Iraqi Sanctions, Human Rights and Humanitarian Law

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Iraqi Sanctions, Human Rights and Humanitarian Law
By Roger Normand, Middle East Report, Summer 1996

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).
2 UN Security Council, Resolution 661 (August 6, 1990), para. 6c.
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).

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