Iraq currently faces shortages of food, shelter, clean water, and medicines, and an armed conflict there can be expected to make humanitarian conditions much worse in the short to medium term. For example, one U.N. official told the Washington Post in late October 2002, “[t]here could be a few million refugees heading to Iran. There could be six million people in Baghdad without access to clean water or electricity. There could be millions more waiting for someone to give them food because that’s what they’ve come to depend on. . . .Are we and everyone else ready for that? No.”3 Since 60 percent of the Iraqi population is dependent on the monthly food distributions they receive from the central government, to the extent that war disrupts distributions, serious problems with malnutrition will soon arise.4 War-related damage to the electrical network, to ports, railroads, bridges, and roads will severely impact the humanitarian situation, as will any restrictions on the work of humanitarian agencies.5 The population of Iraq is largely urban. In the event of war, it is likely that people will attempt to remain in their towns and cities, near to the services that they depend on, unless direct hostilities force them to leave or the indirect consequences of war disables life-sustaining services to such an extent that survival in cities becomes untenable.
In the north, a good harvest in 2002 has allowed most Iraqis (particularly Kurds, Assyrians, and Turkmen) to build up a reserve of food sufficient to last them from three weeks to three months should war occur in 2003.6 Families in the northern zone also receive their rations from the U.N. World Food Programme (WFP) in accordance with the Oil for Food program (which allows the Iraqi government to trade oil for food and other commodities).
In the central and southern regions of Iraq, where the population is made up of Shi’a Muslims, Sunni Muslims, and Turkmen, the potential for humanitarian crisis is much more acute. There are few NGOs operating and they will have difficulty responding if the current governmental food distribution is disrupted for any reason. Nearly twenty million people in these regions receive rations on a monthly basis from the government. 7 Possibly tens of thousands of people who are critically dependent on rations will be facing serious food shortages from the very first day a potential conflict interrupts government distributions in central and southern Iraq.
Over the last two months, the Iraqi government has provided the populace with double rations in anticipation of war. However, information from inside Iraq indicates that these rations will, at best, suffice for a brief time. There are also reports that poorer Iraqis have sold their rations to raise capital for important other needs, including medicine and the cost of possible flight from their cities. As of December 13, 2002, various agencies of the UN had requested U.S. $37.4 million in order to prepare for 100,000 to 1.2 million displaced persons, food shortages, lack of clean water, and insufficient basic humanitarian supplies in Iraq.8 However, humanitarian activities may be restricted especially during the initial phase of a potential war, which will increase the risk of crisis inside Iraq.
During forty-three days of air strikes in 1991, the United States and its allies bombarded more than 700 targets in Iraq. The electrical grid, generating plants, several bridges, and key government ministries such as the ministry of justice were destroyed.9 Civilians suffered due to the severe lack of electricity, refrigeration, water purification, and sewage treatment.10 Cholera, typhoid and other diseases increased.11 An estimated 110,000 Iraqi civilians died in 1991 from the health effects of the war.12
Humanitarian conditions severely worsened in Iraq after the imposition of economic sanctions in 1991.13 Starting in December 1996, the Iraqi government has been able to trade oil for food.14 But even under this program, Iraqis face severe hardships. In 1999, researchers with UNICEF found that infant mortality rose from forty-seven per 1000 live births during 1984-89 to 108 per 1000 in 1994-99, and under-five mortality rose from fifty-six in 1984-89 to 131 per 1000 live births in 1994-99.15 In addition, the Oil for Food program has led to “increased dependence on the government as almost the sole provider,” and the government has not consistently delivered as promised.16 More than 60 percent of the population is dependent on monthly rations of flour, rice, tea, cooking oil, beans and other commodities.17 The northern Kurdish population has fared better than those in the central or southern areas.18 WFP supplies food to the north, recent harvests have been good, and the local population has been able to retain much of what it grows because the central government refuses to purchase grain from northern farmers.19
A joint NGO visit to Iraq in 2000 found that the southern internally displaced persons’ camps, built in the 1980s, had running streams of raw sewage between housing blocs, and untreated standing sewage water.20 In the north, a U.N. Habitat survey found in 2001 that about 40 percent of internally displaced persons in the region under Kurdish administration lived in settlements with standards of drinking water and electricity supplies, sanitation, drainage, and road access that were below average for the area.21 On October 7, 2002, UNICEF stated that “child malnutrition remains a major concern, with almost one-third of all children in the south and center of Iraq suffering from chronic malnutrition.”22
The executive director of the U.N. Office of the Iraq Program (OIP) told the Security Council in December 2000 that he was "greatly concerned with the increasing number of internally displaced persons," whose living conditions in some cases were "abominable."23 Other humanitarian agencies have voiced serious concern about the overall humanitarian situation in Iraq. In a December 2000 report, the International Committee of the Red Cross (ICRC) said that "despite the increased availability of food, medicines and medical equipment, following a rise in oil prices and the extension of the Oil for Food programme, suffering remained widespread."24 Earlier that year, the U.N. secretary general had highlighted the important responsibility that remains with the government of Iraq, stating that the Oil for Food program “should not. . .be confused with a development programme. .[as it] was never intended to meet all the humanitarian needs [of the Iraqi people].”25
A government is ultimately responsible for the humanitarian needs of the population under its authority, including those who are internally displaced. Iraq has failed to fulfill its obligations in important respects, most egregiously through policies that themselves have uprooted particular populations, such as the Marsh Arabs in the south and Kurds, Turkmen and Assyrians in the north. In other contexts, Iraq has been unable to fulfill its obligations because the international community has imposed economic sanctions, and has created two flight exclusion zones. The responsibility of the international community to help meet the needs of the Iraqi population is heightened because the Iraqi government is unable or unwilling to provide sufficient assistance and protection.26
Human Rights Watch27 and other organizations have pointed to the human rights and humanitarian consequences of a poorly-tailored sanctions regime that does not give adequate exemptions for non-military trade and investment necessary to address Iraq’s continuing humanitarian crisis. Sanctions that impact the availability of life-sustaining medicines and food raise serious concerns under the right to life (ICCPR, article 6), the rights to food and health care (ICESCR, articles 11 and 12), and the right of the child to the enjoyment of the highest attainable standard of health (Convention on the Rights of the Child, article 24).
During international armed conflict there are a series of principles in international humanitarian law governing the provision of humanitarian relief to civilian populations. Civilians—persons taking no active part in hostilities—are protected by international humanitarian law, which includes the four Geneva Conventions of 1949 and customary international humanitarian law. While Iraq and the United States are both party to the 1949 Geneva Conventions, neither is party to the First Additional Protocol of 1977 (Protocol I), covering international armed conflicts, although it is increasingly recognized that certain aspects of this Protocol constitute customary law.28
If the United States goes to war with Iraq and becomes an occupying power, the Fourth Geneva Convention requires: “[t]o the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.” (Fourth Geneva Convention, article 55).
Additionally, humanitarian relief agencies must be allowed access to provide for the civilian population during occupations. Protocol I expands the right of any civilian population in the territory of a party to the conflict access to relief assistance. It provides that “relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions.” An occupying power “shall facilitate, as much as possible, visits to protected persons [including all persons in an occupied territory] by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons.” (Fourth Geneva Convention, article 30).
Warring parties must respect the neutrality of relief organizations and their personnel and permit humanitarian agencies to operate independently from any military or political authority. Parties to a conflict that directly provide humanitarian assistance should distinguish their efforts from those of humanitarian agencies, so as to avoid confusion about the latter's neutrality.
Finally, applicable in war as in peacetime, the Guiding Principles on Internal Displacement29 offer relevant standards of human rights and humanitarian law relating to humanitarian assistance. The Guiding Principles are based on international laws that bind states and insurgent groups, and they have acquired authority and standing in the international community. According to Principle 18 of the Guiding Principles, authorities are obliged to provide displaced persons with food, water, shelter, clothing and medical services or to ensure their access to these necessities. Government action to interrupt such services provided by U.N. agencies or NGOs would also contravene Principle 25 which requires granting free passage to personnel of humanitarian agencies. Principle 22 provides that displaced persons shall be able to seek employment and participate in economic activities.
3 “This Time Around, War Would Hit Iraq Harder,” The Washington Post, October 29, 2002.
4 See United Nations, “Likely Humanitarian Scenarios,” December 10, 2002 para. 11, available at http://www.casi.org.uk/info/undocs/war021210.pdf.
6 See “Food Issues of Iraq,” Center for Humanitarian Cooperation, available at http://www.cooperationcenter.org/library5.asp.
8 See “U.N. Braces for Possible Iraq Conflict Fearing Mass Exodus,” Agence France-Presse, December 23, 2002 (citing UNHCR sources).
9 See William Arkin, “Baghdad Bombing,” The Washington Post, July 30, 1998.
11 See “This Time Around, War Would Hit Iraq Harder,” The Washington Post, October 29, 2002
12 See W. Arkin, D. Durrant and M. Cherni, On Impact: Modern Warfare and the Environment: A Case Study, Greenpeace, 1991.
13 See e.g. Richard Garfield, “Health and Wellbeing in Iraq: Sanctions and the Oil for Food Program,” Transnational Law and Contemporary Problems, 1999.
14 See “U.N. Agencies to Meet on Difficulties in Iraq,” Agence France-Presse, October 16, 2000.
15 See Mohamed M. Ali and Iqbal H. Shah, “Sanctions and Childhood Mortality in Iraq,” The Lancet, 2000, p. 1851-57.
16 See United Nations, “Likely Humanitarian Scenarios,” December 10, 2002 para. 2, available at http://www.casi.org.uk/ info/undocs/war021210.pdf.
18 See “Collateral Damage: the Health and Environmental Costs of War on Iraq,” Medact, November 12, 2002.
19 See “Food Issues of Iraq,” Center for Humanitarian Cooperation, available at http://cooperationcenter.org/library5.as.
20 See “Internal Displacement in Iraq: New Profile Summary,” Norweigan Refugee Council, February 6, 2001.
21 UNCHS-Habitat, IDP Site and Family Survey, January 2001.
22 “Urgent Needs in Health, Nutrition, Water/Sanitation and Child Protection,” UNICEF Humanitarian Action: Donor Update, October 7, 2002.
23 See Benon V. Sevan, Executive Director of the Iraq Programme, “Introductory Statement to Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 1302,” December 4, 2000.
24 See International Committee of the Red Cross, Annual Report, 2000.
25 Report of the United Nations Secretary General on Oil for Food Programme, U.N. Doc. S/2000/208, October 3, 2000.
26 For an analysis of the responsibilities of the international community in the context of Operation Provide Comfort see, e.g. Oscar Schacter, “United Nations Law in the Gulf Conflict,” American Journal of International Law, July 1991, p. 469.
27 See e.g. “Restructure Embargo, Try Leaders for War Crimes,” Human Rights Watch, January 5, 2000; “Explanatory Memorandum Regarding the Comprehensive Embargo on Iraq Humanitarian Circumstances in Iraq,” Human Rights Watch, January 4, 2000.
28 See, e.g. Theodore Meron, Human Rights and Humanitarian Norms as Customary Law, 1989, p.62-70, 74-78 (discussing the customary law character of certain aspects of Protocol I). In 1987, the U.S. State Department Deputy Legal Advisor gave a speech in which he enumerated many of the principles enshrined in Protocol I that the U.S. considers customary international law. See “The Sixth Annual American Red-Cross Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions,” The American University Journal of International Law and Policy, Vol. 2, No. 2, Fall 1987, pp. 419-427 (containing remarks of Michael J. Matheson).
29 The Guiding Principles on Internal Displacement (the Guiding Principles), adopted in September 1998 by the U.N. General Assembly, reflect international humanitarian law as well as human rights law, and provide a consolidated set of international standards governing the treatment of the internally displaced. Although not a binding instrument, the Guiding Principles are based on international laws that do bind states as well as some insurgent groups, and they have acquired authority and standing in the international community.