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Letter to United Nations Security Council

In a letter to the Ambassador Richard Holbrooke President of the United Nations Security Council Human Rights Watch urged the United Nations Security Council to tighten controls on Iraq's ability to import weapons-related goods, but lift most restrictions on non-military trade and investment in order to address the country's continuing humanitarian crisis.

The late March 1999 report of the Council's "humanitarian panel" (Annex II of S/1999/356), the Secretary-General's two-year review of the "oil-for-food" program issued on April 28, 1999 (S/1999/481), and the results of the UNICEF survey of child and maternal mortality released in August raise serious human rights and humanitarian concerns. These reports, as well as those from other humanitarian agencies in the field such as the International Committee of the Red Cross, make clear that life-threatening conditions continue to prevail in Iraq, stemming from a pervasive and protracted public health emergency. This emergency is largely a consequence of the destruction of the civilian economic infrastructure in the 1991 Gulf war, repair of which has been severely impeded by the comprehensive embargo on Iraqi exports and imports. Restoration of the civilian economic infrastructure is essential to returning child mortality rates and other public health indicators to the levels and trajectories that existed prior to the embargo and war. Although the "oil-for-food" humanitarian relief program authorized under Resolutions 986 (1995) and now expanded under Resolution 1284 (1999) provides materials for infrastructure repair, as a temporary relief program it does not encompass the planning and investment required to restore Iraq's infrastructure to a level needed to meet the most basic civilian necessities.

As an organization that has extensively documented war crimes and atrocities committed by the government of Iraq, Human Rights Watch is fully aware of the need for strong international measures to constrain and hold accountable those responsible for such crimes. We recognize, moreover, that the policies of the government—its failure to comply fully with Resolution 687, its refusal to implement any "oil-for-food" arrangement between 1991 and 1996, its mixed record of cooperation since then, and its use of scarce available resources for non-humanitarian purposes in order to redirect the consequences of sanctions away from itself and onto vulnerable civilians—have greatly compounded and magnified the humanitarian crisis. It is apparent that the Iraqi government has not complied with its obligations under the International Covenant on Economic, Social and Cultural Rights to use "the maximum of its available resources," including "international assistance," to provide an adequate standard of living and improve living standards.

The past ten years have made clear that the Iraqi government has no intention of making the humanitarian interests of the Iraqi people its first priority. The government's callous and manipulative disregard for its humanitarian obligations is not something the Council can reasonably expect will change. Rather, it is a reality the Council must take into account in deciding the appropriate means for securing the government's compliance with its disarmament demands.

Charges that Iraqi malfeasance and incompetence are entirely responsible for the severity and extent of the humanitarian crisis, moreover, are not credible. The Council should not use the high degree of Iraqi government culpability for the humanitarian crisis to obscure its own share of responsibility. The severe deprivations and widespread pauperization facing the great majority of Iraqis today cannot be dissociated from the unprecedentedly comprehensive and protracted character of the embargo. The Council should not continue the sanctions without substantial modification, in order to address the continuing humanitarian crisis and the inadequacy of the current humanitarian program. In trying to curtail Iraq's development of weapons of mass destruction, the Council must devise means that do not aggravate the poverty and suffering of ordinary Iraqis, suffering that the government appears to find tolerable, even useful. In deploying instruments of coercion, including non-military instruments such as an embargo, the Council must be governed by the core humanitarian principle of minimizing threats to life and bodily harm of innocent people who bear no responsibility for the government policies being sanctioned.

Human Rights Watch therefore urges the Council to take the following steps to address Iraq's humanitarian crisis while targeting more directly the military ambitions of the Iraqi government and holding high government officials accountable for well-documented criminal actions: First: Address urgent humanitarian needs by implementing the recommendations of the Council's humanitarian panel promptly and without condition. Some of these have been incorporated into Resolution 1284 (1999), although in a form that requires further action by the Security Council or the sanctions committee. The Council has an absolute duty to address these urgent humanitarian needs without regard to the debate over the most effective way to secure Iraq's compliance with the Council's demands.

Second: Restructure the sanctions regime, so as to minimize its impact on the civilian population, by permitting the import of civilian goods and investments in the country's economy while strengthening prohibitions on imports of a military nature. The damage to Iraq's physical and social infrastructure and the acutely distressed income levels of most of the population will continue to limit the beneficial impact of a program restricted to humanitarian commodities. Third: Establish an international criminal tribunal to try Iraqi government officials and former officials for whom credible evidence exists of responsibility for war crimes, genocide and crimes against humanity, and provide sufficient resources and authority for such a tribunal to discharge its responsibilities. Establishment of such a tribunal, in addition to being entirely warranted in its own right, will help clarify that addressing Iraq's humanitarian crisis does not imply leniency or concessions toward the Iraqi government and responsible officials. Fourth: Instruct the committee set up by Resolution 661 (1990) to oversee the Iraq sanctions (the sanctions committee) to conduct its operations with greater transparency and to monitor closely the humanitarian impact of the sanctions. Until now the Council's steps to meet its acknowledged responsibility to monitor these humanitarian effects have been inadequate. The lack of transparency in the committee's operations, in the context of the ability of a single member to block decisions, has raised legitimate concerns about politicization of the process for addressing humanitarian needs.

Addressing urgent humanitarian needs: Reports from U.N. humanitarian agencies and credible independent organizations such as the ICRC highlight a continuing dire humanitarian situation in Iraq. The humanitarian panel established by the Security Council in January 1999 summarized the information at its disposal as pointing "to a continuing degradation of the Iraqi economy with an acute deterioration in the living conditions of the Iraqi population and severe strains on its social fabric" (para. 43). The panel stressed that while not all of the suffering could be imputed to sanctions alone, "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 war" (para. 45).

The humanitarian panel set out a number of recommendations which in our view constitute the minimum steps required to address the humanitarian crisis. Resolution 1284 (1999) implemented one of these directly and immediately, namely the removal of any dollar ceiling on oil exports, thus allowing increased funding of the Iraq humanitarian program. Such increased funding, however, will be contingent on international oil prices remaining at the level reached in the last half of 1999 and Iraq's ability, given the dilapidated state of its production facilities, to continue exporting oil at its present peak capacity rate of around 2.2 million barrels per day. The resolution does not take on a related panel recommendation to authorize production sharing or other investment arrangements by foreign oil firms that could provide, outside of oil-for-food revenues, the equipment and maintenance needed to rehabilitate these facilities, although it does request the Secretary-General to appoint a group of oil industry and other experts to develop recommendations regarding this proposal within 100 days.

The resolution also encourages states and international organizations to provide "published material of an educational character to Iraq," a step that is vital in order to reduce the extreme isolation of Iraqi educators and health professionals in particular.

The resolution addresses two other key recommendations of the panel, although in a manner that makes their implementation contingent on further steps by the Council or the sanctions committee. First, paragraph 17 directs the sanctions committee to "pre-approve" humanitarian items on the basis of lists to be submitted by the Secretary-General. Such items, once the lists are approved, would be subject to approval by the Secretariat and no longer be required to come before the Sanctions Committee. Second, paragraph 24 requests the Secretary-General "to make the necessary arrangements, subject to Security Council approval," to allow oil-for-food funds to be used to purchase local products as well as to train Iraqi workers and professionals and to compensate them for installation and maintenance of items funded by the humanitarian program. U.N. humanitarian agencies on the ground have for a number of years pressed for the provision of such a "cash component," until now entirely absent in the government-controlled area. Given the sharp politicization that has in the recent past attended the Iraq-related deliberations of the Council and the sanctions committee, and the fact that these proposals have been under discussion for many months, we earnestly hope that both will be implemented without further delay. These recommendations should not be treated as bargaining chips to be implemented only on condition of Iraqi government cooperation. Rather, they are the least that the Security Council must do to fulfill its own humanitarian obligations stemming from this conflict. They embody the assessment of U.N. humanitarian agencies in the field regarding what steps are required to meet vital civilian needs. These recommendations should be implemented independently of other steps the Council may take to secure Iraqi government compliance with the demands contained in Resolutions 687 (1991) and 688 (1991).

Minimizing civilian impact: The humanitarian panel concluded in its report 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). Implementation of the recommendations of the humanitarian panel will build on the achievements of the oil-for-food program in addressing immediate threats to the lives and physical integrity of ordinary Iraqis, but this humanitarian program does not contain the elements of comprehensive planning and economic revival that we believe are essential in order to reverse the dangerously degraded state of the country's civilian infrastructure and social services. Human Rights Watch therefore urges the Council to restructure the Iraq embargo so as to permit the import of civilian goods and investments in the civilian economy, while maintaining strict prohibitions on imports of a military nature.

The Iraqi government has had, and will continue to have, access to foreign exchange from smuggling and from the remittances of Iraqis living and working abroad. This access will certainly increase under the reforms we advocate here. We do believe, however, that a more inclusive monitoring of imports such as we propose can in part address the concern of the Council to prevent the government from developing weapons of mass destruction. There is no way to ensure completely that this greater access to foreign exchange will not be used for non-humanitarian or even prohibited purposes. We would point out that present arrangements under the total embargo also do not foreclose this possibility. The goods Iraq now imports using its existing foreign exchange resources are presently not subject to inspection: only items imported under the oil-for-food program are inspected upon entry, to see that they conform to approved contract specifications. We therefore recommend increasing international scrutiny of commodities entering Iraq, while removing prohibitions on the import of non-military goods and financial transactions.

The key elements of a restructured embargo would include the following: Removal of restrictions on the import of commodities that are not on the List of Dual Use Goods and Technologies and the Munitions List of the Wassenaar Arrangement or on the Schedules of Chemicals of the Chemical Weapons Convention. Continued prohibition of all imports and exports of a clearly military nature. Continued close but transparent scrutiny by the Sanctions Committee of contracts to import items that have "dual-use" applications.

Removal of restrictions on financial transactions involving civilian sectors of the economy, including foreign investments. Making all imported goods liable to international inspection at all Iraqi ports of entry in order to monitor compliance regarding restrictions on military and dual-use imports.

These recommendation would shift the emphasis from seeking to block all Iraqi government access to foreign exchange, and in the process continuing to choke the entire Iraqi economy, to preventing Iraq from importing military and dual-use commodities. We recognize that making all imports liable to inspection at ports of entry would incur substantial expense. This should be funded out of Iraq's export revenues, much as U.N. operations, including UNSCOM, have been funded since 1991. To the extent that Iraq does not permit such inspections in return for lifting non-military parts of the embargo, this proposal would require the consent of Iraq's immediate neighbors—Turkey, Iran, and Jordan. All three countries have, to varying degrees, argued for lifting of the comprehensive embargo, and would reap considerable benefits from the re-establishment of trade with Iraq, even if that trade includes an inspections regime. Any effective coercive measure of this sort involves high costs. Until now, those costs have been borne disproportionately by ordinary Iraqis, to the detriment of their lives and well-being. Our proposal is to focus the sanctions in order to reduce substantially the severe collateral impact on the Iraqi population.

Holding Iraq's leaders accountable: Human Rights Watch urges the Council to establish an international criminal tribunal, such as the tribunals the Council has created to address criminal accountability in former Yugoslavia and in Rwanda, to examine available evidence regarding the responsibility of Iraq's leaders for war crimes, genocide, and crimes against humanity, and to bring those responsible to justice. The investigation should include the genocidal 1988 campaign to evacuate the Kurdish countryside, the so-called Anfal campaign, as well as war crimes during the occupation of Kuwait and crimes against humanity that have been credibly reported during the period from the Gulf war up to the present. The Council should provide all necessary resources for the Tribunal to fulfill its mandate in a timely and effective manner.

The Council should also request all countries to cooperate in arresting and bringing to justice in national courts Iraqi officials and former officials who appear within their national frontiers and for whom probable cause of responsibility for such crimes can be established.

Monitoring Humanitarian Impact: Under Resolution 666 (1990), the Council insisted that it alone would determine whether "humanitarian circumstances" had arisen, and instructed the sanctions committee to keep the situation under "constant review." 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. Those members who have been the strongest proponents of continued sanctions have disparaged reports by specialized U.N. and other humanitarian agencies in the field but 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..." 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. Human Rights Watch strongly urges the Council to establish an independent framework and mechanism for monitoring the humanitarian impact of sanctions imposed under its authority. This on-going evaluation should include in this case an independent assessment of the effectiveness of the U.N.'s humanitarian program, and the problems and complexities associated with that program. An impartial humanitarian body, such as the International Committee of the Red Cross, might be best positioned to carry out such a task. Another approach would be to create a Special Rapporteur whose mandate includes scrutiny of practices of both the Security Council and the government of Iraq as those pertain to the humanitarian circumstances of the population.

While Resolution 1284 (1999) includes several measures to facilitate more timely decisions by the sanctions committee, the Council should also instruct the committee to introduce greater transparency into its deliberations by making available information concerning its decisions and explanations for rejections and holds placed on applications.

In conclusion, we urge the Council to implement this set of recommendations in order to address more satisfactorily the humanitarian consequences of the sanctions regime it has authorized. The United States, the most adamant proponent of comprehensive sanctions, has frequently asserted that "we have never had a quarrel with the Iraqi people," to cite Secretary of State Madeleine Albright's words. But this embargo, unprecedented in its comprehensiveness and now well into its tenth year, has taken an enormous toll on Iraqi lives and had a ruinous impact on Iraqi society. It may be argued that the embargo, because it is not military in nature, does not require strict adherence to international humanitarian law. However, the most basic humanitarian principles must be taken into account in the application of coercive measures that affect the well being of a civilian population. We believe the Council has an obligation to address the question of whether it is appropriate to continue to impose severe hardship and bodily harm on civilians through means short of war that it would be prohibited from imposing in time of war.

I have taken the liberty of also addressing this letter to the New York-based representatives of the Security Council's other member states. We look forward to receiving a positive response at your earliest convenience. As always, Human Rights Watch stands ready to discuss our recommendations with you and with representatives of other member states, and we would be pleased to meet Your Excellency in furtherance of this aim.

Yours sincerely,

/s/

Hanny Megally

Executive Director

Enclosure: Explanatory memorandum regarding the comprehensive embargo on Iraq

cc: Heads of Mission of Member States

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