The Economic Sanctions against the Iraqi People: Consequences and Legal Findings

By Elias Davidsson, April 1996

Elias Davidsson
Yldugata 50
Reykjavik, ICELAND
Tel. (+354)- 552-6444
Fax (+354)- 552-6579
email: edavid@itn.is

Contents

• I Introduction
• II Evidence: The Humanitarian tragedy in Iraq since 1991
• III Causality between the UN sanctions and the humanitarian tragedy in Iraq
• IV From political issue to criminal act
  • The consequences of semantic obfuscation
  • An illegitimate debate
  • The need to assess the civil and criminal liabilities deriving from the sanctions
• V The sanctions and the UN Charter
  • Procedures required for taking collective coercive measures
  • Obligations by the UN to respect the provisions of international law
  • Economic sanctions as a form of warfare
  • The Purposes and Principles of the United Nations
  • States' rights to refuse to carry out Security Council decisions
• VI The criminal nature of the sanctions against the Iraqi people
  • The Crime of Manslaughter
  • The Crime of International Terrorism
  • The Crime of Genocide
  • War Crimes
  • The Applicability of the Geneva Conventions of August 12, 1949, and their Additional Protocols to the Sanctions
  • The basic rules of the Geneva Conventions of 12 August 1949 and of their Additional Protocol I of 1977
  • War crimes against the Iraqi population
• VII Attribution of responsibility for the consequences of the sanctions
  • Charges and counter-charges
  • Responsibility of states and of individual leaders VIII Conclusions and recommendations

I Introduction

1. The trade sanctions against Iraq were first imposed by the Security Council by Resolution 661 (1990) a few days after Iraq invaded Kuwait in August 1990. This resolution ordered UN member states to prohibit within their own jurisdictions all imports from Iraq as well as all exports to Iraq with the exception of supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs.

2. By Resolution 687 (1991), that is after 42 days of relentless bombing of Iraq and its civilian infrastructure, and after the liberation of Kuwait, the Security Council modified slightly the sanctions regime. Iraq was now allowed to import foodstuffs notified to the UN Sanctions Committee, materials and supplies for essential civilian needs (as determined by the Secretary General of the United Nations in his letter of 20 March 1991, or by the Sanctions Committee). The Sanctions Committee was empowered to determine the necessary resources needed by Iraq for purchasing the above products and approve exceptions to the ban on Iraqi exports.

3. Under Resolutions 706 (1991) and 712 (1991), the Security Council authorized the sale by Iraq of $1600 million worth of oil over a six-month period to enable the import of food, medicines and other material and supplies essential for civilian needs. This authorization was subject to stringent conditions set by the United Nations and rejected by the Government of Iraq. A similar proposal was renewed later and again refused by the Government of Iraq, which considers the conditions attached to these authorizations as infringing on Iraqi sovereignty and creating a de facto UN mandate over Iraq.

4. Although no UN resolution prohibits air travel to and from Iraq, a no-fly-zone has been imposed and enforced unilaterally by the United States. The effect was to further isolate the Iraqi people from the outside world. Communications with the outside world, with the exception of illegal border crossings, are limited to the highway between Amman and Baghdad.

5. The UN sanctions regime and the US-enforced ban on air travel have been maintained, more or less unchanged, since 1990. The UN sanctions are enforced by military means.

6. The UN trade sanctions against Iraq are regarded as the most stringent economic sanctions imposed on any single country in the history of the United Nations. As Iraq was heavily dependent on food and medicine imports, paid by oil exports, the trade sanctions had an immediate and horrendous effects on the well-being of the civil population in Iraq.

7. This paper will not deal with the Gulf crisis, its history, causes and development, nor with the Gulf war and its direct consequences. It should though be noted that the sanctions have effectively impeded efforts by Iraq to rebuilt the country's infrastructure and productive capacity which was heavily damaged in the allied bombings. The sanctions are thus a direct continuation of the war effort against Iraqi civilian society and its economic recovery. A select bibliography on these subjects is provided.

8. .The purpose of this paper is to review the evidence available regarding the consequences to the Iraqi civil population of the trade sanctions imposed on Iraq by the Security Council; establish the causality between the sanctions and the prevailing conditions in Iraq; review the legal nature of the sanctions according to the UN Charter and with regards to municipal and international law; and attribute responsibilities for the horrendous conditions of the civilian population in Iraq.

9. In preparing this paper, the author was surprised to discover that while reports abound about the consequences of the sanctions and their political causes, serious research of the legal nature of the sanctions in the light of the UN Charter and international humanitarian and criminal law, is rare. This paper, while not purporting to present an exhaustive study of the legal aspects of the sanctions, attempts to identify the most pressing legal questions confronting a concerned person and presents a set of recommendations on the base of these findings.

II Evidence: The humanitarian tragedy in Iraq since 1991

10. According to numerous eyewitness reports published by journalists and human rights workers who have recently visited Iraq, destitution is widespread and increasing, petty and violent crime has increased to unprecedented proportions, corruption - formerly unknown in Iraq - is rampant and the social and moral fabric of society is torn. Ordinary people struggle for survival. Hundreds of thousands of educated Iraqis have left the country. It is estimated that half a million or more civilians have already died as result of the sanctions, thereof over 200,000 children under the age of 5 years. Whole generations are at risk as a result of malnutrition. While difficult to quantify with accuracy, we are obviously dealing with a man-made tragedy of monumental proportions, the consequences of which the international community will most probably have to deal with for a long time to come.

11. We will review a number of reports describing the humanitarian situation in Iraq as it evolved after the Gulf war of 1991. As the number of reports describing the situation in Iraq is staggering, we will only provide a few samples. Further references can be found in the attached bibliography.

12. In its special report entitled The Effect of the Gulf Crisis on the Children of Iraq, the New England Journal of Medicine of 26 September 1991 writes:

We found suffering of tragic proportions...(T)he youngest and most vulnerable are paying the price for the actions of others. Children are dying of preventable diseases and starvation as a direct result of the Gulf crisis (...) Although the allied bombing may have caused relatively little direct damage to the civilian population, the destruction of the infrastructure has resulted in devastating long-term consequences for health

13. In its editorial of 9 November 1991 entitled Starvation in Iraq, the authoritative British medical journal The LANCET, wrote:

Econ

omic sanctions against Iraq, decided on by the UN Security Council, have led to severe shortages of essential commodities in that country, including food and medicine. The price of food on the free market is so high that only a small minority can afford an adequate diet....High infant mortality and severe malnutrition, especially in the southern governorates of Iraq, have been reported by many observers.

14. In the report Food Outlook: Food Supply Situation and Crop Outlook in Iraq, issued by the FAO in July 1993, we read:

Given the current precarious situation, a vast majority of the Iraqi population is living under most deplorable conditions and is simply engaged in a struggle for survival; but with increasing numbers losing out in this struggle every day a grave humanitarian tragedy is unfolding (...).

Large numbers of Iraqis have now food intakes lower than those of the populations in the disaster stricken African countries (...).

The sanctions have caused persistent deprivation, severe hunger and malnutrition for a vast majority of the Iraqi population, particularly the vulnerable groups - children under five, expectant/nursing women, widows, orphans, the sick, the elderly and disabled.

15. In the report Nutritional Status Assessment Mission to Iraq of November 1993, issued by the FAO. the following assessment is provided on the situation in Iraq in 1991:

The health and nutritional status of the Iraqi population had been improving over the last decades in part due to the oil wealth that was invested in food subsidies, social programmes, and health services. There was increased access to clean water, improvement in sanitation, large investments in health care delivery and education, and improved access to food (Table 5). Health services and medicines were almost free of charge. Food could be purchased at low cost. During this period infant mortality rate (IMR) was already declining, and in 1987 IMR was estimated to be under 41 per 1000 live births (UNICEF, 1990)....

Several surveys were carried out immediately after the [Gulf] war showing high levels of malnutrition in hospitals and health clinics (Harvard Study Team, 1991). One drawback of these surveys was that they were based on hospital visits, and thus not representative of the nutritional situation of the overall Iraqi population.

In August and September of 1991, the International Study Team conducted a nationwide survey of the nutritional situation among children under five years. Their results showed a considerable degree of stunting among children under the age of 5 years (21,8% of children under 5 years were below -2 SD from NCHS Ht/Age median values).

16. In a letter to the editor of The LANCET, published in 8 August 1992 and entitled Emergence of Blinding Malnutrition in Iraq, we read:

Levels of childhood morbidity and mortality have increased strikingly during the past two years. Amid the overall desperate situation with respect to food shortages, contamination, and increased disease prevalence, vitamin A deficiency is reemerging. In the spring of 1992 an outbreak of measles occurred, with a mortality rate in excess of 19% among children admitted to hospital. Complication rates were very high and at least 2 children became blind because of xerophthalmia. We have no supplies of vitamin A capsules available to us and I write this letter in desperation.

Signed: Naira Awqati, Ibn Al Baldi Hospital, Jamila, Baghdad

17. In its April 1993 report entitled Children, War and Sanctions, UNICEF states:

Close to 100,000 additional children (in excess of the expected number of deaths) have died since the beginning of the Gulf war. The post-war death rate was estimated at triple the pre-war state. Many of these child deaths were due to diarrhea disease caused by contaminated water supplies. There has been a resurgence of vaccine-preventable diseases including polio, diphtheria, and measles. Health services are barely functioning due to shortages of supplies and equipment. Medicines including insulin, antibiotics and anesthetics are in short supply. In fact, shortages are worse in 1993 than during the previous two years....A general shortage of anesthetic has led to the deferment of all non-emergency surgery. Cesarean sections have been carried out using only local anesthetic. The setting of bones and, in some cases, leg amputations have been performed without anesthesia.

18. In the introduction of its November 1993 report (see above), the FAO states:

A recent FAO/WFP Crop and Food Supply Assessment Mission (June 1993) reported a deterioration in the food supply situation throughout the country, and noted with deep concern the prevalence of several commonly recognized pre-famine indicators. The present Mission conclusions, based on observations and interviews in several areas of the country, confirms the presence of many of these pre-famine indicators, such as very high food prices, collapse of private incomes, depletion of personal assets and rapidly increasing numbers of the destitute. In the attempt to deal with the unprecedented imbalance between income and the price of basic commodities the population has adopted several coping strategies, such as secondary employment, child labour, and the sale of household assets.

19. In this same report, under the subtitle 'Water and sanitation' we read:

While there has been a substantial investment by both the Government and international agencies to repair the water and sanitation system [destroyed in the Gulf war and the subsequent civil uprising - E.D.], the problem remains serious for some governorates (Table 9) (WHO 1993, personal communication). The breakdown of water and sanitation system has led to several outbreaks of diarrhoeal diseases. Although diarrhea is not a problem during the winter months, several outbreaks of typhoid were reported during the summer months (WHO-MOH 1993). While substantial quantities of ORS and IV fluid have been provided by UNICEF, a few physicians noted that the amount was insufficient to treat severely dehydrated cases during outbreaks.

In the case of Basrah city, the water system is operating at 50% of pre-war capacity, and is unable to meet the needs of the increasing population. The Mission was told that the population of Basrah has been increasing since the Gulf crisis due to migration from Kuwait. The observations in the area made by the Mission confirm those made by previous groups, including the Needs Assessment Mission (UN 1993), that the water and sanitation situation in Basrah continues to remain critical. Sewage in the streets was observed in many residential areas, caused by inadequate pumping resulting from previous damage and from the lack of spare parts to repair pumps. The untreated sewage was in part a result from the fact that Stage 3 of the sewage renewal system was never completed because of the Gulf War. Although pipes had been laid in earlier stages, they were never connected to the pumping system....The shortage in water supply has led to severe problems in hygiene according to health authorities: outbreaks of lice, typhoid, and cholera continue to be serious public health problems in Basrah and throughout the country. Moreover, sanitation has become a common problem in schools that now have 2-3 shifts a day leading to facilitated transmission of water-borne diseases among the primary age school children. Care International reported that in 1994 it plans to rehabilitate school lavatories.

20. Under the subtitle Inadvertent Effect, the report notes:

A side-effect of the present situation, which is not always appreciated and may be unintended, is the production of a degree of intellectual isolation in the scientific and medical community. This is due, in part, to the non-availability of journals, periodicals, and text books: conversation with several scientists, doctors, and researchers suggested that requests to foreign publishers from Iraq are mostly ignored and replies to queries are rarely received. In addition, the access to international computer data networks is practically unavailable, thus depriving the potential users to current data sets, abstracts and scientific references. The net result is an intellectual stagnation and isolation; with the exception of U.N. publications, there is little or no contact with the current literature.

21. From UNICEF report, October 1994:

Nutritional problems are being reported nationwide by the health system with an increase in cases of Marasmus and Kwashiorkor, severe forms of malnutrition. Results of a study conducted by the Government of Iraq/UNICEF March 1994 indicated that severe and moderate malnutrition among children of the age group 0-12 months were 9,2% an increase from the previous year.

22. In the conclusion of its report the authors state:

The increase in the number of severe malnutrition cases, expected in the longer term, may lead to an increase in infant mortality. The expected increase in low-birth weight as a result of poor-nutritional status among pregnant women together with an expected higher infection rate among under-nourished children will be contributing factors. Mild to moderate cases of malnutrition may enter the stage of chronicity where stunting would be noticeable. Nutritional deficiency may affect the growing brain of young children resulting in deterioration in the intelligence level of the growing population.

23. A vivid description of the bureaucratic nature of the sanctions regime was published in The Guardian (UK) on 5 July 1994:

As a director of a small British company specializing in exports of mainly medical and hospital supplies, I could not resist putting pen on paper to falsify (sic) the UN allegations that food, medicine and humanitarian supplies are 'exempted' from the sanctions imposed on the Iraqi people. They are not.

1. Before any individual or company can talk to an Iraqi buyer, (private or public), they must apply for a licence to negotiate. In the United Kingdom the issuing authority is the Department of Trade and Industry (DTI). The applicant must specify the items to be negotiated. Each item must be applied for separately. Licences to negotiate could take three to four weeks to issue.

2. Only when the licence is issued can you start talking to your buyer(s) without fear of breaking the law.

3. Once the buyer and seller agree on quality, quantity and price, the seller must then apply for a supply licence which can take up to 20 weeks to issue.

4. In the meantime the Iraqi dinar is suffering daily devaluation and inflation beyond control.

5. Twenty weeks later the seller receives the supply licence by which time the buyer's situation has changed.

In nearly 24 weeks, inflation and the continuous devaluation of the Iraqi dinar will force the buyer to cancel the order, or, at best, reduce the quality or quantity of the goods in order to raise the hard currency needed to finance the purchase.

Simple? Not as far as the DTI is concerned.

Applicants must adhere to the quality, quantity, origin and price applied for. Solution ? Start all over again.

24. In the UNICEF-issued report entitled The Status of Children and Women in Iraq, of September 1995, we can read:

The poor economic situation in the country has had its adversities on the social sector where social characteristics and behaviour are undergoing a total change in a society once known for its virtual attributes. By contrast, crime rate of theft has been on the rise day by day and even television stations daily telecast advertisements of missing private vehicles....Street children are today widely visible in the country and even in the capital Baghdad. Since the beginning of the Gulf crisis, children have been seen selling petty things at traffic lights, but today many more have turned to beggary, one step before delinquency... This situation is unlikely to witness immediate improvement even if the economic and trade sanctions are lifted or eased....According to Ministry of Health statistics, the number of mortality cases among children under five has been on the rise over the past five years. MOH figures indicated that the monthly average of mortality cases among children of the same age group due to acute respiratory infections, water-borne diseases and malnutrition stood at 4,409 for 1994 against 742 cases in 1990, while the average of monthly mortality cases by the end of July 1995 stands at 4,475

III Causality between the UN sanctions and the humanitarian tragedy in Iraq

25. Although it is difficult to accurately assess the humanitarian situation in Iraq, all parties to the conflict, including the UN Security Council and the Government of Iraq, have expressed their awareness of the dramatic humanitarian situation in Iraq.

26. Where opinions differ is in the assessment of the causes for this situation. While the Security Council has implied in some of its resolutions that the Government of Iraq is responsible for this situation, it has not attempted to substantiate these allegations by any detailed analysis. UN agencies, such as UNICEF and FAO, have in their reports commended the Government of Iraq for its efforts in ensuring an equitable distribution of basic necessities to the population and its encouragement of agricultural production. In their reports, these UN agencies unequivocally identify the trade sanctions as the main factor causing the horrendous situation in Iraq. This assessment is endorsed by most, if not all, eyewitnesses and journalists who have visited Iraq after the Gulf war.

27. Perhaps the clearest official awareness of this causality can be found in a report issued by UNICEF in April 1993, entitled Children, War and Sanctions:

Indeed it may be that one fundamental contradiction remains that politically-motivated sanctions (which are by definition imposed to create hardship) cannot be implemented in a manner which spares the vulnerable (emphasis added).

28. It is though evident that trade sanctions encompassing products for civil use are inherently an indiscriminate coercive measure directed at all the inhabitants of the targeted country. The very intent of trade sanctions is to inflict hardship on a population with the hope that it will press its government to change policies.

29. That this is in fact the aim of economic sanctions is hardly disputed. In her book Economic Sanctions and International Enforcement, by Margaret P. Doxey (Oxford University Press, 1971), the author provides detailed guidelines for those who wish to prepare effective economic sanctions against a nation. Among her suggestions we read:

The target's economic structure and pattern of external economic relations would have to be studied in detail in order to determine specific areas of vulnerability. General data regarding human and material resources, geographical situation, and the existing level of development would all be relevant, but the target's degree of integration into the world economy and dependence on foreign trade, foreign investment, and other external services would be crucial....

A detailed analysis of national accounting statistics (presuming their availability) would show the nature and value of visible and invisible exports and imports; their contribution to the gross national product; the proportion of exports to reexports; the extent to which imports were processed for export, and the importance of imports for the continuation of economic activity at its existing level. Probable effects on employment which might follow the loss of export markets could be calculated; the scope for expanding domestic production to bring about import substitution could be estimated. Multiplier effects of unemployment would have to be taken into account, and the resulting falls in income levels estimated, although the number of variables would make precise quantification difficult....

There might be an unforeseen willingness to accept a measure of sacrifice. Falls in real income which were produced by sanctions might not be sufficient either to persuade the government of the target, under pressure from its citizens, to change its policy, or to bring an alternative government into power. (p. 98-99)

30. Other reports, such as that by Dreze and Gazdar of the London School of Economics (October 1991), endorse this assessment of causality:

[I]t is now impossible to maintain these sanctions in their present form without perpetuating, and perhaps even accentuating, the state of acute poverty in which a large part of the population is now plunged.

31. The UNICEF report provides clear evidence of causality between the sanctions and the humanitarian situation in Iraq:

Sanctions are inhibiting the importation of spare parts, chemicals, reagents, and the means of transportation required to provide water and sanitation services to the civilian population of Iraq. Huge quantities of resources are required if Iraq is to make any real progress towards re-establishing its pre-war capacity for managing water and sewage...(...) What has become increasingly clear is that no significant movement towards food security can be achieved so long as the embargo remains in place. All vital contributors to food availability - agricultural production, importation of foodstuffs, economic stability and income generation, are dependent on Iraq's ability to purchase and import those items vital to the survival of the civilian population.

32. The FAO report entitled Nutritional Status Assessment Mission to Iraq and dated November 1993 provides various examples of how the sanctions directly affect the general population in Iraq:

Despite efforts made by the Government [of Iraq] and various U.N. agencies (in particular FAO) to boost [agricultural] production, several problems continue to hinder the development of the agricultural sector. The lack of herbicides, pesticides, compound fertilizers, agricultural machinery and sprayer spare parts, and seeds still constitute a major obstacle to achieve this objective. In addition, the production of livestock is facing severe shortages of veterinary drugs and vaccines. As a result a number of animal diseases which pass to humans such as brucellosis have also increased and created problems in food safety. It was also observed that, because of administrative delays in the U.N. clearance procedures, many of the agricultural inputs provided under the humanitarian assistance sometimes arrive too late to have an impact on increasing productivity.... y In the cereal sector, the lack of appropriate inputs not only has had a negative impact on productivity but also on quality of food grains. During its visits to silos, cereal mills, and flour distribution centers, the Mission noted several coping measures adopted by the Government to satisfy the needs of its food subsidy scheme. First, the grains were general of very poor quality indicating inadequacies in seeds, fertilizers, and crop protection, and contain high levels of foreign materials (e.g. wood, dirt, and stones). Second, insufficient production of wheat has forced the government to mix several lower value grains such as barley, millet, and corn to produce flour. The standard flour mixture is now 40% barley: 60% wheat. Third, to increase the quantity of flour, the Government mills are applying a high extraction rate (90%) which far exceeds the normal rate of extraction. In addition, the Mission verified that deteriorating status of milling systems was unable to process the grain mixture properly, and was producing flour of poor quality.

33. In a periodical report entitled Crop and Nutrition Status Assessment Mission , and quoted by the Reuters news agency on 21 September 1995, FAO experts who visited Iraq in July and August 1995 write:

Famine threatens four million people in sanctions-hit Iraq—one fifth of the population—following a poor grain harvest...The human situation is deteriorating. Living conditions are precarious and are at pre-famine level for at least four million people....

The deterioration in nutritional status of children is reflected in the significant increase of child mortality which has risen nearly fivefold since 1990...

For Baghdad, a highly advanced urban society, the prevalence of underweight children (29%) has increased to a level comparable with children from Ghana (27%) and Mali (31%). For stunting, prevalence rates are similar to estimates from Sri Lanka (28%) and the Congo (27%). Furthermore, the prevalence of wasting in Baghdad is comparable with estimates from Madagascar (12%) and Myanmar (11%). The prevalence of severe wasting is comparable to data from northern Sudan (2.3%). In contrast, 1991 estimates of malnutrition from Baghdad were comparable with estimates from Kuwait (12% for stunting, 6% for underweight, and 3% for wasting).

34. In its News Update of 26 September, 1995, the FAO/WFP (Rome), provides the following assessment:

Alarming food shortages are causing irreparable damage to an entire generation of Iraqi children, a WFP emergency officer said Tuesday, reporting on the prevalence of stunting among toddlers, many with old man's faces in a country where nearly everyone seems to be emaciated.

'After 24 years in the field, mostly in Africa starting with Biafra, I didn't think anything could shock me' said Dieter Hannusch, WFP's Chief Emergency Support Officer, on his return from a 2-week assessment mission in Iraq. 'But this was comparable to the worst scenarios I have ever seen.'

35. That there is a relationship of causality between the sanctions and the dramatic humanitarian situation in Iraq has gradually been admitted, albeit implicitly, by the Permanent Members of the Security Council, including the United States.

In an unprecedented move, the representatives of the Permanent Members of the Security Council sent to the President of the Security Council a letter dated 13 April 1995 entitled Humanitarian impact of sanctions. In this letter, the Permanent Members acknowledge the need to minimize unintended adverse side-effects of sanctions on the most vulnerable segments of targeted countries. That this letter was at all written appears to indicate that the effects of the sanctions on the Iraqi population were becoming an increasing embarrassment for the Permanent Members of the Security Council.

36. Incidentally, the wording used ('adverse side-effects of sanctions on the most vulnerable segments of target (sic) countries) introduces a novel concept, that of 'vulnerable segments' of society, into UN documents dealing with an issue of international humanitarian law. According to the laws of war, all civilians, regardless of age and health status, have to be spared the effects of hostilities. By differentiating between 'vulnerable members' of society and others, licence appears to be given to the commission of various human rights violations against those civilians who are not defined as 'vulnerable'. This precedent is dangerous as it might cause a retreat from existing provisions of international humanitarian law and thus a serious setback for human rights.

IV From political issue to criminal act

37. Is it at all necessary to study the legal nature of the sanctions against Iraq ? Surely this is a moot question for those who believe that the sanctions are morally and politically justified and who wield the power for their enforcement. But also many of those who view the sanctions as morally unjustified treat the realm of Law as an exotic subject. Human rights activists are not used to use Law as a tool for justice and peace. They feel more at home in the political field, organizing protests, petitions and demonstrations.

38. Before arguing the necessity to study the legal nature of the sanctions, we will consider the nature of the public debate regarding these sanctions, as it has been carried out by proponents and opponents of the sanctions.

The consequences of semantic obfuscation

39. While most issues dealing with nations, societies and organisations necessitate a purely political approach, there are some issues which, although political in origin, degenerate into criminal issues. It would certainly not be considered legitimate to organize a debate about the merits of exterminating Jews in gas chambers as a political issue. Those who would organize such a debate would justifiability be charged for criminal incitement for considering the idea of exterminating Jews as a possibility and labeling it a political issue.

40. The sanctions against Iraq are certainly not comparable in extent and intent to the wholesale murder of Jews in gas chambers. But the question persists: At what point does an issue become an illegitimate object of academic debate and enters that of criminal prosecution ?

41. The Nazi leaders did not talk about 'extermination' or 'annihilation' of Jews but about the Final Solution of the Jewish Question. They used euphemisms to camouflage their murderous plans. Euphemisms and other forms of obfuscation are not specific to the Nazi regime: They are used daily by most regimes, including those purporting to be democratic. It seems that all government ministries dealing with military matters are called Ministries of Defense. No government has established the Ministry of Aggression. Did these labels prevent such Ministries to organize aggression against the sovereignty of other states ? Depending on the viewer, an act is described as 'terrorism' or as 'preventive measure'. Examples of linguistic obfuscation abound daily.

42. The common formulation 'Sanctions against Iraq' are indeed such obfuscation. Sanctions cannot be imposed on a 'country', only on people. More appropriate would have been the wording 'Sanctions against the Iraqi population'. But this formulation is not used as it would reveal too much against whom the sanctions are directed.

43. While the question 'Are sanctions against Iraq justified?' does not generally elicit an outrageous response (it is in fact the title of many learned debates), a rewording of this question to 'Is it justified to starve the Iraqi population in order to bring pressure on the Iraqi Government?' would certainly elicit a different reaction. And if this question would furthermore be reworded to 'Is it justified to cause 100,000 or 200,000 or 300,000 children to die in order to force Iraq to disarm?, one would certainly meet outrage at having at all considered such a hypothesis.

44. The above figures are not outrageous fabrications. They reflect the tragic reality. UNICEF's representative in Baghdad has been reported as estimating that half a million civilians have died as result of the UN sanctions. Although this attribution could not be verified, it is corroborated by other independent estimates. The Iraqi health authorities provide detailed mortality statistics which show that 40,000 to 50,000 children under the age of 5 years have died yearly since 1991 as result of the sanctions, in excess of the equivalent mortality rates before the Gulf war. While difficult to prove, these figures are nevertheless considered plausible by UN agencies who work in Iraq and regularly monitor the nutritional and health situation in the country.

45. Semantic obfuscation, gross disinformation and prevalent dehumanization of Arabs and Muslims by the media, have all helped to maintain the sanctions without causing a public outcry.

An illegitimate debate

46. While economic sanctions in general are certainly legitimate subjects of study, we will demonstrate that the specific issue of sanctions against Iraq - as implemented - cannot be discussed (anymore) as a political question under existing legal norms, as such discussion would necessarily imply the endorsement of criminal acts.

47. Public debate about the UN sanctions against Iraq has mainly turned around the following two questions, the first of which is political and the second moral:

• Are the sanctions effective in forcing the Iraqi government to abide by UN demands?

Is the human price paid by the sanctions too high?

48. To put effectiveness in the center of the debate necessarily puts the ethical dimension on the side. An example of this approach in its purest implementation can illustrate this principle. It would be most effective for a society to exterminate all those who do not contribute to active production, such as delinquents, chronically ill and lazy people. But no civilized society uses only effectiveness as criteria to determine policies. The first question, by ignoring the 'human cost' of the sanctions, reflects a criminal approach.

49. The second question appears to include an ethical dimension. By rewording it, the existence of a cynical calculus reveals itself: 'How many lives is it worth to sacrifice for the sake of a particular aim? Those who employ such a calculus hardly include their own lives or those of their kin, but intend to sacrifice lives of other people, either soldiers under their command or aliens, defined as enemies, the lives of whom they believe they can expend with impunity.

50. Such questions reflect the philosophy of a total war, as war carried in World War II. However even in such wars and even in defensive wars, the conflicting parties may not depart from prescribed rules of warfare. These rules of war are codified in the Hague and Geneva Conventions. A few governing principles, such as the rule of military necessity, the rule of proportionality and the rule prohibiting attacks on civilians, underlie these Conventions. All High Contracting Parties to these Conventions (practically all states of the world) must respect the provisions of these Conventions in all circumstances. The breach of these laws is in many cases equivalent to the commission of war crimes. No state is permitted, by unilateral declaration, to exonerate itself of its obligations under these Conventions, regardless of political motives and justifications.

The need to assess the civil and criminal liabilities deriving from the sanctions

Even among those who oppose the sanctions and agree that they are criminal acts, there are many who believe that there is nothing to be gained by attributing criminal responsibility to those who endorse and enforce the sanctions. The prevailing attitude is that the problem is political and can only be solved politically. According to this view, the politicians who instituted, endorsed and organized the trade sanctions, are only cogs in a machine, performing their part of the role as if they were puppets in the hands of invisible and diffuse economic forces. The consequence of this attitude is to undermine the rule of law, give impunity to criminals and make it more difficult for Iraqi individuals to seek material compensation for their losses.

51. To assess the legal nature of the sanctions from the point of view of criminal law we will consult several sources: Municipal law, international conventional law and customary law. But before proceeding, we will attempt to dispose of two myths: First, that the sanctions against the Iraqi people comply with the letter and spirit of the UN Charter; and secondly that member states are required, regardless of whether Security Council decisions are legitimate or criminal, to implement such decisions.

V The sanctions and the UN Charter

52. Most UN members participate in implementing the UN sanctions against Iraq. Governments generally claim

• that the sanctions are imposed by the UN in accordance with the Charter and
• that UN members are obliged to enact the necessary laws and regulations to give effect to these sanctions, in accordance with Article 25 of the Charter.

Are these claims accurate?

Procedures required for taking collective coercive measures

53. It is true that the UN Charter permits under certain conditions the imposition of economic sanctions against individual states. Articles 39 and 41 of the Charter deal with this question. They are quoted here in full:

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

54. Are the sanctions in Iraq imposed in accordance with these provisions ? As seen above, the Security Council, before deciding to apply economic sanctions, must 'determine the existence of any threat to the peace, breach of the peace, or act of aggression'. More precisely, the Security Council must formally determine that such a threat exists.

55. After Iraq invaded Kuwait in August 1990, the Security Council made such a determination (Resolution 660). On the base of this determination the Security Council imposed stringent trade sanctions on Iraq (Resolution 661). After the illegal Iraqi occupation of Kuwait was terminated and the sovereignty of Kuwait restored, the situation determined in August 1990 by the Council, namely that of 'breach of peace' was ended and no case was made by the Security Council that an immediate 'threat to the peace' existed, justifying continued sanctions against Iraq. If such threat did exist, it was not identified as such by the Council, nor was any reference made to the specific provisions of the Charter.

It must be added that although the Security Council has full discretion in determining the existence of a 'threat to peace' where there is none or fail to make such a determination when it exists, this formidable discretionary power is mitigated by its obligations to exhaust all possibilities for the solution of international conflicts by peaceful means, in accordance with Chapter VI and with the Purposes and Principles of the Charter.

56. There is no evidence that the Security Council exhausted all possibilities of a peaceful solution to the Gulf crisis before resorting to war, nor did it do so after the end of the occupation of Kuwait.

57. If a 'threat to the peace' existed after the end of the occupation of Kuwait, and the Council wished to act in strict respect of the Charter, it would have made a new determination that such a threat exists requiring the continuation of economic sanctions in accordance with Article 39. Such determination was not made, probably because there was no material base to substantiate it. Had anybody claimed that Iraq - after its defeat by allied forces - represented an imminent threat to world peace, calling for the most stringent economic sanctions in the history of the United Nations, the entire General Assembly of the UN would have died from laughter.

58. Thus one must conclude that the continued imposition of sanctions against Iraq after the liberation of Kuwait, although not illegal, represents nevertheless an abuse by the Security Council of its discretionary power, and thus a corruption of the Charter that brings the United Nations Organisation into disrepute.

Obligations by the UN to respect the provisions of international law

59. But even assuming that to maintain the sanctions after Iraqi withdrawal from Kuwait was procedurally legitimate, the implementation of the coercive measures should have to be carried out according to the norms of international humanitarian law, that is with respect to the Hague and Geneva Conventions.

According to Article 1, common to all four Geneva Conventions of 1949, High Contracting Parties must respect the Conventions in all circumstances.

60. While some publicists argue that decisions of the Security Council trump any other international Convention, implicitly including the Geneva Conventions, there is no evidence that these publicists also include jus cogens among rules which can be put aside. It would indeed be difficult to demonstrate that the Security Council can exonerate member states from their absolute obligations to respect principles and rules concerning the basic rights of the human person, as enshrined for example in the Hague and Geneva Conventions.

61. The applicability of the laws of war was recognized in respect of military sanctions under the Covenant of the League of Nations by a special legal committee of the League, which stated:

Certain members of the Committee drew its attention to the question whether, in the case of resistance to aggression or the execution of international police measures, the laws of war (jus belli) would continue to be applicable. In such circumstances, it might, indeed, be doubtful whether the case was one of war properly so called. In the Committee's opinion, whatever name may be given to such operations, the rules of the laws of war would remain applicable.

62. The Committee on Equality of Application of the Rules of the Law of War to Parties to an Armed Conflict of the Institute de droit international made the following resolution (V) in the same spirit:

Les obligations, ayant pour but de restreindre les horreurs de la guerre et impos es aux bellig rants pour des motifs humanitaires par les conventions en vigueur, par les principes g n raux du droit ou par les r gles du droit coutumier, sont toujours de rigueur pour les parties dans toutes les cat gories de conflicts arm s, y compris l'action coercitive de la part de l'O.N.U. Il en est de m me pour les r gles concernant la participation de non-combattants aux op rations de la guerre. (emphasis added).

Economic sanctions as a form of warfare

63. The question whether the laws of war apply in cases of economic warfare, such as embargo and sanctions, is the object of dispute among international lawyers. The reason is that until recently it was generally considered that economic sanctions are more humane than military enforcement measures. Most cases of economic warfare until now have been either related to a 'total war effort', as in the two world wars, restricted in time and extent, or imposed on a minority regime in cooperation or acquiescence of the majority of the population.

64. The sanctions against the Iraqi population represent a new (and age-old) form of war. In the case of Iraq the economic sanctions have proved more lethal and destructive of civilian life than the massive military assault on Iraq in 1991. It is therefore appropriate to talk about economic sanctions as a form of warfare subjected to the principles of international humanitarian law.

65. It is though established that economic sanctions are a potent weapon against nations and states.

In an article entitled The Use of Nonviolent Coercion: A Study of Legality Under Article 2(4) of the Charter of the United Nations, by Lee C. Buchheit , the author writes:

Economic coercion may entail any or all of the traditional methods of economic compulsion. Although it is by no means novel, this weapon (emphasis added) has assumed tremendous importance as the nations of the world have grown to depend upon one another for the requirements of everyday living. Countries relying on world markets for food or industrial raw materials are vulnerable to compulsive measures such as boycotts, embargoes, or attempts by rival nations to freeze the victim-state's assets or dry up its markets on a global scale .

The Charter of Economic Rights and Duties of States adopted by the UN General Assembly in 1974 provides that:

[n]o State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind..

Although this statement has not the authority of international law and only refers to actions by individual states, the quoted statement nevertheless indicates an accepted norm of customary law, because most UN member states endorsed this formulation. It also indicates the general awareness that economic coercive measures are a hostile act.

The Purposes and Principles of the United Nations

66. It is submitted here that decisions by the Security Council have to conform not only to these Conventions, binding in all circumstances on all states, but must also conform with Article 24 of the Charter:

• In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
• In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.

The Purposes and Principles of the United Nations are stated in Articles 1 and 2 of the Charter:

Article 1

• To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
• To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
• To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
• To be a center for harmonizing the actions of nations in the attainment of these common ends.