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  Hans-C. von Sponeck
Paper
presented in the Hiroshima Peace Institute 2006
* A DIFFERENT
KIND OF WAR - The UN Sanctions Regime in Iraq
(September 2006)
New book by H. C. von Sponeck,
with a Foreword
by Celso N. Amorim, Foreign Minister of Brazil
Highly recommended by the BRussells
Tribunal. Click on
the picture for more information.
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Abstract.
Part
I: Introduction.
Part
II: Options of the UN Security Council for the Implementation of the
Humanitarian Exemption for Iraq
Option
1: Finance for Survival (1991–95).
Option
2: Needs Assessment and Financial Allocations
Option
3: The Oil Ceiling.
Option
4: Distribution Plans and Oil Revenue
Option
5: Dedicated Budgets.
Option
6: The Linkage of Economic Sanctions and Disarmament
Option
7: Economic Sanctions Policy.
Option
8: Procurement of Humanitarian Supplies
Option
9: The UN Sanctions Committee.
Option
10: Import and Export Controls.
Option
11: UN Security Council and UN Secretariat Oversight
Option
12: Pre-Sanctions Preparations.
Option
13: Integrated UN Sanctions Management
Option
14: Compensation.
Option
15: Commercial Clause.
Option 16: Cash Component.
Option
17: Emergency vs. Rehabilitation.
Option
18: Sanctions Evaluations.
Option
19: Public and Informal Meetings of the UN Security Council
Option
20: Outreach to Non-State Parties.
Option 21: The No-Fly Zones.
Option 22: Public Information.
Part III: Conclusions.
Abstract
Economic sanctions
imposed by the UN Security Council on
Iraq in 1990 were legal; the implementation of
sanctions in the following years turned out to be increasingly in violation of
the UN Charter and other international law. The impact of UN sanctions policy
on the welfare of the Iraqi people was punitive and destructive.
The UN Security
Council did not exercise its oversight mandate in a continuous and consistent
manner but was nevertheless fully aware of the state of physical and mental
ill-being of the Iraqi civilian population.
The UN Security
Council had a wide range of options to ameliorate the human condition but
succumbed to a hard-line approach preferred by two of its permanent members.
Some of these options would have led to minor improvements to the welfare of
the Iraqi people, e.g., the introduction of the commercial clause in
oil-for-food programme contracts; the agreement of local purchases for the
sanctions food basket; the introduction of a cash component to underpin the
humanitarian exemption in different sectors.
Other options, if
adopted by the UN Security Council, would have made significant and life saving
differences for the civilian population, e.g., the de-linking of economic
sanctions and the military embargo; the de-bureaucratization of procurement of
humanitarian supplies; the increase of permitted financial resources for the
oil-for-food programme based on needs assessments and a sanctions strategy; a
defined unified management structure involving all UN parties charged with the
implementation of sanctions in Iraq, etc.
Since these and
other more humane options were not
chosen despite the knowledge in the UN Security Council of the ensuing human
catastrophe, an analysis of the UN’s role in the Iraq conflict during the
period of economic sanctions reveals elements of intent and therefore wilful
violation of international humanitarian and other law.
Part
I: Introduction
Throughout
the period of Iraq economic sanctions (1990-2003), UN member states, including
the US and the UK, the UN Security Council, a multitude of other
inter-governmental organisations such as the League of Arab States including
Kuwait and Saudi Arabia, the International Red Cross and Red Crescent Societies,
the ICRC, the Vatican and religious organisations, the international peace
movement and civic leaders vociferously expressed their concern for the welfare
of the Iraqi people. Everyone with a voice wanted to assure the world that it
was the Government of Iraq that was the target of sanctions and not an innocent
population. This is where global solidarity and rhetorical unity on
Iraq ended.
How
to deal with the
Iraq conflict was a
different matter. For some the survival of a human being was the challenge and
much was done to protect such individual life. Others were active in helping to
maintain the social infrastructure and health services. Still others were eager
to support the many internally displaced in all parts of the country. A good
number devoted their resources to visit
Iraq and research and
report on the human condition as it evolved under economic sanctions.
What
these groups and individuals had in common was a deep sense of justice,
compassion, morality and courage. This can not be said for the political world
of governments including the Organisation of the Islamic Conference (OIC), the
League of Arab States and the European Union. Divided within, unsure,
short-sighted, ill-informed, unprincipled – any or all of these characterize these
political organisations. This ultimately resulted in their inability to make a
difference in solving the
Iraq crisis peacefully and
in accordance with the UN Charter. Political decision making was located
elsewhere, in
New York,
Washington,
London and
Baghdad.
The
UN Security Council should have been the venue to which all the protagonists
would come together to debate conflict resolution. This was not to be. The UN
Security Council became a tool of bilateral interests. Over the years, the
Council distanced itself more and more from its role as a peace maker. It has
to be said here that the Security Council did at times pause to introduce
measures for the benefit of the Iraqi people. This, however, was usually done
under pressure and as an act of last resort. The Iraqi people were treated as
expendable commodities as the latest version of the ‘Great Game’ unravelled.
The UN Security Council had succumbed to hardliner and self-serving policies of
primarily two of its permanent members. For this the Iraqi people and the
United Nations paid a heavy toll.
Part
II identifies 22 distinct issues of relevance for the human condition in
Iraq for which an
independent UN Security Council could have found humane options. It will remain the Security Council’s legacy that
it chose not to pursue these options.
The
renewed debate about a United Nations that is equipped to handle complex
international crises in adherence to the UN Charter and other international law
has no choice but to carefully take into account what went wrong and why in the
UN Security Council’s and to a lesser extent the UN Secretariat’s handling of
the period of economic sanctions in Iraq.
Part
II: Options of the UN Security Council for the Implementation of the
Humanitarian Exemption for
Iraq
Option
1: Finance for Survival (1991–95)
i) During 1991-95 the UN mounted
so-called Inter-Agency Humanitarian Appeals for donations to provide
humanitarian assistance to
Iraq in order to mitigate
the worst effects of sanctions. The UN was hoping to collect an amount of $ 1.2
billion during this period, yet, the funds actually received were only $ 450
million.
ii) The resulting severe shortfall
of such voluntary donations led to a quick deterioration of conditions of life
in Iraq as evidenced by rising malnutrition, mortality and re-emerging diseases
such as erasmus, kwashiorkor, measles and cholera.
iii) A more humane option would have been to appeal for international voluntary
donations to be supplemented by contributions by member governments to make up
any short falls of the funds needed. This would have been a responsible and
human rights-minded approach on the part of the UN Security Council keeping in
mind that socio-economic conditions were deteriorating because of the
imposition of economic sanctions. Such an approach would have resulted in lower
mortality, particularly among children, less malnourishment and better
epidemiological conditions.
Option
2: Needs Assessment and Financial Allocations
i)
Following
Operation
Desert Storm in January-March
1991, the UN Secretariat mounted two missions to
Iraq to assess war damages
and the ensuing humanitarian needs of the civilian population. The first
mission, led by Marti Athisaari, took place in February 1991; the second by
Sadruddin Agha Khan in June 1991. Both visits were important attempts to prepare for subsequent UN
Inter-Agency Humanitarian Appeals. In stark terms they identified the extent of
the deterioration in
Iraq and recommended
substantial international emergency assistance. The two missions, however, were
not equipped to carry out detailed sector by sector quantifications of
requirements for immediate and medium term relief. The UN Secretary General,
nevertheless, took the proposals of the missions as the basis for defining the
dimension of the subsequent relief efforts during the years preceding the
oil-for-food programme in 1996. This took into account the likely cost of
compensation of claims by state and non-state parties for alleged material
losses incurred due to
Iraq’s invasion into
Kuwait. The absence of
rigorously collected data of socio-economic needs introduced a relief bias with serious consequences.
These were marginally lessened in February 1998 when the UN Secretary General
agreed, with the Government of Iraq, to double the permitted oil revenue
allocation from a severely inadequate $ 2.6 billion to a slightly less
inadequate $ 5.2 billion. During 13 years of economic sanctions the UN
Secretariat did not carry out any
overall quantification of needs nor
establish the funding levels required
to meet such needs. Needs updates were limited to sporadic sectoral reviews. A
reliable relief basis, therefore, never existed. The absence of a relief strategy with a built-in revision
mechanism further weakened the effectiveness of the oil-for-food programme.
Throughout the period of sanctions the humanitarian exemption remained a
programme conceived as a ‘short’ term emergency
response. The six-monthly distribution plans jointly prepared by the Government
of Iraq and the United Nations were little more than shopping lists. The
oil-for-food programme, during the first six phases (1996–1999), was wholly
dependent on set allocations. Beginning in 2000 with phase VII an established
oil revenue ceiling for the humanitarian exemption was removed by the UN Security
Council but remained entirely dependent on world market oil prices and.
therefore, constituted no improvement.
ii) Inadequate allocations with
funding ceilings based on qualitative rather than quantitative needs
assessments followed by open-ended oil production with relief revenue dependent
on oil prices created a weak and, as of phase VII, highly volatile resource
basis. Funding uncertainty combined with constraints such as bureaucratic
procurement, withheld supplies, and the absence of a relief strategy had
serious consequences for the Iraqi population.
iii) A more humane approach would have been based on a careful quantitative
assessment of needs and a provision for regular integrated and holistic updates
with guaranteed finance. This would have ensured that the impact of UN Security
Council sanctions policies on the welfare of the Iraqi people would not have
been punitive and been in accordance with international law.
Option
3: The Oil Ceiling
i) Pressure to increase the
severely inadequate financial resources for the humanitarian exemption mounted
soon after the oil-for-food programme became operational in December 1996. In
1998 permitted oil revenue was doubled yet remained inadequate. In late 1999
there was a special one-time additional allocation for phase VII (2000)
followed by the decision to remove the previously prevailing oil ceiling
altogether. This decision constituted a political ploy since the UN Security
Council was well aware that Iraq’ s oil industry was in a “dangerous and
lamentable” state as the UN Secretary General was told year after year by oil
sector UN review missions who visited Iraq annually. Production figures before
and after the oil ceiling was removed in 1999 document the fact that the
capacity of the oil industry had reached a peak of 2.1 to 2.2 million barrels
per day long before the ceiling was lifted. Output could not increase until a
full rehabilitation of the oil industry would take place. This did not happen
until the 2003 invasion. By removing the oil ceiling, hardliners argued that
since the Iraqi Government consequently faced no more output restrictions, the
authorities could earn as much oil income as was required for meeting the needs
of the people. The Government of Iraq was entirely to be blamed if the people of
Iraq continued to suffer.
This constituted a false and malicious statement for reasons explained above.
ii) The shift from predictable
inadequacy due to output restrictions to alleged adequacy because of
‘unrestricted’ oil production introduced a further element of income
uncertainty. The UN Security Council had changed nothing for the better.
iii) A more humane option would have been to agree to major repairs of
Iraq’s up- and downstream
oil facilities to allow an increase in oil production commensurate to the basic
needs of a civilian population.
Option
4: Distribution Plans and Oil Revenue
During
the period 1996–2003, there have been 13 phases of six months each and an equal
number of distribution plans. These plans were prepared in
Baghdad by the government of
Iraq and the United
Nations. Priority in the designation of resources for individual sectors
included in the oil-for-food programme (food/nutrition, health, water,
sanitation, electricity, agriculture, education, and as of 2000, construction
and telecommunication) as well as allocations for the oil industry was at all
times given to the sectors of food and health. In the initial phases, these two
sectors would absorb about 80% of available funds The balance would be
allocated to the remaining sectors. It is important to stress that during all
13 phases there was no congruence between the planned and the actual budgets.
During most of the phases, the actual budgets reflecting the oil revenue earned
would be significantly lower than the planned budgets. The consequence of this
was that the oil-for-food programme, as planned for an individual phase and
approved as such by the UN Secretary General, most of the time could not be
implemented because of a lack of resources. There was no provision in the UN Iraq
sanctions policy to augment the actual oil revenue with additional resources to
compensate for shortfalls to ensure that a distribution programme was fully
funded. Individual phases depended wholly on the volume of oil exported and the
world market price of oil. This introduced an income uncertainty factor with
serious implications for the welfare of the Iraqi population. The income and
supply distribution picture for phase V (1998), to cite one example,
illustrates the dilemma for the oil-for-food-programme: the distribution plan
called for US$ 2.7 billion, available for the humanitarian exemption were only
US$ 1.9 billion. The resource shortfall was further aggravated by the
bureaucratic procurement system and supplies blocked by US and
UK representatives in the
UN Sanctions Committee because of their alleged dual-use nature. This explains
why humanitarian supplies worth only US$ 1.4 billion or just over half of the
budgetary provision made in the distribution plan arrived in
Iraq during phase V.
i)
Income uncertainty combined with significant delays in the arrival of
humanitarian supplies and blocked supplies as well as the refusal of the UN
Security Council to make up shortfalls from other sources created untenable
inadequacies for the Iraqi population.
ii)
A more humane option would have been
for the UN Security Council to guarantee funding once it had accepted
distribution plans approved by the UN Secretary General. Voluntary
contributions or loans could have provided the funds needed to make up shortfalls.
This would have protected the civilian population against the worst effects of
inadequacy and prevented death and destitution.
Option
5: Dedicated Budgets
i)
Education was one of the sectors included in the oil-for-food programme from
the very beginning in 1996. It was the sector that received the remnants of
allocations when the distribution plans were negotiated between the Government
of Iraq and the United Nations. Other sectors such as food and health, water,
sanitation and electricity had to be given priority. At the end of the
oil-for-food programme (phases I–XIII) in 2003, the allocation for education
requested by the Government of Iraq and approved by the UN Secretary General
amounted to US$ 2.1 billion or about 5% of the total requested allocation. The
amount ultimately allocated was even lower. Prior to the oil-for-food programme
period, i.e., during the years 1990-96, there was no dedicated allocation of
international funds for education. The UN Security Council showed no concern
for the consequent destruction of the education system. While the plight of the
education sector was raised occasionally by individual members of the UN
Security Council, there was at no time a comprehensive debate of this serious
issue. In fact, individual members , in the forefront the
US and the
UK governments,
intensified the problem by adding harsh bilateral measures in an effort to
prevent educational materials from reaching
Iraq.
ii)
Sanctions, lack of resources and low priority given to education by the Government
of Iraq accelerated the deterioration of primary, secondary and tertiary
education in the fifteen governorates under control of the Government in
Baghdad. The circumstances in
Iraqi Kurdistan were somewhat better.
iii)
A more humane option would have been
for the UN Security Council and the UN Secretariat to provide dedicated finance
for the education of Iraqi children, at least at primary and secondary school
levels. A shortage of oil revenue could have been made up by extra-budgetary
support out of international donations or the unfreezing of Iraqi accounts held
abroad. This would have allowed more adequate support for teacher training,
educational aids, curriculum development, maintenance and construction of
schools, etc. and to some extent provided youth with the means to prepare for
life.
Option 6: The Linkage of Economic Sanctions and
Disarmament
i)
One of the fundamentals of the UN Security Council’s
sanctions policy for
Iraq (resolution 687/1991) had been to make the lifting of
economic sanctions conditional to
Iraq’s destruction of its weapons of mass destruction. The US
and UK authorities refused to discuss a possible de-linking of the two as they
believed economic sanctions would deprive Government from the means of
re-arming with weapons of mass destruction. The linkage meant that the Iraqi
civilian population was forced to pay for the conflict between their government
and the UN Security Council.
ii) This economic
sanctions-disarmament linkage throughout the embargo period had a devastating
impact on civilian life in
Iraq as is reflected by the respective socio-economic
indicators.
iii) A more
humane option would have been to de-link economic sanctions from
disarmament demands by proceeding with UN supervised disarmament and
verification programmes while at the same time providing the UN with
comprehensive border inspection authority for all consignments destined for
Iraq. Additionally, the team of UN observers could have been
strengthened to monitor the distribution of all items which had been cleared
for entry into
Iraq and to confirm their deployment for civilian purposes.
This would have allowed a freer flow of supplies needed for survival while at
the same time reducing the opportunity for illegal imports.
Option 7: Economic Sanctions Policy
i)
Parliaments, non-governmental organisations and the UN Secretariat are on
record to repeatedly have reminded the UN Security Council and other policy
makers that no country had ever been subjected to such comprehensive sanctions
as was the case in
Iraq. In view of the
serious impact on the civilian population an urgent review of the economic
sanctions policy was required. Special mention is made here of reports by the
UN Panel on Humanitarian Issues, the so-called “Amorim Panel” (March 1999) the
UK House of Commons
(January 2000), Caritas International (2001), and the Bossuyt report to the UN
Human Rights Commission (June 2000). These reports are
among many others which alerted the UN Security Council that its sanctions
policies were causing severe harm to an innocent population. The sanctions were
transgressing the boundaries between acceptable discomfort of civilians and a
breach of international conventions created to protect individuals and groups
against maltreatment.
ii) The maintenance of such
comprehensive sanctions resulted in permanent disability, death of many and the impoverishment of the
majority of the Iraqi population.
iii) A more
humane option would have been to lessen economic sanctions
incrementally in response to cooperation by the Government of Iraq or
preferably in response to the evolving needs of the Iraqi people.
Option 8: Procurement of
Humanitarian Supplies
i) Procuring goods under the oil-for-food programme
was, at all times, cumbersome. The routine required no less than 23 steps that
the importer - the Government of Iraq - and the supplier in the exporting
country had to implement. Involved were inter
alia trade, defence and foreign ministries, trade boards, the exporting
country’s permanent mission to the UN, Iraq’s mission to the UN, the UN Office of the Iraq Programme in
New York, the UN Office of the Humanitarian Coordinator in Baghdad, the UN
Sanctions Committee, the UN Special Commission (UNSCOM / UNMOVIC), and the
International Atomic Energy Agency (IAEA), the two disarmament units, transport
agencies, Lloyds/Cotecna, the inspection agents at Iraq’s borders, and, of course, Iraq’s Ministry of
Trade and the Iraqi end users. Soon after the oil-for-food programme commenced
in 1996, it became clear that such bureaucratization of procurement would lead
to serious and disabling delays in the arrival of humanitarian supplies. Delays
of 12 or more months were not uncommon. The various phases of the oil-for-food
programme, not surprisingly, over time became more and more disjointed. The
procurement process was a major factor. Evidence of the negative impact mounted
and finally in 1999 resulted in the introduction of a so-called “green list”
which identified goods that could be brought into
Iraq under the oil-for-food programme without having to be
subjected to clearance by the UN Sanctions Committee. This did not improve the
overall speed of delivery. The UN Sanctions Committee was urged to make further
amendments to accelerate delivery. In 2002 the UN Sanctions Committee replaced
the “green list” with a “red list”. This was a negative list of items that were
potentially of “dual use” or had other strategic value. Items on this list were
subjected to the traditional screening. The balance of requested goods could be
imported with less scrutiny. This approach in itself could have improved supply
conditions but in the end did not because concurrently the
US and
UK representatives in the UN Sanctions Committee
significantly increased the volume of items that were permanently or temporarily
blocked from delivery to
Iraq. In phase IX (2002), $5.1 billion of humanitarian
supplies were blocked by the US/UK representatives in the UN Sanctions
Committee. In short, the positive “red list” approach meant to de-bureaucratize
procurement was negated by the act of blocking goods at a higher rate than
before (see annex 7).
ii) The inadequately financed
oil-for-food programme was further weakened by special constraints such as
bureaucratization of the procurement process. A population highly dependent on
timely arrival of limited humanitarian supplies became the victim of a
deliberate international bureaucracy.
iii) A more
humane option would have been to establish a red list approach from
the very beginning of the oil-for-food programme. Consistent with international
humanitarian law, a “no list” approach for food and medicines should have been
an integral part of the regulatory framework. The UN Sanctions Committee should
have furthermore agreed to local purchase of food. This would have allowed the
inclusion in the food basket of fresh fruits, vegetables and meat and reduced
the cost for food as locally purchased food items were significantly cheaper
than imported ones. Such an approach would have freed resources for other
sectors and helped to preserve life and livelihood.
Option 9: The UN Sanctions
Committee
i)
The Iraq Sanctions Committee of the UN Security Council or the 661 Committee
named after resolution 661 of
6 August 1990 was charged with
oversight of the implementation of UN Security Council policy. The committee
was staffed by middle level officials of the countries represented at any one
time in the Security Council and chaired by an ambassador appointed by the UN
Security Council. Decision making was by consensus. It quickly became apparent
that this committee chose to micro-manage the operational aspects of the
oil-for-food programme instead of delegating operational functions to the UN
Office of the Iraq Programme (OIP) at the UN Secretariat. In the initial
phases, the Committee decided to involve itself in the processing of all
humanitarian supplies for
Iraq including even those
for NGOs operating outside the oil-for-food programme. In doing so, the
Committee began to neglect the monitoring of the impact of the operational
programme on the human condition in
Iraq. Much time was devoted
to fine tuning the sanctions bureaucracy and to oversee/control the activities
of the UN Secretariat in
New York and
Baghdad. When the Committee
realized that it was creating an increasingly unmanageable workload for itself
as well as for the UN Secretariat with the negative consequences for the Iraqi
people pressure increased to simplify the procurement process (see also annex
4). The 661 Committee transferred itself into an experimentation chamber in which
new approaches were tested as has been pointed out earlier. As criticism over
the Committee’s micro-management approach and the blocking of supplies by the
US and
UK representatives
mounted , the Committee decided to pass clearance responsibility to UNSCOM/UNMOVIC
and IAEA, the UN entities which were tightly controlled by the
US and
UK governments. This was
an unethical move. It meant that the two governments were no longer directly
involved in the clearance of supplies. They could therefore argue that responsibilities
for delays of most supply clearances were due not to the 661 Committee but due
to the UN Secretariat. In fact, the two governments continued to exercise close
informal control.
ii)
The UN Security Council Sanctions Committee was a supervisory tool for the UN
Security Council. However, instead of supervising the implementation of Council
policies for
Iraq it controlled and
micro-managed the oil-for-food programme. This resulted in duplicating much of
the work of the UN Secretariat. It also significantly slowed down the
processing of essential supplies for the civilian population. Links of the
Committee with a UN inter-agency working group at UN Headquarters and some
contact with the NGO community in
New York was useful at the
operational level but made little difference at the policy level.
The
issue of a sanctions strategy, networking among UN sanctions units, funding,
streamlining of procurement, reporting on the human condition rather than only
the oil-for-food programme, comprehensive oil production oversight, integrated
audits, all major factors for responsible implementation of multilateral
sanctions were neglected by the UN Sanctions Committee. In retrospect it can be
said that the UN Sanctions Committee was little more than an overseer of a
supply programme informally controlled by the
US and
UK authorities. Much
suffering and destitution among the Iraqi civilian population was due to the
approach the UN Security Council had chosen for the working methods of its
Sanctions Committee.
iii)
A more humane option would have been
for the UN Security Council to empower the Iraq Sanctions Committee with
authority to monitor the operational and managerial soundness of the work of
the UN System. More important than this would have been a continuous review of
the impact of UN policies on the welfare of the Iraqi people with regular
feedback to the Security Council. Such feedback should have included guidance
for the Security Council on needed policy changes in the light of developments
in
Iraq.
Option
10: Import and Export Controls
i)
Under economic sanctions, all imports and exports to and out of
Iraq were banned except as
decided by the UN Security Council. To facilitate the permitted export of oil,
the UN Security Council identified pipelined export across the border with
Turkey to the Mediterranean
Port of Ceyhan and the loading of oil at Mina al Bakr, an oil platform in the
Persian Gulf. For the import of
humanitarian supplies four Iraqi border crossings were designated with
Jordan at Trebil, with
Syria at al Walid, with
Turkey at Zhako, and at Um
Qasr,
Iraq’s only sea port. In
2001, a fifth border point with
Saudi Arabia at Ar’ar was added.
The United Nations designated an inspection agency (Lloyds Register/UK until
1998, followed by Cotecna/Switzerland from 1999 to 2003). They were to verify
documentation of oil-for-food supplies with consignments arriving at the
designated border points. The UN Security Council was well aware that this left
the increasing inflow of goods, the Government of Iraq was purchasing outside
the humanitarian exemption as permitted by the UN without international
inspection.
ii)
The UN Security Council was furthermore aware of oil exports to
Jordan under special
arrangements between the Iraqi authorities and the Government of Jordan. The UN
Security Council did not give approval to these exports under article 50 of the
UN Charter which recognizes special economic problems which may arise for
countries adjacent to countries under sanctions. The UN Security Council, however,
condoned these oil transactions between
Iraq and
Jordan. The volume of illicit
oil exports from
Iraq increased over time,
first via the
Persian Gulf and
Turkey and then via a
pipeline which
Iraq and
Syria had agreed to re-open
following improved political relations between the two countries from 2001
onwards.
This
inconsistent handling of import and export controls on the part of the UN
Security Council was used by the
US and the
UK authorities to argue
in the Security Council that they did not have any accurate information on what
the Government of Iraq was importing and exporting. This was particularly so
after the UN weapons inspectors had been withdrawn in December 1998, prior to
the Anglo-American “Operation Desert Fox”. This in turn led to US/UK insistence
that
Iraq was successfully
developing new weapons of mass destruction.
iii)
The inconsistent approach on the part of the UN Security Council and the
resulting alleged uncertainty about
Iraq’s import and export
transactions was not unwelcome to the US/UK administrations and served as their
rationale to resist a re-design of the economic sanctions strategy which would
have benefited the people of
Iraq.
iv)
A more humane option would have been
to enforce strict border controls for all imports and exports, not just those
relating to the humanitarian exemption. An increase in subcontracted inspection
personnel at the border entry points, more UN oil overseers in
Iraq and oil flow analysts
in
New York plus more authority for UN
observer personnel in
Iraq would have been
measures useful for creating a more transparent supply picture and have helped
to constrain the illicit export of oil. More transparency would have revealed
that
Iraq was not clandestinely
manufacturing new weapons of mass destruction. This in turn could have eased
the international apprehension about the threat
Iraq was posing and lead to
improvements in the UN sanctions regime. The civilian population would have
benefited in multifarious ways from such an approach (more financial resources,
more humanitarian supplies, enhanced international confidence building, etc.).
Option 11: UN Security Council and UN Secretariat
Oversight
i)
In the course of time, the UN Security Council has become the omnipotent body
in the decision making structure of the institution. There is concern among an
increasing number of UN member countries that the UN Security Council has
usurped authority from the UN General Assembly and the International Court of
Justice. They would like to consider this development as part of the UN reform
debate. It can not be denied that the division of labour between these three
entities has become less and less clear over the years. This has had serious
consequences requiring clarification and transparency of mandate.
As
a result of this reality, the UN Security Council unquestionably had the major
oversight responsibility for developments in
Iraq during 13 years of
sanctions. More specifically, it had the mandate to continuously assess the
impact of its sanctions policies on the human conditions in
Iraq. The UN Secretariat,
subsidiary to the UN Security Council had operational oversight responsibility
and consequently also the duty to advise the UN Security Council on the
implications of sanctions. The Secretariat did engage, to some extent, the
Council in policy reviews and operational matters, e.g., the bureaucratization
of procurement of humanitarian supplies.
It,
however, is important to point out that both the Council and the Secretariat
failed to carry out their oversight mandates in a consistent and continuous
manner. As stated elsewhere, the Council failed to debate issues of fundamental
consequence for the Iraqi people such as the flow of vital supplies, the use of
oil revenue for compensation, the blocking of supplies and the no-fly zones, to
name only a few major areas which needed to be discussed in the Council. More
importantly these areas needed to be assessed through permanent monitoring and
evaluation. This did not happen. Neither did the Secretariat fulfill its mandate
to watch over the dynamics of the oil-for-food programme or show imagination
and foresight for maximizing the benefits of a severely limited humanitarian
exemption. Local purchase of food and other items, integrated implementation of
the programme in areas under the control of the Government in
Baghdad and the Kurdish
locally autonomous regions of northern
Iraq, e.g., with respect to
electricity, water supply, agricultural production and de-mining are examples
where the Secretariat could have shown leadership but did not. The
Iraq policy group at UN
Headquarters, chaired by the UN Deputy Secretary General, meant to exercise
operational oversight, made no difference at all in determining the direction
of the humanitarian exemption. This policy group did not even manage to bring
about an implementation strategy or joint approaches of the various UN entities
charged with different aspects of sanctions implementation (UNSCOM/IAEA –
disarmament, UNOHCI/OIP – humanitarian exemption, UNCC – compensation, UNCHR –
human rights; today replaced by the newly created Human Rights Council) or more
broad-based reporting on the human condition in Iraq.
ii)
Lack of oversight at various levels of the UN (Security Council, Secretariat,
individual UN departments such as DPA, OIP, OCHA, DPKO, etc.) allowed
disjointed approaches, neglect of an oversight strategy, misleading reporting
and bilateral misuse. This serious default, particularly on the part of the UN
Security Council, lessened the pressure on the Council to understand the full
scope of the consequences of inadequate measures for the welfare of the
civilian population and, therefore, contributed to death and destitution.
iii)
A more humane approach would have
been to implement a clearly formulated sanctions strategy based on a
pre-sanctions human condition profile of
Iraq. Such a strategy would
have had to be subject to continuous oversight by the Security Council and
reinforced by an
Iraq watch group at the UN
Secretariat closely linked to the UN Humanitarian Coordinator in
Baghdad. The main objective
would have been to ensure that the required inputs would have been available at
all times to meet the needs of the civilian population.
Option 12: Pre-Sanctions Preparations
i)
Comprehensive economic sanctions were imposed on
Iraq on
6 August 1990 by UN resolution 661. Neither at
that time nor in the ensuing period up to the second Gulf War (GWII) in early
1991 was there any attempt by the United Nations to define the socio-economic
profile of the Iraqi population as it existed prior to the imposition of
sanctions. Within six months following GWII, the UN Secretary General
dispatched two important assessment missions to
Iraq ( see option 2).
Valuable as these missions were, they limited themselves to rough damage
reviews and estimations of needs rather than more in-depth quantitative
assessments of the then prevailing socio-economic situation in Iraq in
comparison to the status quo ante prior to August 1990.
Sanctions
are meant to hold perpetrators and not innocent groups accountable. The
objectives of UN humanitarian assistance in
Iraq therefore should have
been to ensure that the civilian population would not be forced into living
conditions that were significantly below those prevailing prior to sanctions.
Without a pre-sanctions assessment or at least a condition analysis in the
early 1990s, this was not possible.
ii)
The absence of a pre-sanctions assessment and a quantitative needs assessment
in the early stages of economic sanctions put the humanitarian exemption on a
footing which in its inadequacy had grave consequences for the Iraqi people.
The
strong case which recently has been made for pre-sanctions assessments as
mandatory prerequisites for the imposition of UN sanctions (see “Sanctions
Assessment Handbook” published by the United Nations in October 2004)
underlines the awareness that the Iraq sanctions experience has created for the
importance of such an approach. Had such an approach been adopted in the case
of
Iraq much suffering could
have been prevented.
iii)
A more humane approach would have
been to base the humanitarian exemption on a careful pre-sanctions assessment
followed by continuously updated evaluations of the evolving conditions of a
society living under economic sanctions.
Option 13: Integrated UN Sanctions Management
i)
Different UN entities had operational responsibility for four distinct elements
of the UN Iraq sanctions programme: The UN Special Commission (UNSCOM) – after
2000 renamed the UN Monitoring, Verification and Inspection Commission (UNMOVIC)
and the International Atomic Energy Agency (IAEA) for disarmament and arms
monitoring; the then UN Commission on Human Rights (UNCHR) and its rapporteur
for reporting on human rights in Iraq; The UN Compensation Commission (UNCC)
for administering and processing claims against Iraq for having invaded Kuwait
and the UN Office of the Iraq Programme (OIP) and the UN Office of the
Humanitarian Coordinator for Iraq (UNOHCI) for negotiating the oil-for-food
programme and overseeing its implementation.
As
the activities within any of these four components impacted on the others, it
follows that systematic and continuous networking for conflict
resolution/containment and protection of an innocent population should have
been of paramount importance and a pre-determined part of UN sanctions
management.
Throughout
the period of sanctions such networking was absent. The Iraqi policy group at
UN Headquarters had no outreach to the four components and was, therefore,
ineffectual in giving direction to the
Iraq operations. It must be
considered as one of the great failures of the United Nations Security Council
that it did not insist on networking among the four components or on the
definition of an integrated sanctions implementation strategy.
ii)
The isolationist approaches of the disarmament group, the compensation unit and
the human rights and the humanitarian entities meant that policies were
implemented by individual UN units which fostered developments in
Iraq that ran completely
counter to the principles and purposes of the United Nations. This intensified
the collapse of a nation.
iii)
The more humane option would have
been to ensure integrated approaches among the different UN sanctions groups.
This should have included continuous feedback to the UN Security Council to
assist the Council in fulfilling its oversight mandate and to allow it to
adjust its policies for the protection of the Iraqi people and the adherence to
international law. Such an approach would have reduced mortality, disease and
destitution in
Iraq and upheld the
integrity and lawfulness of the United Nations.
Option 14: Compensation
i)
The UN Security Council, as early as October 1990, passed a resolution
reminding Iraq that under international law it was liable for “loss, damage or
injury” as a result of its invasion into Kuwait (see UN/S/Res.674 of 29 October
1990). By mid-1991, the UN Security Council had identified a compensation
mechanism and a corresponding fund through which parties (individuals, firms
and governments) alleged to have suffered losses as a result of
Iraq’s 1990 invasion into
Kuwait could receive
compensation. This established in
Geneva what became known as
the UN Compensation Commission (UNCC). Funding, the UN Security Council
decided, would be based on a “percentage of the value of (Iraq’s) export of petroleum
and petroleum products” (see UN/S/Res.687/1991). At that time, the Security
Council was prepared to allow the sale per year of up to $2 billion of Iraqi
oil only to finance the humanitarian exemption. Out of this amount, 30% would
be diverted to the compensation fund. This made the allocation for the people
of
Iraq even more inadequate.
The statement included in resolution 687/1991 (para 19) that “this (deduction)
would take into account the requirements of the people of
Iraq” is tantamount to
cynicism. Compensation financing and the inadequacy of funds left for the
survival of the Iraqi people were the major reasons why the Government of Iraq
and the United Nations could not come to an agreement on an oil-for-food programme
until 1995, some five years later. Unlike others, the
US and the UK Governments
saw this as ‘evidence’ that the Government of Iraq did not care for the welfare
of its people.
By
mid-2004 the UN Compensation Commission had processed at total of 2.6 million
(!) claims valued at $ 265 billion of which it had awarded $ 48 billion and
actually paid to claimants $ 18.4 billion. Claims submitted by individuals,
firms and governments were in many cases justifiable, in other cases they were
inflated or fraudulent. Documentation to this effect is available.
ii)
In the absence of an integrated approach on the part of those dealing within
the United Nations with various aspects of sanctions and in view of the
secretive manner of UNCC operations, the large diversion of funds went largely
unnoticed. Up to the March 2003 illegal invasion into
Iraq, some $17 billion had
been diverted from the oil-for-food programme to the compensation fund.
In
the late 1990s, the mortality rate for children under five years of age,
according to UNICEF, had surged from 25/1000 in the 1980s to 100-120/1000
children. The large funds transferred to the UNCC, had they been available for
humanitarian programmes, would not have remedied the health problems facing the
Iraqi population living under sanctions. They would have, however, helped large
numbers to survive and to be healed. The UN Security Council’s agreement to
allocate initially 30% (after 2000 25%) of oil revenue for compensation
payments at a time of immense suffering by the Iraqi people must be considered
as one of the most serious and far-reaching mistakes made by the Council during
the entire period of sanctions.
iii)
A more humane approach would have
been to establish the principle of compensation, yet, freeze all compensation
payments with the exception of claims by guest workers in
Kuwait and
Iraq who had lost their
meagre savings. Instead of paying compensation to well endowed firms and
governments at a time when Iraqis were dying in large numbers due to a lack of
basic supplies and services, these resources should have remained available to
the humanitarian exemption.
Option 15: Commercial Clause
It
is part of international business practice for importers to withhold 5-10% of
the payment for a consignment until the goods have arrived and are found to
meet specifications, quality and quantity of the order. Such a standard
provision was lacking in business transactions with
Iraq. In mid-1999, the UN
in
Baghdad, with support from the UN
Secretariat in
New York, tried to remove this
anomaly from the oil-for-food programme procurement process by introducing such
a commercial clause for purchases made for the Iraqi humanitarian exemption.
The Government of Iraq was advised by the UN Humanitarian Coordinator to
include henceforth commercial clauses in all its contracts. When the UN Office
of the Iraq Programme in
New York subsequently sought
clearance for contracts which contained the commercial clause, US and
UK representatives in the
UN Sanctions Committee in
New York refused to clear such
contracts. Their argument: the inclusion of such a clause would encourage
over-invoicing and provide cash in the hands of the Iraqi authorities which
could be used for weapons programmes. This made no sense, of course, since the
commercial clause could neither prevent over-invoicing nor other illicit means
of obtaining cash. Efforts to protect
Iraq against fraudulent
business practices failed. Quality controls showed that between 2-3 % of goods
procured by
Iraq were of sub-standard
quality. A commercial clause could have reduced this percentage and given the
importer leverage in claiming indemnity.
ii)
The absence of a commercial clause constituted an element of vulnerability for
the entire oil-for-food programme. Full payment for goods yet to be received
has encouraged suppliers to neglect standards. Replacing sub-standard goods
with goods meeting quality standards became cumbersome and further delayed the
arrival of items needed by the civilian population. This unnecessarily
intensified deprivation and suffering.
iii)
A more humane option would have been
to include the commercial clause as a standard feature in all contracts. Given
the inadequate resource situation in the oil-for-food programme, this would
have protected resources and accelerated the supply of vitally required goods.
Option 16: Cash Component
i)
Every year governments prepare their recurrent and development budgets in
anticipation of the costs arising from running their nations and investing in
nation-building. Central banks are the custodians of a country’s liquid assets.
It can not be expected that a country subject to economic sanctions can
maintain a normal budgetary process. UN pronounced economic sanctions should
have, however, anticipated the need of
Iraq for minimum cash resources
to be able to meet justified national recurrent expenditure. Civil servants,
teachers, hospital staff needed to be paid, infrastructure had to be
maintained, embassies required convertible currency. The UN Security Council
was aware of these financial requirements. The Council knew that there was no
tax income in
Iraq. During the years of
sanctions, members of the Security Council repeatedly raised the issue of a
cash component to become part of the oil-for-food programme. Concern was
expressed by UN Agencies and individual governments, including, of course, the
Iraqi government. Formal recognition of the importance of cash was finally
given by the Security Council in its 1999 resolution 1284 (see UN S/Res/1284,
para 24 of
17 December 1999). This should have
been a free standing provision applicable with immediate effect. Instead a
positive, albeit much delayed, step was once again politicized through a
resolution which re-confirmed the link between economic sanctions and
disarmament. For the Security Council to include the cash component in a
political resolution and for the Government of Iraq to reject this resolution
meant for the people that the status quo prevailed. An important opportunity
for a betterment of conditions in the country was once again missed. Lack of
cash prevented the implementation of a number of important projects included in
the health, water, sanitation and education sectors. To give one example: in
1999, the
municipality of
Baghdad was facing a serious
breakdown of the sewerage system in one part of the city. It had to cancel
orders for equipment because of a lack of cash for transport and installation.
There was a worse fall-out of the continued absence of licit cash. The
Government of Iraq had no choice but to increase its clandestine efforts to
obtain cash through illegal oil exports, surcharges on contracts and paybacks.
It can not be argued that illegal income on the part of the Iraqi Government
had nothing to do with Security Council policy. It had. An assessment of the motives
for obtaining resources outside the oil-for-food programme has to go beyond the
justified criticism of the Government of Iraq for its wasteful expenditures
involving construction of palaces and other public buildings, the import of
luxury goods and weapons research and development. The need to find resources
to run the nation was, however, a major reason for seeking extra funds. A more
enlightened and less punitive Security Council approach could have deprived the
Government of the justification to proceed as it did.
ii)
The UN Security Council had been well aware of the importance of cash in the
implementation of the oil-for-food programme long before adopting resolution
1284 in December 1999. Iraqi Kurdistan already benefited from such a provision
in the early stages of the humanitarian exemption. The UN agencies had the
authority to hand out cash to local Kurdish contractors, purchase items in the
local market and hire local consultants. The UN Secretariat did monitor these
cash transactions in Iraqi Kurdistan and could have done the same in the areas
under
Baghdad’s control. That this was not
allowed under sanctions rules shows the punitive and double standard approach
pursued by the Security Council which the UN Secretariat accepted without
protest.
iii)
A more humane option would have been
to build into the oil-for-food programme in all parts of the country a cash
component from the beginning. UN observers and audits could have verified, as
they did in Iraqi Kurdistan, the appropriate use of these minor amounts of
cash. The availability of cash would have removed one of the impediments in the
humanitarian exemption and helped to preserve life and well-being.
Option 17: Emergency vs. Rehabilitation
i)
Throughout the thirteen years of comprehensive economic sanctions, the UN, both
the Security Council and the Secretariat, referred to the humanitarian
exemption as a ‘temporary measure’ (see for example UN S/Res.986,
14 April 1995). Many debates in the UN
Secretariat on the content of the oil-for-food programme ended with the
reminder that this temporary measure involved an ‘emergency’ not a
‘development’ programme. This UN mindset had considerable implications for the
contribution the UN was able to make to the well-being of the Iraqi people.
‘Temporary’ was also a word politically welcomed by the Iraqi leadership since
it gave the impression that sanctions were indeed of a limited duration. It is
now common knowledge that the US and UK Governments would equate ‘temporary’
with ‘regime change’. Sanctions would end after the downfall of the regime of
Saddam Hussein, not before. Linked to this approach was the determination of
the Security Council to limit the oil-for-food programme and before it the UN
Inter-Agency Humanitarian Appeals to emergency measures rather than over time
to a national reconstruction programme.
It
is difficult to understand why the UN Secretariat, with all its experience in
international development, did not increasingly call for changes in the content
of its
Iraq programmes. Education,
including curriculum development, training and institution building, and
sectors such as water supply, sanitation, health services and agriculture
constituted areas of need for an innocent population. They had little or
nothing to do with dual use or misuse by the government but were vital for
survival and the preparedness for life of future generations.
Apart
from minor changes, e.g., agreement in early 2000 to carry out limited training
for workers in the oil sector, the UN did not abandon the emergency nature of
its involvement and considered, for the entire thirteen years, the humanitarian
exemption as a temporary measure. As a result, both the UN and its agencies as
well as the Government of Iraq developed a ‘supply and distribution mentality’
which permeated all actions thereby severely neglecting all longer term needs
of a population.
ii)
The UN Security Council and the UN Secretariat must take the responsibility for
treating the civilian population as if they were living in a refugee camp. The
deliberate inadequacy of financial resources, the deliberate limitation of
sectors included in the oil-for-food programme, the deliberate emergency
approach rather than a transition over time to national rehabilitation
converted Iraqis into a nation of survivors and fixers neglecting planning and
preparation for the future. Life for the civilian population became an issue of
‘to-day’ only.
iii)
A more humane option would have been
to introduce medium and long-term components into UN supported programmes in
those areas which determined the quality of life of the civilian population.
The replacement of the emergency nature of UN operations in
Iraq would have allowed the
civilian population to live a more normal physical and mental life and helped
the youth to get a sense of the importance of planning and preparing for life
beyond sanctions and the Government of Saddam Hussein.
Option 18: Sanctions Evaluations
i) Had the UN Security Council and its
Sanctions Committee in cooperation with the UN Secretariat, exercised their
oversight mandate responsibly, it would not have been difficult to continuously
subject UN sanctions policy to a review. Such a review was of particular
importance in the case of
Iraq since neither the
Security Council nor the UN Secretariat had any experience with the
implementation of UN comprehensive economic sanctions as imposed on
Iraq. There was no
precedent. The UN Security Council is privy to a document of the Economic and
Social Council dated June 2000 (see UN E/CN.4/Sub.2/2000/33,
21 June 2000) on the ‘adverse consequences of
economic sanctions on the enjoyment of human rights’. In this document,
Professor Marc Bossuyt, a former chairman of the UN Human Rights Commission and
eminent lawyer in Belgium’s Court of Arbitration, suggests a six-prong test for
evaluating the justification and legality of sanctions: 1. are the sanctions
imposed for valid reasons?, 2. do the sanctions target the proper parties?, 3.
do the sanctions target the proper goods and objects?, 4. are the sanctions
reasonably time-limited?, 5. are the sanctions effective and capable of
achieving a desired result?, 6. are the sanctions free from protest arising
from the violations of the “principles of humanity and the dictates of the
public conscience”?
At
no time did the Security Council or the UN Secretariat consider such a test
since this would have meant the end of the sanctions programme as devised for
Iraq. One can argue whether
the sanctions were imposed for the right reasons. They were clearly not
targeting the proper parties. They furthermore targeted to a large extent the
wrong goods and objects. The sanctions period in terms of the impact on the
people of
Iraq and with respect to
international law was not reasonably time-limited. In the early 1990s,
sanctions had achieved the desired results in terms of disarmament. The
justification for sanctions against
Iraq was questioned by the
largest ever global movement of opposition.
The
UN Security Council could have introduced a test of this kind, without
difficulty and gone beyond it to take into account the emerging needs of a
society subjected to long periods of sanctions ( temporary vs. medium and long
term needs – see also option 18).
ii)
The absence of continuous oversight of any kind by the UN Security Council or
the specific evaluation of the impact of its own policies on the welfare of the
Iraqi people has put a severe legal and moral burden on the shoulder of the
Council, not just on the US and UK governments. The UN Secretariat itself could
have devised a sanctions effectiveness test, applied it and made its findings
available to the Security Council with a request for debate. It did not do so
and therefore also shares the burden of failure. Following the publication of
the June 2000 ECOSOC document, there was no attempt to discuss the proposed
sanctions test. The document was simply ignored. The response of the UN Office
of the High Commissioner for Human Rights was timid and without determination
to take the report to belatedly pursue the issue of human rights violations by
the United Nations as a result of economic sanctions. The absence of structured
sanctions analyses played into the hands of the hardliners in the Security
Council as the evidence of the serious shortcomings of Council policy remained
evasive. The UN Secretariat, UN Agencies active in
Iraq and the UN High
Commissioner for Human Rights can not explain their passiveness by evoking
their subsidiary position to the Security Council. The UN system on the whole
regrettably lacked courage and determination. The price for this
irresponsibility of an international institution created to protect the
innocent was paid by the civilian population in
Iraq.
iii)
A more humane option would have been
for the UN Security Council to ensure that regular sanctions effectiveness
tests were carried out by either the UN Sanctions Committee or the UN
Secretariat in order to identify the impact of international policy on the
human condition in
Iraq. This would have
allowed remedial actions for protection of the Iraqi people to take place and
would have been in compliance with UN Charter and other international law.
Option 19: Public and Informal Meetings of the UN Security
Council
i)
The Provisional Rules of Procedure of the UN Security Council specify that
unless the Council decides otherwise meetings shall be public meetings (Rule
48). Governments which were not members of the Security Council would therefore
be able to participate in such meetings, if they wished. Such a provision was
in the spirit of a body created to solve international conflicts peacefully
while it allowed participation of all parties to a conflict to meet. In the
case of
Iraq, procedures were
reversed and meetings in which
Iraq policies were decided
were invariably classified as ‘informal’, thus barring
Iraq as the targeted state
from participating. Furthermore, the Council prevented the UN Secretary General
from engaging in a dialogue with the Government of Iraq by invoking the ‘seized
of the matter’ rule. This rule indicates that the Council reserved for itself
the right of debate and contact with
Iraq until it decided
otherwise. This promoted confrontation and disagreement and, as a consequence,
severely limited the scope of the UN’s role in conflict resolution. (See also
German Amb. Tono Eitel’s informal presentation to the UN Security Council dated
14 November 2000).
ii)
The UN Charter reminds member states that international disputes should be
settled by peaceful means (article 2/3) and emphasizes that solutions to a
conflict should be sought “by negotiations, enquiry, mediation, conciliation,
arbitration and judicial settlement” (article 33/1). The UN Security Council
ignored both the spirit as well as the content of the UN Charter and created a
special modus operandi for the handling of the
Iraq crisis.
iii)
A more humane approach would have
been for the UN Security Council to seek public debate with the Government of
Iraq. That could have been achieved by inviting representatives of the
Government of Iraq to Council meetings at which Iraq was to be discussed and by
providing the UN Secretary General with broad policy guidelines to allow him
and senior Secretariat staff to engage Iraqi officials in Baghdad and New York
in a dialogue on humanitarian and other issues of relevance to the welfare of
the Iraqi people. Such an approach would have avoided much confrontation and
misunderstanding and promoted confidence building measures. These would have
benefited the disarmament process, the oil-for-food programme and ultimately
the people of
Iraq.
Option 20: Outreach to Non-State Parties
i)
Through-out the years of sanctions, non-governmental and inter-governmental
organizations other than the UN played an important role in the
Iraq crisis. They provided
humanitarian support and they became major sources of information on the human
condition in the country. The majority of these organizations were located in
the Kurdish parts of
Iraq. However, there were
well-known institutions such as the ICRC and CARE with offices in
Baghdad. There were others
which did not maintain a permanent presence but had programmes in
Iraq, e.g., Caritas and
IPPNW. All of them had substantial local information on such issues as the
water and sanitation situation in rural and semi-urban areas, the state of the
school system, public health care outside the big hospitals, etc. This
specialized knowledge was often superior to that of the UN System.
Additionally, they were not tied to governments in the same way the UN
institutions were and therefore tended to be much more straightforward in their
reporting of the serious conditions prevailing in
Iraq.
The
UN Security Council could have made continuous use of their knowledge through
cooperation and regular exchanges. It was only from early 2000 onwards that
intermittent consultations were arranged by the Security Council with some of
these organizations, e.g., the ICRC. Many important opportunities to tap their
experience were missed.
In
1999 the Security Council, under pressure of international public opinion and
some member governments, decided to establish a panel to look into humanitarian
issues ( this was one of three panels set up by the Council under the
chairmanship of Amb. Celso Amorim, then
Brazil’s permanent
representative to the UN). Members of the panel were mistakenly all drawn from
the UN civil service rather than from non-UN bodies such as Care, Caritas or
Red Crescent institutions. This deprived the review process of an experience
dimension UN civil servants did not have.
Cooperation
between the UN Secretariat and resident non-UN organizations in
Iraq was tenuous and at
times even acrimonious. The UN did not have a systematic cooperation policy,
leaving it largely to the local UN representatives to define the degree of
collaboration. Ignored by the Security Council and underutilized by the UN
Secretariat, these institutions carried on in relative isolation and without
adequate opportunities to share their relevant experience, or better still, to
carry out flanking measures supplementing the oil-for-food programme. Some
co-financing in micro-projects existed for some time in the water and
sanitation sectors, in rural health services, in housing and education and
assistance to internally displaced (IDPs).
For
a variety of reasons including a perceived political inconvenience on the part
of the UN Security Council, the interaction between the UN and non-UN
institutions was poor. This was to the detriment of the civilian population.
ii)
Non-UN institutions operating in areas under the control of
Baghdad as well as in Iraqi
Kurdistan performed important survival functions at the local level despite
small funding. Rural health clinics were set up, equipped and run, schools were
built and supplied with teaching aids, water and sanitation systems were
repaired and treatment materials donated. Training programmes, practically
absent from the oil-for-food programme, were carried out in many fields. Even
though the scope of these efforts was limited, the benefits for people was
significant.
iii)
A more humane option would have been
for the UN Security Council and the UN Secretariat to define a clear policy of
cooperation with non-UN institutions for the delivery of a humanitarian
exemption. The greater flexibility of these institutions could have been used
by the UN to fill gaps in the oil-for-food programme in training, institution-
building, infrastructural rehabilitation at the local level, etc. Small amounts
of extra funding could have been mobilized by the UN Secretariat to intensify
co-financing as an integral part of the humanitarian exemption. Instead, a lack
of determination reduced cooperation to an insignificant number of haphazardly
identified projects in southern and central
Iraq. In the locally
autonomous areas of Iraqi Kurdistan cooperation between the UN and non-UN
organizations was somewhat closer. Yet, there was no systematic and integrated
approach.
Enhanced
and planned cooperation would have meant a more efficient use of scarce
resources and better protection of the civilian population against the impact
of sanctions.
Option 21: The No-Fly Zones
i)
The US, UK and French governments decided in 1991/92 to establish two no-fly
zones in Iraq north of the 36th parallel and south of the 32nd
parallel (as of 1996 the 33rd parallel) to implement ‘Operation
Provide Comfort’ and ‘Operation Southern Watch’ respectively. These no-fly
zones from which
France withdrew in 1996 were
created unilaterally by these countries outside the UN and, therefore, did not
have an international and legal mandate. Throughout the years of sanctions, the
US and UK authorities evaded a debate on the legality of the two zones arguing
that various UN resolutions, particularly resolution 688 (see UN S/Res.
688/1991) had given them the right to introduce these zones. This contention
was incorrect. Resolution 688 in its article 5 requests the UN Secretary
General “…to address urgently the critical needs of the refugees and displaced
Iraqi population”…and appeals to member states “to contribute to these
humanitarian relief efforts.” Moreover, deriving authority for the
establishment of such zones, even if this were appropriate, would not give the
two governments authority for the aggressive military behaviour they
increasingly displayed in these zones over the years. In any case resolution
688 (1991) was passed under Chapter VI of the UN Charter which is entitled
‘Pacific Settlements of Disputes’.
Following
the four nights of heavy bombing during ‘Operation Desert Fox’ of December 1998
by the US and UK air forces, benign violation of international law through
daily incursions into Iraqi airspace was replaced by increasingly aggressive
behaviour of the two air forces under new and enlarged rules of engagement.
This development made a mockery of the assertion by the British Ambassador in
the Security Council in June 2000 that “the action we take in the no-fly zones
is following Security Council 688 to protect the civilian population of
Iraq from repression by the
Iraqi Government.” (see UN/S/4152nd meeting,
8 June 2000, p.4) The year before, such
‘protection’ resulted in 144 civilian deaths and 446 civilian injured as a
result of an average of 3 air strikes per week. This information was carefully
checked out, often through site visits and recorded by the Office of the UN
Humanitarian Coordinator in
Baghdad in quarterly reports.
These were welcomed by the UN Secretary General, opposed by others in the UN
Secretariat and condemned by the US and UK governments (see confidential report
prepared by UNOHCI/Baghdad entitled: ‘Air strikes in Iraq/Reported Civilian
Casualties and Damages’, 28 December 1998-31 December 1999).
The
reality was very different from the one presented by the two governments. Their
actions had little to do with concern for human rights of the Kurds in northern
Iraq and Shias in the south
and a lot with deliberate destabilization of
Iraq and in 2002/03 with
US/UK preparations of a secretly decided invasion.
The
issue of the two no-fly zones was raised in the Security Council on a number of
occasions but never debated.
Russia,
China,
France,
Malaysia and others referred to
developments in the two zones, yet were unable to engage the Council as a whole
in a debate. The UN Security Council, therefore, must take responsibility for
having condoned the illegal behaviour of the air forces of the
United States and the
United Kingdom throughout the
thirteen years of sanctions.
ii)
The two no-fly zones did not just lead to death, injury and physical
destruction. The frequent air alerts created what Iraqis called a ‘siren
syndrome’. Civilians, especially children, became fearful of these incursions.
In addition, the UN oil-for-food operations were impaired by the aggressive
behaviour of the
US and
UK air forces. UN trucks,
for example, had to observe curfew hours thus slowing down the distribution of
food and other supplies. UN missions had to be off the road during times of
expected air strikes. Had there been a genuine concern for the welfare of the
Iraqi people, the air forces of the US and UK under respective agreements with
the Governments of Turkey and Saudi Arabia could have been on stand-by at the
Sultan and Incirlik Air Force Bases in the two countries as a non-aggressive
reminder for Baghdad of their presence in case of untoward behaviour by the
Government of Iraq. Instead much suffering was inflicted on the people of
Iraq and the sovereignty of
the country was violated despite repeated reminders by the UN Security Council
that
Iraq’s sovereignty had to
be respected.
iii)
A more humane option would have been
to confine the air forces of the
US and
UK to the Sultan and
Incirlik Air Force Bases in central
Saudi Arabia and south eastern
Turkey. Such a policy would
not have violated UN Charter law and facilitated the implementation of the
oil-for-food programme. Fewer Iraqi civilians would have perished and many
would have benefited more quickly from humanitarian supplies.
Option 22: Public Information
i)
During the entire sanctions period the
US and the UK Governments
were involved in efforts to portray a picture according to which they were
genuinely concerned with the suffering of
Iraq’s civilian population
while the Government of Saddam Hussein did not care for his people.
Government’s reluctance to conclude an oil-for-food programme in the early
1990s (for reasons they chose not to mention – see option 15), alleged
stockpiling of food and medicines and the sale by government of essential
supplies on the open markets in Iraq or abroad were cited as examples. At the
same time, the two governments chose to ignore to mention that they were the
cause of blocking humanitarian supplies worth billions of US$ (see option 8).
They also failed to mention that the existing procurement system for the
oil-for-food programme was a master piece of bureaucratization largely due to
their making (see option 8). In addition, they delayed the inclusion into the
oil-for-food programme of housing and telecommunication components. They
repeatedly prevented dialogue between the UN Secretary General and the
Government of Iraq. They also objected to briefings from UN staff posted to
Baghdad. Also, they were
instrumental in changing the rules of procedures for meetings in the Security
Council from predominantly public to informal meetings which excluded Iraqi
diplomats from participation. They misused the UN disarmament operations in
Iraq to collect
intelligence information for bilateral purposes. They prevented Iraqi
delegations from arriving in time for United Nations events in New York thereby
violating an agreement the UN has with the US, as the host country, to allow
free travel to New York to attend UN meetings. They also tried to convince
senior Iraqi officials travelling to
New York to defect.
The
US and UK Governments periodically published documents to show a picture in
Iraq which, at best
represented half-truths. In September 2002, as one example, the US Government
published a report entitled “A Decade of Deception and Defiance – Saddam
Hussein’s Defiance of the United Nations” which provided false information on
Iraq’s weapons of mass destruction, the withholding of food and medicines, the
financing of Hajj travels, Iraq’s sheltering of terrorist organisations , the
diversion of dual-use items for military purposes, the contracting of supplies,
the extent of cooperation of the Government of Iraq with UN Agencies, etc. The
UN Secretariat reports on many of these issues gave a different picture. It had
no impact on the statements of the US State Department and the British Foreign
Office: “We are doing our best to ease the suffering of the Iraqi people” (see
op-ed piece in the UK FT of
4 May 2000 by Samuel Berger, the
then National Security Advisor).
Dis- and mis-information prevailed throughout
giving the impression that the villain resided exclusively in
Baghdad and not also in
London and
Washington.
At
the time and very much in retrospect, it reflects a fateful weakness that
members of the UN Security Council and senior management in the UN Secretariat
did not feel the need to protest these obvious misrepresentations by two
permanent members of the Council.
ii)
Mis- and disinformation by two permanent members of the UN Security Council
about the conditions in Iraq and their causes contributed significantly to
confuse the public, particularly but not only in the US and the UK. This in
turn fostered an anti-Iraq climate among groups who might have become more
critical of their governments’ policies and shown compassion for the plight of
an innocent people. The absence of rebuttals and clarifications by the UN
Security Council as a whole and the UN Secretariat worsened efforts to improve
conditions for the Iraqi population.
iii)
A more humane option would have been
for the UN Security and the UN Secretariat to issue periodic reports of high
quality to the international public that would reflect the actual humanitarian
conditions in
Iraq as reported by the UN
system in
Baghdad. Such factual information could
have been used by groups and individuals to enhance pressure for improvements
in international support for a people under sanctions and signal to the
US and
UK governments that
manipulation of facts was unethical, pointless and ultimately politically
counterproductive.
Part III: Conclusions
In
assessing the extent of pre-meditated or accidental death, destruction and
trauma of the Iraqi population during the period 1990-2003, one must distinguish
the policies and acts of different perpetrating parties, i.e., the Government
of Iraq, the governments of individual UN member countries, particularly the US
and the UK and the collective of 15 member countries in the UN Security
Council.
As
research proceeds, more and more refined and conclusive evidence of
perpetration involving different parties is possible. As of 2006, a significant
amount of evidence has been accumulated to document crimes against humanity on
the part of President Saddam Hussein and his Government. This evidence relates
to the treatment of individuals or groups in actual or alleged opposition to
the Ba’athist government in
Baghdad. A broad picture is
visible of crimes against Kurdish and Shi’ite groups including Shia clerics, Marsh
Arabs (Madan) in southern
Iraq and also against
Sunni, Turkmen, Armenians and other groups suspected of opposing the
government.
To
establish details will require, however, significantly more research. New
information contained in de-classified documents in various government archives
underlines the complexity of establishing culpability. For example, the
existence of mass graves in
Iraq does not point only to
the Ba’athist government as a perpetrator but also to insurgents in the 1991
uprisings in southern
Iraq and the 1991 coalition
air attacks on Iraqi troops retreating from
Kuwait. US Department of
Defence documents released in the 1990s put in question whether the use of
chemical weapons in attacks on villages in Iraqi Kurdistan involved Iraqi military
only or possibly also Iranian troops since cyanide was deployed which Iraqi
troops were not known to have used.
Evidence
of violation against
the Hague and Geneva
Conventions, the Convention on the Rights of the Child, the Torture Convention
and other international law with regard to the 2003 invasion and occupation of
Iraq by a US-led coalition
force is available and continues to increase. Much has been written on this
period of Iraqi history but comprehensive scholarly legal work has yet to
become available.
More
difficult is the assessment of perpetration by individual UN member countries
prior to the March 2003 invasion. Planned destruction of civilian
infrastructure (roads, bridges, water and sanitation facilities, electricity
plants and oil installations, etc.) and the use of weapons of mass destruction
such as DU munitions constitute indicators of serious illegality on the part of
US authorities. It is unfortunate that to-date the scientific debate on
depleted uranium (radiological vs. chemical factors) has deflected from the
debate about the use of DU. This has postponed the formal admission by
perpetrators that depleted uranium is indeed the cause of ill health of Iraqis
and members of the coalition forces and genetic damage among their off-spring.
The
foregoing review of policy options the UN Security Council has had in dealing
with comprehensive economic sanctions in
Iraq shows the wide scope
the Council had in influencing the fate of a people. The review’s focus on the
UN Security Council does not in any way abrogate or reduce the responsibilities
the Government of Iraq had for the welfare of its citizens. This paper
concentrates on the role played by the United Nations. Detractors will argue
that this is only half the story. They are correct. But half the story it is
and it must be portrayed in as much detail as possible to supplement the other
half of the story on which much has been written already. A good deal is known
about the violations of human rights by the Government of Saddam Hussein.
Little documentation of the punitive nature of sanctions policies of the UN
Security Council and the largely passive acceptance of such policies by the UN
Secretariat is available. Serious questions have arisen about the legality of
policies adopted by the UN Security Council. The UN Security Council has been
accused by respected international law experts of having repeatedly and
knowingly violated UN Charter law and international conventions. The most
serious accusation refers to the UN’s alleged violation of the genocide
convention. It is argued that many years of awareness by the Security Council
of the fatal impact of its policies without changing these policies, ultimately
constituted ‘intent’. The UN Security Council, they maintain, therefore, violated
inter alia Article 2 (c) of the
Convention on the Prevention and Punishment of the Crime of Genocide which
reads:
…”deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole
or in part”.
Clarification
of the role, motives, impact and intent of the UN Security Council’s
Iraq policies is long
overdue. This paper is a contribution towards this important objective.