Six years of the most
severe Security Council sanctions in history have failed to dislodge
the regime of President Saddam Hussein. These sanction, however,
have had a devastating impact on the most vulnerable sectors of
Iraqi society, especially children.[1] Numerous studies by United
Nations agencies and independent groups, including an April-May
1996 survey conducted by the Center for Economic and Social Rights,
have documented dramatic increases in malnutrition and disease,
leading to the deaths of hundreds of thousands of children under
the age of five since 1991. Yet there has been an astonishing lack
of public debate over the moral and legal implications of a policy
that imposes such enormous costs on a civilian population. The advantages
of such relative silence clearly redound to the benefit of sanctioning
governments and international institutions, who enjoy wide latitude
of action without facing public scrutiny. But what of the citizens
of countries targeted by sanctions? Should their international rights
be ignored so that their governments may be pressured?
Impact of Sanctions
On August 6, 1990, the
Security Council responded to Iraq's invasion of Kuwait by adopting
Resolution 661, which placed a blanket ban on all imports and exports
except for "supplies intended strictly for medical purposes, and,
in humanitarian circumstances, foodstuffs."[2] The value of this exception,
however, was rendered almost meaningless by the fact that over 90
percent of Iraq's hard currency income, necessary to purchase food
and medical supplies from abroad, was cut because of the ban on oil
sales and the freezing of its foreign assets. By March 1991, the Security
Council and cooperating states had driven Iraqi forces out of Kuwait
by military force, in the process destroying or disabling most of
Iraq's civilian infrastructure, including electric power stations,
irrigation facilities, and water and treatment sewage plants. The
blanket sanctions were maintained after the war as a means to force
Iraqi compliance with a number of new conditions imposed by the cease-fire
resolutions, primarily aimed at destroying Iraq's capacity to produce
weapons of mass destruction.
Despite evidence of
a humanitarian disaster, the Security Council took no action to
mitigate the impact of sanctions until August 1991, after highly-publicized
UN and independent missions to Iraq revealed dramatic civilian suffering.[3]
In Resolutions 706 and 712, the Security Council proposed an food-for-oil
agreement allowing Iraq to sell $1.6 billion of oil every six months.
After a 40 percent deduction to pay UN expenses and war reparations,
the amount remaining to purchase food and medicine for the civilian
population would be about half of the $3.6 billion that the UN itself
had estimated as Iraq's minimum emergency needs, and far below the
estimated $22 billion needed to repair damage to the civilian infrastructure.
Holding out for a complete lifting of sanctions, the Iraqi government
rejected the deal as "an infringement on its sovereignty." The plight
of Iraq's civilians was thereby ignored in the political contest
between their own government, in which they have no voice, and the
Security Council. Their own survival is subordinated to that of
the regime. The Security Council did not revisit the issue until
April 1995, when it proposed a slightly modified food-for-oil deal
under Resolution 986.
On May 20, 1996, Iraq
and the UN finally reached a detailed agreement. Iraq will be permitted
to sell $1 billion of oil over a 90-day (renewable) period in order
to buy humanitarian supplies. All proceeds from such sales will
be placed in a UN-controlled bank account, to which Iraq has no
access. Of the $4 billion of revenues over one year, 30 percent
will go towards reparations for the Gulf war, 15 percent will go
towards humanitarian supplies for 3 million Kurds in northern Iraq,
5-10 percent will pay for UN operations in Iraq, and 5-10 percent
will cover repair and maintenance of the oil pipelines--leaving
about $1.6 billion for Iraq's remaining population of 18 million,
less than $7.50 per person every month. Despite this agreement between
Iraq and the UN on all the modalities for the food-for-oil deal,
the United States, standing alone in the Security Council, has,
until mid-August, repeatedly delayed its implementation on technical
grounds.
The food-for-oil deal,
while a positive first step, does not address the causes of economic
collapse, hunger and disease in Iraq. The UN Secretariat and UN
agencies have estimated that Iraq needs to import almost $4 billion
per year in food and medicine alone--more than twice the amount
allocated to humanitarian needs under the food-for-oil-deal. This
figure does not account for the massive capital expenditure needed
both to revive the economy in order to restore employment and wages,
and to rebuild the health infrastructure (especially water and sewage
plants) in order to stop the cycle of disease.[4] Consider the following:
There has been an
alarming reappearance of malnutrition, which had all but disappeared
from Iraq prior to the sanctions. Recent UN studies have estimated
a five-fold increase in child mortality due to hunger, disease
and unsanitary conditions.[5] The monthly average of marasasmus
and kwashiorkor cases (diseases of starvation) admitted to hospitals
has risen by 50 times.[6] These conditions have become so common
that UNICEF and the World Food Program recently established 20
Nutritional Rehabilitation Centers throughout the country to treat
severely malnourished children.
Iraq's health system,
formerly the most advanced and efficient in the region, has been
crippled. Prior to sanctions, Iraq imported about $360 million
worth of drugs annually, but in 1996, the figure is expected to
be $33 million, mostly donated by international agencies. There
are severe shortages in syringes, IV sets, blood bags, oxygen,
anesthesia, fresh linens and other basic supplies. Patients who
cannot afford to bring their own sheets lie on dirty and bloodstained
mattresses. Equipment such as X-ray machines and incubators have
broken down and cannot be replaced. Hospitals throughout Iraq
report increases in chronic diseases, including diabetes, cancers
and kidney disease, and preventable infections, such as diarrhea,
pneumonia, whooping cough and typhoid.
The impairment of
Iraq's water and sewage systems due to the sanctions has had profound
public health consequences for the population. Prior to sanctions,
potable water networks distributed over four million cubic meters
of treated water to 93 percent of the urban and 70 percent of
the rural populations.[7] Water treatment plants now operate at
about 50 percent capacity, and most sewage treatment plants have
stopped chemical treatment altogether.[8] Few lift stations are
operating, and the pipe networks have many breaks, resulting in
sewage overflows and dangerous cross-connections between water
and sewage lines.[9] Untreated sewage is dumped directly into
the Tigris and Euphrates rivers, along which two-thirds of Iraq's
population live. Water treatment plants draw contaminated river
water but lack sufficient chlorine for effective and safe treatment.[10]
Legal Assessment of
Sanctions
The impact of sanctions
on Iraqi civilians raises fundamental questions of legal and ethical
responsibility which have not been answered, let alone asked, in UN
policy-making circles. What is the acceptable trade-off between pressuring
a country's government and harming its population? What legal regime
governs this situation? What are the limits, if any, on Security Council
action?
The Security Council
was established by, and derives its authority through, the United
Nations Charter. Chapter VII of the Charter explicitly empowers
the Council to impose economic sanctions, and even take military
action.[11] Between 1945-90, there was no need to define the legal
parameters of this power since the Security Council imposed multilateral
sanctions only twice--a trade embargo against Rhodesia in 1966 and
an arms embargo against South Africa in 1977.
Since the end of the
Cold War, the Council has imposed sanctions against eight different
states, still without reference to external legal standards.[12]
While some commentators still argue that the Security Council is
empowered to act as a law unto itself, Justice Weeramantry of the
World Court counters that: "The history of the United Nations Charter...
corroborates the view that a clear limitation on the plenitude of
the Security Council's powers is that those powers must be exercised
in accordance with the well-established principles of international
law."[13]
Article 24 of the Charter
explicitly directs the Security Council "to act in accordance with
the Purposes and Principles of the United Nations" when exercising
its authority to maintain peace and security.[14] Among the most
fundamental purposes and principals listed in Article 1 is the promotion
of human rights.[15] In imposing sanctions against Iraq, Security
Council resolutions have frequently and properly condemned the Iraqi
government for violating the human rights of its own citizens, but
it has failed to acknowledge that the Council itself is bound to
uphold human rights. Instead, the Council has placed exclusive blame
on President Saddam Hussein for all hardships caused by sanctions.[16]
The fundamental premise
of the entire human rights regime, however, is the need to respect
the inherent dignity of every individual. These rights are owed
directly to individuals and are not forfeited because of a government's
misconduct, particularly when citizens have no voice in the decisions
of such government. By imposing a devastating, even if unintended,
form of collective punishment on the Iraqi people and failing to
mitigate or even monitor the impacts, the Security Council has fostered
the mistaken impression--completely at odds with the UN Charter's
proclamation of "faith in fundamental human rights and in the dignity
and worth of the human person"[17]--that it may harm an entire population
for the crimes of its leaders, without reference to any legal standards.
Human Rights and Humanitarian
Law
The devastating impact
of sanctions on Iraq's population implicates a number of fundamental
human rights. Most important is the right to life, considered by the
UN Human Rights Committee to be the "supreme right from which no derogation
is permitted even in time of public emergency."[18] It is particularly
egregious that children, who are granted special protection under
human rights law, have suffered and died in disproportionate numbers.
More countries have ratified the Convention of the Rights of the Child
than any other human rights treaty in history, including all permanent
members of the Security Council.[19] Among its provisions, the Convention
specifically calls on all states "to ensure the maximum extent possible
the survival and development of the child" and "to take appropriate
measures to diminish infant and child mortality."[20] Sanctions have
also contributed to violations of other human rights, including the
rights to health, education, food and an adequate standard of living,
all guaranteed by the Universal Declaration of Human Rights, the International
Covenant of Economic, Social and Cultural Rights and other international
treaties.[21]
It could be argued
that because sanctions more closely resemble a state of war than
of peace, Security Council conduct should be governed by more permissive
laws of war, rather that the strict civilian immunities of human
rights. The laws of war, for example, permit belligerents to inflict
collateral civilian casualties when attacking legitimate military
targets, provided that the harm to civilians is not disproportionate
to the value of the military target.[22] While this analysis is
not technically appropriate to Iraq given that Resolution 687 ended
the state of war, it is nonetheless a useful exercise to demonstrate
the legal problematics of the sanctions against Iraq.
The basic principles
undergirding the laws of war (also called humanitarian law) are
those of distinction and proportionality. Under the principle of
distinction, belligerents are required to distinguish between civilians
and combatants at all times and to direct attacks only against military
targets.[23] In the case of Iraq, the critical issue is whether
the sanctions are targeted at the entire population as a means to
influence the regime--a clear violation--or at the regime, causing
incidental collateral damage to civilians. Imposing comprehensive
sanctions that cause broad economic collapse appears on its face
to violate the principle of proportionality as prohibiting any "attack
which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects... which would be
excessive in relation to the concrete and direct military advantage
anticipated."[24] The advantage gained over the course of six years
of sanctions, measured by Iraqi compliance with the cease-fire resolutions,
has been remote--precisely the reason that the United States insists
that sanctions must be maintained. On the other hand, the magnitude
of sanctions-related hunger and disease has been enormous and clearly
documented since the beginning of the Gulf War. To put this in perspective,
one must ask whether a war that killed hundreds of thousands of
civilians, mostly children, to achieve very limited political gains
would be considered acceptable under the laws of war.
The Security Council
shoulders a large measure of responsibility for these violations
of human rights and humanitarian law by maintaining sanctions without
taking effective measures to minimize harm to the population. The
Council has refused to entertain less drastic measures only after
UN and independent reports publicly revealed the extent of civilian
cease-fire resolutions that would result in the lifting of sanctions.
It defies logic, however, for the Security Council to hold the welfare
of a nation hostage to the good behavior of a dictator. And while
it is troubling that a repressive regime, through sheer indifference
to its own population, can exert leverage over UN policy, it is
even more disturbing that the international community has acquiesced
to a policy that effectively constitutes illegal collective punishment.
Need for Standards
Beyond the legal issues,
the moral and political case for imposing such massive costs on innocent
civilians in Iraq is extremely suspect. It is hard to imagine that
peace and security in the Middle East have been enhanced by creating
deep-seated resentment in a country which, when sanctions are ultimately
lifted, is destined to play a leading role in regional politics by
virtue of its economic, cultural and human resources. Moreover, in
the long-term, regional resentments are likely to be inflamed by the
selective and coercive use of international law against Iraq at the
same time that the US and Security Council turn a blind eye to Israel's
acquisition of territory by force and to human rights violations by
allies in the Gulf. Given the history of Western intervention in the
Middle East, it is not alarmist to harbor grave concerns about the
destructive potential of sanctions policies unconstrained by basic
standards of international law.
Rather than address issues of accountability, the US and Security
Council appear to hope that the food-for-oil deal will defuse criticism
of their sanctions policy. This would be a tragic mistake for the
international community. Instead, it is time to examine alternatives
to sanctions that might constrain a dictator without killing the
weakest members of the population. In the case of Iraq, the Security
Council should begin by removing the limit on oil sales under the
food-for-oil deal and allow Iraq to sell enough oil to meet all
civilian needs. Since the UN controls the bank account and will
monitor distribution of humanitarian supplies, it does not make
legal or ethical sense for the Security Council to adopt an arbitrary
limit of $4 billion per year that guarantees continued hunger and
disease in Iraq. In addition, since the primary areas of Iraqi non-compliance
concern its weapons programs, the Security Council should consider
replacing the comprehensive trade sanctions with an arms embargo
and restrictions on travel and financial dealing that target the
government only.
More generally, the international community needs to examine alternatives
to comprehensive trade sanctions, which by their nature impact the
weakest members of a society first and the leadership last and therefore
violate basic principles of international law. While there are no
quick answers to the complex issues raised by the current debate
over sanctions, more targeted forms of economic coercion, such as
military, financial, diplomatic, or communications embargoes should
be considered, and institutional mechanisms for monitoring and reporting
on the impacts of sanctions should be established. Most importantly,
the imposition of sanctions by the Security Council, as well as
by individual states, needs to be governed by an explicit legal
regime, drafted by a panel of international experts and informed
by both human rights and humanitarian law principles. Under this
regime, future cases of sanctions could be assessed according to
universal criteria, in contrast to the current situation in which
sanctions increasingly are imposed without reference to any legal
or ethical standards.
Roger
Normand is policy director of the Center for Economic and Social
Rights, a research and advocacy organization based in New York, and
has participated in three fact-finding missions to Iraq.
Endnotes
1 Some Western journalists
still manage to visit Iraq for a few days and report that sanctions
have barely affected the population. See, for example, T. D. Allman,
"Letter from Baghdad: Saddam Wins Again," The New Yorker (June
14, 1996).
3 See, for example,
Report to the Secretary-General on the Humanitarian Needs in
Kuwait and Iraq in the Immediate Post-Crisis Environment by a Mission
to the Area led by Mr. Martti Ahtisaari, UN Doc. S/22366 (March
1991); Harvard Study Team, Public Health in Iraq after the Gulf
War (May 1991); Report to the Secretary-General on the Humanitarian
Needs in Iraq by a Mission led by Sadruddin Aga Khan, UN Doc.
S/2799; Report by the Secretary-General Pursuant to Paragraph
5 of SC Res. 706 (1991), UN Doc S/23006; International Study
Team, Health and Welfare in Iraq after the Gulf Crisis: An In-Depth
Assessment (August 1991).
4 The Aga Khan Report
provided sector-wise estimates of the dollar amounts needed to repair
the damage and to prevent the worsening of the humanitarian situation.
See also Report by the Secretary-General Pursuant to Paragraph
5 of SC Res. 706, ibid.
5 Food and Agriculture
Organization of the United Nations, Technical Cooperation Programme:
Evaluation of Food and Nutrition Situation in Iraq (September,
1995), Table 28.
6 WHO Report (March
1996), p. 6.
7 United Nations Children's
Fund (UNICEF), Proposal for Water and Environmental Sanitation
Project (August 1994), p. 1.
8 Ibid., p.
2.
9 FAO Report 1995,
p. 20.
10 In Basrah this year,
the WHO found that 65% of drinking water samples failed either microbiological
or mineral purity tests (WHO Report, ibid., p. 4). These
high levels of contamination help explain the astonishing rise in
disease and mortality observed throughout the country, especially
among children.
11 Charter of the United
Nations, signed June 26, 1945, entered into force October 24, 1945,
T.S No. 993, (1969). See Chapter III (establishing the Security
Council), Chapter V (defining its powers) and arts. 41, 42.
12 The UN has imposed
multilateral sanctions against Iraq, the former Yugoslavia, Libya,
Somalia, Liberia, the Khmer Rouge-held areas of Cambodia, Rwanda
and Haiti. See Cortright & Lopez, eds., Economic Sanctions: Panacea
or Peacebuilding in a Post-Cold War World? (1995), p. 5.
13 Order with Regard
to Request for the Indication of Provisional Measures in the Case
Concerning Questions of Interpretations and Application of the 1971
Montreal Convention Arising from the Aerial Incident at Lockerbie
(Libya v. United States) 1992 I.C.J. 114, 31 I.L.M. 662, 694-696
(April 4, 1992) (Diss. Op. Weeramantry).
14 Charter of the United
Nations, op. cit., Preamble.
15 "The purposes of
the United Nations are. . . to achieve international cooperation
in. . . promoting and encouraging respect for human rights. . ."
Charter of the United Nations, ibid. art. 1(3). "The United
Nations shall promote universal respect for, and observance of human
rights and fundamental freedoms for all. . . " art. 55(c).
16 A 1992 official
statement of the President of the Security Council is indicative
of this attitude: "The Government of Iraq, by acting in this way,
is foregoing the possibility of meeting the essential needs of its
civilian population and therefore bears the full responsibility
for their humanitarian problems." Statement by the President of
the Council, S/23517 (5 February 1992).
17 Charter of the United
Nations, op. cit., Preamble.
18 UN Human Rights
Committee, General Comment 6/16 (July 27, 1982). Some argue that
the right to life is a peremptory norm of international law (i.e.,
a norm of the highest importance from which no derogation is permitted).
See, e.g., Case 9647, Inter-Am. C.H.R. 147, 169 OEA/ser.L/V/II.71,
doc. 9 rev. 1 (1987); Parker & Neylon, Jus Cogens: Compelling
the Law of Human Rights, 12 Hastings Int'l & Comp. Law Review
411, 431.
19 International Convention
on the Rights of the Child, opened for signature Jan. 26, 1990,
entered into force Sept. 2, 1990, G. A. Res. 44/25 28, I. L. M.
1448, 1456 (1989). 187 countries are party to the Convention.
20 International Convention
on the Rights of the Child, op. cit., arts. 6, 24. "State
parties recognize the right of the child to the enjoyment of the
highest attainable standard of health..." and state parties "shall
pursue full implementation of this right and, in particular, shall
take appropriate measures... to diminish infant and child mortality."
Ibid. The Security Council itself has recognized the particular
vulnerability and corresponding rights of children. See SC Res.
666 art. 4.
21 Universal Declaration
of Human Rights, Res. 217A (III), UN Doc. A/810, p. 71 (1948), art.
25; International Covenant on Economic, Social and Cultural Rights,
adopted Dec. 19, 1966, entered into force January 3, 1976, G.A.
Res. 2200 (XXI), arts. 11, 12.
22 The legal regime
governing war consists of both humanitarian law (based on the Geneva
Conventions) and the laws of war (based on Hague Conventions and
recent Protocols to the Geneva Conventions). The term "laws of war"
as used in this report includes both regimes.
23 United Nations General
Assembly, Respect for Human Rights in Armed Conflict, UNGA Res.
2444, 23 UN GAOR Supp. (No. 18) (1968), at 164.
24 According to the
authoritative legal commentary, "a remote [military] advantage to
be gained at some unknown time in the future would not be a proper
consideration to weigh against civilian loss... There can be no
question of creating conditions conducive to surrender by means
of attacks which incidentally harm the civilian population." See
Protocol Additional to the Geneva Convention of 12 August, 1949,
and Relating to the Protections of Victims of International Armed
Conflicts (Protocol I) of June 8, 1977, opened for signature December
12, 1977, UN Doc. A/32/144, Annex I, II (1977), reprinted in 16
I.L.M 1391 (1977), art. 51 (5)(b).
MERIP
OP-EDS
A Country at a Crossroads The Austin-American Statesman (Austin, Texas) November 9, 2007
Kamran Asdar Ali
"A
very frank discussion"— so President Bush described
his Nov. 7 telephone
conversation with Pervez Musharraf, four days after the Pakistani
general
imposed a state of emergency and dissolved the high court expected
to rule
his continued presidency unconstitutional. And frank the discussion
probably
was: In the face of spirited protest in Pakistan, and a querulous
press in
Washington, back-channel pressure succeeded in persuading Musharraf
to
promise parliamentary elections. Yet the generous U.S. aid earmarked
for
Pakistan — on top of nearly $10 billion since 2001 — is
quite evidently not
at risk.
What may be at risk is Musharraf's tenure as head
of the military government. Full
story>>
The
war debate in Washington is bogged down. Partisan rancor is one
reason why, and bipartisan desire for US hegemony in the oil-rich
Persian Gulf is
another. But many Americans are vexed by a nobler concern: that
a
“precipitous” US departure from Iraq would leave intensified
civil war,
ethnic-sectarian cleansing and massive refugee flows in its wake.
This
concern is legitimate. Unfortunately, the sad fact is that Iraq’s
civil war
and humanitarian emergency have grown steadily worse as the US
military
deployment there wears on. Full
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the United States, seeking to recalibrate the balance between
security and liberty in the "war on terror," emulate
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that Guantanamo detainee lawyers Avi Stadler and John Chandler
of Atlanta, and some others, have advocated. That people in U.S.
custody could be held incommunicado for years without charges,
and could be prosecuted or indefinitely detained on the basis of
confessions extracted with torture is worse than a national disgrace.
It is an assault on the foundations of the rule of law. Full
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There
is an oft-told Palestinian allegory about a family who complained
their house was small and cramped. In response, the father brought
the farm
animals inside -- the goat, the sheep and the chickens all crowded
into the
house. Then, one by one, he moved the animals back outside. By
the time the
last chicken left, the family felt such relief they never complained
of the
lack of elbow room again. Full
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