-
- This paper explores the legality or
otherwise of the sanctions and blockade regime put in
place against Iraq in August and September 1990 by the
Security Council of the United Nations
("UNSC"). While a range of international laws
may be applicable to the situation, it is intended to
analyse the situation in terms only of three conventions;
the First Additional Protocol to the Geneva Conventions
1977 ("the Geneva Protocol"), the Convention on
the Prevention and Punishment of the Crime of Genocide
("the Genocide Convention") and the Nuremberg
Principles ("the Nuremberg Principles") as
adopted by the United Nations ("UN").
- Before turning to the analysis of
these specific conventions, it is apposite to cite UN
General Assembly Resolution 44/215 (22 December 1989)
entitled "Economic Measures as a means of Political
and Economic Coercion against Developing Countries".
That resolution:
"Calls
upon the developed countries to refrain from exercising
political coercion through the application of economic
instruments with the purpose of inducing changes in the
economic or social systems, as well as in the domestic or
foreign policies, of other countries;
Reaffirms that developed
countries should refrain from threatening or applying
trade and financial restrictions, blockades, embargoes,
and other economic sanctions, incompatible with the
provisions of the charter of the United Nations ..."
Summary of findings
- This paper concludes that, because
it targets civilians, the blockade/sanctions regime was
illegal from its inception under the Geneva Protocol. It
also concludes that the proved effects of the
blockade/sanctions regime on the civilian population are
such that it is now manifestly criminal both as a war
crime and as a breach of the Genocide Convention. The
final conclusion drawn is that, by application of the
Nuremberg Principles, all individual persons knowingly
assisting with the enforcement of the blockade/sanctions
regime are guilty of war crimes and crimes against
humanity.
- The gravity of these findings is
fully appreciated. Also fully appreciated is the extent
to which these findings run contrary to received wisdom
that the UN does not act contrary to the law. However, as
former Attorney General of the United States of America
Ramsey Clark stated in a letter calling for an end to the
sanctions addressed to the members of the UNSC on 26
January 2000:-
"[The
number of deaths caused by the sanctions] must shock the
conscience of every sentient human being."
- In light of the facts known to the
UN and to the governments lending assistance to the
blockade/sanctions regime, what must be of grave concern
to us as New Zealanders is that New Zealand has remained
involved and that there has been little or no public
debate on our involvement.
Status of civilian infrastructure
following Gulf War
- It is important to note the context
within which the blockade/sanctions regime was installed.
A UN investigative team headed by Partti Ahtisaari went
to Iraq in March 1991 to report on the post-war
situation. The team reported to the UN that:
"The recent conflict has wrought
near–apocalyptic results upon the economic
infrastructure of what had been, until January 1991, a
rather highly urbanised and mechanised society. Now, most
means of modern life support have been destroyed or
rendered tenuous. Iraq has, for some time to come, been
relegated to a pre-industrial age, but with all the
disabilities of post-industrial dependency on an
intensive use of energy and technology."
- The same report also noted that
Iraq had formerly imported 70% of its food needs, but now
imports were blocked and food prices were already rising
beyond the purchasing reach of most Iraqi families. The
report further noted that widespread starvation
conditions were a real possibility and that sewerage and
sanitation systems had collapsed.
- Given the knowledge the UN had of
the parlous state of the country, there can be no doubt
that the UN was aware from its inception that the
sanctions/blockade regime would be likely to contribute
to the starvation of the civilian population, as well as
to the inability of the civilian population to gain
access to medical supplies and potable water.
Justification of Sanctions
- The events leading up to and
following the imposition of the sanctions and the complex
provisions of the sanctions themselves are beyond the
scope of this paper to detail. The conclusions drawn in
this paper are valid irrespective whether or not the Gulf
War was legal and justified and whether or not the
ultimate purpose hoped to be achieved by the
blockade/sanctions regime is legal. It is a trite law
that legal ends do not justify illegal means.
- The sanctions have been in place
for almost a decade. They started as a measure to force
an Iraqi withdrawal from Kuwait. Their ostensible purpose
now is to force compliance with weapons inspections.
However, it should be noted that the United States has
signalled that it does not intend to allow a lifting of
the sanctions regime even if Iraq does comply . Speaking
at a symposium on Iraq at Georgetown University in March
1997, Secretary of State Albright stated:-
"We do not agree with those
nations who argue that if Iraq complies with its
obligations concerning weapons of mass destruction,
sanctions should be lifted .." (1a).
- It should perhaps be recalled here
that, on 12 May 1996, Albright was interviewed for CBS by
Leslie Stahl, who asked "We have heard that a
half million children have died [in Iraq, as a result of
the sanctions]...I mean, that’s more children than
died in Hiroshima. And – and you know, is the price
worth it?" Her response was "I think
this is a very hard choice, but the price – we think
the price is worth it." At that time, Albright
was prepared to acknowledge that the blockade/sanctions
regime was causing the deaths. It appears that she now
asserts that the sanctions are not causing any deaths (1).
Summary of resolutions
relating to the blockade/sanctions regime
- By SCR 661 (6 August 1990) the
Security Council decided that all States should prevent
the import into their territories of all goods
originating in Iraq, any activities in their territories
promoting the export of any goods from Iraq, the transfer
of any funds to Iraq and the sale or supply of any
products to Iraq. The only exception are the supply of
goods intended for strictly medical purposes and, in
humanitarian circumstances, foodstuffs.
- SCR 665 (25 August 1990) introduced
a mechanism for the enforcement of the sanctions imposed
by SCR 661 by giving: "authorisation for member
states to utilise maritime forces to halt all inward and
outward maritime shipping in order to inspect and verify
their cargoes and destinations and to ensure
strict implementation of the provisions related to such
shipping laid down in resolution 661".
- SCR 670 (25 September 1990) imposed
an air blockade on the country and authorised member
states to take all necessary measures to ensure its
effectiveness.
- SCR 687 (3 April 1991) contains
numerous provisions, among which are a recognition of
Iraq’s sovereignty, a call upon Iraq to comply with
the Geneva protocols banning biological and chemical
weapons, an exemption of all food from the prohibitions
established by SCR 661 as well as provision for the
import of approved humanitarian supplies.
- Various resolutions have been
passed since 1991 with the ostensible purpose of
mitigating the effects of the blockade/sanctions regime.
In particular the"Oil for food" resolutions
(including principally SCR 986 of 1995) have been put in
place to enable the sale of a limited amount of oil in
order to purchase foodstuffs and medical supplies.
However, the ineffectiveness of this programme to supply
even the most urgent humanitarian needs of the Iraqi
people is notorious. In a report dated January 1999 to
the UNSC written by a panel established for the purpose
of assessing the humanitarian situation by the President
of the UN Security Council ("the Panel
report"), it was noted at paras 46-47 that:
"[e]ven if all humanitarian
supplies were provided in a timely manner, the
humanitarian programme implemented pursuant to resolution
986 (1995) can admittedly only meet but a small fraction
of the priority needs of the Iraqi people.
- Based on figures quoted by US
Secretary of State Madeleine Albright in January 2000 (2),
during the two and a half years that the oil for food
programme has operated, it has delivered only US $74 of
food per annum per head of population (3).
When it is recalled that, according to UN sources, Iraq
was importing 70% of its food requirements even before
the devastation of its agricultural sector by the Gulf
War, the inadequacy of this sum is self-evident.
- The same statement by Albright
reveals that the programme only delivered $15 worth of
medical supplies per annum per head of population, which
is manifestly inadequate to deal with even the most
urgent of medical needs. The report of the Secretary
General dated 12 November 1999 ("the Secretary
General’s report") lists at paragraphs 45-47 a
sample of the medical supplies which are in short supply,
including antibiotics, syringes, anaesthetics, vaccines
and drugs for chronic illnesses. It should be noted in
this context that the US blocked a number of medical
supply contracts in 1997 upon the grounds that the
shipments might "illegally" include some free
samples (4).
- The total funding made available by
the programme for the rebuilding of the civilian
infrastructure destroyed or damaged during the Gulf War
and subsequent bombing raids (schools, hospitals,
sanitation, the oil industry, irrigation, power, water
etc) is reported by Albright to be $500 million. The
rehabilitation of the power generation industry alone
(which was systematically targeted and destroyed during
the Gulf War) is stated in the Panel report (para 43)to
require $7 billion.
- One reason for the ineffectiveness
of the programme is the bureaucracy surrounding imports
referred to below. A second reason is that all funds
generated under the oil-for-food programme are channelled
to the UN, which deducts approximately one third of them
to meet the costs of administering the sanctions regime
and to pay reparations to Kuwaiti oil companies and
others deemed entitled to compensation for the Iraqi
invasion. The Secretary General’s report notes in
its annex one that approximately 18 billion dollars has
so far been generated by the oil for food programme, of
which 6 billion dollars has been deducted for
compensation and administration.
- A third reason, and one which is
rapidly becoming a major problem, is that oil production
capacity is insufficient to reach the targets set by the
oil for food programme because the Iraqi oil industry
infrastructure has not been able to be maintained and
repaired due to the blockade/sanctions regime, which has
until recently prevented the obtaining of spare parts for
what is now seriously out dated machinery. Billions of US
dollars are now needed to modernise the facilities to
ensure that the industry can continue to produce oil. The
Panel Report notes at para 47:
"In light of the near absolute
dependence of Iraq on oil exports to generate foreign
exchange, the precarious state of the oil industry
infrastructure, if allowed to deteriorate further, will
have disastrous effects on the country’s ability to
cover the costs for basic humanitarian needs."
Bureaucracy as De Facto
embargo
- The wording of the sanctions
resolutions (particularly once all food was exempted)
does not suggest that Iraq should have any difficulty in
importing food and medicine, apart from the obvious
difficulty that its funds are frozen and it has no money
to pay for supplies. However, the bureaucracy installed
to administer the sanctions constitutes a very real
obstacle to the import of all goods, including those
supposedly exempted from the sanctions.
- From the inception of the
blockade/sanctions regime, all goods intended for Iraq
have without exception been required to win the approval
of the UN sanctions committee established for that
purpose by SCR 661. The committee has fifteen members,
including the five permanent members of the Security
Council. The meetings of the Sanctions Committee are held
in closed session. Decisions cannot be appealed and Iraq
is allowed no voice in the proceedings. Any single member
of the committee can block an application or delay it
indefinitely by asking for further details. Accordingly,
de facto, every individual committee member has a veto
and can place on hold any particular application for
export to Iraq.
- It is clear that that veto has been
used extensively by the US representative in particular
to cause long delays and cancellations of shipments. To
give just two examples, on 7 September 1990 (before food
was fully exempted), the US representative vetoed a
request by Bulgaria for permission to ship baby food to
Iraq on the grounds that the food might be consumed by
adults (5). In 1997, the US representative
blocked forty contracts for food and essential medical
supplies required for humanitarian purposes, including
twenty contracts from the World Health Organisation
priority list (6).
- In the Secretary General’s
Report, it was noted at paragraph 21 that contracts to a
value of $807 million were on hold part way through the
Security Council approval process as at 31 October 1999.
- The list of items for Iraq vetoed
over the years by the UN Sanctions Committee includes
many which could not possibly have sinister application,
such as rice, agricultural pesticides, medical journals,
catheters for babies, school books and paper (7).
- The United States Government has
also threatened a group of its own citizens with
imprisonment for announcing an intention to export
medical supplies to Iraq without going through the red
tape (8).
- In addition to the Sanctions
Committee approval process, most contracts for Iraq face
an additional bureaucratic hurdle because of legislation
passed in the country of origin of the goods. For
example, New Zealand goods intended for Iraq are subject
to a lengthy approval process under the United Nations
Sanctions (Iraq) Regulations 1991. Approval at
ministerial level is
required (9). EFFECTS
OF BLOCKADE/SANCTIONS REGIME
- The blockade/sanctions regime has
caused an almost total breakdown in the fabric of Iraqi
civil society. Normal life is impossible for almost all
Iraqis, whose existences have been reduced to a daily
struggle for food and safe drinking water. A detailed
examination of all of the ways in which the
blockade/sanctions regime is affecting the civilian
population of Iraq would require hundreds of pages. It is
accordingly intended to focus on the effect of the regime
on just two areas, being access to medical treatment and
infant malnutrition and mortality.
- Before turning to that, it is
appropriate to note that it is notorious that the one
group the sanctions are not harming is Saddam Hussein and
his elite. In the executive summary to a Select Committee
report on sanctions to the British Parliament this month,
the following statements are made:
"Those
who should be targeted, the political leaders and elites
who have flouted international law, continue to enrich
themselves. Much discussion has taken place of targeted
sanctions, in particular financial sanctions, as a
"smarter" and more just approach. We conclude,
however, that neither the United Kingdom nor the
international community have made real efforts to
introduce such sanctions. There has been much talk but
little action.
There
is a clear consensus that the humanitarian and
developmental situation in Iraq has deteriorated
seriously since the imposition of comprehensive economic
sanctions whilst, at the same time, sanctions have
clearly failed to hurt those responsible for past
violations of international law as Saddam Hussein and his
ruling elite continue to enjoy a privileged
existence.....
However
carefully exemptions are planned, the fact is that
comprehensive economic sanctions only further concentrate
power in the hands of the ruling elite. The UN will lose
credibility if it advocates the rights of the poor whilst
at the same time causing, if only indirectly, their
further impoverishment".
- The facts
cited in this paper relating to the two areas examined
have been drawn exclusively from UN sources, in order to
ensure that only information accepted by the UN as
accurate is used to judge the actions of the UN. What
follows is a small selection of the facts documented by
various UN agencies. No attempt has been made at a
comprehensive list of all the findings made by the
various agencies since 1991.
Infant
Malnutrition and Mortality
- A news
update issued by the UN World Food Programme (WFP) noted
on 26 September 1995 that 2.4 million Iraqi children
under five were at severe nutritional risk.
- In
December 1995, the UN Food and Agriculture Organisation
(FAO) noted that:
"As many as 12% of the
children surveyed in Baghdad are wasted, 28% stunted and
29% under weight."
- In
December 1995, FAO reported that 567,000 Iraqi children
had died as a direct consequence of economic sanctions.
- In March
1996, WHO reported that the economic sanctions had caused
a six fold increase in the mortality rate of Iraqi
children under five.
- UNICEF
reported in October 1996 that 4,500 Iraqi children under
five were dying every month as a result of sanctions
– induced starvation and disease.
- The Panel
Report of January 1999 notes: (para 18) that under 5
child mortality rate increased from 30.2/1,000 live
births to 97.2/1,000 from 1989 to 1997 and that low birth
weight babies rose from 4% in 1990 to approximately 25%
in 1997, due mainly to maternal malnutrition; (para 19)
that the prevalence of malnutrition in Iraqi children
under 5 almost doubled from 1991 to 1996 and that, as at
April 1997, almost the whole young child population was
affected by a shift in the nutritional status towards
malnutrition; (para 19) that the Iraqi infant mortality
rates are among the highest in the world, in marked
contrast to the situation prior to the Gulf War.
Access to
Medical Treatment
- In his
1995 report on the work of the United Nations, UN
Secretary General Boutros Boutros-Ghali stated:
"Health
conditions have continued to deteriorated throughout the
country because of shortages of essential drugs and
medical supplies. The situation is further aggravated by
the inadequate supply of potable water and poor
sanitation facilities, as essential equipment and spare
parts are lacking to rehabilitate the water, sewerage,
and electricity supply systems ….. children are
increasingly dying of ailments linked to malnutrition and
lack of adequate medical care."
- In 1997,
the Director General of WHO visited Iraqi health
facilities and reported:
"The consequences of
this situation are causing a near breakdown of the health
care system, which is reeling under the pressure of being
deprived of medicine, other basic supplies and spare
parts ….. its inability to cope with, and provide
services which the Iraqi people used to receive is of
grave concern."
- He noted
also that malaria and typhoid and other diseases were now
threatening large areas of the country which had never
been affected before. The second panel report notes at
para 32 that there has been some increase in the
availability of medicine and medical supplies under the
oil for food programme, but that the environmental risks
of water borne communicable disease such as malaria
continued to be of great concern as well as the
continuing threat of typhoid and cholera outbreaks.
- In the
second panel report (para 43), the Iraqi health care
system is described as being in a "decrepit
state".
The relevant international law
The
First Additional Protocol to the Geneva Conventions 1977
- Article 48
provides: Basic Rule
"In order to ensure
respect for and protection of the civilian population and
civilian objects, the parties to the conflict shall at
all times distinguish between the civilian population and
combatants and between civilian objects and military
objectives and accordingly shall direct their operations
only against military objectives"
- Article 51
provides: Protection of the Civilian Population
- The
Genocide Convention was adopted on 12 January 1951 by the
General assembly of the United Nations.
Principles of
the Nuremberg Tribunal, 1950
- In 1950,
the International Law Commission of the United Nations
adopted a number of principles arising out of the
considerations of the Nuremberg Tribunal, including;
Principle
one: any person who commits an act which constitutes
a crime under international law is responsible therefore
and liable to punishment.
Principle
three: the fact that a person who committed an act
which constitutes a crime under International Law acted
as Head of State or responsible government official does
not relieve him from responsibility under International
Law.
Principle
four: the fact that a person acted pursuant to order
of his government or of a superior does not relieve him
from responsibly under International Law, provided a
moral choice was in fact possible to him.
Principle
six: The crimes hereinafter set out are punishable as
crimes under International Law:
"war
crime: violation of the laws or customs of war which
include but are not limited to ….. devastation not
justified by military necessity."
"crimes
against humanity ….. inhuman acts done against any
civilian population, or persecution on political
……. grounds when such acts are done or such
persecutions are carried on in execution of or in
connection with any crime against peace or any war crime.
Principle
seven: Complicity in the commission of a crime
against peace, a war crime, or a crime against humanity
…….. is a crime under International Law.
Does
international law bind the UN?
- This paper
does not purport to explore the complex question of what,
if any, international tribunal has the jurisdiction to
compel UN to comply with international law. Its focus is
rather on what stance New Zealand should be taking in
light of the facts and the law.
- The Geneva
Convention has never been formally adopted by the UN,
although Security Council resolutions (including SCR 687
itself) often specifically draw on that convention to
institute coercive measures against member states. As to
the Genocide Convention, it was adopted by the General
Assembly of the United Nations on 12 January 1951,
pursuant to a declaration made by the General Assembly
that genocide is a crime under international law. New
Zealand has ratified both of these conventions.
- It is
sometimes suggested in spite of this that the UN is not
bound by the principles of international law expressed in
such instruments as the Genocide Convention and the
Geneva Conventions and their Protocols. The implication
is that the UN is therefore at liberty to commit
atrocities. It defies common sense to suggest that the
international peacekeeping body is free to commit war
crimes and crimes against humanity.
- If it is
so free and if it does in fact exercise its
"right" to commit atrocities, then it is hard
to see the justification for its existence and frankly
even more difficult to understand why New Zealand should
wish to be associated with it. Furthermore, the
contention that it may disregard international
humanitarian law is incorrect both by application of the
Nuremberg Principles (adopted by the International Law
Commission of the United Nations in 1950 and ratified by
New Zealand) and by application of the law relating to
vires.
- The
Nuremberg Principles could not be clearer; they apply to
all persons placing themselves in breach of international
law, regardless of the purported authorisation for the
illegal acts. Membership of the UN or obedience to its
Security Council resolutions would not exculpate any
individual nation or person; the defence of superior
orders is expressly excluded by Principle Four.
- The United
Nations is self-declared to be a group of peoples. It
cannot escape liability simply by purporting to place
itself above the law. If an individual acting alone would
be in breach of international law, the fact that he is
acting in concert with others will not legalise his acts,
even if the group he belongs to is a recognised and
respected one with wide delegated powers from its
members. Thus, the issue is not whether it can be
demonstrated that the UN and anyone acting on its
authority is bound, but rather whether there is anything
so unique in the nature of the UN as to positively accord
it rights that no other entity enjoys.
- As to this
- which is related to the question of vires - the charter
of the United Nations sets out in Article One the
purposes of the United Nations, which include:
"To
maintain international peace and security, and to that
end: to take effective collective measures for the
prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches
of the peace, and to bring about by peaceful means,
and in conformity with the principles of justice and
international law, adjustment or settlement of
international disputes or situations which might lead to
the breach of the peace." (emphasis added)
- Thus, the
very instrument from which the UN derives its existence
and powers only authorises the UN to act in conformity
with international law.
- The
Security Council is set up by Chapter V of the Charter,
which provides in article 24 that:
"The
Security Council shall act in accordance with the
purposes and principles of the United Nations."
- Any act in
breach of international law is ultra vires the power of
the United Nations and therefore ultra vires the Security
Council. Nothing in its genesis, composition or charter
suggests that lawlessness on its part is permissible.
Is
it war?
- As the
Geneva Protocol applies only to situations of war or
armed conflict, one issue to be determined is whether the
blockade/sanctions regime can of itself be described as
warfare by the United Nations against Iraq, or
alternatively whether the regime is in place during a war
or armed conflict waged by or on behalf of the UN on Iraq
by the USA.
- The
blockade/sanctions regime is asserted in this paper to be
a siege. Siege warfare was common in ancient and medieval
times. In a text published last year on siege warfare (10),
it is noted that "all the characteristics of
modern war – the blurring of the line between
battlefield and society, the engulfing of woman and
children in the violence of war, the destruction of
society’s infrastructure, the uprooting of entire
populations – were anticipated in ancient
siege warfare". All those characteristics are
demonstrably also present in the blockade/sanctions
regime.
- Forcibly
preventing the inhabitants of a territory from gaining
access to the necessities of life is the essence of a
siege, although obviously modern methods and targets are
quite different to those of ancient and medieval times.
The sanctions alone would not amount to siege warfare,
but the blockade forcibly preventing goods from entering
or leaving Iraq and the prohibition on Iraqis using their
own funds held abroad provide the element of force
required to bring the blockade/sanctions regime within
the concept of siege warfare. It is to be noted that
former Whitehouse Chief of Staff Leon Panetta has
reportedly called the blockade/sanctions regime against
Iraq "the siege of Iraq" (11).
- By its
very nature, siege warfare targets the civilian
population of the besieged territory. Accordingly, siege
warfare is illegal pursuant to the Geneva Protocol,
Articles 48,51 and 54.
- Because
the method of siege warfare being waged on Iraq does not
resemble in its detail the siege warfare described by
Roman generals and medieval tacticians, it will no doubt
be argued that the blockade/sanctions regime does not
amount to a siege, despite its siege-like objects and
outcome. If that argument were valid, it would follow
that the Gulf war was not a war despite its objects and
outcome, since its methodology bears no resemblance to
that employed by the ancients.
- However,
assuming there is some doubt, we turn to the second
enquiry. It must be recalled that the commencement of the
blockade/sanctions regime predates the start of the
bombing in the Gulf War. It was clearly intended to
operate in conjunction with the bombings to cause
capitulation. Has its character as a tool of war since
changed? It is difficult to see how; it is being
maintained in the hope of causing capitulation.
- It is also
being maintained in the context of continued bombings.
The United States and Britain have bombed Iraq regularly
during the past eight years, usually citing Security
Council>
Übertragung
unterbrochen
ion 687
in particular as the legal basis for doing so. A small
number of civilians are regularly killed in the bombing
raids (12). Mr Van Sponeck estimated the toll
for 1998 at 100. For four days in December 1998, the
bombings were greatly intensified and destroyed a number
of major civilian targets, including two teaching
hospitals, an oil refinery and the main grain silo of a
major city. Thousands of civilians were killed during
these attacks (13). These attacks on civilian
targets themselves constitute war crimes under the Geneva
Protocol. There has been no formal protest from the UN
that it regards the justification given for the continued
bombings as wrong, nor has it distanced itself from the
criminal nature of the December 1998 attacks.
- Article 2
of the Geneva Convention provides that the Convention
applies wherever there is "armed conflict".
Bombings presumably qualify as armed conflict.
Accordingly, the blockade/sanctions regime is
demonstrably taking place within a context covered by the
Geneva Protocol.
Knowledge of the effects of the
sanctions
- The fact
that the UN is well aware of the effects of the
blockade/sanctions regime is amply demonstrated by the
contents of the reports referred to above. The UN
Secretary General was obviously conscious of the true
targets of the sanctions when he stated in 1995
(Secretary General, supplement to an agenda for peace,
United Nations, a/fifty/sixty-S/1995/1):-
"Sanctions,
as is generally recognised, are a blunt instrument. They
raise the ethical question of whether suffering inflicted
on vulnerable groups in the target country is a
legitimate means of exerting pressure on political
leaders whose behaviour is unlikely to be affected by the
plight of their subjects."
- In the
Panel Report para 45 it is stated that:
"Even if
not all the suffering in Iraq can be imputed to external
factors, especially sanctions, the Iraqi people would not
be under going such deprivations in the absence of the
prolonged measures imposed by the security council and
the effects of war."
- It is
notable and significant that Denis Halliday, a former
United Nations Humanitarian Co-ordinater in Baghdad,
resigned in October 1998 in protest over the effect of
the sanctions on the civilian population. He now
campaigns for the lifting of the sanctions. His
replacement was Hans van Sponeck, who has in turn
recently resigned after speaking out strongly against the
sanctions.
- There can
be a high level of confidence that both Halliday and Van
Sponeck sought to persuade the UN by reference to the
facts to lift the blockade/sanctions regime before taking
the extreme step of resigning. In early February 2000, Mr
Van Sponeck gave an interview to CNN television wherein
he stated:
"As a UN official, I should not
be expected to be silent to that which I recognise as a
true human tragedy which need to be ended ….. how
long the civilian population which is totally innocent in
all this, should be exposed to such punishment for
something they have never done?…. the very title
that I hold as a humanitarian co-ordinator suggests that
I can not be silent over that which we see here ourselves
….. [the oil for food programme does not] guarantee
the minimum of that a human being requires which is
clearly defined in the Universal Declaration of Human
Rights."
- James
Rubin, the spokesman for the US Department of State,
dismissed Mr Van Sponeck’s opinion as irrelevant. By
contrast, the spokeswoman for France's foreign ministry
said that: "His [Von Sponeck's] evaluation of the
humanitarian situation in Iraq corresponds to reality.
Without question, it reflects the views of all observers
of the situation on the ground."
- Jutta
Burghardt, head of the UN’s World Food Programme in
Iraq, has also just resigned her post in protest. She has
stated that:
"It is a true humanitarian
tragedy what is happening here and I believe any human
being who looks at the facts and the impact of the
sanctions on the population will not deny that [van
Sponeck] is right,"
- Seventy US
Senators wrote to President Clinton in January 2000
demanding that the sanctions be lifted.
Criminal
intent required
- The
question of what constitutes sufficient mens rea in
international law is a vexed one. It is arguable that
full criminal intent to bring about the result is
required. It is presumed for the purposes of this paper
that this is the correct view. The question which
therefore arises for determination is whether the
UN’s knowledge as demonstrated by the above quotes
as well as the contents of the various UN reports
referred to in this paper amount to sufficient intent to
make its conduct criminal, given that its ultimate
purpose is stated to be to bring about the capitulation
of Hussein. Again, the question of how the UN might be
called to account for any criminality found is not
addressed. It is enough for the purposes of this paper to
establish whether criminality is present.
- The
concept of intention is discussed in "Principles
of Criminal Law", where the authors note (at
p84) that desire to bring about the illegal result is not
an essential component of intention and that bringing
something about because it is a means to a quite
different end can be sufficient. The authors also note
that, where a consequence is foreseen as a matter of
moral certainty, intention can be said to be present. The
authors cite in support a passage from an article by
Glanville Williams (15).
"Suppose
that a villain of the deepest dye blows up an aircraft in
flight with a time bomb, merely for the purpose of
collecting on insurance. It is not his aim to cause the
people on board to perish, but he knows that success in
his scheme will inevitably involve their deaths as a
side-effect."
- The
authors go on to say that, according to Lord Hailsham,
"if any passengers are killed he is guilty of
murder, as their deaths will be a moral certainty if he
carries out his intention" (16).
- The
authors note that there has been some judicial debate as
to the extent to which foreseen consequences are
intended, but they conclude their discussion by saying
(at page 88);
"We suggest that the rule once
proposed by Hart applies to such cases: a foreseen
outcome is to be regarded as intended when it: is so
immediately and invariably connected with the action done
that the suggestion that the action might not have that
outcome would by ordinary standards be regarded as
absurd…."
- Of course,
there is a significant difference between trying to
establish intention in the typical case of an individual
criminal committing a one-off crime compared to a
situation involving a systematic course of conduct over
many years which causes death after death. The known past
consequences of the course of conduct in the latter case
must provide proof of the inevitable consequences of the
continuation of the conduct.
- Even if it
is arguable that the UN did not know as a matter of moral
certainty from the inception of the sanctions that they
would bring about civilian starvation and deaths, it
certainly knew from the time when its own investigations
revealed to it the extent to which the sanctions were
causing civilian deaths. The earliest date on which that
occurred is perhaps open to debate. It may be as late as
1995 (17). However, the fact that the
blockade/sanctions regime inherently targets civilians
must have been known to its architects from its inception
and accordingly criminal liability attaches under the
Geneva Protocol.
Relevance of other causative factors
- It is
clear beyond doubt and acknowledged by the UN that, but
for the sanctions, there would be far less suffering and
far fewer deaths among the civilian population. The
blockade/sanctions regime is a deliberate, positive
course of conduct which is known by the UN to be a
"but-for" cause of civilian death and
suffering.
- The UN
could only assert that its "but-for" causative
acts have no causative effect as a matter of law in three
circumstances, each of which is now discussed. The first
is where the damage resulting from the impugned acts is
not intended. This is not available for the reasons given
above.
- The second
circumstance is where it had no duty to refrain from
causing death and suffering to a civilian population.
This is also not available, in light of the applicability
of the Geneva Protocol and the Genocide Convention.
- The third
is where there is a break in the chain of
causation, ie what amounts to a novus actus interveniens.
In Principles of Criminal Law, the authors note
(at page 52) that a defendant will be fixed with the
consequences of his or her act where there are multiple
causes for the relevant outcome and the act of the
defendant remains operative at the time of the outcome.
They are clear that a defendant does not escape liability
for murder (for example) merely because his or her act is
only one of the reasons the victim died. For example,
they note that an assailant who wounds a victim with
murderous intent is guilty of murder even if the victim
dies of an infection of the wound rather than from the
wound directly.
- One line
of argument frequently advanced in defence of the
legality of the blockade/sanctions regime is that the
true cause of the suffering and deaths of civilian Iraqis
is the failure of Saddam Hussein’s regime to comply
with weapons inspection requirements. The reasoning is
apparently that the UN could stop starving civilians if
only Hussein would give in, and therefore it is Saddam
rather than the UN who is really responsible for the
starvation. Both as a matter of law and of common sense,
this reasoning is manifestly invalid. On no view of it
could Hussein be said to have committed a novus actus;
his failure to capitulate is not in law an act at all and
is certainly not one which breaks the chain of causation.
If this defence were available, a kidnapper who refuses
food and water to his victim because his demands that the
victim’s family pay debts owing to him are not met
could claim novus actus on the grounds that he would not
have had to starve his victim to death if the family had
paid up.
- A commonly
cited second novus actus argument in favour of the
sanctions runs that fewer people would starve if Hussein
spent all the available funds on food and medicine
instead of squandering it on luxuries for his elite.
Leaving to one side both the fact that the total revenue
from the programme is admitted by the UN to be inadequate
and the question of how it is supposed that Hussein could
spend oil-for-food money on luxuries when it is not under
his control (it is released from escrow by the UN only
against approved humanitarian contracts), this is again
an argument without foundation. The failure of a third
party to intervene to mitigate the effects of a criminal
act can never excuse the act.
- Furthermore,
there is a bitter irony to this suggestion. Were it not
for the blockade/sanctions regime, ordinary Iraqis could
make private arrangements for the importation of food and
essentials, and charitable agencies could also move in to
alleviate the suffering. As it is, aid workers are
threatened with imprisonment for trying to alleviate the
crisis and Iraqi civilians have no choice but to wait for
distributions under the oil for food programme.
New Zealand's
role in the Blockade/Sanctions Regime
- To date,
New Zealand has been fully supportive of the regime. It
has passed domestic legislation making it illegal to do
any act prohibited by the relevant Security Council
resolutions. It has sent three frigates to the Gulf to
assist in the forcible prevention of entry and exit of
goods to and from Iraq, the most recent of which only
returned from duty two months ago. Don McKinnon stated to
ISMAG in his then capacity as Minister of Foreign Affairs
last year that, as far as he and the government were
concerned, we had no choice but to obey our orders and
the sanctions had to remain in place until Hussein
capitulated. He asserted that any ill effects on the
Iraqi population were Saddam’s fault. He even
questioned the validity of the UN reports themselves.
- The
briefing paper prepared by the Ministry of Foreign
Affairs and Trade for the incoming government had this to
say about Iraq: "to fulfil our international
obligations we shall need to hold the line against
pressure to lift sanctions to relieve the suffering of
ordinary Iraqis".
CONCLUSION
- The
blockade/sanctions regime is by its nature inherently
illegal under the Geneva Protocol, for three reasons.
First, it targets civilians in breach of Articles 48 and
51(2). Secondly, it constitutes indiscriminate attack, in
breach of Article 51(3). Thirdly and most flagrantly, it
employs starvation as a method of warfare, in breach of
Article 54.
- Even if
the regime were not inherently illegal, its continuation
in light of its known results is illegal as in breach of
the above provisions of the Geneva Protocol.
- Those New
Zealanders who have participated in the
blockade/sanctions regime knowing that it targeted
civilians or knowing of the contents of the UN reports
referred to in this paper (or otherwise being aware of
the effects of the regime) are guilty of war crimes, by
application of Principle 7 of the Nuremberg Principles.
- The regime
may not have been in breach of the Genocide Convention
from its inception. However, its continuation in light of
the known fact that it is causing death to a significant
percentage of the population is a crime under Article
II(a). Similarly, its continuation in light of the known
fact that it is causing malnutrition in a majority of the
infant population is a crime under Article II(b).
- Those New
Zealanders who have participated in the
blockade/sanctions regime knowing of the contents of the
UN reports detailing the effects of the sanctions
referred to in this paper (or otherwise being aware of
the effects of the regime) are guilty of complicity in
genocide under Article III(e).
- An urgent
review of New Zealand’s stance on this issue is
required.