Sanctions, Genocide and War Crimes

A paper presented to the International Law Association on 29 February 2000 by Shuna Lennon, LLB

INTRODUCTION

1. 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).

2. 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

3. 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.

4. 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.

5. 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

6. 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.

7. 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.

8. 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 FOR SANCTIONS

9. 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.

10. 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).

11. 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

12. 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.

13. 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.

14. 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.

15. 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.

16. Various resolutions have been passed since 1991 with the ostensible purpose of mitigating the effects of the blockade/sanctions regime. In particular theOil 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.

17. 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.

18. 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).

19. 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.

20. 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.

21. 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

22. 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.

23. 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.

24. 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).

25. 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.

26. 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).

27. 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).

28. 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

29. 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.

30. 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.

31. 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

32. 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.

33. 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.

34. In December 1995, FAO reported that 567,000 Iraqi children had died as a direct consequence of economic sanctions.

35. In March 1996, WHO reported that the economic sanctions had caused a six fold increase in the mortality rate of Iraqi children under five.

36. 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.

37. 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

38. 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.

39. 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.

40. 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.

41. 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

42. 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

43. Article 51 provides: Protection of the Civilian Population

1 The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.

The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

Indiscriminate attacks are prohibited. Indiscriminate attacks are:

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

(c) those which employ a method or means of combat the effects of which cannot be limited as required by this protocol; and consequently, in each case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

44. Article 54 makes provision for the protection of objects indispensable to the survival of the civilian population as follows:

Starvation of civilians as a method of warfare is prohibited.

It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water, installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive ...

Genocide Convention

45. The Convention on the Prevention and Punishment of the Crime of Genocide (the genocide convention) relevantly provides:

Article II

(a) In the present convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, the national, ethnical, racial or religious group, as such:

(b) killing members of the group;

(c) causing serious bodily or mental harm to members of the group;

(d) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; ....

Article III

The following acts shall be punishable:

(a) genocide

(b) conspiracy to commit genocide

(c) direct and public incitement to commit genocide

(d) attempt to commit genocide

(e) complicity in genocide

Article IV

Persons committing genocide or any of the other acts enumerated in article three shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

46. The Genocide Convention was adopted on 12 January 1951 by the General assembly of the United Nations.

Principles of the Nuremberg Tribunal, 1950

47. 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?

48. 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.

49. 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.

50. 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.

51. 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.

52. 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.

53. 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.

54. 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)

55. Thus, the very instrument from which the UN derives its existence and powers only authorises the UN to act in conformity with international law.

56. 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.

57. 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?

58. 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.

59. 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.

60. 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).

61. 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.

62. 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.

63. 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.

64. 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 resolutions in general and UNSC Resolution 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.

65. 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

66. 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.

67. 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.

68. 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.

69. 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.

70. 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.

71. 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.

72. Seventy US Senators wrote to President Clinton in January 2000 demanding that the sanctions be lifted.

CRIMINAL INTENT REQUIRED

73. 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.

74. 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.

75. 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).

76. 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....

77. 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.

78. 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

79. 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.

80. 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.

81. 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.

82. 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.

83. 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.

84. 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.

85. 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.