Iraq,
the United States, and
International Law:
Beyond
the Sanctions
By
Richard
Falk
Visiting Distinguished Professor, Global Studies,
University of California, Santa Barbara and Milbank
Professor of International Law Emeritus, Princeton
University
TFF
associate
August 27, 2002
What accounts for the obsessiveness of American policy
toward Iraq over the course of more than a decade? Is it
another Vietnam in the sense that the US Government
cannot bring itself to acknowledge the failure of its
approach to regime change in Baghdad since the end of the
Gulf War, Saddam Hussein having withstood comprehensive
sanctions, a variety of covert assaults, and repeated
American harassment from the air without flinching? Is it
the pique at the White House and Pentagon associated with
the electoral removal from the scene of Bush, Sr.
contrasting with the persistence of Saddam Hussein,
posing a filial challenge to Bush, Jr.? Is it the long
deferred payback to Israel for staying on the sidelines
during the Gulf War, despite the Scud missiles being
fired from Iraq? Is it a matter of securing US control of
the oil reserves being linked to periodic displays of
regional dominance, especially through the denial of
weaponry of mass destruction to those states in the
Middle East that might seek at some point to deter or
challenge the US in some future crisis? Or is it part of
the American empire-building strategy that views Iraq as
both an obstacle, but also as an opportunity to
demonstrate the extent of military dominance possessed by
the US Government and its political will to deal harshly
with states that stand in the way? Or is the new cover
story frequently repeated by Bush and senior political
aides that the Baghdad regime has become more dangerous
since September 11 because it may enable al Qaeda to
obtain weaponry of mass destruction that would then be
used against American targets?
Undoubtedly there is no single correct answer because
different members of the Bush inner circle are drawn to
various combinations of these lines of analysis and
advocacy, and they seem mutually reinforcing in any
event. But what is beyond doubt is that American policy
toward Iraq since the ceasefire in 1991 that ended the
Gulf War has violated the most basic precepts of
international law, including the UN Charter, and the
fundamental economic and social rights of the Iraqi
people [1]. To the extent that the UN Security
Council has endorsed American policy, it has weakened
respect for the UN around the world. Iraq was defeated in
a war, accepted humiliating conditions for a ceasefire,
which effectively encroached upon the basic sovereign
rights of Iraq as a state. In the ensuing period, Iraq
has not been offered any kind of protection by the
international community in the event of a threatened
armed attack by the United States.
This chapter discusses the changing context of US
policy toward Iraq, followed by a consideration under
international law of sanctions and war threats,
concluding with a criticism of the approach taken by the
United States and by the United Nations over this period
of more than a decade. In sum, followed for more than a
decade, the international community as shaped by the
United States, has imposed an extremely punitive peace on
Iraq, abruptly forgetting the lessons supposedly learned
as a consequence of the disastrous effects of the
punitive peace imposed by the victorious powers on
Germany after World War I. These lessons were
self-consciously applied to Germany and Japan to promote
the recovery of these defeated countries in the aftermath
of World War II. In retrospect, it seems reasonable to
wonder whether that these lessons of Versailles were only
meant for those countries associated with the North in
some integral way. The South, subordinate in any event,
has remained fertile grounds for indefinite punishment of
a political actor that challenged the established
geopolitical order. Iraq, formerly a strategic junior
partner in the maintenance of such an order, including
during its long war with the Islamic Republic of Iran
during the 1980s, became and remains the arch enemy of
this post-cold war American design for the region. Iraq
currently faces dire threats of invasion and attack that
are openly discussed by American political leaders, with
alternative plans for the military operation openly
debated in mainstream media [2]. The debate
focuses on means, their supposed effectiveness and their
anticipated costs and risks, and treats the acceptability
of the ends as taken for granted or irrelevant, although
in stark violation of the most basic rules of the UN
Charter prohibiting recourse to non-defensive force in
the setting of an unresolved international dispute. To
look sympathetically at the plight of Iraq as a
beleaguered state should not be confused with an
endorsement of the Baghdad regime, or its brutal and
bloody past behavior, both with respect to neighbors and
its own internal minorities. In this regard, there is
little doubt that Saddam Hussein is indictable for crimes
against humanity and crimes against the peace. But the
criminality of a head of state or of official policies
pursued does not impair the sovereignty of that state,
nor does it provide grounds for suspending the
application of international law. The reclassification of
Iraq as "enemy" and "rogue state" that occurred in the
1990s was purely a consequence of altered geopolitical
priorities as the worst excesses of the Iraqi government
were committed prior to its attack on Kuwait, and
provoked no change of strategic relationship.
The Changing
Context
From every perspective except that of geopolitics,
American policy toward Iraq since the end of the Gulf War
has been a disaster. The imposition and retention of
comprehensive sanctions for more than a decade after the
devastation of the Gulf War has resulted in hundreds of
thousands of civilian casualties, more than a million
according to some estimates [3]. This assessment
has been abundantly documented by reliable international
sources, and affecting most acutely, the very young and
the poorest sectors of the Iraqi population [4].
Although regrettably formally backed by the United
Nations through a strained interpretation of Security
Council Res. 687, with some modifications in recent
years, the cruel impacts of sanctions so appalled the
most senior international civil servants of the UN
entrusted with administering programs of oil-for-food
programs as to prompt that rarest of bureaucratic
impulses, successive resignations by the lead
administrators on principle [5]! The political
objective of this highly punitive diplomacy was justified
as a way to destabilize and contain the repressive regime
of Saddam Hussain, but the evidence clearly indicated
that as the years passed, the government in Baghdad
gathered strength while the internal and external
opposition seemed ever more inconsequential. The Iraqi
people were paying the main price for this continuing
encounter between Saddam Hussein and the United States
Government.
Throughout this period, as well, American and British
planes continued to patrol extensive no-fly zones that
had been established in the North and South of Iraq,
initially justified by Security Council Resolution 688 as
a way to protect endangered minorities, but later
maintained as a way to challenge Baghdad militarily on a
daily basis, exhibiting its helplessness as a sovereign
state. Unlike sanctions, these military incursions lacked
clear Security Council authorization, were quite
unconnected with their original protective function
benefiting the Kurds in northern Iraq and the Shi'ia
minority in southern Iraq during the immediate aftermath
of the Gulf War during which period Baghdad war seeking
revenge against those elements in the Iraqi population
that had sided with the American-led military
campaign.
At issue, all along was the UN mechanism (UNSCOM) that
imposed on Iraq after the ceasefire in the form of an
inspection mechanism that claimed extensive rights to
oversee the destruction of existing Iraqi stockpiles of
weaponry of mass destruction and ensure that no
activities were continuing secretly to acquire such
weaponry in the future [6]. There was much
controversy surrounding UNSCOM activities, associated
with alleged Iraqi evasions and denials of access, but
also counter-charges by Iraq contending that the
inspection procedure was being used for espionage
purposes and to harass and humiliate the Iraqi
government. Some years ago Iraq refused to grant further
access to UNSCOM, creating a new pretext for intervention
and the resumption of war, as well as debates about
whether such inspection however extensive could ever
provide confidence about Iraqi compliance with the
conditions of disarmament imposed by UN Security Res.
687. In the years of the Bush II presidency there have
been assertions that without inspection a preemptive
strike is needed to ensure that Iraq does not pose a
threat to the United States in the future, but also
assertions from Washington that inspections even if
restored would not provide sufficient confidence to
overcome the justification for a military attack designed
to impose a regime change. Complicating the picture,
further, the UN, with strong backing from Kofi Annan, has
been seeking to negotiate a renewal of an inspection
arrangement positing an UNSCOM arrangement as an
alternative to war, and coupled by some indication that
sanctions could be ended if the new scheme worked
successfully. Whether such an arrangement, whatever its
terms, would be acceptable to Washington is a matter of
severe doubt, and thus the inspection issue is a
diversion and distraction. If Iraq resists, it validates
the need for intervention, but if it assents, then the
unreliability of inspection validates the need for
intervention, a deadly Catch-22!
In the meantime, a cruel stalemate arising from the
imposition of sanctions and intrusive UN claims persists.
It had long been apparent to objective observers that
these undertakings were not succeeding, but policymakers
in Washington lacked the political courage to
acknowledge, even indirectly, that their approach had
failed to dislodge Saddam Hussein and was doing great
damage to the people of Iraq, as well as to the
humanitarian reputation and political autonomy of the
United Nations. The Clinton Administration had so
committed itself to the support of sanctions, as well as
the continuation of periodic bombings within the no-fly
zones, that it seemed completely unable and unwilling to
reevaluate the policy in light of the harm being done to
Iraqi civilian society. Such a reluctance was consistent
with the overall approach in the Clinton years to exhibit
"toughness" in foreign policy, especially in the Middle
East, so as to minimize criticism from the hard right
that made little secret of its push all along for a
renewal of outright war against Iraq with the goal of
coercing a regime change in Baghdad [7].
Reminiscent of Vietnam, leaders in Washington could not
bring themselves to admit that their policy was a
dreadful failure, and so it went on and on, with no end
in sight. During his presidential campaign and upon
arrival in Washington, George W. Bush announced that
sanctions against Iraq would be continued, and
intensified.
From the perspectives of international law and
morality these policies directed at Iraq were of a highly
dubious character, yet their continuation despite
widespread criticism from most governments in the region
and the world, revealed the extent of American influence
within the United Nations, and generally. The whole
experience was a demonstration of the primacy of
geopolitics at the expense of basic standards of law and
morality. Despite the pragmatic and humanitarian
misgivings of many governments there was little
disposition to challenge openly the American
position.
And then came the September 11 attacks on the World
Trade Center and the Pentagon, which inflicted heavy
symbolic and substantive damage on the United States, and
produced a claim to use force in self-defense. Despite
some criticisms directed at the way the claim was
formulated and applied to Afghanistan, it did represent a
reasonable effort to retaliate against the main locus of
al Qaida operations and to diminish the prospect of
future attacks [8]. In the face of these attacks,
President Bush in his September 20, 2001 address to a
Joint Session of Congress, outlined the resolve of the US
Government to wage an overall war against "every
terrorist group of global reach" [9]. Iraq was
mentioned by name in the speech only to make the point
that the character of the war being launched was
different than the Gulf War: "This war will not be like
the war against Iraq a decade ago, with a decisive
liberation of territory and a swift conclusion." True, a
generalized warning declared that "[f]rom this
day forward, any nation that continues to harbor or
support terrorism will be regarded by the United States
as a hostile regime."
But the hawks in Washington smelled blood from the
moment of the al Qaeda attacks. There were early
statements by right wing think tank analysts urging the
extension of the military response to Iraq. Leading
members on Congress sent a bipartisan letter to the
President, coordinated by Lieberman and John McCain,
insisting that the war on terrorism could not succeed
unless the threat posed by Saddam Hussein was confronted
by military force. Israel, as well, made little secret of
its wish to extend the battlefields of Afghanistan to
Iraq (and Iran). Various efforts to encourage war against
Iraq by trying on the basis of slim and unconvincing
evidence to show links by Baghdad with al Qaeda agents
prior to September 11 or to imply that Iraq was the
source of the anthrax distributed via the US Postal
Service. Throughout this period there were inconsistent
and inconclusive comments deriving from top members of
the Bush security team. The Secretary of State, Colin
Powell, was seen soon after September 11 as still
reluctant to endorse such a belligerent stance, realizing
that it would interfere with his diplomatic priority,
which involved building up a global coalition against the
al Qaeda network and finding some way to dissipate
anti-Americanism arising from unresolved Palestinian
fate. Such caution seems to have disappeared in the wake
of the successful campaign by American military forces to
turn the tide of battle within Afghanistan so quickly and
decisively in favor of the Northern Alliance, producing
the collapse of the Taliban regime, the destruction of
the Afghan nerve center of al Qaeda and dispersal of its
leadership. This American victory was achieved with
almost no casualties sustained during the air campaign.
At first, it seemed far more dangerous to be a journalist
covering the Afghanistan War than to be a soldier on the
American side. Later on, this state of affairs changed
somewhat, as American forces were used on the ground to
deal with enclaves of Taliban/al Qaeda resistance and
some deadly firefights occurred. A new wave of American
triumphalism emerged, being painted in vivid colors of
geopolitical achievement in the course of President
Bush's State of the Union Address on January 29, 2002
[10]. This occasion was seized to expand the
scope of the war against global terror by extending its
goals to include a series of countries, Iraq, Iran, and
North Korea, which were provocatively label "the axis of
evil." Ever since that speech, the assumption has
permeated media treatments and public attitudes that a US
decision to wage war against Iraq had been made by the
White House, and the only uncertainty that remains is
related to the adoption of specific war plans, the
extent, timing, and nature of the attack, and the degree
of dependence on a ground attack, the availability and
relevance of Iraqi opposition forces both inside and
outside of the country.
This most recent turning of the screw by the US
Government has moved the sanctions debate into the
background, shifting attention to the avoidance of war.
The UN is still pursuing a course that suggest that the
renewal of inspection would avert a second Gulf war.
Despite this sidelining of sanctions, it remains
important to consider the sanctions regime, which
continues to impose hardships on the civilian population
of Iraq, from the perspective of international law and
morality. The sanctions regime, whatever else, stands
before our political understanding as a severe descent
into criminality, subjecting it to serious analysis as to
whether the wrongdoing and harm amount cumulatively to
genocide or not [11].
The Sanctions
Regime
It seems helpful to separate the sanctions regime into
five distinct phases, each of which poses the question of
legality and morality in a different way:
(1) pre-war reliance on sanctions in the months after
the Iraqi invasion of Kuwait in August 1992;
(2) immediate post-war reliance on sanctions to
achieve compliance with Security Council Res. 687
(3) persisting reliance on sanctions during the UNSCOM
period in the face of growing evidence of civilian
suffering
(4) shift to "smart sanctions" to deflect criticism of
early sanctions regime, and to sustain UN consensus for
their imposition
(5) maintenance of sanctions as a secondary policy,
with increasingly blatant "war talk" as the primary
policy, threatening a military attack unless a
satisfactory regime change in Baghdad.
Pre-war
Sanctions
It of great importance to distinguish sharply between
the imposition of comprehensive sanctions by virtue of
UNSC Res. 660 prior to the initiation of the Gulf War on
January 15, 1991. In the months following Iraq's conquest
and annexation of Kuwait in August 1990 the approach
advocated publicly by the United States, and adopted by
the United Nations Security Council, was to endorse
Kuwait's right of self-defense, but to seek a resolution
of the conflict by a combination of diplomacy and
sanctions. The limited goals of this policy were to
restore fully the sovereign rights of Kuwait, and to
impose on Iraq the costs of the harm inflicted. The issue
of Iraqi actual and potential possession of weaponry of
mass destruction was not part of the UN engagement in
this phase. Such a response to the Iraqi invasion was
widely and genuinely supported, including by the members
of the Security Council with the sole exception of
Yemen's abstention. Reliance on sanctions, even if
imposing hardships on Iraq's population, were seen as a
reasonable and appropriate incident to constructive
diplomatic efforts to obtain Iraqi withdrawal, and the
best way to fulfill the Charter goals of protecting
states that have been victims of international aggression
while doing everything possible to avoid recourse to war.
In this fundamental sense, sanctions prior to the Gulf
War were fully consistent with international law and
morality, and enjoyed the virtually unanimous backing of
the membership of the United Nations, including most of
the countries of the Middle East.
Indeed, to the extent criticism was made, it moved in
the direction of advocating a greater reliance on the mix
of sanctions and diplomacy, especially providing more
time to generate effective pressure on Baghdad. A related
criticism was that the United States did not genuinely
seek a diplomatic resolution of the dispute, and put
forward the demand for withdrawal in such unconditional
and rigid terms as to ensure that the Iraqi government
would respond negatively, thereby building its case for
war. The UN Secretary General at the time, Perez de
Cueller, supports the view in his memoirs that a somewhat
more flexible approach might well have achieved the
stated UN goals without war [12]. But even then,
for undisclosed reasons, Washington preferred a military
solution that would eliminate Iraq as a regional power
and threat to the Gulf oil reserves and to Israel. Part
of this preference was the possibility of connecting the
aggression against Kuwait with the quite separate
concerns arising from Iraq's efforts to acquire weapons
of mass destruction, including biological, chemical, and
nuclear weaponry. Only with war, and an imposed
ceasefire, could this wider security concern be
addressed, as was done in Res. 687 establishing the
mandate for destruction and inspection of such
capabilities.
Post-war
Realities
In contrast, was the perpetuation of sanctions by way
of UNSC Res. 678 in the period after the ceasefire and
Iraqi withdrawal from Kuwait, was justified initially as
leverage needed to ensure compliance with Iraq's various
obligations to make various amends for the harm
inflicted, as well as to satisfy the most serious
disarmament demands imposed on a sovereign state since
the end of the two world wars. It is to be noted that
after World War II, in contrast to the punitive
reparations burdens put on Germany after World War I, the
defeated countries were not subject to economic
sanctions. On the contrary, despite the terrible harm
inflicted, these countries were given help with economic
reconstruction, and soon achieved positive economic
growth.
The devastation wrought by the war in Iraq was
extensive, including to the civilian infrastructure. The
former president of Finland, Martti Ahtisaari presented a
report to the UN on the basis of a factfinding trip
shortly after the military campaign ended that indicated
the destruction of Iraq's entire industrial and modern
sectors, suggesting that it had literally been bombed
back to a pre-industrial reality [13].
Declassified documents from the US Defense Intelligence
Agency confirm early complaints that the United States
deliberately targeted the civilian infrastructure of
Iraq, especially the water treatment system, with the
acknowledged purpose of disrupting civilian life
throughout the country [14]. Under these
circumstances, the imposition of comprehensive sanctions
was legally and morally dubious from the outset. It was
perfectly obvious that the war had left Iraq in a
situation of great vulnerability to a health crisis of
major magnitude, and that increasing pressures by
sanctions would exact a heavy toll on the civilian
society [15]. To go ahead with comprehensive
sanctions under these circumstances would seem certainly
to have the foreseeable effect of imposing massive
indiscriminate death and illness on the civilian
population, with the ironic effect of exempting the
military and political leadership of Iraq from harm, and
as such would engage the moral, and possibly, the legal
responsibility at some level of those countries that
supported post-war sanctions. Such an approach to
implementing the agreed ceasefire also eroded the
legitimacy and moral standing of the United Nations,
first, for agreeing to sanctions given its knowledge of
their probable effects, and then, extending the ceasefire
to cover aspects of coercive disarmament and inspection
that were not closely connected with the claim of
collective security that was properly put forward as a
proper justification for the war.
Sustaining the
Sanctions
As the months and years went by evidence accumulated
to confirm what should have been anticipated: the
sanctions were exacting an enormous toll among the
civilian population, and were doing virtually nothing to
hamper the activities and life style of the Iraqi elite.
The US Government favored the maintenance of a tough
sanctions regime even in the face of the well-documented
reports detailing the suffering of the Iraqi people,
contending in the notorious words of Madeline Albright in
1996, while serving as US ambassador at the UN, not long
before becoming Secretary of State, when confronted by
statistics as to the loss of life among Iraqi women and
children, "[w]e think the price is worth it"
[16].
The humanitarian considerations were only part of the
discontent experienced by governments when periodically
asked to extend the sanctions under UN auspices. Similar
hostility was expressed in various ways by public opinion
outside of the United States. Another part of the growing
anti-sanctions movement within the UN had to do with the
degree to which the United States was seen as throwing
its weight around in the UN and elsewhere, without
finding a path that could lead to a quick resolution.
Closely related here was the European concern that lost
business opportunities in the Middle East were being
sacrificed for no plausible reason, especially in the
context of energy development.
Maintaining sanctions under these conditions certainly
seems to run counter to international humanitarian law,
as well as to the more general just war doctrine in its
application to sanctions. The most basic conception
embedded in the law of war at the close of the 19th
century, in the Hague Convention, was the idea of
agreements by governments that force could be legally
used in warfare only if direct against military targets
only and the related broad injunction against the
"unlimited" use of force against an enemy state.
Admittedly, there are conceptual and interpretative
issues present. International law is directed at states,
not at international organizations such as the UN, the
imposition of sanctions in this comprehensive form was
initially authorized and periodically reaffirmed by the
Security Council. Is the Security Council bound by the
restraints of international humanitarian law? There are
no clean answers given by existing international law to
such questions. By analogy and by moral reasoning, it
would seem that the UN as political actor should not be
freed from rules of behavior seeking to protect civilians
from the ravages and excesses of warfare, but can such an
analogy be legally relied upon in the absence of its
acceptance by the UN Security Council? Cautiously, then,
it could be concluded that the maintenance of sanctions,
given the evidence of their effects, is both immoral and
in violation of the just war doctrine, involving three
separate aspects: sanctions as applied seem
indiscriminate, disproportionate, and have little
prospect of achieving the ends being pursued
[17].
The Move to Smart
Sanctions
In response to the rising tide of anti-sanctions
sentiment, especially in Europe, the United States took a
series of backward strides from its preferred unyielding
position so as to prevent the international consensus
from falling apart. It had earlier agreed to an
oil-for-food program that allows Iraq to sell its oil on
the world market, importing civilian goods, with the use
of the revenues by Iraq scrutinized by the UN Office of
the Iraq Program (OIP) in such a cumbersome and
restrictive way as to compromise the humanitarian
rational [18]. In May 2001 after elaborate
diplomatic negotiations in which the United States did
its best to maximize sanctions while retaining support of
the Security Council, a much heralded move to "smart
sanctions" was finally approved by the UN [19].
Then in November 2001, with the adoption of UNSC Res.
1382, the sanctions regime somewhat modified this focus,
banning all traded goods that had military or dual use
applications. Any Iraq overseas contract is subject to
scrutiny, and rejection by UN administrative action. Any
member of the Security Council can delay a contract
almost indefinitely by seeking review if any of the
challenged items appear on the extensive Goods Review
List. The OIP turns any questionable contract with Iraq
over to the UN Monitoring and Verification Commission and
the International Atomic Energy Agency to determine
whether the trade goods are related to Iraqi military
applications. The so-called 661 Committee of the Security
Council has the last word on whether a contract survives
this review process.
In fact, Iraq appears to have circumvented many of the
constraints associated with the early years of sanctions
via internal adaptation and regional smuggling
arrangements designed to sell oil outside the sanctions
regime, especially with Syria. Iraq and the UN have
played a cat-and-mouse game related to the renewal of
inspection, which at times was made to be a bargaining
move, exchanging access by inspectors for a gradual
lifting of sanctions. Also, the smuggled good tend to
reflect state priorities relating to security and regime
stability, and do not emphasize the alleviation of the
humanitarian tragedy. While the US has at times seemingly
endorsed this approach, it has maintained a degree of
ambiguity by stressing the inability to have confidence
that inspection will be able to determine whether Iraq is
upholding its obligation to refrain from the production,
development, and possession of weaponry of mass
destruction. In recent months, this ambiguity has almost
been entirely suppressed by the unilateralist climate of
opinion in Washington that expresses its intention to
take whatever steps are necessary to achieve a regime
change in Baghdad. As a consequence, sanctions seem of
diminishing relevance both to advocates of a hard line on
Iraq, who favor a military solution, and advocates of
normalization, who favor an end to sanctions.
What became clear long before September 11 is that to
the extent that sanctions were seeking political results
beyond a punitive effect, their impact was negligible
although maintained for more than a decade in the face of
strong objective evidence that massive loss of civilian
life was being caused on a monthly basis over the course
of many years. Consequently, it can be concluded that the
indiscriminate civilian harm being caused was not
"collateral," especially after the initial period when it
might have been reasonable to suppose that over time the
sanctions would erode internal support for Saddam
Hussein's leadership, possibly stimulating internal and
external Iraqi forces to achieve a regime change. Without
the intervening reality of September 11, despite this
assessment, and by making adjustments of the sort
involved in the adoption and administration of smart or
selective sanctions, American led policy toward Iraq
would in all likelihood have maintained its futile course
indefinitely, squeezing the people of Iraq without any
realistic hope of achieving political objectives. Of
course, some supporters of the US approach argue that
sanctions did succeed to the extent of keeping Saddam
Hussein pinned down, within his box to use Beltway jargon
[20]. And further, without sanctions, Iraq would
have by now acquired a formidable arsenal of weaponry of
mass destruction. Even if this latter conjecture is
accurate, there is no reason to doubt, particularly in
light of the Gulf War and US/Israeli regional security
policy, that containment and deterrence would be relied
upon, with every prospect of success, to minimize the
risk of Iraqi expansionism. A careful examination of
Iraqi behavior under Saddam Hussein discloses an
ambitious approach to the use of power in regional
settings, but also a rational approach to gains and
losses, and a willingness to back down rather than to
engage in self-destructive warfare. In effect, then,
sanctions after 1991 were essentially punitive, and
although supported by the UN, seemed to violate the most
fundamental values embodied in international humanitarian
law, and arguably raise plausible allegations of
genocide, as well as serious attempts to show that
although atrocities the sanctions do not qualify as
genocide because there is no showing of specific intent
[21].
From Sanctions to
War
There is no doubt that September 11 created an
opportunity for those seeking regime change in Iraq to
acknowledge tacitly the failure of the sanctions
approach, yet escalate their demands with respect to
Iraq. Recourse to war against al Qaeda gave the Bush
Administration a wide berth in foreign policy. There were
attempts in the immediate aftermath of the attacks to
intimate that there were Iraqi connections with al Qaeda,
a supposed meeting in Prague between an Iraqi
intelligence official and Mohammed Atta, the claim that
Iraq was behind the anthrax dispersal, and other more
generalized allegations of the connections between Iraq
as rogue state and the new threats posed by
mega-terrorism.
But the decisive move was made in the 2002 State of
the Union address when Iraq headed the list of axis of
evil countries, and a doctrine of preemption was set
forth by President Bush. Drawing on public anxieties
about mega-terrorism, Bush declared that axis of evil
countries with the will and capability to produce
weaponry of mass destruction posed severe threats, not by
the likelihood that such weapons would be directly used,
but rather by the prospect that the weaponry would be
transferred to al Qaeda and possibly other terrorists
groups with global agendas. Without explicitly indicating
that an attack upon Iraq was forthcoming, the clear
implication of what Bush and others in Washington were
saying was that it would do what was necessary to
supersede the Saddam Hussein regime achieving a change
comparable to what took place in Afghanistan.
It is important to underscore the degree to which such
war talk is at odds with the most fundamental rules and
principles of international law, as well as being
incompatible with the just war tradition that continues
to be influential in religious and ethicist circles.
Throughout the 20th century, there were major efforts to
outlaw non-defensive wars, the core undertaking of the UN
Charter designed to fulfill the pledge of the Preamble
"to save succeeding generations from the scourge of war."
The Nuremberg/Tokyo prosecutions of German and Japanese
leaders after World War II proceeded on the premise that
aggressive war was a crime against the peace, and that,
as such, was the most serious form of international
criminality. The Charter was drafted to minimize the role
of subjective factors, self-serving explanations by
governments as to why war is justifiable. The Nicaragua
decision of the World Court in 1986 upheld this Charter
approach as also contained in general international law
applicable under all circumstances of conflict. It is
arguable that the September 11 attacks by al Qaeda cannot
be addressed within this template of modern international
law as the threat and capability cannot be
territorialized, and the idea of defensive force needs to
be extended to enable a threatened state to protect its
people and uphold its security [22]. Such
reasoning does not apply in the setting of the axis of
evil states as deterrence offers an adequate way to
reconcile containment with the avoidance of war, the
security policy used by both sides in the cold war for
over 40 years. In this regard, the war talk directed at
Iraq is a direct challenge to the overall framework of
modern international law with respect to war/peace
issues. If war is unleashed against Iraq, it will
establish a dangerous and unacceptable precedent
validating recourse to international force in a wide
range of circumstances. First of all, anticipatory
defense and preventive war would be used as a rationale.
Secondly, recourse to war would be undertaken by the
United States without a UN mandate, and without even the
collective procedures invoked to justify recourse to war
in 1999 in relation to Kosovo.
Conclusion
The Iraq experience with sanctions needs to be
understood by reference to the five distinct temporal
intervals discussed above. No blanket generalizations can
be applied to the sanctions regime as a whole. The
imposition and maintenance of sanctions after the Gulf
War needs to be condemned as a deliberate and
indiscriminate policy designed to inflict harm on the
civilian population of Iraq. The UN discredited itself by
endorsing sanctions, although efforts were made to
mitigate the humanitarian catastrophe being caused by
initiatives of the Secretary General and others, and the
UN generally is no stronger and more accountable under
international law than it is leading members permit. In
this regard, the United States and the United Kingdom,
the most ardent proponents of sanctions and the enforcers
of the no-fly zones, bear a particularly heavy political,
legal, and moral responsibility for the harm inflicted on
the people of Iraq.
Finally, the threatened renewal of war against Iraq
again gives sanctions and negotiations for the resumption
of inspection a pre-war dimension, but under dramatically
different circumstances than existed in 1990. It is Iraq
that is now in a position to claim some sort of right of
self-defense, and sanctions are not associated with any
acceptable demand such as the withdrawal from conquered
territory. Despite the lamentable human rights record of
the government in Baghdad, there is no foundation in law
for recourse to force so as to coerce a regime change.
Such coercion would appear to be a flagrant denial of the
right of self-determination enjoyed by the people of
Iraq, as well as a violation of Iraq's sovereign rights.
If military attack proceeds without UN authorization, as
now seems likely, this legal assessment would be beyond
serious controversy. If the UN were to mandate a
humanitarian intervention, it would still appear legally
and constitutionally dubious, given the prohibition in
Article 2(7) on UN intervention in the internal affairs
of states. It is true that there is some legal
controversy arising from the international upgrading of
the protection of human rights, especially during the
1990s, as it bears on the authority of the United
Nations. With respect to Iraq, the political realities
are such that it seems extremely unlikely that military
action would be authorized, and the legal/constitutional
question posed. As such, the war scenario now being
debated in Washington seems to be an undertaking
impossible to reconcile with international law and
morality, and likely to inflict further hardships on the
people of Iraq. It is possible that on this latter point,
as in Afghanistan, a foreign intervention would be
welcomed as emancipatory by the great majority of the
Iraqi people, and there is no current evidence of this
popular attitude.
Endnotes
1. For excellent overview that covers these issues see
Roger Normand & Christoph Wilcke, "Human Rights,
Sanctions, and Terrorist Threats: The United Nations
Sanctions Against Iraq," Transnational Law &
Contemporary Problems 11(No. 2):299-343 (Fall
2001).
2. See Eric Schmitt, "U.S. Plan for Iraq is Said to
Include Attack on 3 Sides," NY Times, July 5,
2002, A1, A6; also editorial, "Battle Plans for Iraq,"
NY Times, July 6, 2002, A26.
3. A valuable overview has been provided by Sarah
Graham-Brown, Sanctioning Saddam (1999).
4. See early respected assessment of the civilian
impact of the sanctions imposed after the Gulf War by the
Harvard Study Team that visited Iraq several times during
1991. Albert Acherio and others, "Effect of the Gulf War
on Infant and Child Mortality in Iraq," 327 New
England Journal of Medecine 931(1992); see also
"Unsanctioned Suffering: A Human Rights Assessment of
United Nations Sanctions on Iraq," Center for Economic
and Social Rights, May 1996.
5. These two civil servants have become prominent
civil society campaigners against sanctions in the years
following their resignation. See Denis Halliday &
Hans von Sponeck, "The Hostage Nation: Former UN Relief
Chiefs Hans von Sponeck and Denis Halliday Speak Out
Against an Attack on Iraq," The Guardian, Nov. 29,
2001.
6. For accounts of this controversial inspection
process under UN auspices see Richard Butler, The
Greatest Threat: Iraq, Weapons of Mass Destruction and
the Growing Crisis in Global Security (Public
Affairs, 2000); Scott Ritter and others, ENDGAME:
Solving the Iraq Problem&emdash;Once and For All (New
York: Simon & Schuster, 1999); Tim Trevan,
Saddam's Secrets&emdash;The Hunt for Iraq's Hidden
Weapons (London, UK: 1999).
7. As is the consistently the case when liberal
militarism seeks to appear the hard right, the criticisms
of Clinton's foreign policy that have surfaced since
September 11 have emphasized its reluctance to use force
sufficiently to intimidate Islamic extremism. Bernard
Lewis and Fouad Ajami have been particularly influential
in mounting such lines of criticism, partly to support
moves toward waging war against Iraq, and partly to give
assent to the approach taken in the Afghanistan War.
8. For an argument along these lines see R. Falk,
The Great Terror War (Northhampton, MA: Interlink,
forthcoming 2003).
9. For text see White House website, p. 3.
10. For text see White House website.
11. Compare George E. Bisharat, "Sanctions as
Genocide," Transnational Law & Contemporary
Problems 11(No. 2):379-425 (2001) with Joy Gordon,
"When Intent Makes All the Difference in the World:
Economic Sanctions on Iraq and the Accusation of
Genocide," Yale Human Rights & Development Law
Journal 5:1-27(2002). Gordon argues against the
inference of genocide by stressing the degree to which
specific intent is an essential element of the crime, and
not present in relation to the sanctions policy.
12. See Javier Perez de Cueller, Pilgrim for Peace:
a secretary general's memoir (New York, NY: St.
Martin's Press, 1997).
13. Ahtisaari, a respected international figure, words
in the report are revealing of the conditions prevailing
in Iraq when comprehensive sanctions were reimposed: "The
recent conflict has wrought near-apocalyptic results upon
the economic infrastructure of what had been, until
January 1991, a rather highly urbanized and mechanis.
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." Report to the
Secretary-General on Humanitarian Needs in Kuwait and
Iraq in the Immediate Post-Crisis Environment by a
Mission Led by Mr. Martti Ahtisaari,
Unde-Secretary-General for Administration and Management
10-17 March 1991, UN SCOR, Annex, UN Doc.
S/22366 (1991).
14. See the devastating account based on these
declassified documents by Thomas J Nagy, "The Secret
Behind the Sanctions: How the US Intentionally Destroyed
Iraq's Water Supply," The Progressive, August
2001; also Felicity Arbuthnot, "Allies Deliberately
Poisoned Iraq's Public Water Supply in Gulf War,"
Sunday Herald (Scotland), Sept. 17, 2000.
15. As Bisharat observes, note 11, fn 4, 381 beyond
other considerations, Iraq's particular vulnerability to
sanctions "was increased by its relative geographical
isolation, its reliance on oil pipelines, and its limited
shipping access, which made an embargo simple to
enforce," citing Graham-Hughes, note 3, 73 as source.
16. This statement was made in the course of the
following exchange on Sixty Minutes: "We have
heard that a half million children have died," said "60
Minutes" reporter Lesley Stahl, speaking of U.S.
sanctions against Iraq. "I mean , that's more children
than died in Hiroshima. And&emdash;and you know, is the
price worth it?" Her guest, in May 1996, U.N. Ambassador
Albright, said, "I think this is a very hard choice, but
the price&emdash;we think the price is worth it." Michael
Schwartz, "U.S. Takes Selfish Stance in Relations
Throughout the World," U-Wire, Feb. 14, 2001,
available at
http://www.uwire.com/content/topops021401001.html.
17. The just war criteria are well expressed in the
context of Iraq in an article primarily concerned with
the prospect of war against Iraq, but is applicable to
the sanctions discussion as well. George Hunsinger,
"Iraq: Stop the War," to be chapter in Robert McAfee
Brown in memorium, to be published in 2003. See also
Drew Christiansen & Gerard F. Powers, "Economic
Sanctions and the Just-War Doctrine," in Economic
Sanctions: Panacea or Peacebuilding in a Post-Cold War
World (Boulder, CO: Westview Press, 1995)97-117.
18. See Richard Garfield, "Health and Well-Being in
Iraq: Sanctions and the Impact of the Oil-for-Food
Program," Transnational Law & Contemporary
Problems 11(No.2):277-298(2001).
19. See helpful summary assessment by Sarah
Graham-Brown, "Sanctions Renewed on Iraq," MERIP
Information Note 96, May 14, 2002. See also George A.
Lopez, "Toward Smart Sanctions on Iraq," Policy
Brief, No. 5, April 2001; Marc Lynch, "Smart
Sanctions: Rebuilding Consensus or Maintaining Conflict?"
MERIP, June 28, 2001.
20. Even The Nation in a recent editorial endorse an
approach to Iraq that rests on renewed inspection and
selective sanctions, partly as an alternative to war,
partly as a containment plus strategy of meeting what it
acknowledges to be an Iraqi threat. "War on Iraq is
Wrong," The Nation, June 19, 2002, 3-4..
21. See Bisharat and Joy articles referred to in Note
11 for serious scholarly explorations of the relevance of
genocide to the sanctions regime.
22. This position is fully developed in Falk, Note 8,
Chapters 2 &3.
©
TFF & the author 2002
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