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As a person who has for a long time studied the legal aspects of the Iraq sanctions, I wish to comment on Joe Stork's defense of HRW's position. My comments are made with reference to Joe Stork's letter to Nathan Geffen which was forwarded to me as member of a mailing list. On #1 I tend to concur with Joe's legal and substantive findings regarding the US/UK bombing campaign. From the point of human rights per se, these bombings are not an issue. They are however an act of war for which humanitarian law is applicable (as correctly identified by Joe). Joe seems moreover credible in maintaining that the number of civilian casulties in Chechnia is far greater than that of the US/UK bombings on Iraq. Having said that, it must emphasized that the bombings against Iraq by the US/UK are gross violations of international law and constitute, as I see it, blatant breaches of the UN Charter. To refrain from pointing to this gross illlegality (which under the terms of the Nurnberg Charter would also be criminal) and merely stating that such bombings "may well be illegal" is far from satisfactory from an organisation such as HRW. Would Joe have considered aerial bombings of locations within the United States by Iraqi planes as "may be illegal", had the Iraqis the capabilities to inflict such harm and claiming that the US is the most dangerous power for world peace (which it clearly is) ? Or does the legalitly merely hinges on the subjective determination (by whom ?) of the identity of the "most dangerous" state ? And further can a human rights organisation waive aside a blatant breach of the Charter as irrelevant from a human rights perspective ? On #2 a. I beg to seriously differ with Joe and HRW on the question of Iraqi responsibility for the consequences of the sanctions. It must be obvious that the Iraqi government has neither decided to impose sanctions on Iraq nor consulted whether it aggrees for Iraqi foreign trade to be controlled by a UN Committee nor does it willingly participate in the implementation of the sanctions. It is entirely on the receiving end of acts decided and implemented by other states. For this specific reason it cannot be held accountable for acts committed and implemented by others and which are clearly violations of human rights (even if such violations are justified on considerations of 'world peace'). b. There is however a reason for CRITICIZING the Iraqi authorities for not defending the Iraqi population by all means at its disposal, including demanding that the legality of the sanctions be subject to an independent legal review, say by the ICJ, that those who impose the death of Iraqi children through sanctions be brought to justice for international criminal acts, and perhaps by calling upon UN member states to opt out unilaterally of the sanctions regime and defy the illegal and criminal sanctions. I believe that there Iraqis who do make such criticism. And I suspect that the reason for this failure of the Iraqi authorities to act more forcefully on behalf of their people, is that they are not overly concerned about the rule of law, neither internal nor international. In this respect - but mainly in this respect - the Iraqi authorities can be condemned. But such condemnation is moral, not legal. Legally, I submit that those who have chosen, among various alternatives, to impose and maintain for many years a COMPREHENSIVE trade sanctions regime targeting the entire population of a country, are legally responsible for the adverse consequences of such acts. c. As for the question of intent, we cannot merely assess verbal disclaimers but the extent, the timing and the substance of the acts committed. Such assessment shows that the acts (imposition of the sanctions with their ghastly details) were neither accidental, nor spontaneous, but premeditated and maintained in spite of evidence of increased child death and other grave harm. The sanctions were from the onset targeting the civilian population as such, thus violating the most fundamental humanitarian principle (of not targeting civilian populations). By assorting the various "oil-for-food- arrangements with extraneous conditions, such as the removal of 30 % of Iraqi exports earnings for war reparations and monies for UN operations, the UN SC breached the spirit of humanitarian principles (such principles do not permit belligerents to assort relief actions with political and extraneous conditions). The UNSC displayed its bad faith by not allowing for a long time a vast array of items of civilian use, thus negating the human rights of the Iraqi civilian population to education, health, development and freedom of travel. There is therefore, in my opinion, prima facie evidence of bad faith by the UNSC (and the UN/UK) which discredits the disclaimer against "intent". There is hardly a case to be made that acts pursued systematically for 9 years and which have shown great harm from the first day, are not meant to harm. Whether the "intent to harm" includes the killing of half a million children, is another question, but we must recognize that the very imposition of comprehensive economic sanctions against a given population is certainly sufficient evidence of an "intent to harm" that population (or incite it to rebel - which in that case would constitute a blatant and gross form of international terrorism). On #3 I concur with Joe on the necessity, under international law (and ethics) to call for the trial of Iraqi public officials for various crimes against humanity and war crimes. I think however that in order to remove the taint of "victors' justice', it would be important that such a call be made by an impartial judicial body, willing and mandated to assess the crimes committed by the US/UK and other countries against the people of Iraq through acts committed in the Gulf War and the sanctions. It would be a perversion of justice if those who have caused the death of half a million Iraqi children (and even if they were "merely" 100.000) would not be indicted while Iraqi officials would. I therefore urge on Joe and HRW to reconsider its unilateral condemnation of Iraqi officials. One way out of this dilemma (if HRW does not concur that the sanctions are criminal acts) would be to demand that an international inquiry commission be established, with international lawyers from non-belligerent countries, from the ICJ and from the belligerent countries, would be represented, as well as observers from various human rights organistions, in view of determining the legal responsibilities of the various parties with regards to international humanitarian and human rights law in Iraq and surrounding countries. Surely the terms of reference and the composition of such a body are crucial, but this should not too a difficult problem. Such an approach would be much more in tune with an objective approach towards the subject-matter and would give HRW a lease on life in this matter. (as a short rejoinder, I agree with Joe that one cannot put on the same foot those who commit crime with those who abet those crimes or refuse to condemn them). Complicity is surely and most often a lesser crime than that of the Principals. On #4 and #5 I do not wish to intervene in the discussion at this stage. Elias Davidsson Iceland ------------------------------------------------------------------- Elias Davidsson - Post Box 1760 - 121 Reykjavik - Iceland Tel. (00354)-552-6444 Fax: (00354)-552-6579 Email: edavid@veda.is URL: http://www.juscogens.org ------------------------------------------------------------------ -- ----------------------------------------------------------------------- This is a discussion list run by the Campaign Against Sanctions on Iraq For removal from list, email soc-casi-discuss-request@lists.cam.ac.uk Full archive and list instructions are available from the CASI website: http://welcome.to/casi