At the political level, it is obvious that sanctions have not unseated the government of Iraq. They have not brought about changes in Iraq's leadership or even destabilized the elite. At the same time, sanctions have helped to consolidate a tightly controlled state and significantly reduced the chances for the emergence of an internal opposition. In fact, they have enhanced the political capital of President Saddam Hussein, as they prompted a rallying effect. The Iraqi population has joined the leadership in arguing that their plight is due to the externally imposed sanctions. This, of course, is the reverse of the U.S. government position, which wants to see the cause of Iraqi suffering entirely as a function of Iraq's dictatorship.
Ten years of comprehensive economic sanctions, however, have given irrefutable evidence that it was naive to "assume that a social transmission belt exists that turns economic damage into political gains ..."1 in dismantling nuclear, ballistic and chemical weapons-production capacities, either wholly or partially. Unclear remains whether biological weaponry continues to exist in Iraq or not. With this reality, Iraq in m id-1998 was extremely close to triggering the application of Paragraph 22 of U.N. Security Council Resolution 687, which would have ended economic sanctions. It would go beyond the scope of this article to explain why Iraq was attacked militarily in December 1998 instead. It should be mentioned, however, that the compliance demands for the elimination of biological weapons material, rightful as these demands are, even if met by the Iraqi authorities, would in no way constitute a guarantee for a more permanent closure of this issue. Re-establishment of biological weapons laboratories would at no time be a difficult undertaking, as long as the requisite expertise resides in Iraq. Full-compliance demands, therefore, are either gullible or a pretext for another agenda. More generally, if compliance with UNSCR 687 had indeed been the real objective, the refusal by the Security Council to recognize progressive compliance and reward such compliance with concurrent incremental easing of sanctions constitutes a fundamental mistake of historic proportions. The serious implications for the entire normalization process and more directly for the well-being of the Iraqi people need not be stressed here. In making this observation, I would like to argue that the entire Iraq discussion has to change tracks if the genuine intent is to bring about constructive dialogue with Iraq.
In economic terms, Iraq after ten years of sanctions presents a grim reality. The majority of the civilian industrial enterprises - some maintain over 70 percent - is either defunct or operating at a much-reduced level. Correspondingly, unemployment has reached an estimated level of 60-75 percent. This, together with sanctions regulations forbidding the use of oil revenue for local investment, has fostered within the Iraqi population a hand-out mentality and led to a humiliating deprofessionalization of a once-large and well-trained technical and professional class. The economy is increasingly moved by illicit business transactions directly attributable to ludicrously porous borders. Crude and diesel oil and to a lesser extent refined petroleum products flow out, and all kinds of goods, many unaffordable to the average citizen, flow in. One can speculate how open these borders are for the import of items of strategic value. This makes a mockery of the meticulous way in which the Sanctions Committee of the Security Council approves or, not infrequently, puts on hold items procured with licit oil revenue and which are sorely needed by the civilian population. The deployment of these items included in the humanitarian program could be monitored fairly reliably by U.N. observers in Iraq. Instead, the manner in which the Security Council actually manages sanctions against Iraq is so inadequate that it breeds illicit behavior and generates the illegally acquired prosperity of the few - with serious political, economic and social consequences. These include rampant inflation and the total impoverishment of the common Iraqi.
Never has a country been subjected more severely and for such an extended period to comprehensive sanctions without any real understanding of the human cost being generated. The reaction of the Security Council and individual members over the past ten years was to periodically recognize that the humanitarian crisis was deepening and that the international response was inadequate. This in turn led to ad hoc incremental improvements in the sanctions regime and eventually to the adoption of SCR 986 of April 1995 and the oil-for-food program. Since that date, there have been further improvements such as raising the amount of oil Iraq was allowed to extract to a total of$5.2 billion. This translated into a net resource of $2.9 billion for humanitarian purposes after various deductions including 30 percent for the U.N. Compensation Commission. 2 Iraq had become a sanctions "laboratory" designed to test human endurance.
All reviews of the oil-for-food program since it began in 1996 3 have shown that it is important yet totally inadequate. At best it has halted social deterioration. For example, malnutrition rates have stabilized in central/southern Iraq at the high level of 14.6 percent of children under five, or the program has helped to slow the rate of deterioration in such areas as water and sanitation. The program has not, however, managed to reverse trends with regard to illiteracy or mental illness among youth. In fact, in many areas conditions have severely worsened in the course of sanctions. Child mortality, for instance, as reported by UNICEF, increased from 56 children under five per thousand in 1991 to 131 in 1999. Malnutrition, re-emerging diseases such as diarrhea, typhoid and cholera, inadequate supplies of medicines, even lack of transport and means of communication in emergencies account for this avoidable tragedy. Those who want to ascribe this either solely to internal or external reasons will have a hard time. Evidence is there, on the other hand, that after ten years this reality is overwhelmingly due to sanctions and an inhumane manner of implementing a program that in itself is inadequate to meet minimum human needs.
First, the U.S. State Department criticized the United Nations for not producing enough data to show these conditions. Then the U.N. system, particularly UNICEF and WHO, started to carry out important surveys in nutrition, child mortality, water and sanitation, mental health, etc. The response from the U.S. authorities, instead of welcoming these efforts, has been to question the reliability of the data. For example, it was shown in a stock analysis published by the United Nations in February 2000 that 91.7 percent of all humanitarian supplies had been distributed to end users since the inception of the program. This is a figure the U.S. government simply ignores. Instead there is the continued accusation of hoarding by the Iraqi regime, a completely incorrect assertion. At the same time, it would be wrong to defend at all costs the total accuracy of data collected by the United Nations; conditions in Iraq are much too difficult. What can be said with confidence, however, is that the trends identified with U.N. statistics are correct and allow the conclusion that the distribution picture, including for medicines, is satisfactory. Contrary to U.S./U.K. statements, the United Nations has no evidence of willful withholding of any humanitarian supplies.
Data that cannot be disputed at all involve the financing of the oil-for-food program. In phases one to three, the net amount available for survival was $1.3 billion; for phases four to six this increased to $2.9 billion; and in phases seven to nine to $4.2 billion. What is consistently overlooked is that these amounts translate into $113, $252 and $408 respectively per person per annum. No one can defend such funding as adequate, given the knowledge of the human conditions in Iraq today. Oil revenue, the meager lifeline for the Iraqi population, however, is deeply politicized by all parties. The announcement by the Security Council earlier this year, and also reflected in UNSCR 1284, to lift the ceiling on the amount of oil Iraq could pump is an example.
In theory, the lifting can only be welcomed; in practice, it has little consequence unless a wide range of measures is adopted concurrently. The likelihood of this happening is slim. Sanctions regulations do not allow oil-field development, nor do they permit comprehensive rehabilitation of existing up- and downstream facilities. In any case, the allocated funds of $600 million per phase4 are dismally short of what is needed for even basic repairs of the oil industry. To complicate matters further, oil spares often are not off-the-shelf items and therefore need to be tailor-made, and oil spare-part contracts are frequently put on hold by the U.N. Sanctions Committee. Oil missions appointed by the U.N. secretary-general and led by Sayboldt, a Dutch firm of oil overseers, have regularly visited Iraq and referred to the extremely dangerous state of Iraq's oil fields. Under present conditions, Iraq is not going to increase oil output much beyond the present 2.9 to 3.1 million barrels per day, simply because the oil industry in its present state is not able to do so. What explains the increased oil revenue of the past twelve months is not volume but significantly higher oil prices.
Beyond the inadequacy of the oil-for-food program, much can be said about the overall human condition of the Iraqi civilian population. Despite repeated efforts to obtain agreement to carry out an assessment of the social conditions in Iraq, neither the U.N. Office of the Iraq Program in New York nor the Security Council responded favorably. In fact, efforts were made to prevent an assessment beyond limited reviews of the impact of the humanitarian program. In a debriefing with the Security Council on February 29, 2000, I urged the Council yet again to initiate this long-overdue review. At the insistence of primarily the French, Russian and Malaysian representatives, it was agreed in May to carry out this important review.
Such an assessment undoubtedly will confirm the general picture of the inadequacy of the oil-for-food program. Sensitive analysts will also keep in mind that life is not just about physical needs and look also at the non-material aspects of deprivation in Iraq, such as the total absence of self-realization and opportunities for the full development of the human potential, a prescribed right elaborated in Article 26 of the Universal Declaration of Human Rights. Such an assessment should confirm the correctness of U.N. data and that the political contention that the human suffering is entirely ascribable to the Iraqi regime is simplistic and substantially faulty. It would in any case not provide a justification to prolong injustice by continuing to adhere to a faulty foreign policy.
The assessment will unquestionably also confirm that a once-strong and educated middle class has been all but destroyed; all classes have become impoverished; licit coping mechanisms have given way to illegal means of surviving, largely created through sanctions breaking. This in turn has led to a social transformation bringing to the fore a new class of profiteers, an economic mafia that has teamed up with the political elite. As an ambassador in the Security Council observed, "and all of this under the benevolent eye of the Security Council."
Any assessment will confirm what U.N. officials in Baghdad in the past have repeatedly stressed: the preparation of youth and young adults for life has been severely impaired. And this in particular because of an education system that has collapsed for lack of resources, both human and financial, aggravated further by irresponsible blocking of contracts by the Security Council and the use of extra-legal funds by the Iraqi government for nonessential purposes.
After ten years of sanctions against Iraq, there can be only one overall conclusion: comprehensive economic sanctions have been unsuccessful; the human cost has been enormous and well beyond the acceptable "humanitarian threshold." This conclusion is shared by an increasing number of governments and parliaments around the world5 and should serve as a reminder to the U.S. and U.K. governments that they are increasingly isolated.
HUMAN RIGHTS AND THE LEGAL IMPLICATIONS OF SANCTIONS
Keeping in mind that this paper is concerned with the effects of sanctions, it must be said that human-rights violations and the breach of international treaties by the Iraqi regime in no way absolves the international community of their obligation to maintain ethical, moral and legal standards in their treatment of Iraq. Discussions in Europe and North America with experts on international law have removed any doubt that ten years of sanctions against Iraq have resulted in serious breaches of key provisions of all relevant treaties 6 and treaty-like instruments such as the Universal Declaration of Human Rights. An important element in the sanctions debate, often forgotten, is the time factor. It can be argued that in 1990-91, Article 41 of Chapter VII of the U.N. Charter was not in conflict with Articles 1.1, 1.2, 55.c and Article 24.2 of the U.N. Charter. Today, this is clearly the case. It must be remembered that there is a hierarchical relationship between articles of the U.N. Charter and the concept of subsidiarity. Principles of justice and international law (Article 1.1) and the preservation of human rights (Article 55.c) take unquestionable precedence over the provisions of Chapter VII (Article 41).7 UNICEF reports that some 5,000 children die every month in Iraq as a direct result of sanctions, i.e., due to a policy that is no longer based on principles of international law.8
Parliaments, politicians, NGOs and concerned individuals9 around the world, but most of all, 23 million Iraqi citizens, are looking to the protagonists, primarily Iraq, Kuwait, the United States and Britain, for sincere efforts to solve a political stalemate with the immediate objective of ending a U.S.-condoned humanitarian crisis of a kind the world has never before witnessed. A comprehensive Middle East peace process cannot exclude Iraq. Political realism has to join hands with a commitment to adhere to international law and the ethical and moral imperative not to allow a human tragedy to continue.
It has been convincingly shown elsewhere, most recently in the handling of sanctions against Libya, that conflict resolution requires incentives. If there is a political commitment to a new beginning in dealing with Iraq, an overdue carrot-and stick strategy rather than a purely punitive approach has to be its basis. The architects of UNSCR 687 and 1284 will argue that this is what these resolutions already provide. The history of the treatment of Iraq during the last ten years proves that this contention is incorrect. The U.S. State Department likes to point out that they have reluctantly come a long way in agreeing to the final text of UNSCR 1284, thereby allowing a less restrictive definition of "compliance" than was the case with UNSCR 687. The fact is that UNSCR 687 allowed for "lifting" of sanctions once compliance was certified, while UNSCR 1284 merely allows for "suspension," a de facto step backwards. Knowledge of the Iraqi psyche and the experience of years of confrontation should only lead to the expectation that Iraq would therefore reject UNSCR 1284, as indeed has been the case for the past ten months, with all the tragic humanitarian consequences outlined already. Adoption of UNSCR 1284 in December I 999 has created a political stalemate that is not only becoming increasingly dangerous but for which the civilian population, as predicted long ago, pays dearly and daily. The question is, how long can the U.N. General Assembly and the international community condone it? The implications are frightening not only from a humanitarian perspective but also in terms of the value that the international community ascribes to adherence to legally binding international agreements.
If, in recognition of the basic reality in Iraq, all parties, the visible and the less visible, could be swayed to want to see normalization return to that ravaged country, then a new strategy is needed. President Clinton's statement on July 11 at the Camp David peace talks applies as well to the Iraqi part of the Middle East discussion: "There can be no success without principled compromise." Adjustments to the edges of the economic sanctions regime and incremental improvements in the oi I-for-food program involve no carrots. The following six inducements could be part of a new approach:
1. The starting of a confidence-building process, initially at a low level and behind closed doors, with all protagonists at the table. This assumes a willingness to de-demonize, difficult as this may be, the Iraqi leadership, remembering that there are already good precedents for this in the Middle East.
- An agreement to delink the military embargo and disarmament from the civilian embargo and to lift comprehensive economic sanctions in exchange for an Iraqi agreement to the re-establishment of nonintrusive arms inspection. The willingness to drop Western political amnesia and to remember the years of Western military support for Iraq should make it somewhat easier to offer this carrot.
- An agreement for Iraq to become once again a paid-up member of OPEC and the United Nations. Iraq owes about $15 million in dues to these two international bodies and is blocked from paying (unlike other members, which choose not to pay).
- Concurrence with the early overhaul of the shattered Iraqi oil industry, both up- and downstream, as an important step toward putting the economy on a more secure footing in protection of the civilian population.
- An incremental return of the responsibility for the management of financial assets to Iraqi authorities with appropriate safeguards. This is an area of particular U.S./U.K. concern. Successful confidence building, transparency and safeguards should, however, allay these concerns.
6. A gradual removal of barriers for private-sector capital investment to begin the rebuilding of the civilian infrastructure, particularly in the areas of water and sanitation and social services, including transportation and communications.
These significant steps of improvement would be in exchange for an Iraqi agreement to cooperate in six areas:
1. The establishment of an arms-inspection and monitoring facility, as mentioned above.
2/3. The imposition of “smart" sanctions on (a) specified-weapons selling to Iraq and weapons buying by Iraq and (b) on post-sanctions profiteering by groups within and outside of Iraq.
- The assurance by Iraq to immediately rebuild a free and universal education system in all parts of the country.
- The guarantee by Iraq to confirm local autonomy for Iraqi Kurdistan and fair revenue sharing for the Kurdish governorates of Dohuk, Erbil and Suleimaniya.
- The agreement by Iraq to facilitate regular reviews by the United Nations of the evolving post-sanctions humanitarian conditions.
It would go too far in the context of this presentation to go into detail regarding these twelve areas, which in some form will have to be part of a process of normalization. It should also be understood that these 12 areas are not considered a complete package, nor is the complexity of each item underestimated. This paper is, however, considered a contribution to the effort to break a stalemate that has had dire consequences for an innocent population and for the upholding of international law.
1 See Cortright and Lopez, The Sanctions Decade, (Boulder, CO: Lynne Rienner Publishers, 2000), p. 19.
2 This U.N. entity handles claims by governments, organizations and individuals for damages and losses incurred in connection with Iraq's invasion of Kuwait in 1990.
3 This program is implemented in phases of six months each; the current phase is the eighth, which commenced in June 2000.
4 For phases four-six, the amount was $300 million; there was no allocation in earlier phases.
5 In January 2000, the International Development Committee of the U.K. House of Commons in reference to Iraq concluded in a report entitled, “The Future of Sanctions”: “We find it difficult to believe that there will be a case in the future where the UN would be justified in imposing comprehensive sanctions on a country….comprehensive economic sanctions only further concentrate power in the hands of the ruling elite.” (p. xvii). Cortright and Lopez, op. cit., state: “The consequences of this prolonged economic strangulation resulting from the 1991 Gulf war created one of the worst humanitarian crises of the decade.” (p. 37); in a forward to the study, Foreign Minister Axworthy writes: It is imperative that sanctions reflect the objectives of the international community, not just the national interests of its most powerful members.
6 The breach of the Convention of the Rights of the Child, the Hague Convention (e.g., the Martens Clause) and the U.N. Charter are examples.
7 Similar observations can be made with regard to the International Covenant on economic, social and cultural rights. See also an excellent analysis by Mare Bossuyt in ECOSOC doc. E/CN.4 Sub.2/2000/33 of June 21, 2000.
8 Article 3 of the Universal Declaration of Human Rights refers to an individual's right to life.
9 Even Butler and Ritter, formerly of UNSCOM, have belatedly recognized the gravity of the mistake of continuing to link disarmament and economic sanctions.