Iraqi Sanctions, Human Rights and Humanitarian Law

By Richard 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 .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 .6 billion that the UN itself had
estimated as Iraq's minimum emergency needs, and far below the estimated
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 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 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 .6
billion for Iraq's remaining population of 18 million, less than .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 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 0 million worth
  of drugs annually, but in 1996, the figure is expected to be 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 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.