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sanctions & international law

Abdullah Mutawi of CESR (Center for Economic and Social Rights) Middle East kindly told me about this document.

This is a copy of chapter 3 on legal aspects (I didn't remove the footnote numbers - laziness).


The Legal Framework

The Security Council After the Cold War

The United Nations Charter, established in the wake of the horrors of World War II, gives the Security Council broad powers to maintain international peace and security. However, East-West divisions throughout the Cold War prevented the Security Council from fulfilling this mandate. As a result, between 1945-90 the Security Council imposed multilateral sanctions only twice -- a trade embargo against Rhodesia in 1966, and an arms embargo against South Africa in 1977. Given this political paralysis, there was no practical need to define the legal limitations on Security Council action.

The end of the Cold War brought hopes for a “New World Order” based on universal respect for international law. It also breathed new life into the moribund Security Council, which in the absence of internal deadlock quickly became a dominant force in international affairs. Since 1990, the Security Council has imposed multilateral sanctions against eight different states, and occasionally authorized military force, most notably against Iraq in 1991. 56 Yet although these actions have often resulted in significant loss of civilian life and property, there still has been no attempt to establish the legal parameters within which the Council must operate.

Some commentators argue that the Security Council -- itself a product of the UN Charter -- can act “above” international law, as a law unto itself. Refuting this dangerous claim, Justice Weeramantry of the World Court points out that: “The history of the United Nations Charter ... corroborates the view that a clear limitation on the plenitude of the Security Council’s powers is that those powers must be exercised in accordance with the well-established principles of international law”.57

The case of Iraq underscores the need to reaffirm and clearly define the legal constraints on the Security Council. It is clear that the Council’s significant power to act in international affairs must be bounded by accepted principles of international law. For almost six years, the Security Council has maintained comprehensive sanctions without once referring to its legal obligation to act in accordance with human rights and humanitarian principles. Despite the deaths of hundreds of thousands of children, the international community has yet to address the crucial issue of the legality of Security Council sanctions on Iraq.

B. Defining the Legal Limits

The Security Council was established by, and derives its authority through, the United Nations Charter.58 Of all the organs created by the Charter, only the Security Council is granted power to take specific enforcement actions to maintain peace and security. Chapter VII of the Charter explicitly empowers the Council to impose economic sanctions, and even military action, in response to threats to international peace and security.59 Furthermore, the UN Charter obliges member states to abide by Security Council resolutions even when they conflict with other treaties.60

However, under both the Charter and international law, the Security Council's enforcement powers are limited by human rights and humanitarian standards. Article 24 of the Charter directs the Council “to act in accordance with the Purposes and Principles of the United Nations” in the use of its authority to maintain peace and security.61 Among the most fundamental Purposes and Principles listed in Article 1 is the promotion of human rights.62 Indeed, the Preamble to the Charter begins by stating its determination “to reaffirm faith in fundamental human rights and in the dignity and worth of the human person”.63

In the past fifty years, there has been near-universal acceptance of a growing body of human rights law -- from the Universal Declaration of Human Rights, unanimously endorsed by the UN General Assembly in 1948, to the Convention on the Rights of the Child, ratified in 1990 by almost every country in the world.64 The Security Council is not technically party to these treaties in the manner of a ratifying state. However, each of these treaties represents an elaboration upon the UN Charter’s original vision of human rights, making the treaty principles (if not the specific provisions) binding on the Security Council through Article 24. 65

The Security Council’s human rights obligations are not identical to those of a state. On the one hand, the power and moral authority of UN member states acting collectively through the Security Council argues for holding the Council to a higher standard of human rights protection than individual states. On the other hand, when confronting threats to peace and security the Council may require some latitude of action beyond that allowed states. Yet by either standard, the Security Council is obligated to act in accordance with human rights and humanitarian principles when pursuing collective action. The contrary view, that the Security Council is free to violate these principles, ignores not only the Charter but also common sense. As a justice of the World Court recently noted: “one only has to state the proposition thus -- that a Security Council resolution may even require participation in genocide -- for its unacceptability to be apparent”.66

The precise limits imposed by the Charter and international law on Security Council actions have yet to be defined. Nor is it within the scope of this report to elaborate a complete set of guidelines. However, it is possible to derive a set of minimum legal duties in two broad categories:

· procedural duties to recognize explicitly its obligation to promote and respect core principles of human rights and humanitarian law, and to take concrete measures to monitor and hold itself accountable to these principles; and
· substantive duties to ensure that its activities do not result in violations of these principles, particularly among vulnerable populations such as children and women, which enjoy special protection under international law.

These two sets of duties are only intended to establish a minimum threshold with which to assess the
Security Council’s compliance with its legal obligations.

II. Violations of the UN Charter and International Law

A. Procedural Violations

Procedural duties require only that the Security Council recognize, consider, and account for the impact of its activities on human rights. They are nonetheless an essential self-regulating safeguard against the commission of substantive violations. These duties are especially important given that no other institution has express authority through the UN Charter to review Security Council decisions. Several recent cases before the World Court have raised the issue of whether the Court has power to review Security Council actions (in the same way that the US Supreme Court reviews the constitutionality of acts by the President and Congress).67 Until the Court decides this issue, the Council is left to judge the legality of its own actions. It is therefore critical that the Council recognize and hold itself accountable to the legal limits governing its conduct.

The Security Council has clearly violated these minimum procedural duties in the case of sanctions on Iraq. Notwithstanding frequent statements of concern regarding the humanitarian situation in Iraq, the Council has failed to acknowledge its own legal responsibility to protect the rights of Iraqi civilians suffering under sanctions.68 While Council resolutions often invoke the authority of international law, and condemn Iraq for violating the human rights of its own citizens, they do not acknowledge that the Security Council is itself bound by international law and human rights.69

The Security Council has also violated its procedural duties by failing to monitor the impact of sanctions on human rights. For six years, the Council has devoted considerable resources and personnel to five newly-created commissions to monitor the implementation of the Council’s resolutions in such areas as inspecting Iraqi weapons programs, establishing the border with Kuwait, and locating Kuwaiti prisoners of war. 70 The work of these commissions has frequently been supported by actual or threatened military action. Yet the Security Council has not created a commission or devoted funding to monitor the human rights impact of sanctions, instead occasionally taking note of reports by other UN bodies and independent research groups. This omission is particularly glaring in light of clear evidence of the enormous suffering in Iraq.

Shortly after the Gulf War, UN Secretary-General Javier Perez de Cuellar warned that: “the maintenance of food supply and consumption as well as the close monitoring of the nutritional and health status of the Iraqi population over the next few months are absolutely necessary to prevent full-scale famine and major human disasters developing in the country”.71

It bears emphasizing that the Council remains accountable to human rights principles regardless of the conduct of the Iraqi government. The Council has sought to avoid any legal responsibility by blaming Saddam Hussein’s government, in particular pointing to Iraq’s refusal in 1991-92 to accept Resolutions 706 and 712 allowing a limited sale of oil to purchase humanitarian supplies. A 1992 official statement of the President of the Security Council is indicative: “The Government of Iraq, by acting in this way, is foregoing the possibility of meeting the essential needs of its civilian population and therefore bears the full responsibility for their humanitarian problems”.72

However, Saddam Hussein’s intransigence cannot justify violations by the Council. As a matter of fundamental principle, human rights are based on the inherent dignity and worth of every human person, and are owed directly to individuals. These rights are not forfeited because of a government’s misconduct, particularly when citizens have no voice in the decisions of such government.73 Iraq’s failure to comply with Security Council resolutions therefore does not give the Security Council license to disavow its independent obligations to respect the human rights of the Iraqi civilians.

The Security Council’s failure to acknowledge its legal obligations to the people of Iraq has left the dangerous impression -- completely at odds with the UN Charter’s proclamation of “faith in fundamental human rights and in the dignity and worth of the human person” -- that the Council is at liberty to impose collective punishment on a population for the recalcitrance of its leader. The Security Council has bolstered this impression by failing to provide guidelines for imposing sanctions and for monitoring their impact.

Through these acts and omissions, the Security Council has placed itself beyond legal accountability, in violation of its minimum procedural duties under the UN Charter and international law.

B. Substantive Violations

Assessing the substantive legality of Security Council sanctions against Iraq is difficult in the absence of a body of precedents to define violations in this uncharted area of law. Much of the difficulty arises from the fact that the Security Council is a unique institution with authority and responsibilities that differ from those of individual states. When responding to a threat to peace and security, the Council is operating in a gray area between war and peace, making it uncertain whether the Council should be accountable to the peace-time legal regime of human rights or the war-time regime of humanitarian law (also called the laws of war). On the one hand, sanctions on Iraq have been maintained after the technical state of war ceased with Resolution 687. On the other hand, the Council’s responsibility to maintain peace and security and its position in relation to the Iraqi government and population – as an outside force exerting pressure on the country -- argue for a humanitarian law framework.

While both legal regimes are grounded in humanitarian norms, they offer different levels of protection to the individual. The laws of war permit belligerents to inflict collateral civilian casualties when attacking legitimate military targets, provided that the harm to civilians is not disproportionate to the value of the military target.74 The human rights regime, on the other hand, provides strict protection to civilian life, health, and property in all circumstances short of war. Because the Council is obliged to promote human rights in all its activities and because the actual level of obligation must fall somewhere in between the human rights and the humanitarian law standards, this report assesses the Council’s actions against the core principles underlying both regimes -- principles rooted in the original purpose of the United Nations.

1. Human Rights Law

The foreseeable and avoidable deaths of hundreds of thousands of children clearly implicate a number of fundamental human rights. Most important is the right to life, considered by the UN Human Rights Committee to be “the supreme right from which no derogation is permitted even in time of public emergency”.75 The tragic loss of life in Iraq due to sanctions constitutes a massive violation of this most fundamental human right. Sanctions have also contributed to violations of the rights to health and to an adequate standard of living, guaranteed by the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and other international treaties.76

It is significant that children have suffered disproportionately from sanctions. Under human rights law, children are considered uniquely vulnerable and are granted special protection. More countries have ratified the Convention on the Rights of the Child than any other human rights treaty in history, including all permanent members of the Security Council.77 Among its provisions, the Convention specifically recognizes that “every child has the inherent right to life” and calls on all states “to ensure to the maximum extent possible the survival and development of the child” and “to take appropriate measures to diminish infant and child mortality”.78 It is hard to think of a more grave breach of child rights in modern history than the suffering and death of hundreds of thousands of children under the age of five caused by a political dispute between “their” government and the international community.

The Security Council shoulders a large measure of responsibility for these violations by maintaining sanctions without taking strong measures to prevent this suffering. However, the Security Council, and particularly the US representative, have argued that Saddam Hussein and his government bear sole responsibility for civilian suffering, and therefore for human rights violations. The Council blames Iraq for (i) refusing to comply with Security Council cease-fire resolutions, in particular resolutions that authorize Iraq to sell a limited amount of oil and use the proceeds to buy food and medicine,79 and (ii) spending scarce resources on luxury items for Saddam Hussein rather than on food and medicine for the needy population.80

It is important to examine both of these claims carefully before assigning responsibility for human rights violations resulting from sanctions. It is true that Iraqi children would not be sick and hungry if their government complied with all conditions for lifting the sanctions. But as pointed out in the previous section, this is irrelevant to the Security Council’s independent human rights duties owed to the Iraqi people. At a minimum, the Council’s obligation to promote human rights requires that it take reasonable steps to ensure that its activities do not seriously harm those rights. In this case, in spite of the massive civilian toll, the Council has refused to entertain less drastic alternatives to maintaining comprehensive sanctions, or to take effective measures to mitigate their impact on civilians (see recommendations for possible alternatives).

There can be no legal justification for the Council to insist on a uniquely severe sanctions regime that punishes innocent members of the world community.

The Security Council’s second argument may mitigate the degree (but not the fact) of its responsibility for human rights violations. A human rights analysis of the Council’s conduct must take into account the shared responsibility of the Iraqi government, but the Council remains responsible to the extent that it contributes to the denial rather than the promotion of human rights. In this case, it is clear that sanctions constitute the dominant factor in the deaths of hundred of thousands of civilians. Sanctions have reduced Iraq’s GDP to less than 10% of its previous level. Only a tiny fraction of these reduced revenues end up in the government’s hands as hard currency. Yet Iraq needs billion in hard currency to pay for sufficient quantities of imported food, medicine and other essentials. Furthermore, throughout sanctions the Iraqi government has maintained an efficient and equitable public rationing system at considerable expense. This is consistent with the fact that, prior to sanctions, Iraq maintained the most generous public welfare program in the Arab world. Furthermore, the argument that Iraq spends excessive sums on presidential palaces and yachts not only appears to be exaggerated for political purposes, but also ignores the fact that these projects are paid for in Iraqi dinars, and therefore do not divert any hard currency from the purchase of food and medicine.81

2. Humanitarian Law

Even under the more permissive framework of humanitarian law, Security Council sanctions on Iraq violate well-established legal norms. The basic principles undergirding the laws of war are those of distinction and proportionality. Under the principle of distinction, belligerents are required to distinguish between civilians and combatants at all times and to direct attacks only against military targets.82 This is the fundamental principle upon which the entire humanitarian foundation of the laws of war is based. The corollary principle of proportionality is designed to ensure that attacks against military targets do not cause excessive civilian damage.83 The Geneva Conventions define proportionality as prohibiting any “attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects... which would be excessive in relation to the concrete and direct military advantage anticipated”.84

Imposing comprehensive sanctions that cause total economic collapse and the deaths of hundreds of thousands of civilians appears on its face to violate the principle of distinction. A recent protocol to the Geneva Convention explicitly outlaws the use of starvation as a method of warfare, stating that “in no event shall actions ... be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation”.85 The critical issue under the principle of distinction is whether the sanctions are targeted at the entire population as a means to influence the regime -- a clear violation -- or at the regime, causing collateral damage to civilians.

Even granting for the sake of argument that sanctions are directed against the regime rather than the people, the Security Council must still demonstrate that there has not been a disproportionate impact on civilians. Proportionality is a malleable and subjective standard, easily prone to manipulation by belligerents to justify civilian casualties. Nevertheless, the authoritative legal commentary on the laws of war sets out guidelines for interpretation: “A remote [military] advantage to be gained at some unknown time in the future would not be a proper consideration to weigh against civilian loss... The advantage concerned should be substantial and relatively close... There can be no question of creating conditions conducive to surrender by means of attacks which incidentally harm the civilian population”.86

The advantage gained over the course of five years of comprehensive sanctions, measured by Iraqi compliance with the cease-fire resolutions, has been extremely remote in comparison with the enormous civilian casualties.87 While the goals of sanctions, such as eliminating Iraq’s unconventional weapons to ensure peace and security in the region, are unquestionably of great importance, it is unclear how much progress toward these goals can be attributed directly to comprehensive sanctions. Iraq has often revealed valuable information on weapons program in response to high- level defections or threatened military strikes.

On the other hand, the magnitude of the death toll claimed by sanctions-related hunger and disease in Iraq has been documented since the beginning of the Gulf War. The magnitude of this tragedy for Iraqi children stands out even against the bloody standards of the twentieth century. Far more Iraqi children under the age of five have died as a result of sanctions than civilians and combatants combined from either the scourge of ethnic cleansing in the former Yugoslavia or the atomic bombs in Japan. Under these circumstances, it seems clear that Security Council sanctions on Iraq have violated the fundamental principles of humanitarian law.

Mark Parkinson Cornwall
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