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Explanatory Memorandum Regarding the Comprehensive Embargo on Iraq
Humanitarian Circumstances in Iraq
The comprehensive nature of the embargo imposed on Iraq since August 1990, its intensification of the Gulf War damage to the country's civilian infrastructure, and its unprecedented duration have produced a longstanding and serious humanitarian crisis in Iraq.
The balance sheet of several years of sanctions against Iraq reveals a minimum of political dividends as against a high human price paid primarily by women and children. The food rationing system provides less than 60 percent of the required daily calorie intake, the water and sanitation systems are in a state of collapse, and there is a critical shortage of life-saving drugs.(2)
These were the circumstances when the Security Council passed Resolution 986 in April 1995, authorizing Iraq to sell under U.N. auspices up to $2 billion worth of oil every six months. Thirty percent of the proceeds were designated for the Compensation Commission and four percent to cover the expense of U.N. operations in Iraq, including UNSCOM. Fifty-three percent and thirteen percent of the amount would be available to the government of Iraq and to the U.N.-run humanitarian program in the three autonomous northern provinces respectively to fund humanitarian imports. Iraq entered negotiations on implementation of the resolution in January 1996, and a Memorandum of Understanding was signed on May 20 of that year. The first letters of credit were signed in February 1997 and deliveries commenced in late March. In response to reports of the secretary-general concerning the inadequacy of the program, in February 1998 the Council passed Resolution 1153, expanding the oil export ceiling to $5.2 billion every six months, with the same distribution of proceeds. Owing to generally low oil prices, Iraq only met (and in fact exceeded) this ceiling in the most recent sixth phase of the program ending November 20, 1999.(3)
Increased Iraqi access to food, medicines, and other commodities since mid-1998, under the expanded oil-for-food program, has affected the humanitarian situation positively in some areas, while in others it has stopped the situation from worsening or slowed down the rate of deterioration. The cumulative contribution of the program to date has been $9.5 billion in funds available for humanitarian imports in the government-controlled center and south, or $455 per person, and $2.4 billion for the three autonomous northern governorate, or $710 per person.(4) The program contributed greatly toward heading off the famine conditions that appeared to be threatening in 1995. The provision of food has been relatively straightforward, mainly because the U.N. program has utilized the government ration system already in place. The direct provision of food commodities has supplemented the monthly ration basket the government provides to nearly all families, and in the process has lowered the free market cost of rationed and non-rationed foods. A similar situation appears to exist with regard to medicines.
The situation overall, however, remains alarming. The International Committee of the Red Cross warned in May 1999 of the "steady deterioration of living conditions" and stressed that "humanitarian action alone can not be a substitute for the country's needs."(5) In January 1999 the Security Council established three expert panels to report back on the situation regarding disarmament, humanitarian conditions, and missing Kuwaiti persons and property.(6) The second panel, on humanitarian conditions, concluded that "the humanitarian situation in Iraq will continue to be a dire one in the absence of a sustained revival of the Iraqi economy, which in turn cannot be achieved solely through remedial humanitarian efforts" (para. 58). The panel also observed that "[e]ven if not all the suffering in Iraq can be imputed to external factors, especially sanctions, the Iraqi people would not be undergoing such deprivations in the absence of the prolonged measures imposed by the Security Council and the effects of the war" (para. 45).
The crisis has been particularly acute in the area of public health, putting millions of Iraqis, if not an entire generation, at grave risk. The humanitarian panel noted that communicable diseases that had previously been brought under control "have now become part of the endemic pattern of the precarious health situation" (para. 21). Chronic malnutrition has affected nearly one in four Iraqi children for much of the last decade. UNICEF, comparing the 1984-89 and 1994-99 periods in the government-controlled center and south of the country, found that infant mortality had increased from 47 to 108 deaths per 1000 live births, while child mortality (under five years of age) has increased from 56 to 131 deaths per 1000 live births.(7) This is a rate of increase that is unprecedented. Put simply, children under five are dying at more than twice the rate of ten years ago. Lack of access to sufficient and appropriate food and medicine has been one element, but also crucial has been the degradation of the water and sanitation sectors, contributing to chronic intestinal and acute respiratory infections.
There are no similarly reliable estimates regarding the threat to life that sanctions have posed for other vulnerable sectors of the Iraqi population. Nor have there been any attempts to measure the harm suffered by those Iraqis--the great majority--who do survive beyond their fifth birthday, an effort that would require longitudinal studies of changes in physical well-being, mental capacity, educational achievement, and the like. The humanitarian panel concluded, based on the observations of the agencies in the field, that "almost the whole young child population was affected by a shift in their nutritional status towards malnutrition." One public health expert who has closely studied the Iraq situation, Dr. Richard Garfield of Columbia University, has emphasized that "excess deaths should thus be seen as the tip of the iceberg among damages to occur among under five-year-olds in Iraq in the 1990s."(8)
The devastating impact of the sanctions is largely a consequence of their unprecedentedly comprehensive scope and duration, coupled with the fact that their imposition followed the military campaign to compel Iraqi withdrawal from Kuwait. This campaign, conducted under the authority conferred by Resolution 678 (1990), included air attacks that crippled most of Iraq's electrical power system. Because of the centrality of the country's electric power grid to water and sewage treatment, the health care system, agricultural irrigation, and other vital civilian areas, these attacks have had grave civilian consequences. The embargo, in turn, has severely impeded the repair and reconstruction of these sectors that together function as a life support system for most of Iraqi society. More than nine years after the war, it is less and less possible to resort to the make-shift repairs and cannibalization of parts that for a number of years enabled the country to keep in operation some of its pre-war stock of generators, transformers, water pumps, and similar sorts of equipment.
This physical breakdown has been accompanied by the devastation of the country's human resource infrastructure. Real incomes and purchasing power of the great majority of Iraqis plummeted, leading many salaried professionals and skilled workers to emigrate or to shift to casual unskilled labor. This systematic "de-skilling" of the population has been aggravated by the severe intellectual isolation stemming from the extension of the embargo to cover professional and scientific journals and books as well as travel outside the country to professional conferences and the like. The damage to the country's physical and human infrastructure and the acutely distressed income levels of most of the population have seriously compromised the beneficial impact of a program limited to commodities alone.
As available funds have increased following the humanitarian program's expansion under Resolution 1153, the 661 Committee has authorized the expenditure of a greater share of funds under the 986 program for the purchase of materials for infrastructural repair, including water and sanitation and electric power sectors, recognizing the critical role of these sectors particularly in addressing rising child mortality rates. Subsequently, the Council, in Resolution 1175 (1998), authorized use of $300 million in both the fifth and sixth phase of the program for rehabilitation of the oil sector, recognizing that this was essential in order to sustain funding for the entire humanitarian program. In October 1999 the Committee declined to act on the recommendation of Secretary-General Annan that Iraq be permitted to spend an additional $300 million on oil spare parts in the current sixth phase, following reported objections by the United States that additional funds generated in the sixth phase should be expended only on humanitarian commodities in the strict sense. Resolution 1284, however, adopted on December 17, 1999, asks the Secretary-General to report on the revenues necessary to meet humanitarian needs and if warranted to recommend additional allocations for oil spare parts and equipment.
The economic siege of the country has contributed directly to the general pauperization of the vast majority of people. The comprehensiveness and protracted nature of these sanctions, now in their tenth year, have had long-term consequences by, in particular, impeding the repair of the country's infrastructure--communication, transportation, education, government services. These generalized humanitarian consequences have radically complicated and limited the possibilities for meeting basic civilian needs under a program restricted to the delivery of commodities. The Secretary-General expressed this in his two-year review when he noted that "there is little experience with the type of problems encountered when the whole spectrum of basic services starts to fail, as is happening in Iraq" (para. 55).
Human Rights Dimensions of the Iraq Embargo
The policies of the government of Iraq have greatly compounded and magnified the humanitarian crisis. These include Iraq's failure to comply fully with Resolution 687; its refusal between 1991 and 1996 to implement any "oil-for-food" arrangement and its mixed record of cooperation since then; and its use of scarce available resources for non-humanitarian purposes--including military purposes as well as palaces and monuments--thereby redirecting the consequences of sanctions away from itself and onto vulnerable civilians. The recent reports of the Secretary-General on the operation of the humanitarian program have criticized the government's excessive warehousing of medicines and failure to order foods specially designed for the nourishment of infants, small children, and nursing mothers, and also noted Iraq's failure to cooperate with the program by routinely not providing government escorts for observer teams, thus preventing them from carrying out their duties. Broadly speaking, it is clear that the Iraqi government is not fulfilling its obligations under the International Covenant on Economic, Social and Cultural Rights to use "the maximum of its available resources," including "international assistance and cooperation," to provide an adequate standard of living and improve living standards.
At the same time, the member states of the Council, given their responsibility to the international community as members, have an obligation not to destroy or undermine the right of people to an adequate standard of living, the improvement of living conditions, freedom from hunger, and the highest attainable standard of physical and mental health. The Security Council must share responsibility for the enormous impact of the measures it has imposed on the well-being of Iraq's population. For this reason, we urge the Council to revise the present embargo in favor of a regime that targets specifically the ability of that government to import military and dual-use goods, and lifts restrictions on the import of civilian commodities and on financial transactions broadly, restrictions that have a disproportionately harmful impact on ordinary Iraqi people.
The Convention on the Rights of the Child obligates States Parties, which include Iraq and all members of the Security Council with the exception of the United States, which has not signed the convention, to "take appropriate measures: (a) to diminish infant and child mortality; (b) to ensure the provision of necessary medical assistance and health care to all children; [and] (c ) to combat disease and malnutrition including...through the provision of adequate nutritious foods and clean drinking water" (Art 24, 2). While there may be varied interpretations regarding the measurement of such rights as guaranteed by the Convention, policies that in fact promote the deterioration of nutrition and health, for instance, or directly impede their realization, clearly contravene these standards.
The Committee on Economic, Social and Cultural Rights, in a December 12, 1997 General Comment [E/C.12/1997/8], observed that sanctions "almost always have a dramatic impact on the rights recognized in the Covenant," noting that in addition to disrupting access to items necessary for survival, "unintended consequences can include reinforcement of the power of oppressive elites" and "the generation of huge windfall profits for the privileged elites" (para 3). The Committee further
consider[ed] that the provisions of the Covenant, virtually all of which are also reflected in a range of other human rights treaties as well as the Universal Declaration of Human Rights, cannot be considered to be inoperative, or in any way inapplicable, solely because a decision has been taken that considerations of international peace and security warrant the imposition of sanctions. Just as the international community insists that any targeted State must respect the civil and political rights of its citizens, so too must that State and the international community itself do everything possible to protect at least the core content of the economic, social and cultural rights of the affected people of that State (para 7).
Our recommendation is consistent with the view of many members of the Council itself. An October 30, 1998, draft of the issue paper of the chairs of the sanctions committee noted that "[t]he decisions of the Security Council to impose sanctions imply the Council's obligation to ensure that proper implementation of sanctions does not result in violations of human rights and international humanitarian law, and its responsibility to do all within its power for the respect of the basic economic, social, and cultural rights and other human rights of the affected population...."
Human Rights Watch is fully aware of the toll of recurrent and horrific human rights abuses committed by the government of Iraq. For this reason, we urge the Security Council to establish an international criminal tribunal, such as those the Council has authorized for former Yugoslavia and Rwanda, to indict and bring to justice Iraqi government officials and former officials against whom there is credible evidence of responsibility for acts of genocide, war crimes, and crimes against humanity. The tribunal's writ should include the 1988 campaign to evacuate the Kurdish countryside as a site for anti-regime insurgency, in which the government destroyed more than 2,000 villages and a dozen towns, seized every Kurd in the "prohibited area," trucked off an estimated 100,000 civilians for execution, and used chemical weapons against its own citizens. Human Rights Watch has compiled ample documentary evidence, including hundreds of interviews with survivors and witnesses, and carefully reviewed some 18 tons of Iraqi secret police documents. The investigation should also include, but not be limited to, war crimes committed in the invasion and occupation of Kuwait in 1990-91, the massive displacement and habitat destruction in the southern marsh areas, and, most recently, the "prison cleansing" campaigns in which more than 2,500 persons in detention have reportedly faced summary and extrajudicial execution.
Reconciling enforcement and human rights
The Council acknowledged its own responsibility to monitor the impact of the sanctions when it insisted, in Resolution 666 (1990), that it alone would determine whether "humanitarian circumstances" had arisen, and instructed the Sanctions Committee established pursuant to Resolution 661 (the "661 Committee") to keep the situation under "constant review." However, neither the Council nor the Committee has done this since July 1991, when the Council received the report on humanitarian needs in Iraq from Sadruddin Aga Khan, the secretary-general's special representative. The Council's response was to pass the first "oil-for-food resolutions, Resolutions 706 and 712, whose provisions were inexplicably far below those recommended in that report.(9) Those members who have been the strongest proponents of continued sanctions have dismissed or disparaged reports by specialized U.N. and other humanitarian agencies in the field and yet have not sought to develop more reliable or accurate accounts. The Notes of the president of the Council on "The Work of the Sanctions Committee," issued on January 29, 1999 (S/1999/92), expressed the consensus of the Council that "sanctions committees should monitor, throughout the sanctions regime, the humanitarian impact of sanctions on vulnerable groups..." (para. 11). Yet in the case of Iraq, this recommendation has yet to be taken up. Paragraph 28 of Resolution 1284 (1999), which requests the Secretary-General to report on the progress made in meeting humanitarian needs, appears to meet this monitoring obligation only partially.
The ability of a single country representative to place an application on hold also continues to be a matter of concern. The secretary-general's ninety-day report dated August 19 (S/1999/896) complained of "a significant increase in the number of holds being placed on applications, with serious implications for the implementation of the humanitarian programme" (para. 101). In an October 22 letter to the President of the Council (S/1999/1086), the secretary-general noted that the number of holds "has continued to increase" and urged the Committee to "undertake an urgent review of all applications currently on hold."(10) In a November 17 statement to the Council, Benon Sevan, executive director of the U.N. Office of the Iraq Programme, noted that 602 contracts worth $1.042 billion were then on hold. Some $73 million worth of contracts on hold in the agricultural sector resulted in the loss of as much as 20,000 tons of wheat production, he said, citing FAO estimates. He also noted that $377.7 million, or 51 percent, of electricity sector contracts from the fourth through sixth phases were still on hold, which could allow Iraq to increase its present power generation capacity by fifty percent. He cited similar concerns in the area of maintenance and safety equipment, and telecommunications. In light of the fact that applications forwarded to the Committee have been determined by the Office of the Iraq Program to comport with the distribution plan approved by the Secretary-General, and in light of the mandate of the Office of the Humanitarian Coordinator in Iraq to "observe" the end-use of imports under the 986 program, the increasing use of holds, most of them reportedly by the United States, appears to be capricious and unjustified.(11) At the very least, this situation highlights the long-standing need for the Council to address the absence of transparency and the apparently high degree of politicization with regard to the decisions of the sanctions committees.
Human Rights Watch recognizes that we are proposing steps that go beyond addressing humanitarian concerns in the most immediate sense of food, medicines, and spare parts for infrastructure repairs that address acute threats to life and physical integrity. While the oil-for-food program has gone a long way to meet these life-threatening aspects of the embargo, it was never intended to be a development program, and does not contain the elements of such a program. But this is precisely what is needed in order to begin to reverse the dangerously degraded state of essential civilian infrastructure and services in the country.
We therefore strongly recommend that the Council revise the embargo so as to enable the rehabilitation of the country's civilian economy while retaining comprehensive import restrictions for all military goods and rigorous monitoring of "dual-use" materials. We urge that the Council offset the lessened financial oversight of such an arrangement by making all goods entering Iraq liable to inspection at ports of entry, and continuing to monitor their end use. We note that under present arrangements, only those goods imported under the oil-for-food program are subject to U.N. inspection. All other imports, whether contracted by the government or other bodies or persons, and financed primarily through foreign exchange acquired through smuggling or remittances from Iraqis working abroad, presently enter the country without scrutiny. While our proposal would likely result in an expansion of import activity, it also calls for the establishment of a mechanism to inspect imported commodities for the purpose of ensuring that they are not military or "dual-use" in nature, unlike at present.
Our proposal also envisions continued monitoring of the end-uses of imports, particularly those that might be diverted to military use. The duties of the Office of the Humanitarian Coordinator in Iraq include monitoring the end-use of imported commodities. While additional monitors would be required under the restructured embargo we are proposing, the reports of the Secretary-General indicate that the observation personnel now in Iraq have generally been able to carry out their tasks, despite instances of Iraqi government non-cooperation. So far as we are aware, there have been no allegations that materials imported under the oil-for-food program have in fact been diverted to any significant extent to non-humanitarian purposes over the two-and-a-half years that the program has been operational.
Because of the cumulative and systematic damage to Iraq's civilian economy and civilian infrastructure, the Security Council should allow for investment and development activities, under international supervision, in order to address the severe and pressing needs of most of Iraq's civilian population. These reforms will provide the Iraqi government with access to additional revenues, and it is a matter of serious concern that some portion of these revenues may well be used for purposes other than rebuilding the civilian infrastructure and meeting humanitarian needs. We believe that the Council, after nearly ten years of comprehensive embargo, must weigh any reasonably anticipated constructive consequences of the embargo's continuation in its present form, in terms of gaining government compliance with the Council's disarmament demands, against the demonstrated and severe harm it has caused to Iraq's civilian population.
We agree that the Iraqi government bears great responsibility for provoking and aggravating this humanitarian crisis. Precisely for this reason, we do not believe the Council can reasonably expect that the government will modify its behavior, even at the price of gravely damaging Iraqi society. The Council must do all within its reach to remove itself as a party to this destructive and deadly dynamic by ensuring that its actions lie well within the parameters established by basic humanitarian principles. The Security Council, when it adopted Resolution 1153 (1998) expanding the oil-for-food program, noted its "determin[ation] to avoid any further deterioration of the current humanitarian situation." Existing conditions in Iraq as a result of war and sanctions, even in the absence of further deterioration, continue to have lethal consequences, especially for the most vulnerable sectors of the population. The preamble to Resolution 1284 (1999) notes that the Council was "determined to improve that [humanitarian] situation." At a minimum, the resolutions of the humanitarian panel should be implemented without further delay in order to meet the goal articulated in Resolution 986, "to provide for the humanitarian needs of the Iraqi people until the fulfillment by Iraq of the relevant Security Council resolutions." The Council should also revise the sanctions regime to target military and dual-use imports, and take immediate steps towards the long overdue establishment of an international criminal tribunal that would indict and, to the extent possible, try those individual Iraqi officials and former officials credibly reported to be responsible for acts of genocide, war crimes, and crimes against humanity.
1. This was the assessment of a July-September 1995 Food and Agricultural Organization (FAO) Crop and Nutritional Status Assessment Mission. For the great majority of households in the government-controlled center and south, the monthly basket of rations provided by the government was the key to survival. These rations comprised locally-produced food commodities as well as some imports purchased by the government with increasingly scarce foreign exchange. In October 1994 the government claimed it could no longer sustain annual expenditures of $700 million on food and slashed the monthly ration basket by thirty-seven percent. A joint report by the United Nations Children's Fund (UNICEF), the World Health Organization (WHO), and the FAO in June 1995 reported that four million persons were nearly entirely dependent on rations and that one million were at serious risk. A World Food Program (WFP) Assessment Mission report of September 25, 1995, asserted that the problem was less one of food availability than the inability of Iraqis to afford market prices: it calculated that the free market value of a ration basket for a family of five was the equivalent of $10.50, or about three times the average salary of a government employee.
2. This section of the report can be found at www.unicef.org/sowc96/6sanctns.htm.
3. Benon Sevan, the executive director of the UN Humanitarian Program for Iraq, told the Security Council on November 17, 1999, that the overall shortfall in actual to authorized revenues stood at around $2 billion.
4. Statement of UNICEF Executive Director Carol Bellamy to the Security Council, October 28, 1999.
5. Statement of Michel Minnig, ICRC representative in Iraq, Agence France Presse, May 8, 1999.
6. Ambassador Celso Amorim of Brazil, who chaired the panels, submitted the three reports to the Security Council on March 30 1999. The report of the humanitarian panel is Annex II of document S/1999/356.
7. The UNICEF survey found that in the three autonomous northern governorates, where the U.N. itself administers the "oil-for-food" program, under-5 mortality declined from 82 deaths per thousand live births in 1984-89 to 69 in 1994-99, while infant mortality in the same period fell from 66 to 57 deaths per thousand live births. These declines came despite an increase in child and infant mortality in these areas in the 1989-94 period. In a document issued on August 16, 1999 ("Questions and Answers for the Iraq child mortality surveys"), UNICEF stated that because "oil-for-food" had been operational for only two of the five years covered in survey, the different trajectories in the north and in the government controlled areas could not be attributed to the differing administrations and "it is too soon to measure any significant impact" of the program on child mortality. The agency noted that "since 1991 the north has received far more support per capita from the international community" and that the more "porous" borders in the north meant for less effective embargo enforcement. Other factors not mentioned by UNICEF, in addition to the larger per capita contribution of the oil-for-food program itself, include a relatively larger and more varied rain-fed agricultural sector, which made this area less dependent on food rations and lowered the market cost of food, and a "cash component" equivalent to approximately ten percent of the value of the aid provided in the "13 percent account," facilitating distribution of goods and installation and repair of equipment. Another differential aspect, this one negative, was the impact of the "internal" embargo imposed on the autonomous northern provinces by the Iraqi government which affected wages of public employees and ration allocations as well as costs of running public institutions.
8. "Morbidity and Mortality among Iraqi Children from 1990 through 1998: Assessing the impact of the Gulf War and Economic Sanctions" (March 1999), available on the website of the Fourth Freedom Foundation (http://fourthfreedom.org.sanctions/garfield.html).
9. Report to the Secretary-General on Humanitarian Needs in Iraq by a Mission led by Sadruddin Aga Khan, Executive Delegate of the Secretary-General, 15 July 1991. The report estimated that it would cost $22 billion to restore Iraq's key sectors--power, water, sanitation, food, health, and oil--to pre-war levels, and proposed a limited UN-controlled sale of Iraqi oil to fund a portion of the country's humanitarian needs. Sadruddin Aga Khan suggested a sum of $6.9 billion for the first year, with an initial four-month sale of $2.65 billion (one-third plus start-up costs). After several weeks of debate in July 1991, Resolutions 706 and 712 were adopted in August and September allowing Iraq to sell $1.6 billion over six months, with thirty percent to go to the UN Compensation Fund and about four percent for UN expenses in Iraq, including UNSCOM, leaving $930 million for humanitarian imports over six months, compared to the $2.6 billion over four months proposed in the report. The Council resisted efforts of the secretary-general to raise the six-month allotment to $2.4 billion. The other major discrepancy between the report and the resolutions concerned the account in which the sums would be deposited: Sadruddin proposed a special account within the Iraqi State Oil and Marketing Organization, which would be open to Security Council scrutiny and from which payments could be made only for Council-approved humanitarian imports, while the resolutions specified a UN-controlled account. Yet another issue of contention was the question of in-country monitoring of the distribution of the imported commodities. Iraq never accepted the terms of the two resolutions, although intermittent negotiations continued until late 1993.
10. In an October 25 interview with the Washington Post, Secretary-General Annan charged that U.S. holds were "disrupting" the humanitarian program. "I think one should be transparent and not withhold some of these items unreasonably because it undermines our professed desire to help alleviate the suffering of the Iraqi people," he said.
11. Reuters (November 18, 1999) cited U.N. sources as stating that of 389 contracts on hold the US accounted for 337 while the U.K. accounted for 29 and both countries together for 23.