of larger atrocities are being used in ways similar to the earlier fiasco that started the whole mess. You might even imagine the Bush administration explicitly advocating, as the primary rationale for an immediate and escalated American engagement in the widening Iraqi civil war, an emerging international legal principle: the “responsibility to protect.”

After watering down the “R2P” principle, the United States joined in the United Nations General Assembly’s endorsement of the principle on 16 September 2005 in the World Summit Outcome. That document declared that “[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity” and that the international community has a heavily qualified responsibility to intervene to save civilian populations if national authorities fail to do so.

Iraq indeed is already daily consumed by violent attacks on significant numbers of civilians. This time, however, while we must take dire warnings of even larger atrocities seriously, U.S. policy-makers should craft a policy that prioritizes saving human life immediately, both among American soldiers deployed in Iraq and among civilians. One assumes that the Bush administration has chosen to plunge headfirst into the civil war to achieve this objective. An alternative would be to step back, with the clear long-term objective of exercising the responsibility to protect collectively with other nations if Iraq descends into genocide, crimes against humanity, or unremitting war crimes. But a civil war absent unabated atrocity crimes against the civilian population or combatants is not our fight, at least not until the US Congress so declares.

During the final two years of the Clinton administration I led the Atrocities Prevention Inter-Agency Working Group. We met regularly to identify, analyze, and seek means to prevent atrocities that appeared possible, if not probable, within the next six or so months. While our work informed senior leaders of likely scenarios of doom, we always confronted the obstructionist realities of the Washington bureaucracy and sovereign foreign governments in prioritizing the plight of civilian populations.

The same would be true today, although the future arrived long ago. If I could subject the Iraq imbroglio to the virtual scrutiny of that working group, which was disbanded in 2001, we would recognize that the civilian death count from violence now rates Iraq as an atrocity zone. Estimates range between 12,000 and nearly 35,000 civilian deaths during 2006 alone, with countless more wounded.

If the American escalation in Iraq works, and civilian deaths decline significantly and remain low, then a major priority will have been achieved, albeit at the probable cost of increased American casualties. But from all that has been said by seasoned analysts, Members of Congress, and apparently from within the Pentagon itself, the odds of such “success” are so problematic as to constitute a dangerous gamble rather than a credible policy. The prospect of an escalated American engagement triggering far more significant casualty counts appears more likely.

Unless the purpose of American forces in Iraq is to fight a civil war and choose sides on any particular day between Sunni and Shiite in the neighborhoods of Baghdad or other cities by seizing and holding them with the zeal of born-again occupiers, then we must focus on what can be done to save as many civilians (and GIs) as possible in real time.

Military commanders who are experts on the tactics of military deployments look to America’s political leadership to establish a credible strategic imperative to guide future engagement in Iraq. Let us provide them with one — to prevent atrocity crimes from engulfing the Iraqi people — but pair it with a strategy to lower current death rates and force a political solution.

Congress and the administration should examine how to re-deploy American forces to “on-the-horizon” (as well as “over-the-horizon”) fortified positions in Iraq. Rather than continue high-casualty street patrols and launch a deadly offensive in Baghdad (will the Iraqi forces really watch our back?), American forces largely should pull back from areas of urban combat and stand poised to intervene with others to prevent far larger atrocities if they occur. The current rate of killing stands a good chance of declining once American forces re-deploy and sap the militia, insurgents, and foreign terrorists of some of their most compelling targets.

The United States should use this interlude of re-deployment to negotiate a new understanding with its allies, UN Security Council members, and Iraq’s neighbors while pressing for an Iraqi political settlement. Iraq is not exempt from its own and the global responsibility to protect civilian populations at risk, but the United States is currently seen — rightly or wrongly — as a prime cause of civilian deaths rather than the catalyst for preventing them.

If the situation following re-deployment were to slide into mass slaughter, it would be far preferable to have forged, in advance, a multilateral commitment to intervene quickly under Security Council authorization to protect the Iraqi people from the threat of atrocity crimes and other widespread killing and societal destruction. The Bush administration may find it has to admit, at least in diplomatic consultations, grievous error and folly in its past policies to restore enough credibility to forge such a multilateral bond and build a genuine coalition of forces. But it is human life, not the Bush administration’s reputation, that matters.

This re-deployment and atrocity watch should compel the Maliki Government to get serious about national reconciliation. If there were established a UN-authorized multilateral “stand-by” force that is directed to intervene to stop widespread killings, and then does so, Maliki must know he would lose his political authority. He would want to avoid that probability. If his hidden agenda in fact is an intolerant Shiite-dominated government that aims to ethnical
ly cleanse Sunnis from wide swaths of Iraq, Maliki may find that the bloodshed he and his colleagues inflict to arrive at any such objective would be their ticket to war crimes trials (perhaps, this time, before an international tribunal) where they would join various indicted Sunni war criminals in the dock.

What I propose is a tall order for American diplomacy and military doctrine. The time may have passed where U.S. diplomats have any chance of persuading anyone to join us in a stand-by force to stem a future tide of atrocities at least partly sourced to our original intervention. But the daily death count in Iraq’s civil war is rising. Plunging United States forces even deeper into the civil war and essentially resurrecting the American occupation at a very high cost in lives and treasure could trigger the doom scenario, and offer little hope that six months hence we will be better prepared to confront it.

David Scheffer is the Mayer, Brown, Rowe & Maw/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law. His is a former U.S. Ambassador at Large for War Crimes Issues (1997-2001).

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