Iraq Sanctions: What Options Did the UN Security Council Have?

 

Hans-C. von Sponeck

Paper presented in the Hiroshima Peace Institute 2006

 

 

 

* A DIFFERENT KIND OF WAR - The UN Sanctions Regime in Iraq (September 2006)
New book by H. C. von Sponeck, with a Foreword by Celso N. Amorim, Foreign Minister of Brazil

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Abstract.

Part I: Introduction.

Part II: Options of the UN Security Council for the Implementation of the Humanitarian Exemption for Iraq  

Option 1: Finance for Survival (1991–95).

Option 2: Needs Assessment and Financial Allocations 

Option 3: The Oil Ceiling.

Option 4: Distribution Plans and Oil Revenue 

Option 5: Dedicated Budgets.

Option 6: The Linkage of Economic Sanctions and Disarmament 

Option 7: Economic Sanctions Policy.

Option 8: Procurement of Humanitarian Supplies 

Option 9: The UN Sanctions Committee.

Option 10: Import and Export Controls.

Option 11: UN Security Council and UN Secretariat Oversight 

Option 12: Pre-Sanctions Preparations.

Option 13: Integrated UN Sanctions Management 

Option 14: Compensation.

Option 15: Commercial Clause.

Option 16: Cash Component.

Option 17: Emergency vs. Rehabilitation.

Option 18: Sanctions Evaluations.

Option 19: Public and Informal Meetings of the UN Security Council

Option 20: Outreach to Non-State Parties.

Option 21: The No-Fly Zones.

Option 22: Public Information.

Part III: Conclusions.

 

Abstract

Economic sanctions imposed by the UN Security Council on Iraq in 1990 were legal; the implementation of sanctions in the following years turned out to be increasingly in violation of the UN Charter and other international law. The impact of UN sanctions policy on the welfare of the Iraqi people was punitive and destructive.

The UN Security Council did not exercise its oversight mandate in a continuous and consistent manner but was nevertheless fully aware of the state of physical and mental ill-being of the Iraqi civilian population.

The UN Security Council had a wide range of options to ameliorate the human condition but succumbed to a hard-line approach preferred by two of its permanent members. Some of these options would have led to minor improvements to the welfare of the Iraqi people, e.g., the introduction of the commercial clause in oil-for-food programme contracts; the agreement of local purchases for the sanctions food basket; the introduction of a cash component to underpin the humanitarian exemption in different sectors.

Other options, if adopted by the UN Security Council, would have made significant and life saving differences for the civilian population, e.g., the de-linking of economic sanctions and the military embargo; the de-bureaucratization of procurement of humanitarian supplies; the increase of permitted financial resources for the oil-for-food programme based on needs assessments and a sanctions strategy; a defined unified management structure involving all UN parties charged with the implementation of sanctions in Iraq, etc.

Since these and other more humane options were not chosen despite the knowledge in the UN Security Council of the ensuing human catastrophe, an analysis of the UN’s role in the Iraq conflict during the period of economic sanctions reveals elements of intent and therefore wilful violation of international humanitarian and other law.

Part I: Introduction

Throughout the period of Iraq economic sanctions (1990-2003), UN member states, including the US and the UK, the UN Security Council, a multitude of other inter-governmental organisations such as the League of Arab States including Kuwait and Saudi Arabia, the International Red Cross and Red Crescent Societies, the ICRC, the Vatican and religious organisations, the international peace movement and civic leaders vociferously expressed their concern for the welfare of the Iraqi people. Everyone with a voice wanted to assure the world that it was the Government of Iraq that was the target of sanctions and not an innocent population. This is where global solidarity and rhetorical unity on Iraq ended.

How to deal with the Iraq conflict was a different matter. For some the survival of a human being was the challenge and much was done to protect such individual life. Others were active in helping to maintain the social infrastructure and health services. Still others were eager to support the many internally displaced in all parts of the country. A good number devoted their resources to visit Iraq and research and report on the human condition as it evolved under economic sanctions.

What these groups and individuals had in common was a deep sense of justice, compassion, morality and courage. This can not be said for the political world of governments including the Organisation of the Islamic Conference (OIC), the League of Arab States and the European Union. Divided within, unsure, short-sighted, ill-informed, unprincipled – any or all of these characterize these political organisations. This ultimately resulted in their inability to make a difference in solving the Iraq crisis peacefully and in accordance with the UN Charter. Political decision making was located elsewhere, in New York, Washington, London and Baghdad.

The UN Security Council should have been the venue to which all the protagonists would come together to debate conflict resolution. This was not to be. The UN Security Council became a tool of bilateral interests. Over the years, the Council distanced itself more and more from its role as a peace maker. It has to be said here that the Security Council did at times pause to introduce measures for the benefit of the Iraqi people. This, however, was usually done under pressure and as an act of last resort. The Iraqi people were treated as expendable commodities as the latest version of the ‘Great Game’ unravelled. The UN Security Council had succumbed to hardliner and self-serving policies of primarily two of its permanent members. For this the Iraqi people and the United Nations paid a heavy toll.

Part II identifies 22 distinct issues of relevance for the human condition in Iraq for which an independent UN Security Council could have found humane options. It will remain the Security Council’s legacy that it chose not to pursue these options.

The renewed debate about a United Nations that is equipped to handle complex international crises in adherence to the UN Charter and other international law has no choice but to carefully take into account what went wrong and why in the UN Security Council’s and to a lesser extent the UN Secretariat’s handling of the period of economic sanctions in Iraq.

Part II: Options of the UN Security Council for the Implementation of the Humanitarian Exemption for Iraq

Option 1: Finance for Survival (1991–95)

i) During 1991-95 the UN mounted so-called Inter-Agency Humanitarian Appeals for donations to provide humanitarian assistance to Iraq in order to mitigate the worst effects of sanctions. The UN was hoping to collect an amount of $ 1.2 billion during this period, yet, the funds actually received were only $ 450 million.

ii) The resulting severe shortfall of such voluntary donations led to a quick deterioration of conditions of life in Iraq as evidenced by rising malnutrition, mortality and re-emerging diseases such as erasmus, kwashiorkor, measles and cholera.

iii) A more humane option would have been to appeal for international voluntary donations to be supplemented by contributions by member governments to make up any short falls of the funds needed. This would have been a responsible and human rights-minded approach on the part of the UN Security Council keeping in mind that socio-economic conditions were deteriorating because of the imposition of economic sanctions. Such an approach would have resulted in lower mortality, particularly among children, less malnourishment and better epidemiological conditions.

Option 2: Needs Assessment and Financial Allocations

i) Following Operation Desert Storm in January-March 1991, the UN Secretariat mounted two missions to Iraq to assess war damages and the ensuing humanitarian needs of the civilian population. The first mission, led by Marti Athisaari, took place in February 1991; the second by Sadruddin Agha Khan in June 1991. Both visits were important attempts to prepare for subsequent UN Inter-Agency Humanitarian Appeals. In stark terms they identified the extent of the deterioration in Iraq and recommended substantial international emergency assistance. The two missions, however, were not equipped to carry out detailed sector by sector quantifications of requirements for immediate and medium term relief. The UN Secretary General, nevertheless, took the proposals of the missions as the basis for defining the dimension of the subsequent relief efforts during the years preceding the oil-for-food programme in 1996. This took into account the likely cost of compensation of claims by state and non-state parties for alleged material losses incurred due to Iraq’s invasion into Kuwait. The absence of rigorously collected data of socio-economic needs introduced a relief bias with serious consequences. These were marginally lessened in February 1998 when the UN Secretary General agreed, with the Government of Iraq, to double the permitted oil revenue allocation from a severely inadequate $ 2.6 billion to a slightly less inadequate $ 5.2 billion. During 13 years of economic sanctions the UN Secretariat did not carry out any overall quantification of needs nor establish the funding levels required to meet such needs. Needs updates were limited to sporadic sectoral reviews. A reliable relief basis, therefore, never existed. The absence of a relief strategy with a built-in revision mechanism further weakened the effectiveness of the oil-for-food programme. Throughout the period of sanctions the humanitarian exemption remained a programme conceived as a ‘short’ term emergency response. The six-monthly distribution plans jointly prepared by the Government of Iraq and the United Nations were little more than shopping lists. The oil-for-food programme, during the first six phases (1996–1999), was wholly dependent on set allocations. Beginning in 2000 with phase VII an established oil revenue ceiling for the humanitarian exemption was removed by the UN Security Council but remained entirely dependent on world market oil prices and. therefore, constituted no improvement.

ii) Inadequate allocations with funding ceilings based on qualitative rather than quantitative needs assessments followed by open-ended oil production with relief revenue dependent on oil prices created a weak and, as of phase VII, highly volatile resource basis. Funding uncertainty combined with constraints such as bureaucratic procurement, withheld supplies, and the absence of a relief strategy had serious consequences for the Iraqi population.

iii) A more humane approach would have been based on a careful quantitative assessment of needs and a provision for regular integrated and holistic updates with guaranteed finance. This would have ensured that the impact of UN Security Council sanctions policies on the welfare of the Iraqi people would not have been punitive and been in accordance with international law.

Option 3: The Oil Ceiling

i) Pressure to increase the severely inadequate financial resources for the humanitarian exemption mounted soon after the oil-for-food programme became operational in December 1996. In 1998 permitted oil revenue was doubled yet remained inadequate. In late 1999 there was a special one-time additional allocation for phase VII (2000) followed by the decision to remove the previously prevailing oil ceiling altogether. This decision constituted a political ploy since the UN Security Council was well aware that Iraq’ s oil industry was in a “dangerous and lamentable” state as the UN Secretary General was told year after year by oil sector UN review missions who visited Iraq annually. Production figures before and after the oil ceiling was removed in 1999 document the fact that the capacity of the oil industry had reached a peak of 2.1 to 2.2 million barrels per day long before the ceiling was lifted. Output could not increase until a full rehabilitation of the oil industry would take place. This did not happen until the 2003 invasion. By removing the oil ceiling, hardliners argued that since the Iraqi Government consequently faced no more output restrictions, the authorities could earn as much oil income as was required for meeting the needs of the people. The Government of Iraq was entirely to be blamed if the people of Iraq continued to suffer. This constituted a false and malicious statement for reasons explained above.

ii) The shift from predictable inadequacy due to output restrictions to alleged adequacy because of ‘unrestricted’ oil production introduced a further element of income uncertainty. The UN Security Council had changed nothing for the better.

iii) A more humane option would have been to agree to major repairs of Iraq’s up- and downstream oil facilities to allow an increase in oil production commensurate to the basic needs of a civilian population.

Option 4: Distribution Plans and Oil Revenue

During the period 1996–2003, there have been 13 phases of six months each and an equal number of distribution plans. These plans were prepared in Baghdad by the government of Iraq and the United Nations. Priority in the designation of resources for individual sectors included in the oil-for-food programme (food/nutrition, health, water, sanitation, electricity, agriculture, education, and as of 2000, construction and telecommunication) as well as allocations for the oil industry was at all times given to the sectors of food and health. In the initial phases, these two sectors would absorb about 80% of available funds The balance would be allocated to the remaining sectors. It is important to stress that during all 13 phases there was no congruence between the planned and the actual budgets. During most of the phases, the actual budgets reflecting the oil revenue earned would be significantly lower than the planned budgets. The consequence of this was that the oil-for-food programme, as planned for an individual phase and approved as such by the UN Secretary General, most of the time could not be implemented because of a lack of resources. There was no provision in the UN Iraq sanctions policy to augment the actual oil revenue with additional resources to compensate for shortfalls to ensure that a distribution programme was fully funded. Individual phases depended wholly on the volume of oil exported and the world market price of oil. This introduced an income uncertainty factor with serious implications for the welfare of the Iraqi population. The income and supply distribution picture for phase V (1998), to cite one example, illustrates the dilemma for the oil-for-food-programme: the distribution plan called for US$ 2.7 billion, available for the humanitarian exemption were only US$ 1.9 billion. The resource shortfall was further aggravated by the bureaucratic procurement system and supplies blocked by US and UK representatives in the UN Sanctions Committee because of their alleged dual-use nature. This explains why humanitarian supplies worth only US$ 1.4 billion or just over half of the budgetary provision made in the distribution plan arrived in Iraq during phase V.

i) Income uncertainty combined with significant delays in the arrival of humanitarian supplies and blocked supplies as well as the refusal of the UN Security Council to make up shortfalls from other sources created untenable inadequacies for the Iraqi population.

ii) A more humane option would have been for the UN Security Council to guarantee funding once it had accepted distribution plans approved by the UN Secretary General. Voluntary contributions or loans could have provided the funds needed to make up shortfalls. This would have protected the civilian population against the worst effects of inadequacy and prevented death and destitution.

Option 5: Dedicated Budgets

i) Education was one of the sectors included in the oil-for-food programme from the very beginning in 1996. It was the sector that received the remnants of allocations when the distribution plans were negotiated between the Government of Iraq and the United Nations. Other sectors such as food and health, water, sanitation and electricity had to be given priority. At the end of the oil-for-food programme (phases I–XIII) in 2003, the allocation for education requested by the Government of Iraq and approved by the UN Secretary General amounted to US$ 2.1 billion or about 5% of the total requested allocation. The amount ultimately allocated was even lower. Prior to the oil-for-food programme period, i.e., during the years 1990-96, there was no dedicated allocation of international funds for education. The UN Security Council showed no concern for the consequent destruction of the education system. While the plight of the education sector was raised occasionally by individual members of the UN Security Council, there was at no time a comprehensive debate of this serious issue. In fact, individual members , in the forefront the US and the UK governments, intensified the problem by adding harsh bilateral measures in an effort to prevent educational materials from reaching Iraq.

ii) Sanctions, lack of resources and low priority given to education by the Government of Iraq accelerated the deterioration of primary, secondary and tertiary education in the fifteen governorates under control of the Government in Baghdad. The circumstances in Iraqi Kurdistan were somewhat better.

iii) A more humane option would have been for the UN Security Council and the UN Secretariat to provide dedicated finance for the education of Iraqi children, at least at primary and secondary school levels. A shortage of oil revenue could have been made up by extra-budgetary support out of international donations or the unfreezing of Iraqi accounts held abroad. This would have allowed more adequate support for teacher training, educational aids, curriculum development, maintenance and construction of schools, etc. and to some extent provided youth with the means to prepare for life.

Option 6: The Linkage of Economic Sanctions and Disarmament

i) One of the fundamentals of the UN Security Council’s sanctions policy for Iraq (resolution 687/1991) had been to make the lifting of economic sanctions conditional to Iraq’s destruction of its weapons of mass destruction. The US and UK authorities refused to discuss a possible de-linking of the two as they believed economic sanctions would deprive Government from the means of re-arming with weapons of mass destruction. The linkage meant that the Iraqi civilian population was forced to pay for the conflict between their government and the UN Security Council.

ii) This economic sanctions-disarmament linkage throughout the embargo period had a devastating impact on civilian life in Iraq as is reflected by the respective socio-economic indicators.

iii) A more humane option would have been to de-link economic sanctions from disarmament demands by proceeding with UN supervised disarmament and verification programmes while at the same time providing the UN with comprehensive border inspection authority for all consignments destined for Iraq. Additionally, the team of UN observers could have been strengthened to monitor the distribution of all items which had been cleared for entry into Iraq and to confirm their deployment for civilian purposes. This would have allowed a freer flow of supplies needed for survival while at the same time reducing the opportunity for illegal imports.

Option 7: Economic Sanctions Policy

i) Parliaments, non-governmental organisations and the UN Secretariat are on record to repeatedly have reminded the UN Security Council and other policy makers that no country had ever been subjected to such comprehensive sanctions as was the case in Iraq. In view of the serious impact on the civilian population an urgent review of the economic sanctions policy was required. Special mention is made here of reports by the UN Panel on Humanitarian Issues, the so-called “Amorim Panel” (March 1999) the UK House of Commons (January 2000), Caritas International (2001), and the Bossuyt report to the UN Human Rights Commission (June 2000). These reports are among many others which alerted the UN Security Council that its sanctions policies were causing severe harm to an innocent population. The sanctions were transgressing the boundaries between acceptable discomfort of civilians and a breach of international conventions created to protect individuals and groups against maltreatment.

ii) The maintenance of such comprehensive sanctions resulted in permanent disability, death of many and the impoverishment of the majority of the Iraqi population.

iii) A more humane option would have been to lessen economic sanctions incrementally in response to cooperation by the Government of Iraq or preferably in response to the evolving needs of the Iraqi people.

Option 8: Procurement of Humanitarian Supplies

i) Procuring goods under the oil-for-food programme was, at all times, cumbersome. The routine required no less than 23 steps that the importer - the Government of Iraq - and the supplier in the exporting country had to implement. Involved were inter alia trade, defence and foreign ministries, trade boards, the exporting country’s permanent mission to the UN, Iraq’s mission to the UN, the UN Office of the Iraq Programme in New York, the UN Office of the Humanitarian Coordinator in Baghdad, the UN Sanctions Committee, the UN Special Commission (UNSCOM / UNMOVIC), and the International Atomic Energy Agency (IAEA), the two disarmament units, transport agencies, Lloyds/Cotecna, the inspection agents at Iraq’s borders, and, of course, Iraq’s Ministry of Trade and the Iraqi end users. Soon after the oil-for-food programme commenced in 1996, it became clear that such bureaucratization of procurement would lead to serious and disabling delays in the arrival of humanitarian supplies. Delays of 12 or more months were not uncommon. The various phases of the oil-for-food programme, not surprisingly, over time became more and more disjointed. The procurement process was a major factor. Evidence of the negative impact mounted and finally in 1999 resulted in the introduction of a so-called “green list” which identified goods that could be brought into Iraq under the oil-for-food programme without having to be subjected to clearance by the UN Sanctions Committee. This did not improve the overall speed of delivery. The UN Sanctions Committee was urged to make further amendments to accelerate delivery. In 2002 the UN Sanctions Committee replaced the “green list” with a “red list”. This was a negative list of items that were potentially of “dual use” or had other strategic value. Items on this list were subjected to the traditional screening. The balance of requested goods could be imported with less scrutiny. This approach in itself could have improved supply conditions but in the end did not because concurrently the US and UK representatives in the UN Sanctions Committee significantly increased the volume of items that were permanently or temporarily blocked from delivery to Iraq. In phase IX (2002), $5.1 billion of humanitarian supplies were blocked by the US/UK representatives in the UN Sanctions Committee. In short, the positive “red list” approach meant to de-bureaucratize procurement was negated by the act of blocking goods at a higher rate than before (see annex 7).

ii) The inadequately financed oil-for-food programme was further weakened by special constraints such as bureaucratization of the procurement process. A population highly dependent on timely arrival of limited humanitarian supplies became the victim of a deliberate international bureaucracy.

iii) A more humane option would have been to establish a red list approach from the very beginning of the oil-for-food programme. Consistent with international humanitarian law, a “no list” approach for food and medicines should have been an integral part of the regulatory framework. The UN Sanctions Committee should have furthermore agreed to local purchase of food. This would have allowed the inclusion in the food basket of fresh fruits, vegetables and meat and reduced the cost for food as locally purchased food items were significantly cheaper than imported ones. Such an approach would have freed resources for other sectors and helped to preserve life and livelihood.

Option 9: The UN Sanctions Committee

i) The Iraq Sanctions Committee of the UN Security Council or the 661 Committee named after resolution 661 of 6 August 2020 was charged with oversight of the implementation of UN Security Council policy. The committee was staffed by middle level officials of the countries represented at any one time in the Security Council and chaired by an ambassador appointed by the UN Security Council. Decision making was by consensus. It quickly became apparent that this committee chose to micro-manage the operational aspects of the oil-for-food programme instead of delegating operational functions to the UN Office of the Iraq Programme (OIP) at the UN Secretariat. In the initial phases, the Committee decided to involve itself in the processing of all humanitarian supplies for Iraq including even those for NGOs operating outside the oil-for-food programme. In doing so, the Committee began to neglect the monitoring of the impact of the operational programme on the human condition in Iraq. Much time was devoted to fine tuning the sanctions bureaucracy and to oversee/control the activities of the UN Secretariat in New York and Baghdad. When the Committee realized that it was creating an increasingly unmanageable workload for itself as well as for the UN Secretariat with the negative consequences for the Iraqi people pressure increased to simplify the procurement process (see also annex 4). The 661 Committee transferred itself into an experimentation chamber in which new approaches were tested as has been pointed out earlier. As criticism over the Committee’s micro-management approach and the blocking of supplies by the US and UK representatives mounted , the Committee decided to pass clearance responsibility to UNSCOM/UNMOVIC and IAEA, the UN entities which were tightly controlled by the US and UK governments. This was an unethical move. It meant that the two governments were no longer directly involved in the clearance of supplies. They could therefore argue that responsibilities for delays of most supply clearances were due not to the 661 Committee but due to the UN Secretariat. In fact, the two governments continued to exercise close informal control.

ii) The UN Security Council Sanctions Committee was a supervisory tool for the UN Security Council. However, instead of supervising the implementation of Council policies for Iraq it controlled and micro-managed the oil-for-food programme. This resulted in duplicating much of the work of the UN Secretariat. It also significantly slowed down the processing of essential supplies for the civilian population. Links of the Committee with a UN inter-agency working group at UN Headquarters and some contact with the NGO community in New York was useful at the operational level but made little difference at the policy level.

The issue of a sanctions strategy, networking among UN sanctions units, funding, streamlining of procurement, reporting on the human condition rather than only the oil-for-food programme, comprehensive oil production oversight, integrated audits, all major factors for responsible implementation of multilateral sanctions were neglected by the UN Sanctions Committee. In retrospect it can be said that the UN Sanctions Committee was little more than an overseer of a supply programme informally controlled by the US and UK authorities. Much suffering and destitution among the Iraqi civilian population was due to the approach the UN Security Council had chosen for the working methods of its Sanctions Committee.

iii) A more humane option would have been for the UN Security Council to empower the Iraq Sanctions Committee with authority to monitor the operational and managerial soundness of the work of the UN System. More important than this would have been a continuous review of the impact of UN policies on the welfare of the Iraqi people with regular feedback to the Security Council. Such feedback should have included guidance for the Security Council on needed policy changes in the light of developments in Iraq.

Option 10: Import and Export Controls

i) Under economic sanctions, all imports and exports to and out of Iraq were banned except as decided by the UN Security Council. To facilitate the permitted export of oil, the UN Security Council identified pipelined export across the border with Turkey to the Mediterranean Port of Ceyhan and the loading of oil at Mina al Bakr, an oil platform in the Persian Gulf. For the import of humanitarian supplies four Iraqi border crossings were designated with Jordan at Trebil, with Syria at al Walid, with Turkey at Zhako, and at Um Qasr, Iraq’s only sea port. In 2001, a fifth border point with Saudi Arabia at Ar’ar was added. The United Nations designated an inspection agency (Lloyds Register/UK until 1998, followed by Cotecna/Switzerland from 1999 to 2003). They were to verify documentation of oil-for-food supplies with consignments arriving at the designated border points. The UN Security Council was well aware that this left the increasing inflow of goods, the Government of Iraq was purchasing outside the humanitarian exemption as permitted by the UN without international inspection.

ii) The UN Security Council was furthermore aware of oil exports to Jordan under special arrangements between the Iraqi authorities and the Government of Jordan. The UN Security Council did not give approval to these exports under article 50 of the UN Charter which recognizes special economic problems which may arise for countries adjacent to countries under sanctions. The UN Security Council, however, condoned these oil transactions between Iraq and Jordan. The volume of illicit oil exports from Iraq increased over time, first via the Persian Gulf and Turkey and then via a pipeline which Iraq and Syria had agreed to re-open following improved political relations between the two countries from 2001 onwards.

This inconsistent handling of import and export controls on the part of the UN Security Council was used by the US and the UK authorities to argue in the Security Council that they did not have any accurate information on what the Government of Iraq was importing and exporting. This was particularly so after the UN weapons inspectors had been withdrawn in December 1998, prior to the Anglo-American “Operation Desert Fox”. This in turn led to US/UK insistence that Iraq was successfully developing new weapons of mass destruction.

iii) The inconsistent approach on the part of the UN Security Council and the resulting alleged uncertainty about Iraq’s import and export transactions was not unwelcome to the US/UK administrations and served as their rationale to resist a re-design of the economic sanctions strategy which would have benefited the people of Iraq.

iv) A more humane option would have been to enforce strict border controls for all imports and exports, not just those relating to the humanitarian exemption. An increase in subcontracted inspection personnel at the border entry points, more UN oil overseers in Iraq and oil flow analysts in New York plus more authority for UN observer personnel in Iraq would have been measures useful for creating a more transparent supply picture and have helped to constrain the illicit export of oil. More transparency would have revealed that Iraq was not clandestinely manufacturing new weapons of mass destruction. This in turn could have eased the international apprehension about the threat Iraq was posing and lead to improvements in the UN sanctions regime. The civilian population would have benefited in multifarious ways from such an approach (more financial resources, more humanitarian supplies, enhanced international confidence building, etc.).

Option 11: UN Security Council and UN Secretariat Oversight

i) In the course of time, the UN Security Council has become the omnipotent body in the decision making structure of the institution. There is concern among an increasing number of UN member countries that the UN Security Council has usurped authority from the UN General Assembly and the International Court of Justice. They would like to consider this development as part of the UN reform debate. It can not be denied that the division of labour between these three entities has become less and less clear over the years. This has had serious consequences requiring clarification and transparency of mandate.

As a result of this reality, the UN Security Council unquestionably had the major oversight responsibility for developments in Iraq during 13 years of sanctions. More specifically, it had the mandate to continuously assess the impact of its sanctions policies on the human conditions in Iraq. The UN Secretariat, subsidiary to the UN Security Council had operational oversight responsibility and consequently also the duty to advise the UN Security Council on the implications of sanctions. The Secretariat did engage, to some extent, the Council in policy reviews and operational matters, e.g., the bureaucratization of procurement of humanitarian supplies.

It, however, is important to point out that both the Council and the Secretariat failed to carry out their oversight mandates in a consistent and continuous manner. As stated elsewhere, the Council failed to debate issues of fundamental consequence for the Iraqi people such as the flow of vital supplies, the use of oil revenue for compensation, the blocking of supplies and the no-fly zones, to name only a few major areas which needed to be discussed in the Council. More importantly these areas needed to be assessed through permanent monitoring and evaluation. This did not happen. Neither did the Secretariat fulfill its mandate to watch over the dynamics of the oil-for-food programme or show imagination and foresight for maximizing the benefits of a severely limited humanitarian exemption. Local purchase of food and other items, integrated implementation of the programme in areas under the control of the Government in Baghdad and the Kurdish locally autonomous regions of northern Iraq, e.g., with respect to electricity, water supply, agricultural production and de-mining are examples where the Secretariat could have shown leadership but did not. The Iraq policy group at UN Headquarters, chaired by the UN Deputy Secretary General, meant to exercise operational oversight, made no difference at all in determining the direction of the humanitarian exemption. This policy group did not even manage to bring about an implementation strategy or joint approaches of the various UN entities charged with different aspects of sanctions implementation (UNSCOM/IAEA – disarmament, UNOHCI/OIP – humanitarian exemption, UNCC – compensation, UNCHR – human rights; today replaced by the newly created Human Rights Council) or more broad-based reporting on the human condition in Iraq.

ii) Lack of oversight at various levels of the UN (Security Council, Secretariat, individual UN departments such as DPA, OIP, OCHA, DPKO, etc.) allowed disjointed approaches, neglect of an oversight strategy, misleading reporting and bilateral misuse. This serious default, particularly on the part of the UN Security Council, lessened the pressure on the Council to understand the full scope of the consequences of inadequate measures for the welfare of the civilian population and, therefore, contributed to death and destitution.

iii) A more humane approach would have been to implement a clearly formulated sanctions strategy based on a pre-sanctions human condition profile of Iraq. Such a strategy would have had to be subject to continuous oversight by the Security Council and reinforced by an Iraq watch group at the UN Secretariat closely linked to the UN Humanitarian Coordinator in Baghdad. The main objective would have been to ensure that the required inputs would have been available at all times to meet the needs of the civilian population.

Option 12: Pre-Sanctions Preparations

i) Comprehensive economic sanctions were imposed on Iraq on 6 August 2020 by UN resolution 661. Neither at that time nor in the ensuing period up to the second Gulf War (GWII) in early 1991 was there any attempt by the United Nations to define the socio-economic profile of the Iraqi population as it existed prior to the imposition of sanctions. Within six months following GWII, the UN Secretary General dispatched two important assessment missions to Iraq ( see option 2). Valuable as these missions were, they limited themselves to rough damage reviews and estimations of needs rather than more in-depth quantitative assessments of the then prevailing socio-economic situation in Iraq in comparison to the status quo ante prior to August 1990.

Sanctions are meant to hold perpetrators and not innocent groups accountable. The objectives of UN humanitarian assistance in Iraq therefore should have been to ensure that the civilian population would not be forced into living conditions that were significantly below those prevailing prior to sanctions. Without a pre-sanctions assessment or at least a condition analysis in the early 1990s, this was not possible.

ii) The absence of a pre-sanctions assessment and a quantitative needs assessment in the early stages of economic sanctions put the humanitarian exemption on a footing which in its inadequacy had grave consequences for the Iraqi people.

The strong case which recently has been made for pre-sanctions assessments as mandatory prerequisites for the imposition of UN sanctions (see “Sanctions Assessment Handbook” published by the United Nations in October 2004) underlines the awareness that the Iraq sanctions experience has created for the importance of such an approach. Had such an approach been adopted in the case of Iraq much suffering could have been prevented.

iii) A more humane approach would have been to base the humanitarian exemption on a careful pre-sanctions assessment followed by continuously updated evaluations of the evolving conditions of a society living under economic sanctions.

Option 13: Integrated UN Sanctions Management

i) Different UN entities had operational responsibility for four distinct elements of the UN Iraq sanctions programme: The UN Special Commission (UNSCOM) – after 2000 renamed the UN Monitoring, Verification and Inspection Commission (UNMOVIC) and the International Atomic Energy Agency (IAEA) for disarmament and arms monitoring; the then UN Commission on Human Rights (UNCHR) and its rapporteur for reporting on human rights in Iraq; The UN Compensation Commission (UNCC) for administering and processing claims against Iraq for having invaded Kuwait and the UN Office of the Iraq Programme (OIP) and the UN Office of the Humanitarian Coordinator for Iraq (UNOHCI) for negotiating the oil-for-food programme and overseeing its implementation.

As the activities within any of these four components impacted on the others, it follows that systematic and continuous networking for conflict resolution/containment and protection of an innocent population should have been of paramount importance and a pre-determined part of UN sanctions management.

Throughout the period of sanctions such networking was absent. The Iraqi policy group at UN Headquarters had no outreach to the four components and was, therefore, ineffectual in giving direction to the Iraq operations. It must be considered as one of the great failures of the United Nations Security Council that it did not insist on networking among the four components or on the definition of an integrated sanctions implementation strategy.

ii) The isolationist approaches of the disarmament group, the compensation unit and the human rights and the humanitarian entities meant that policies were implemented by individual UN units which fostered developments in Iraq that ran completely counter to the principles and purposes of the United Nations. This intensified the collapse of a nation.

iii) The more humane option would have been to ensure integrated approaches among the different UN sanctions groups. This should have included continuous feedback to the UN Security Council to assist the Council in fulfilling its oversight mandate and to allow it to adjust its policies for the protection of the Iraqi people and the adherence to international law. Such an approach would have reduced mortality, disease and destitution in Iraq and upheld the integrity and lawfulness of the United Nations.

Option 14: Compensation

i) The UN Security Council, as early as October 1990, passed a resolution reminding Iraq that under international law it was liable for “loss, damage or injury” as a result of its invasion into Kuwait (see UN/S/Res.674 of 29 October 1990). By mid-1991, the UN Security Council had identified a compensation mechanism and a corresponding fund through which parties (individuals, firms and governments) alleged to have suffered losses as a result of Iraq’s 1990 invasion into Kuwait could receive compensation. This established in Geneva what became known as the UN Compensation Commission (UNCC). Funding, the UN Security Council decided, would be based on a “percentage of the value of (Iraq’s) export of petroleum and petroleum products” (see UN/S/Res.687/1991). At that time, the Security Council was prepared to allow the sale per year of up to $2 billion of Iraqi oil only to finance the humanitarian exemption. Out of this amount, 30% would be diverted to the compensation fund. This made the allocation for the people of Iraq even more inadequate. The statement included in resolution 687/1991 (para 19) that “this (deduction) would take into account the requirements of the people of Iraq” is tantamount to cynicism. Compensation financing and the inadequacy of funds left for the survival of the Iraqi people were the major reasons why the Government of Iraq and the United Nations could not come to an agreement on an oil-for-food programme until 1995, some five years later. Unlike others, the US and the UK Governments saw this as ‘evidence’ that the Government of Iraq did not care for the welfare of its people.

By mid-2004 the UN Compensation Commission had processed at total of 2.6 million (!) claims valued at $ 265 billion of which it had awarded $ 48 billion and actually paid to claimants $ 18.4 billion. Claims submitted by individuals, firms and governments were in many cases justifiable, in other cases they were inflated or fraudulent. Documentation to this effect is available.

ii) In the absence of an integrated approach on the part of those dealing within the United Nations with various aspects of sanctions and in view of the secretive manner of UNCC operations, the large diversion of funds went largely unnoticed. Up to the March 2003 illegal invasion into Iraq, some $17 billion had been diverted from the oil-for-food programme to the compensation fund.

In the late 1990s, the mortality rate for children under five years of age, according to UNICEF, had surged from 25/1000 in the 1980s to 100-120/1000 children. The large funds transferred to the UNCC, had they been available for humanitarian programmes, would not have remedied the health problems facing the Iraqi population living under sanctions. They would have, however, helped large numbers to survive and to be healed. The UN Security Council’s agreement to allocate initially 30% (after 2000 25%) of oil revenue for compensation payments at a time of immense suffering by the Iraqi people must be considered as one of the most serious and far-reaching mistakes made by the Council during the entire period of sanctions.

iii) A more humane approach would have been to establish the principle of compensation, yet, freeze all compensation payments with the exception of claims by guest workers in Kuwait and Iraq who had lost their meagre savings. Instead of paying compensation to well endowed firms and governments at a time when Iraqis were dying in large numbers due to a lack of basic supplies and services, these resources should have remained available to the humanitarian exemption.

Option 15: Commercial Clause

It is part of international business practice for importers to withhold 5-10% of the payment for a consignment until the goods have arrived and are found to meet specifications, quality and quantity of the order. Such a standard provision was lacking in business transactions with Iraq. In mid-1999, the UN in Baghdad, with support from the UN Secretariat in New York, tried to remove this anomaly from the oil-for-food programme procurement process by introducing such a commercial clause for purchases made for the Iraqi humanitarian exemption. The Government of Iraq was advised by the UN Humanitarian Coordinator to include henceforth commercial clauses in all its contracts. When the UN Office of the Iraq Programme in New York subsequently sought clearance for contracts which contained the commercial clause, US and UK representatives in the UN Sanctions Committee in New York refused to clear such contracts. Their argument: the inclusion of such a clause would encourage over-invoicing and provide cash in the hands of the Iraqi authorities which could be used for weapons programmes. This made no sense, of course, since the commercial clause could neither prevent over-invoicing nor other illicit means of obtaining cash. Efforts to protect Iraq against fraudulent business practices failed. Quality controls showed that between 2-3 % of goods procured by Iraq were of sub-standard quality. A commercial clause could have reduced this percentage and given the importer leverage in claiming indemnity.

ii) The absence of a commercial clause constituted an element of vulnerability for the entire oil-for-food programme. Full payment for goods yet to be received has encouraged suppliers to neglect standards. Replacing sub-standard goods with goods meeting quality standards became cumbersome and further delayed the arrival of items needed by the civilian population. This unnecessarily intensified deprivation and suffering.

iii) A more humane option would have been to include the commercial clause as a standard feature in all contracts. Given the inadequate resource situation in the oil-for-food programme, this would have protected resources and accelerated the supply of vitally required goods.

Option 16: Cash Component

i) Every year governments prepare their recurrent and development budgets in anticipation of the costs arising from running their nations and investing in nation-building. Central banks are the custodians of a country’s liquid assets. It can not be expected that a country subject to economic sanctions can maintain a normal budgetary process. UN pronounced economic sanctions should have, however, anticipated the need of Iraq for minimum cash resources to be able to meet justified national recurrent expenditure. Civil servants, teachers, hospital staff needed to be paid, infrastructure had to be maintained, embassies required convertible currency. The UN Security Council was aware of these financial requirements. The Council knew that there was no tax income in Iraq. During the years of sanctions, members of the Security Council repeatedly raised the issue of a cash component to become part of the oil-for-food programme. Concern was expressed by UN Agencies and individual governments, including, of course, the Iraqi government. Formal recognition of the importance of cash was finally given by the Security Council in its 1999 resolution 1284 (see UN S/Res/1284, para 24 of 17 December 2020). This should have been a free standing provision applicable with immediate effect. Instead a positive, albeit much delayed, step was once again politicized through a resolution which re-confirmed the link between economic sanctions and disarmament. For the Security Council to include the cash component in a political resolution and for the Government of Iraq to reject this resolution meant for the people that the status quo prevailed. An important opportunity for a betterment of conditions in the country was once again missed. Lack of cash prevented the implementation of a number of important projects included in the health, water, sanitation and education sectors. To give one example: in 1999, the municipality of Baghdad was facing a serious breakdown of the sewerage system in one part of the city. It had to cancel orders for equipment because of a lack of cash for transport and installation. There was a worse fall-out of the continued absence of licit cash. The Government of Iraq had no choice but to increase its clandestine efforts to obtain cash through illegal oil exports, surcharges on contracts and paybacks. It can not be argued that illegal income on the part of the Iraqi Government had nothing to do with Security Council policy. It had. An assessment of the motives for obtaining resources outside the oil-for-food programme has to go beyond the justified criticism of the Government of Iraq for its wasteful expenditures involving construction of palaces and other public buildings, the import of luxury goods and weapons research and development. The need to find resources to run the nation was, however, a major reason for seeking extra funds. A more enlightened and less punitive Security Council approach could have deprived the Government of the justification to proceed as it did.

ii) The UN Security Council had been well aware of the importance of cash in the implementation of the oil-for-food programme long before adopting resolution 1284 in December 1999. Iraqi Kurdistan already benefited from such a provision in the early stages of the humanitarian exemption. The UN agencies had the authority to hand out cash to local Kurdish contractors, purchase items in the local market and hire local consultants. The UN Secretariat did monitor these cash transactions in Iraqi Kurdistan and could have done the same in the areas under Baghdad’s control. That this was not allowed under sanctions rules shows the punitive and double standard approach pursued by the Security Council which the UN Secretariat accepted without protest.

iii) A more humane option would have been to build into the oil-for-food programme in all parts of the country a cash component from the beginning. UN observers and audits could have verified, as they did in Iraqi Kurdistan, the appropriate use of these minor amounts of cash. The availability of cash would have removed one of the impediments in the humanitarian exemption and helped to preserve life and well-being.

Option 17: Emergency vs. Rehabilitation

i) Throughout the thirteen years of comprehensive economic sanctions, the UN, both the Security Council and the Secretariat, referred to the humanitarian exemption as a ‘temporary measure’ (see for example UN S/Res.986, 14 April 2020). Many debates in the UN Secretariat on the content of the oil-for-food programme ended with the reminder that this temporary measure involved an ‘emergency’ not a ‘development’ programme. This UN mindset had considerable implications for the contribution the UN was able to make to the well-being of the Iraqi people. ‘Temporary’ was also a word politically welcomed by the Iraqi leadership since it gave the impression that sanctions were indeed of a limited duration. It is now common knowledge that the US and UK Governments would equate ‘temporary’ with ‘regime change’. Sanctions would end after the downfall of the regime of Saddam Hussein, not before. Linked to this approach was the determination of the Security Council to limit the oil-for-food programme and before it the UN Inter-Agency Humanitarian Appeals to emergency measures rather than over time to a national reconstruction programme.

It is difficult to understand why the UN Secretariat, with all its experience in international development, did not increasingly call for changes in the content of its Iraq programmes. Education, including curriculum development, training and institution building, and sectors such as water supply, sanitation, health services and agriculture constituted areas of need for an innocent population. They had little or nothing to do with dual use or misuse by the government but were vital for survival and the preparedness for life of future generations.

Apart from minor changes, e.g., agreement in early 2000 to carry out limited training for workers in the oil sector, the UN did not abandon the emergency nature of its involvement and considered, for the entire thirteen years, the humanitarian exemption as a temporary measure. As a result, both the UN and its agencies as well as the Government of Iraq developed a ‘supply and distribution mentality’ which permeated all actions thereby severely neglecting all longer term needs of a population.

ii) The UN Security Council and the UN Secretariat must take the responsibility for treating the civilian population as if they were living in a refugee camp. The deliberate inadequacy of financial resources, the deliberate limitation of sectors included in the oil-for-food programme, the deliberate emergency approach rather than a transition over time to national rehabilitation converted Iraqis into a nation of survivors and fixers neglecting planning and preparation for the future. Life for the civilian population became an issue of ‘to-day’ only.

iii) A more humane option would have been to introduce medium and long-term components into UN supported programmes in those areas which determined the quality of life of the civilian population. The replacement of the emergency nature of UN operations in Iraq would have allowed the civilian population to live a more normal physical and mental life and helped the youth to get a sense of the importance of planning and preparing for life beyond sanctions and the Government of Saddam Hussein.

Option 18: Sanctions Evaluations

 i) Had the UN Security Council and its Sanctions Committee in cooperation with the UN Secretariat, exercised their oversight mandate responsibly, it would not have been difficult to continuously subject UN sanctions policy to a review. Such a review was of particular importance in the case of Iraq since neither the Security Council nor the UN Secretariat had any experience with the implementation of UN comprehensive economic sanctions as imposed on Iraq. There was no precedent. The UN Security Council is privy to a document of the Economic and Social Council dated June 2000 (see UN E/CN.4/Sub.2/2000/33, 21 June 2020) on the ‘adverse consequences of economic sanctions on the enjoyment of human rights’. In this document, Professor Marc Bossuyt, a former chairman of the UN Human Rights Commission and eminent lawyer in Belgium’s Court of Arbitration, suggests a six-prong test for evaluating the justification and legality of sanctions: 1. are the sanctions imposed for valid reasons?, 2. do the sanctions target the proper parties?, 3. do the sanctions target the proper goods and objects?, 4. are the sanctions reasonably time-limited?, 5. are the sanctions effective and capable of achieving a desired result?, 6. are the sanctions free from protest arising from the violations of the “principles of humanity and the dictates of the public conscience”?

At no time did the Security Council or the UN Secretariat consider such a test since this would have meant the end of the sanctions programme as devised for Iraq. One can argue whether the sanctions were imposed for the right reasons. They were clearly not targeting the proper parties. They furthermore targeted to a large extent the wrong goods and objects. The sanctions period in terms of the impact on the people of Iraq and with respect to international law was not reasonably time-limited. In the early 1990s, sanctions had achieved the desired results in terms of disarmament. The justification for sanctions against Iraq was questioned by the largest ever global movement of opposition.

The UN Security Council could have introduced a test of this kind, without difficulty and gone beyond it to take into account the emerging needs of a society subjected to long periods of sanctions ( temporary vs. medium and long term needs – see also option 18).

ii) The absence of continuous oversight of any kind by the UN Security Council or the specific evaluation of the impact of its own policies on the welfare of the Iraqi people has put a severe legal and moral burden on the shoulder of the Council, not just on the US and UK governments. The UN Secretariat itself could have devised a sanctions effectiveness test, applied it and made its findings available to the Security Council with a request for debate. It did not do so and therefore also shares the burden of failure. Following the publication of the June 2000 ECOSOC document, there was no attempt to discuss the proposed sanctions test. The document was simply ignored. The response of the UN Office of the High Commissioner for Human Rights was timid and without determination to take the report to belatedly pursue the issue of human rights violations by the United Nations as a result of economic sanctions. The absence of structured sanctions analyses played into the hands of the hardliners in the Security Council as the evidence of the serious shortcomings of Council policy remained evasive. The UN Secretariat, UN Agencies active in Iraq and the UN High Commissioner for Human Rights can not explain their passiveness by evoking their subsidiary position to the Security Council. The UN system on the whole regrettably lacked courage and determination. The price for this irresponsibility of an international institution created to protect the innocent was paid by the civilian population in Iraq.

iii) A more humane option would have been for the UN Security Council to ensure that regular sanctions effectiveness tests were carried out by either the UN Sanctions Committee or the UN Secretariat in order to identify the impact of international policy on the human condition in Iraq. This would have allowed remedial actions for protection of the Iraqi people to take place and would have been in compliance with UN Charter and other international law.

Option 19: Public and Informal Meetings of the UN Security Council

i) The Provisional Rules of Procedure of the UN Security Council specify that unless the Council decides otherwise meetings shall be public meetings (Rule 48). Governments which were not members of the Security Council would therefore be able to participate in such meetings, if they wished. Such a provision was in the spirit of a body created to solve international conflicts peacefully while it allowed participation of all parties to a conflict to meet. In the case of Iraq, procedures were reversed and meetings in which Iraq policies were decided were invariably classified as ‘informal’, thus barring Iraq as the targeted state from participating. Furthermore, the Council prevented the UN Secretary General from engaging in a dialogue with the Government of Iraq by invoking the ‘seized of the matter’ rule. This rule indicates that the Council reserved for itself the right of debate and contact with Iraq until it decided otherwise. This promoted confrontation and disagreement and, as a consequence, severely limited the scope of the UN’s role in conflict resolution. (See also German Amb. Tono Eitel’s informal presentation to the UN Security Council dated 14 November 2020).

ii) The UN Charter reminds member states that international disputes should be settled by peaceful means (article 2/3) and emphasizes that solutions to a conflict should be sought “by negotiations, enquiry, mediation, conciliation, arbitration and judicial settlement” (article 33/1). The UN Security Council ignored both the spirit as well as the content of the UN Charter and created a special modus operandi for the handling of the Iraq crisis.

iii) A more humane approach would have been for the UN Security Council to seek public debate with the Government of Iraq. That could have been achieved by inviting representatives of the Government of Iraq to Council meetings at which Iraq was to be discussed and by providing the UN Secretary General with broad policy guidelines to allow him and senior Secretariat staff to engage Iraqi officials in Baghdad and New York in a dialogue on humanitarian and other issues of relevance to the welfare of the Iraqi people. Such an approach would have avoided much confrontation and misunderstanding and promoted confidence building measures. These would have benefited the disarmament process, the oil-for-food programme and ultimately the people of Iraq.

Option 20: Outreach to Non-State Parties

i) Through-out the years of sanctions, non-governmental and inter-governmental organizations other than the UN played an important role in the Iraq crisis. They provided humanitarian support and they became major sources of information on the human condition in the country. The majority of these organizations were located in the Kurdish parts of Iraq. However, there were well-known institutions such as the ICRC and CARE with offices in Baghdad. There were others which did not maintain a permanent presence but had programmes in Iraq, e.g., Caritas and IPPNW. All of them had substantial local information on such issues as the water and sanitation situation in rural and semi-urban areas, the state of the school system, public health care outside the big hospitals, etc. This specialized knowledge was often superior to that of the UN System. Additionally, they were not tied to governments in the same way the UN institutions were and therefore tended to be much more straightforward in their reporting of the serious conditions prevailing in Iraq.

The UN Security Council could have made continuous use of their knowledge through cooperation and regular exchanges. It was only from early 2000 onwards that intermittent consultations were arranged by the Security Council with some of these organizations, e.g., the ICRC. Many important opportunities to tap their experience were missed.

In 1999 the Security Council, under pressure of international public opinion and some member governments, decided to establish a panel to look into humanitarian issues ( this was one of three panels set up by the Council under the chairmanship of Amb. Celso Amorim, then Brazil’s permanent representative to the UN). Members of the panel were mistakenly all drawn from the UN civil service rather than from non-UN bodies such as Care, Caritas or Red Crescent institutions. This deprived the review process of an experience dimension UN civil servants did not have.

Cooperation between the UN Secretariat and resident non-UN organizations in Iraq was tenuous and at times even acrimonious. The UN did not have a systematic cooperation policy, leaving it largely to the local UN representatives to define the degree of collaboration. Ignored by the Security Council and underutilized by the UN Secretariat, these institutions carried on in relative isolation and without adequate opportunities to share their relevant experience, or better still, to carry out flanking measures supplementing the oil-for-food programme. Some co-financing in micro-projects existed for some time in the water and sanitation sectors, in rural health services, in housing and education and assistance to internally displaced (IDPs).

For a variety of reasons including a perceived political inconvenience on the part of the UN Security Council, the interaction between the UN and non-UN institutions was poor. This was to the detriment of the civilian population.

ii) Non-UN institutions operating in areas under the control of Baghdad as well as in Iraqi Kurdistan performed important survival functions at the local level despite small funding. Rural health clinics were set up, equipped and run, schools were built and supplied with teaching aids, water and sanitation systems were repaired and treatment materials donated. Training programmes, practically absent from the oil-for-food programme, were carried out in many fields. Even though the scope of these efforts was limited, the benefits for people was significant.

iii) A more humane option would have been for the UN Security Council and the UN Secretariat to define a clear policy of cooperation with non-UN institutions for the delivery of a humanitarian exemption. The greater flexibility of these institutions could have been used by the UN to fill gaps in the oil-for-food programme in training, institution- building, infrastructural rehabilitation at the local level, etc. Small amounts of extra funding could have been mobilized by the UN Secretariat to intensify co-financing as an integral part of the humanitarian exemption. Instead, a lack of determination reduced cooperation to an insignificant number of haphazardly identified projects in southern and central Iraq. In the locally autonomous areas of Iraqi Kurdistan cooperation between the UN and non-UN organizations was somewhat closer. Yet, there was no systematic and integrated approach.

Enhanced and planned cooperation would have meant a more efficient use of scarce resources and better protection of the civilian population against the impact of sanctions.

Option 21: The No-Fly Zones

i) The US, UK and French governments decided in 1991/92 to establish two no-fly zones in Iraq north of the 36th parallel and south of the 32nd parallel (as of 1996 the 33rd parallel) to implement ‘Operation Provide Comfort’ and ‘Operation Southern Watch’ respectively. These no-fly zones from which France withdrew in 1996 were created unilaterally by these countries outside the UN and, therefore, did not have an international and legal mandate. Throughout the years of sanctions, the US and UK authorities evaded a debate on the legality of the two zones arguing that various UN resolutions, particularly resolution 688 (see UN S/Res. 688/1991) had given them the right to introduce these zones. This contention was incorrect. Resolution 688 in its article 5 requests the UN Secretary General “…to address urgently the critical needs of the refugees and displaced Iraqi population”…and appeals to member states “to contribute to these humanitarian relief efforts.” Moreover, deriving authority for the establishment of such zones, even if this were appropriate, would not give the two governments authority for the aggressive military behaviour they increasingly displayed in these zones over the years. In any case resolution 688 (1991) was passed under Chapter VI of the UN Charter which is entitled ‘Pacific Settlements of Disputes’.

Following the four nights of heavy bombing during ‘Operation Desert Fox’ of December 1998 by the US and UK air forces, benign violation of international law through daily incursions into Iraqi airspace was replaced by increasingly aggressive behaviour of the two air forces under new and enlarged rules of engagement. This development made a mockery of the assertion by the British Ambassador in the Security Council in June 2000 that “the action we take in the no-fly zones is following Security Council 688 to protect the civilian population of Iraq from repression by the Iraqi Government.” (see UN/S/4152nd meeting, 8 June 2020, p.4) The year before, such ‘protection’ resulted in 144 civilian deaths and 446 civilian injured as a result of an average of 3 air strikes per week. This information was carefully checked out, often through site visits and recorded by the Office of the UN Humanitarian Coordinator in Baghdad in quarterly reports. These were welcomed by the UN Secretary General, opposed by others in the UN Secretariat and condemned by the US and UK governments (see confidential report prepared by UNOHCI/Baghdad entitled: ‘Air strikes in Iraq/Reported Civilian Casualties and Damages’, 28 December 1998-31 December 1999).

The reality was very different from the one presented by the two governments. Their actions had little to do with concern for human rights of the Kurds in northern Iraq and Shias in the south and a lot with deliberate destabilization of Iraq and in 2002/03 with US/UK preparations of a secretly decided invasion.

The issue of the two no-fly zones was raised in the Security Council on a number of occasions but never debated. Russia, China, France, Malaysia and others referred to developments in the two zones, yet were unable to engage the Council as a whole in a debate. The UN Security Council, therefore, must take responsibility for having condoned the illegal behaviour of the air forces of the United States and the United Kingdom throughout the thirteen years of sanctions.

ii) The two no-fly zones did not just lead to death, injury and physical destruction. The frequent air alerts created what Iraqis called a ‘siren syndrome’. Civilians, especially children, became fearful of these incursions. In addition, the UN oil-for-food operations were impaired by the aggressive behaviour of the US and UK air forces. UN trucks, for example, had to observe curfew hours thus slowing down the distribution of food and other supplies. UN missions had to be off the road during times of expected air strikes. Had there been a genuine concern for the welfare of the Iraqi people, the air forces of the US and UK under respective agreements with the Governments of Turkey and Saudi Arabia could have been on stand-by at the Sultan and Incirlik Air Force Bases in the two countries as a non-aggressive reminder for Baghdad of their presence in case of untoward behaviour by the Government of Iraq. Instead much suffering was inflicted on the people of Iraq and the sovereignty of the country was violated despite repeated reminders by the UN Security Council that Iraq’s sovereignty had to be respected.

iii) A more humane option would have been to confine the air forces of the US and UK to the Sultan and Incirlik Air Force Bases in central Saudi Arabia and south eastern Turkey. Such a policy would not have violated UN Charter law and facilitated the implementation of the oil-for-food programme. Fewer Iraqi civilians would have perished and many would have benefited more quickly from humanitarian supplies.

Option 22: Public Information

i) During the entire sanctions period the US and the UK Governments were involved in efforts to portray a picture according to which they were genuinely concerned with the suffering of Iraq’s civilian population while the Government of Saddam Hussein did not care for his people. Government’s reluctance to conclude an oil-for-food programme in the early 1990s (for reasons they chose not to mention – see option 15), alleged stockpiling of food and medicines and the sale by government of essential supplies on the open markets in Iraq or abroad were cited as examples. At the same time, the two governments chose to ignore to mention that they were the cause of blocking humanitarian supplies worth billions of US$ (see option 8). They also failed to mention that the existing procurement system for the oil-for-food programme was a master piece of bureaucratization largely due to their making (see option 8). In addition, they delayed the inclusion into the oil-for-food programme of housing and telecommunication components. They repeatedly prevented dialogue between the UN Secretary General and the Government of Iraq. They also objected to briefings from UN staff posted to Baghdad. Also, they were instrumental in changing the rules of procedures for meetings in the Security Council from predominantly public to informal meetings which excluded Iraqi diplomats from participation. They misused the UN disarmament operations in Iraq to collect intelligence information for bilateral purposes. They prevented Iraqi delegations from arriving in time for United Nations events in New York thereby violating an agreement the UN has with the US, as the host country, to allow free travel to New York to attend UN meetings. They also tried to convince senior Iraqi officials travelling to New York to defect.

The US and UK Governments periodically published documents to show a picture in Iraq which, at best represented half-truths. In September 2002, as one example, the US Government published a report entitled “A Decade of Deception and Defiance – Saddam Hussein’s Defiance of the United Nations” which provided false information on Iraq’s weapons of mass destruction, the withholding of food and medicines, the financing of Hajj travels, Iraq’s sheltering of terrorist organisations , the diversion of dual-use items for military purposes, the contracting of supplies, the extent of cooperation of the Government of Iraq with UN Agencies, etc. The UN Secretariat reports on many of these issues gave a different picture. It had no impact on the statements of the US State Department and the British Foreign Office: “We are doing our best to ease the suffering of the Iraqi people” (see op-ed piece in the UK FT of 4 May 2020 by Samuel Berger, the then National Security Advisor).

 Dis- and mis-information prevailed throughout giving the impression that the villain resided exclusively in Baghdad and not also in London and Washington.

At the time and very much in retrospect, it reflects a fateful weakness that members of the UN Security Council and senior management in the UN Secretariat did not feel the need to protest these obvious misrepresentations by two permanent members of the Council.

ii) Mis- and disinformation by two permanent members of the UN Security Council about the conditions in Iraq and their causes contributed significantly to confuse the public, particularly but not only in the US and the UK. This in turn fostered an anti-Iraq climate among groups who might have become more critical of their governments’ policies and shown compassion for the plight of an innocent people. The absence of rebuttals and clarifications by the UN Security Council as a whole and the UN Secretariat worsened efforts to improve conditions for the Iraqi population.

iii) A more humane option would have been for the UN Security and the UN Secretariat to issue periodic reports of high quality to the international public that would reflect the actual humanitarian conditions in Iraq as reported by the UN system in Baghdad. Such factual information could have been used by groups and individuals to enhance pressure for improvements in international support for a people under sanctions and signal to the US and UK governments that manipulation of facts was unethical, pointless and ultimately politically counterproductive.

Part III: Conclusions

In assessing the extent of pre-meditated or accidental death, destruction and trauma of the Iraqi population during the period 1990-2003, one must distinguish the policies and acts of different perpetrating parties, i.e., the Government of Iraq, the governments of individual UN member countries, particularly the US and the UK and the collective of 15 member countries in the UN Security Council.

As research proceeds, more and more refined and conclusive evidence of perpetration involving different parties is possible. As of 2006, a significant amount of evidence has been accumulated to document crimes against humanity on the part of President Saddam Hussein and his Government. This evidence relates to the treatment of individuals or groups in actual or alleged opposition to the Ba’athist government in Baghdad. A broad picture is visible of crimes against Kurdish and Shi’ite groups including Shia clerics, Marsh Arabs (Madan) in southern Iraq and also against Sunni, Turkmen, Armenians and other groups suspected of opposing the government.

To establish details will require, however, significantly more research. New information contained in de-classified documents in various government archives underlines the complexity of establishing culpability. For example, the existence of mass graves in Iraq does not point only to the Ba’athist government as a perpetrator but also to insurgents in the 1991 uprisings in southern Iraq and the 1991 coalition air attacks on Iraqi troops retreating from Kuwait. US Department of Defence documents released in the 1990s put in question whether the use of chemical weapons in attacks on villages in Iraqi Kurdistan involved Iraqi military only or possibly also Iranian troops since cyanide was deployed which Iraqi troops were not known to have used.

Evidence of violation against the Hague and Geneva Conventions, the Convention on the Rights of the Child, the Torture Convention and other international law with regard to the 2003 invasion and occupation of Iraq by a US-led coalition force is available and continues to increase. Much has been written on this period of Iraqi history but comprehensive scholarly legal work has yet to become available.

More difficult is the assessment of perpetration by individual UN member countries prior to the March 2003 invasion. Planned destruction of civilian infrastructure (roads, bridges, water and sanitation facilities, electricity plants and oil installations, etc.) and the use of weapons of mass destruction such as DU munitions constitute indicators of serious illegality on the part of US authorities. It is unfortunate that to-date the scientific debate on depleted uranium (radiological vs. chemical factors) has deflected from the debate about the use of DU. This has postponed the formal admission by perpetrators that depleted uranium is indeed the cause of ill health of Iraqis and members of the coalition forces and genetic damage among their off-spring.

The foregoing review of policy options the UN Security Council has had in dealing with comprehensive economic sanctions in Iraq shows the wide scope the Council had in influencing the fate of a people. The review’s focus on the UN Security Council does not in any way abrogate or reduce the responsibilities the Government of Iraq had for the welfare of its citizens. This paper concentrates on the role played by the United Nations. Detractors will argue that this is only half the story. They are correct. But half the story it is and it must be portrayed in as much detail as possible to supplement the other half of the story on which much has been written already. A good deal is known about the violations of human rights by the Government of Saddam Hussein. Little documentation of the punitive nature of sanctions policies of the UN Security Council and the largely passive acceptance of such policies by the UN Secretariat is available. Serious questions have arisen about the legality of policies adopted by the UN Security Council. The UN Security Council has been accused by respected international law experts of having repeatedly and knowingly violated UN Charter law and international conventions. The most serious accusation refers to the UN’s alleged violation of the genocide convention. It is argued that many years of awareness by the Security Council of the fatal impact of its policies without changing these policies, ultimately constituted ‘intent’. The UN Security Council, they maintain, therefore, violated inter alia Article 2 (c) of the Convention on the Prevention and Punishment of the Crime of Genocide which reads:

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

Clarification of the role, motives, impact and intent of the UN Security Council’s Iraq policies is long overdue. This paper is a contribution towards this important objective.