This paper considers the legal aspects of military enforcement of economic sanctions in the absence of hostilities. Accordingly, discussion of the sanctions imposed against Iraq will not dwell on the sanctions during Desert Storm. For this reason, the sanctions have been divided into two phases. Discussion will focus first on the sanctions during the Desert Shield phase that preceded Desert Storm ("Phase I," beginning on August 2, 1990, with imposition of the U.S. embargo and ending on January 15, the day before the international coalition began aerial bombardment of Iraq), and then on such sanctions following the conclusion of Desert Storm and the end of hostilities ("Phase II, beginning on April 3, 1991,¹ and continuing to date).

Separation of these sanctions into two phases is also warranted by the difference between the stated primary objective of the sanctions before Desert Storm (e.g.,the unconditional departure of Iraqi forces from Kuwait) and the several new primary objectives of the sanctions determined by the Council after the end of hostilities.

On August 1, 1990 (early morning hours of August 2 in the Persian Gulf), Iraq invaded Kuwait. This invasion prompted an emergency meeting of the Council on August 2 and issuance on that same date of Council Resolution 660, determining a breach of international peace and security under Articles 39 and 40, and calling for immediate withdrawal of Iraqi forces from Kuwait.² Also on August 2, acting pursuant to the IEEPA and the NEA, President Bush issued Executive Order 12722, "Blocking Iraqi Government Property and Prohibiting Transactions with Iraq," and Executive Order 12723 "Blocking Kuwaiti Government Property," declaring a national emergency in the preamble of each of these two Orders.³ Primary responsibility for the implementation and administration of these sanctions was assigned to the Secretary of the Treasury (in consultation with the Secretary of State) who, as is customary, relegated this authority to the Treasury’s Office of Foreign Assets Control ("OFAC").⁴

Under this embargo, all assets of the Governments of Iraq and Kuwait were frozen, and private financial transactions and trade with Iraq were prohibited. (Except that to conform with the 1988 amendments to the IEEPA, publications and other informational materials of Iraqi origin were allowed to be imported into the United States). All U.S. exports and exports from third countries by U.S. persons to Iraq were prohibited, except for certain informational materials and donations of articles needed to relieve human suffering such as food, clothing, medicine, and medical supplies.⁵

On August 6 the Council issued Resolution 661, imposing comprehensive mandatory economic sanctions on Iraq and Kuwait, which only specifically exempted "supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs." The Resolution also established a Sanctions Committee, composed of all the Council members, to monitor implementation and compliance with the sanctions by the U.N. members. Resolution 661 was issued under Chapter VII of the Charter, without reference to any particular Article. The Resolution affirmed in its Preamble "the inherent right of individual or collective self defence [sic], in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter," but did not provide for any military enforcement of the sanctions, leading to the assumption that it was issued under Article 41, rather than under Article 42.⁶

On August 7 President Bush initiated Operation Desert Shield. Mindful of the consultation requirements under the War Powers Resolution, the President "shared his decision with the Congressional leadership" to deploy substantial elements of the U.S. Armed Forces into the Persian Gulf region to help defend Saudi Arabia.⁷ This meeting was followed, on August 9, by a formal report to the Congress, in accordance with the 48-hour reporting requirement under section 4 of the War Powers Resolution. Following the precedent set by his predecessors, the President avoided triggering the 60-day withdrawal provision by not referring to section 4(a)(1) or to the prospect of hostilities; in fact, he assured the Congress that he did not believe involvement in hostilities was imminent.⁸

On August 9 the annexation of Kuwait, which had been formally proclaimed by Iraq on the preceding day, was declared null and void by the Council under Resolution 662.⁹ On that same date President Bush issued Executive Orders 12724 and 12725, to conform U.S. sanctions against Iraq and occupied Kuwait more closely to those mandated by the Council under Resolution 661, and to rely on Section 5 of the U.N. Participation Act as an additional statutory basis for the sanctions. There being no humanitarian exception provided under Resolution 661 for exports of clothing, this exception was not carried into the new Orders, although it had been included in E.O. 12722 to conform with the IEEPA. ¹⁰

Iraq had historically depended on imports for 75 percent of its food consumption. Although the new Orders provided an exception for donations of food when needed to alleviate human suffering, President Bush stated in his Press Conference of August 8 that exports of food to Iraq would be fully subject to the embargo.¹¹ Since 95 percent of Iraq’s foreign revenues were derived from oil exports, the interdiction of these exports was essential to the effectiveness of the sanctions. Because of Iraq’s very limited access to the sea, 90 percent of its oil was exported through two pipelines, one crossing into Turkey, and the other into Saudi Arabia. President Bush had little difficulty in obtaining the full cooperation of both of these bordering nations, which closed their pipelines by August 7 and agreed to comply fully with all other facets of the U.N. embargo.

Jordan, which also shares a border with Iraq, was quite another matter. King Hussein was very reluctant to comply with the embargo, because of his nation’s considerable dependency on close trade and economic relations with Iraq. Whether out of concern that the U.N. embargo would be evaded through the Jordanian seaport of Aqaba or out of conviction that these sanctions were but a prelude to inevitable war with Iraq, or perhaps based on both of these considerations, President Bush began talking about the U.S. militarily enforcing the U.N. embargo, from the day after it was imposed.¹² Finally, on August 12, without any express authorization from the Council, the United States announced that it would unilaterally enforce the embargo imposed by the Council under Resolution 661, by means of naval "interdiction" of all vessels seeking to engage in trade with Iraq or Kuwait in violation of this embargo.¹³

In a letter dated August 13, addressed to the U.N. Secretary General, Iraqi Deputy Prime Minister Aziz strongly protested the U.S. announcement of a naval enforcement program, which he referred to as a "blockade," and charged that the United States intended to apply it to medical supplies and foodstuffs, notwithstanding the fact that these were exempted from U.N. sanctions under Resolution 661.¹⁴ In fact, contrary to Mr. Aziz’s assertion, the Council had included foodstuffs in its embargo under Resolution 661, except "in humanitarian circumstances." In other words, whereas medical supplies were exempted from the start if intended strictly for medical purposes, foodstuffs would only be exempted at some future date when and if the Council determined this had become necessary to alleviate human suffering. Also on August 13, White House Press Secretary Fitzwater sought to clarify the earlier statement by the President that the U.S. interdiction program would cover "everything." Mr. Fitzwater explained that "when the President said ‘everything’, he obviously meant everything that is included in the U.N. Resolution. We do not intend to go beyond the Resolution."¹⁵

The U.N. Secretary General and several members of the United Nations, including France (and, predictably, Cuba), were critical of the U.S. announcement of this enforcement program, asserting that the Council’s sanctions had not been given sufficient time to prove effective and that this was, in fact, a "blockade" under Article 42 of the Charter, which could be authorized only by the Council. The United States maintained that the right to establish an interdiction program had in fact been implicitly recognized by the Council, noting the Council’s aforequoted affirmation in the Preamble to Resolution 661, of the inherent right of individual and collective self-defense under Article 51.¹⁶

This legal issue was never settled, but most objections to the U.S. interdiction program soon ended, in light of the steadily escalating confrontation with Iraq. As discussed in the Annex to this paper, it remains unclear whether the "inherent" right of self-defense was preempted and terminated when the Council stepped in and issued Resolution 661 imposing the embargo under Chapter VII, or whether it continued unabated as an inherent right until the coalition of States acting in self-defense were satisfied that the measures taken by the Council were all that was "necessary to maintain international peace and security."¹⁷

On August 14, the United States offered to provide King Hussein financial assistance in return for Jordan’s full compliance with the embargo, but warned that unless Jordan closed the Red Sea port of Aqaba to all prohibited cargo destined for Iraq, the U.S. Navy would blockade the port.¹⁸ The total blockade of Aqaba would have been even more devastating to Jordan’s economy than the embargo of trade with Iraq, as this port is Jordan’s main outlet to the sea. It should be noted that, although the rules of international law governing a blockade in time of war that were set down at the London Conference of 1908 and 1909 may now be obsolete, these rules did prohibit blockading forces from barring access to a neutral port.¹⁹ The United States offer to compensate Jordan for some of its losses as a result of the embargo was not a novel concept. Article 50 of the Charter provides that States confronted with special economic or social problems arising from enforcement measures taken by the Council, may consult with the Council to resolve these problems. Jordan was the first State to apply to the United Nations for relief under Article 50. Ultimately, 20 additional States followed suit, but Jordan was by far the most vocal claimant because of its practically total dependency on Iraqi oil, its particularly close trade and economic ties with Iraq as a neighboring State, and the influx on its territory, between August and November 1990, of some 700,000 destitute third-country migrant workers escaping from Iraq and Kuwait. The Sanctions Committee did issue an appeal to all U.N. members to provide prompt technical, financial, and material assistance to the claimants, but the assistance they received in response to this appeal fell far short of their expectations.²⁰

President Bush does not appear to have consulted with the Congress, which fortuitously had recessed just before he announced his interdiction program (renamed "interception operations" on the day they became effective), but this was probably not required in view of the "consultations" that had occurred a week earlier regarding the overall deployment of U.S. forces in the Persian Gulf region and of Resolutions enacted by each of the two Houses on August 2 endorsing multilateral efforts to end the Iraqi occupation of Kuwait.

On August 16, the interception operations took effect and the United States formally notified the Council, noting that this action was being taken at the request of the Government of Kuwait "in the exercise of the inherent right of individual and collective self-defense recognized in Article 51 of the Charter... The military forces of the United States will use force only if necessary and then only in a manner proportionate to prevent vessels from violating such trade sanctions contained in resolution 661."²¹ Reportedly, the entry into effect of the program had been delayed while awaiting the outcome of negotiations with King Hussein over Jordan’s participation in the embargo. President Bush told the press on August 16 that he had received assurances from King Hussein that Jordan would not allow Iraqi goods in and out of Aqaba.²²

On August 17 the Acting Secretary of State sent a letter to the congressional leadership formally notifying them of the program implementation, but without making any reference to the War Powers Resolution. In this letter Acting Secretary Kimmitt told the Congress that "It is not our intention or expectation that the use of force will be required to carry out these operations. However, if other means of enforcement fail, necessary and proportionate force will be employed to deny passage to ships that are in violation of these sanctions."²³

When queried as to what specific forceful measures had been authorized, U.S. officials declined to elaborate, alleging that the rules of engagement were classified. However, on August 18, when two Iraqi tankers loaded with oil failed to stop even after U.S. naval units fired shots across their bows, both ships were allowed to proceed to the port of Aden in Yemen. The United States was apparently unwilling to go so far as to disable an Iraqi vessel without an express authorization from the Council.²⁴ On that same date, reacting angrily to the warning shots fired at its tankers, Iraq escalated the confrontation by announcing that it had detained nationals of certain foreign nations who were still in Kuwait and Iraq and that some of these would be relocated to strategic sites to deter the United States from launching any armed attacks. In a Statement denouncing the U.S. interdiction program, the Iraqi Ministry of Labor and Social Affairs branded it "an act of war under world norms and international law."²⁵ At a news conference on August 22, when General Colin Powell was asked whether U.S. warships were now under new orders to merely monitor vessels and no longer were authorized to fire across their bow, he replied: "We’re just tracking."²⁶

Under international law, a state of war may exist between two States without a formal declaration. Notwithstanding that the United States chose to label its naval enforcement of the sanctions as an "interdiction" or an "interception" rather than a "blockade," Iraq was probably justified under international law to consider it an act of war if it chose to do so. The 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War provides that all foreign civilians located in the territory of a belligerent should be allowed to depart, unless contrary to the national interest of that State. In practical terms, in time of war all civilians who are nationals of the enemy State would probably be considered a security threat by the State in whose territory they are located, and they might be interned. However, even when internment is allowed under the Geneva Convention as being absolutely necessary to the security of the detaining power, civilians may not be mistreated or their lives deliberately endangered by being forced to serve as hostages or human shields.²⁷

On August 18 the Council issued Resolution 664, demanding that Iraq allow the departure of all third- State nationals from Kuwait and Iraq and that it rescind its order closing all diplomatic and consular posts in Kuwait by August 24.²⁸ On the following day, France reacted to the removal of some French nationals from their hotels to unknown locations by directing its naval forces to enforce the sanctions—in effect, joining the United States and the United Kingdom in the naval enforcement it had criticized only a week earlier.²⁹ On August 21, the nine-member Western European Union also decided to endorse naval enforcement of the sanctions. Belgium, Italy, Greece, Spain, and the Netherlands all announced that they would contribute naval forces. The Maritime Interception Force (MIF), which until then only included U.S. and British warships, became truly an international effort, although still not expressly authorized by the Council.³⁰

Since inception of the naval enforcement program, the United States had been anxious to obtain a clearer mandate from the Council but had been thwarted by the insistence of the Soviet Union and of some of the non-aligned nations that any naval blockade sanctioned by the Council should be under U.N. command. Finally, on August 25, the Council issued Resolution 665 after compromise language was agreed to, leaving the United States and the other nations already participating in these operations in full control of their respective naval forces and of their rules of engagement and assigning to the U.N. Military Staff Committee the purely administrative role of "coordinator."³¹

Resolution 665 called upon "those Member States cooperating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping, in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661." The term "measures commensurate to the specific circumstances" was another compromise, a diplomatic way of authorizing military enforcement of the embargo without losing the votes of those members of the Council who believed a military intervention under Article 42 to be premature. The Resolution then went on to request the States to coordinate their actions "using, as appropriate, mechanisms of the Military Staff Committee."³² Everyone construed this language to mean that the Committee’s role would be limited to serve as a clearing house for reports to the United Nations by the MIF.

On August 26 it was reported in the press that U.S. warships were now authorized to use disabling fire, if necessary, to stop and search cargo vessels and oil tankers suspected of violating the embargo.³³ However, this new authority did not have to be put to the test because Iraq promptly instructed its ship captains not to resist U.S. and other foreign warships seeking to enforce the embargo.³⁴ Although there were reports of evasions of the sanctions through airlifts of food from Yemen and Sudan, through Arab dhows hugging coastlines, and through truck traffic across the Jordanian border,³⁵ large-scale evasion through the port of Aqaba had ended and the embargo on foodstuffs began to have an impact on Iraq’s population, requiring food rationing in the cities.³⁶

Congress was still in recess but was growing restive over the escalation of the Gulf crisis. Accordingly, on August 28 the President undertook to brief more than 170 members of Congress on his policy and won their overwhelming support, telling them: "Let no one at home doubt my commitment to work with Congress, and let no one abroad doubt our unity or our staying power."³⁷ From the outset of Desert Shield, the President and his Secretary of State, James Baker, had stayed in continuous contact with all major world leaders and with congressional leaders over the Gulf crisis, exchanging views and enlisting their support. However, as the costs of deploying U.S. forces and maintaining the naval blockade in the Red Sea and the Persian Gulf continued to mount, the President became concerned that the American public, already worried by a recession, would turn against these operations. Accordingly, he launched a multilateral burden-sharing program, dubbed by the press the "Bush Economic Action Plan," under which all participating nations would share in the financial costs of the military deployment and in compensating nations suffering financially from the sanctions because of their special trade relations with Iraq. On his part, the President announced that he would request Congress to forgo Egypt’s $7.1 billion debt for military sales and to increase military assistance appropriations for Israel by $1 billion over the $1.8 billion already planned before the Gulf crisis.³⁸ On September 8, when asked by the press if the United States was now in a position to cover all its costs, Secretary Baker replied: "I will let you be the judge of how we are doing. We are making, it seems to me pretty good progress."³⁹ However, another development threatened to unravel multilateral support for the sanctions.

The press reported on September 7 that Saddam Hussein was alleging that "The children of Iraq are dying because they are being deprived of their milk and their food and their medicine."⁴⁰ China and Iran signaled that they might begin sending food and medicines to alleviate suffering in Iraq, while India and several other nations with a large number of nationals trapped in Iraq sought to provide humanitarian relief to their own citizens. They called on the U.N. Sanctions Committee that had been established under Resolution 661 to provide a mechanism to extend humanitarian relief.⁴¹

Saddam’s ploy to drive holes into the embargo failed in part, because when the International Committee of the Red Cross, acting pursuant to the aforementioned 1949 Geneva Convention, offered to provide food in exchange for access to the detained foreigners, Iraq refused, obviously not wanting any outsider to control distribution of the foodstuffs. The official reason given by the Iraqi Minister of Information was, "We are not in a state of war with those countries," appearing to contradict earlier statements to the contrary by Iraqi officials, after U.S. warships enforcing the embargo fired across the bow of Iraqi tankers.⁴² Saddam’s ploy also failed because the United States did not object to the extension of humanitarian relief, provided it were based on a determination by the United Nations that it was needed and that the distribution of the food and medicines would be administered and controlled by appropriate international organizations. In a joint statement issued at their Summit Meeting in Helsinki on September 9, Presidents Bush and Gorbachev agreed that "any such imports must be strictly monitored by the appropriate international agencies to ensure that food reaches only those for whom it is intended, with special priority being given to meeting the needs of children."⁴³

On September 13, following news that Iraq was refusing to allow distributions of food to several hundred thousand Asians stranded in Iraq and Kuwait, the Council passed Resolution 666, emphasizing that it was for the Council alone or acting through the Sanctions Committee to determine whether humanitarian circumstances had arisen. To this end, it directed the Sanctions Committee to keep the situation regarding availability of foodstuffs in Iraq and Kuwait under constant review, and requested the Secretary General to seek information from appropriate U.N. and humanitarian agencies on such availability, particularly to the most vulnerable categories of persons such as the sick, the elderly, children under fifteen, and expectant mothers. In formulating any plans for food distribution, the Committee was directed to bear in mind that foodstuffs should be provided through the United Nations, in cooperation with the Red Cross or other appropriate humanitarian agencies, and distributed by them or under their supervision in order to ensure these reached the intended beneficiaries. As for supplies intended strictly for medical purposes, the Council recalled that these were exempt from the embargo imposed under Resolution 661 but recommended that medical supplies be exported under the strict supervision of the Government of each exporting State, or by appropriate humanitarian agencies.⁴⁴

Under the 1949 Geneva Convention, contracting parties must allow free passage of medical and hospital stores for civilians of the adversary State, and "essential foodstuffs, clothing and tonics" for its children under 15 and expectant mothers. However, the Convention conditions such free passage on there being no serious reason for fearing diversion of these products from their destination, or substitutions that would provide a definite advantage to the military effort or to the economy of the adversary.⁴⁵ Food is essentially a fungible product, which means that even when there is strict monitoring to assure that the imported foodstuffs are all distributed to innocent civilians, nothing precludes the sanctioned regime from channeling a greater portion of the food that it produces domestically to its supporters and to its military.

At a press conference on September 17, the President indicated that he would support an air embargo to preclude overflights by aircraft of some nations willing to evade the sanctions.⁴⁶ The subject came up again on September 21, when the President was asked whether he would allow the United States to shoot down aircraft violating the embargo. President Bush replied that the United States was still consulting with other countries, "but if the sanctions specifically include forcing planes down that could be carrying contraband or carrying cargo that violates the sanctions, obviously the United States would do its part."⁴⁷

On September 25 the Council issued Resolution 670, confirming that Resolution 661 applied to all forms of transport, including aircraft, and requiring all States to preclude aircraft from carrying cargo to, and from, Iraq and Kuwait, other than food in humanitarian circumstances authorized by the Council or the Sanctions Committee, or supplies intended strictly for medical purposes. The Resolution called upon all States to "cooperate in taking such measures as may be necessary, consistent with international law, including the Chicago Convention on International Civil Aviation of 7 December 1944, to ensure the effective implementation of the provisions of resolution 661." Resolution 670 also strengthened the embargo by providing that ships of Iraqi registry violating the embargo could be detained or denied entry to ports and that States not enforcing the embargo might be themselves subjected to sanctions by the Council. Most ominously, the Council warned the Government of Iraq that its continued failure to comply with the terms of the preceding Resolutions, "could lead to further serious action by the Council under the Charter, including under Chapter VII."⁴⁸ In case this warning was too subtle for Saddam Husssein, Soviet Foreign Minister Sheverdnadze underscored its meaning by noting that war might be imminent if Iraq did not pull out of Kuwait. The Soviet willingness to contemplate a military solution had increased markedly after the Helsinki Summit, where President Bush had reportedly offered President Gorbachev participation in the Middle East peace process in exchange for Soviet support in the Gulf crisis.

Passenger flights to and from Iraq and Kuwait were not affected by Resolution 670, but passenger aircraft would be subject to inspection to ensure that these did not carry cargo. The Council’s reference to international law and the Chicago Convention of 1944⁴⁹ was a diplomatic way of telling the member States that they were authorized to order any aircraft suspected of evading the embargo to land, but were not authorized to shoot it down, if the order was ignored. Finally, the detention of ships of Iraqi registry or their denial of access to any ports was designed to preclude these ships from earning foreign currencies by transporting legitimate cargo between third countries.⁵⁰

Although the United States officialy continued to support giving the sanctions more time to succeed, allusions to the possibility of a military solution became more frequent as the President continued to build up the U.S. Armed Forces deployed in the Persian Gulf. On September 29 National Security Adviser Brent Scowcroft warned that the systematic destruction of infrastructure in Kuwait by the Iraqi occupation force was shortening the time that the United States could wait for economic sanctions to drive Iraq out.⁵¹ On October 9, when the President was asked whether, in light of Iraq’s dismantling of Kuwait, his patience was wearing thin on the sanctions, he replied: "It’s wearing very thin on that account, yes."⁵² On November 8, when told by a newsman that President Mubarak had said it was necessary to give the sanctions 2 or 3 more months to work, President Bush did not disagree but declined to indicate how much longer he was willing to wait.⁵³

At a press conference on October 29, President Bush was reminded that Senator Cohen of Maine had stated that congressional approval would be required to commit U.S. forces to hostilities in the Persian Gulf. The President replied that he was planning to talk with Congressional leaders on this issue.⁵⁴ On November 5 the President signed into law the Iraq Sanctions Act of 1990, added as a rider by the Senate to the FY 1991 appropriations for foreign operations, export financing, and related programs.⁵⁵ Although this enactment did not authorize U.S. military intervention to liberate Kuwait, it was fully supportive of the embargo against Iraq. However, it also sought to legislate the terms under which the U.S. sanctions against Iraq should be administered by the President.

Under the Iraq Sanctions Act, Congress required the President to consult fully and to report periodically, to transmit any new regulations pertaining to the sanctions before these entered into effect, and to advise at least 15 days in advance of his intention to terminate the embargo. The Act also raised the penalties provided for violation of the trade and economic sanctions imposed against Iraq under Executive Orders 12722, 12723, 12724, or 12725; it denied foreign assistance and authorized U.S. import sanctions against any country not complying with the U.N. embargo against Iraq; and it declared Iraq to be a country supporting international terrorism, mandating a long list of specific sanctions against Iraq under various existing statutory provisions limiting trade and financial activities between the United States and terrorist nations. (The latter provisions were largely a symbolic assertion of congressional authority, because the designation of Iraq as a country supporting international terrorism had already been made by the Secretary of State in September,⁵⁶ and all the "new" sanctions specified had essentially been instituted by the President in August).

On November 8, the President announced that the considerable U.S. forces already deployed in Saudi Arabia were about to be substantially enlarged, conceding that the sanctions had not had as much of an impact as he had anticipated but expressing hope that these would ultimately convince Saddam Hussein to leave Kuwait. When asked by the press whether he felt free to launch a military offensive without any further U.N. authorization, the President replied: "Yes, we have authority. But we’ve been great believers in going to the United Nations. I think one of the major successes has been to have the ability to have world opinion totally on our side because of U.N. action."⁵⁷

On November 16, in compliance with Section 4 of the War Powers Resolution, President Bush formally reported to Congress the substantial enlargement of U.S. combat forces in Saudi Arabia, but made no reference to the Resolution, merely stating: "In the spirit of consultation and cooperation between our two branches of government and in the firm belief that working together as we have, can best protect and advance the nation’s interests, I wanted to update you on these developments." Referring to his Report of August 9 relating to the initial deployment, in which he had stated that he did not believe that involvement in hostilities was imminent, he added: "My views on these matters have not changed."⁵⁸ However, on November 21, when asked by a reporter whether there was a chance that additional U.N. action was likely before the end of the month, the President replied: "Stay tuned, because we’re doing an awful lot of diplomatic work behind the scenes; other countries are doing diplomatic work behind the scenes."⁵⁹

The "diplomatic work" President Bush alluded to resulted in Council Resolution 678, issued on November 29, which authorized the use of "all necessary means" to uphold and implement all the Council’s Resolutions pertaining to the Persian Gulf crisis (the twelfth such Resolution, beginning with Resolution 660), unless Iraq fully complied with all these Resolutions on or prior to January 15, 1991. In other words, the Council was providing Iraq a month and a half as, "one final opportunity, as a pause of goodwill," to complete its unconditional departure from Kuwait and to comply with all of the Council’s other previous directives, whereafter the United States and the other members of the coalition were authorized to initiate combat operations against Iraq.⁶⁰

On December 4, during a press conference in Montevideo, Uruguay, a reporter told the President that two former Chairmen of the Joint Chiefs of Staff, General Jones and Admiral Crowe had said that the sanctions should be allowed to remain in effect for at least one year to eighteen months, to be given a chance to work. Asked for his comments, the President replied that he did not agree, but he still declined to say how much longer he believed the sanctions should be retained. In contrast, when asked during the same conference to comment on Secretary of Defense Cheney’s statement in testimony before the Congress, that in Cheney’s personal view, the sanctions just would not work, and that after a passage of time the embargo would begin to slip, he replied that Cheney’s testimony had been superb, and that he had called Washington to congratulate him.⁶¹

Although the President continued to express optimism for a peaceful resolution of the crisis, he repeatedly made clear that this depended entirely on Saddam Hussein’s full compliance with Council Resolution 678, over which there would be no negotiating flexibility. In a last attempt to convince Saddam Hussein of the seriousness of the situation, the President announced at his press conference on December 14 that he had offered to send Secretary Baker to Baghdad on any one of fourteen dates until January 3, but that Saddam had alleged conflicting prior engagements and claimed that January 12 was the earliest date he would be available. The President said that this was an unacceptable ploy to postpone the January 15 deadline, and that he would not consider meeting after January 3. When asked if he would seek specific congressional authorization to take offensive military action upon the return of Congress from recess, the President replied: "What I told the leaders in the Cabinet Room a few weeks ago: ‘If you want to come in here and strongly endorse what I’m doing or endorse the United Nations Resolution, I welcome that because I think it would send a strong clear signal to the world’."⁶² On December 22 the President reiterated his view that Congress should send a strong signal to Saddam Hussein, but made clear that he was determined to act without their authorization, if necessary, noting that: "The Congress is a separate body. They are entitled to do it any way they want but I know the power of the Presidency, and I’ve had a chance to discuss that with the key members of Congress."⁶³

In lieu of meeting with Saddam Hussein, Secretary Baker was now scheduled to meet with Iraq’s Foreign Minister Tariq Aziz on January 9, while both officials were in Geneva on other business. On January 8 President Bush seized this opportunity to request once again that the Congress pass a Joint Resolution supporting "the use of all necessary means to implement U.N. Security Council Resolution 678," in order to persuade Saddam Hussein to comply voluntarily with all the Council Resolutions.⁶⁴ Presented in this light, it afforded any member of Congress voting to authorize the President to commit U.S forces to hostilities, a basis to claim that he had done so in a last-ditch attempt to avert such hostilities.

On January 9, at a press conference following an inconclusive meeting between Secretary Baker and Foreign Minister Aziz, the President reiterated his desire for congressional authorization, but he added " I don’t think I need it . . . I feel that I have the authority to fully implement the United Nations Resolutions."⁶⁵ On January 14 the day before expiration of the deadline set by the Council for completion of Iraq’s withdrawal from Kuwait, Congress finally passed House Joint Resolution 77, authorizing use of military force against Iraq. After a lengthy Preamble reciting all of Iraq’s misdeeds, the Joint Resolution called on the President, before using military force, to report to the Speaker of the House and to the President of the Senate that he had exhausted all appropriate diplomatic and other peaceful means, and that those efforts had not been and would not be successful. Finally, the Resolution confirmed that it constituted specific statutory authorization to use military force, consistent with Sections 8 and 5 of the War Powers Resolution.⁶⁶

The President immediately signed the Resolution into law, but in his signing statement, after thanking Congress for its support and pledging continued close consultations in the future, he articulated his view of his constitutional prerogatives as Commander-in-Chief by noting, "As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution."⁶⁷

On January 15, the U.N. Secretary General made a last appeal to Iraq "as the world stands poised between peace and war" to "signify its readiness to comply with the relevant Resolutions of the Security Council." He assured Saddam Hussein that he had received understandings from Governments at the highest levels that, once the evacuation from Kuwait was well under way, neither Iraq nor its forces would be attacked.⁶⁸ On January 16, in accord with the requirements of House Joint Resolution 77, the President reported to the Speaker of the House and the President of the Senate that he had exhausted all appropriate diplomatic and other peaceful means and his lack of success in these efforts.⁶⁹ On that same day as this announcement, at 1900 hrs Eastern Standard Time, coalition forces began the aerial bombardment of Iraq and Kuwait.⁷⁰

As mentioned earlier, the beginning of hostilities concluded Desert Shield and Phase I of the economic sanctions against Iraq, although these sanctions remained in full force and effect throughout Desert Storm. As of January 16, 1991, the U.S. Naval Forces Central Command reported that since the inception of its interception operations on August 16, 1990, the MIF had performed 6,960 intercepts, 832 boardings, and 36 diversions.⁷¹

If the Desert Shield sanctions were intended, as represented, to force Saddam Hussein out of Kuwait without the need for waging Desert Storm, then they were obviously a failure. However, if one considers that they may well have been intended from the very outset by the Bush administration as a necessary prelude, rather than as an alternative, to hostilities, then they were extremely successful. Notwithstanding skillful political and diplomatic handling by the Bush Administration, it is doubtful that without these sanctions the United States could have obtained such overwhelming domestic and international support for Desert Storm.

The sanctions enabled President Bush to demonstrate to the American people, the U.S. Congress, and the world community that any measures short of military conflict could never achieve the liberation of Kuwait. Their imposition also afforded the U.N. Secretary General 6 months to attempt vainly to convince Saddam Hussein to withdraw voluntarily from Kuwait and to conclude reluctantly that the use of military force was required. It provided the time needed by the United States and its allies to build up their military forces in the Persian Gulf and train for desert warfare, while ostensibly giving the sanctions a chance to work. In the meantime, the embargo prevented Iraq from enhancing its military capabilities through foreign procurement of additional equipment and of spare parts required to maintain the materiel previously procured.

The sanctions brought to light, well prior to hostilities, the ambivalent interests of some Arab nations, giving the United States time to gain their support by extending financial assistance, forgiving debts, and persuading Israel not to give any cause for linkage with the Palestinian issue. At the same time, these sanctions considerably diminished Saddam Hussein’s bargaining leverage with other nations by freezing all his hard currency assets and blocking his exports of oil. The sanctions also gave the United States time to overcome, through diplomatic negotiations, the traditional opposition of the Soviet Union and China to U.S. military interventions. As permanent members of the Council, either of these two nations could have vetoed U.N. approval of Desert Storm, requiring the United States and its allies to rely exclusively on the inherent right of collective self-defense. Finally, to give the Devil his due, the sanctions provided Saddam Hussein ample time and opportunity to alienate world opinion by his widespread violations of human rights in occupied Kuwait and his detention of civilian hostages from several third nations, including the United States and the Soviet Union. Accordingly, despite some mistakes, Phase I provides a text book lesson in how to use economic sanctions as a prelude to war.

PHASE II

Even before Desert Storm it was evident that the mere return to the status quo prior to Iraq’s invasion of Kuwait would not permanently restore international peace and security, given Iraq’s total disregard for human rights, its support of international terrorism, its hegemonic ambition over the entire region, and, most importantly, its development and use of weapons of mass destruction and missile delivery systems to achieve its goals. Moreover, following the suspension of combat operations, there was the matter of reparations for considerable losses, injuries, and damages resulting from Iraq’s invasion and occupation of Kuwait.

Accordingly, the first action of the Council was to issue Resolution 686 on March 2, 1991. This Resolution was essentially an interim measure to bring hostilities to a provisional end and to impose several obligations that Iraq was required to fulfill immediately. It retained in full force and effect all 12 preceding Resolutions, including the authorization to use military force and to maintain the embargo against Iraq, while the Council determined what additional conditions Iraq should be required to fulfill before the sanctions would be lifted and Iraq fully reinstated into the international community.⁷²

On March 3, Iraq agreed to comply with all the obligations set out in Resolution 686 (i.e., rescission of the annexation of Kuwait; acceptance of liability for loss, injury, and damage resulting from invasion and occupation of Kuwait; release of all detainees and prisoners of war, as well as return of the remains of those deceased; return of Kuwaiti property; an end to all hostile and provocative acts; and assistance in identifying the location of mines and chemical and biological weapons in Kuwait and parts of Iraq occupied by the coalition). According to Iraq, it was only agreeing to fulfill these obligations in order to deny the coalition any excuse to inflict further harm on the Iraqi population. Finally, Iraq expressed the hope that the Council would ensure the prompt withdrawal of all coalition forces from Iraqi territory, as well as a complete end of the embargo.⁷³

On that same date, the Council noted the decision of the Sanctions Committee to allow shipment to Iraq of humanitarian assistance, including donations of infant formula and water purification material. It urged the Committee to continue to maintain a close watch on humanitarian needs in Iraq and welcomed the decision of the Secretary General to send a fact-finding mission to Iraq and Kuwait to assess the humanitarian needs of these two nations.⁷⁴ In short, the coalition was endorsing U.N. efforts to provide immediate humanitarian relief and to alleviate future suffering in those parts of Iraq where the Secretary General’s mission found that the infrastructure had been so damaged that the basic needs of the population could not be met.

While this humanitarian assessment was under way and Iraq was in the process of complying with its obligations under Resolution 686, Council members spent the ensuing month consulting over the list of measures to be required as preconditions to restoring permanent peace and security in the region. On April 3, having reached agreement, the Council issued Resolution 687, arguably the most important, but certainly the most lengthy and complex, of all the Resolutions issued following Iraq’s invasion of Kuwait.

Whereas Resolution 686 had been a stopgap measure, Resolution 687 was intended to be the blueprint for Iraq’s rehabilitation. It was divided into nine parts, including: (1) boundary settlements between Iraq and Kuwait; (2) establishment of a U.N. military observer unit in a demilitarized zone along the border, such deployment to establish the conditions for the departure of coalition forces from Iraq;⁷⁵ (3) permanent elimination of Iraq’s weapons of mass destruction, of its ballistic missiles with a range of over 150 kilometers, and of its nuclear weapon capability; (4) return of Kuwaiti property; (5) future establishment of a U.N. Compensation Fund and a U.N. Compensation Commission to provide a settlement procedure to compensate claimants for losses, damages, and injuries caused by Iraq, and to make payments on Iraq’s foreign debt, this fund to be financed with a portion of the proceeds from the sale of Iraqi oil to be exported under a program to be formulated by the Secretary General and approved by the Council;⁷⁶ (6) subject to Council review every 60 days, lifting the embargo on imports of foodstuffs and, with the approval of the Sanctions Committee, allowing limited imports into Iraq of materials and supplies for essential civilian needs, as recommended by the Secretary General’s fact-finding mission and already endorsed by the Sanctions Committee;⁷⁷ (7) repatriation, in cooperation with the Red Cross, of all Kuwaiti and third-country nationals still in Iraq; (8) Iraq’s renouncement of all support of, and participation in, international terrorism; and (9) establishment of a formal cease fire upon Iraq’s acceptance of all the conditions in this Resolution.⁷⁸

Other than the exemption of foodstuffs, and the exceptions to be approved by the Sanctions Committee for supplies and materials essential to civilian needs, the ban on imports into Iraq that had been imposed under Resolution 661 was to remain in full force and effect. The ban on exports from Iraq under that Resolution also remained in full force and effect pending the establishment of an oil export program, with interim exceptions to be approved by the Sanctions Committee, when required to enable Iraq to pay for imports essential to its civilian needs.

As an inducement for Iraq to complete promptly the elimination of its weapons of mass destruction, ballistic missiles, and nuclear weapon capability, and to finance the Compensation Fund as soon as it was established, the Resolution provided for eventually lifting the ban on Iraq’s exports (i.e.,the oil embargo), once the Council had approved the compensation program and when it agreed that Iraq had fulfilled all the aforementioned weapons-related conditions set out in the Resolution. Predictably, Iraq denounced the terms of Resolution 687 as an unprecedented assault on Iraq’s sovereignty and the Council as a U.S. puppet, but concluded its lengthy diatribe by accepting all of the conditions stipulated in the Resolution.⁷⁹

The Sanctions Committee had been established by the Council under Resolution 661 to monitor implementation of the prescribed sanctions. Although authority to amend the sanctions had been retained by the Council, recommendations of the Committee were unlikely to be rejected by the Council since the same States were represented in both bodies. In order to determine when to ease or tighten the sanctions on the basis of Iraq’s future behavior, the Council undertook in Resolution 687 to review the situation every 60 days with respect to imports of foodstuffs and other imports essential to civilian needs and not less than every 120 days for all other sanctions, except that any lifting of the embargo on arms and dual use items might only be implemented under U.N. guidelines to be developed by the Secretary General and approved by the Council. Proposed guidelines for this purpose were reported to the Council by the Secretary General on June 2, 1991, and approved by the Council as Resolution 700 on June 17.⁸⁰

On August 5 the Council held the first of its many periodic sanction reviews, whereupon, as would also be the case in all those reviews which were to follow, it found no unanimous agreement among its members that the necessary conditions existed for lifting any of the sanctions. This was hardly surprising, given Iraq’s continuous pattern of defiance and non-compliance with most terms of the Council Resolutions. President Bush put it quite candidly when asked at a press conference on July 10 whether he was willing to consider any easing of the sanctions: "As for my part, I want to see the economic sanctions kept on. I keep going back to the ‘Let the sanctions work’. Do you remember that cry? If we had let sanctions work back there, we would have had the coalition fall apart and the main objective would have been totally unmet. That man [Saddam Hussein] would still be sitting in Kuwait and would have been threatening further. . . . And we will not have normal relations as long as he’s there. But we are determined to continue to work through the United Nations to see these resolutions fulfilled"[emphasis added].⁸¹

Although there was no call to lift the sanctions, the poor nutritional and health condition of the Iraqi population and the risk of further deterioration was creating mounting pressure on the Council members, including the United States, to allow the export of limited quantities of Iraqi oil to finance the costs of procurement and distribution of foodstuffs, medicines, and materials and supplies, for essential civilian needs. Under Resolution 706, issued on August 15, 1991, the Council authorized an exception to the oil embargo for a period of 6 months to produce a sum to be established by the Council, but not to exceed $1.6 billion. This sum would be paid into an escrow account to be established by the United Nations to finance the U.N. purchase and the supervised distribution of humanitarian goods, as well as the costs of other U.N. operations mandated under Resolution 687. Thirty percent of the value of these exports would be paid into the U.N. Compensation Fund, to compensate the victims of Iraqi aggression. The Resolution requested the Secretary General to propose guidelines and procedures. On September 19, in Resolution 712, the Council adopted the guidelines and procedures proposed by the Secretary General, and approved the basic structure for implementing Resolution 706.⁸²

On October 15, in remarks welcoming the Amir of Bahrain to Washington, President Bush commented on this program: "The United States in concert with the United Nations has proposed a comprehensive program allowing Iraq to resume oil exports to fund the purchase of food and medicines. But the international community deserves to know with certainty that the food and medicines purchased under this plan reach the people of Iraq rather than Saddam’s armed forces. This program will go forward the instant Saddam Hussein accepts U.N. Resolutions 706 and 712 and puts in place a U.N. supervised system to monitor oil exports and food distribution."⁸³

This "instant" was not to occur instantaneously! In fact, President Bush could not have anticipated that it would take almost 5 more years before Saddam Hussein would agree to U.N. monitoring and that the "oil-for-food" program would not be implemented until December 1996, after having been derailed several times by crises provoked by Saddam Hussein.

Meetings in January 1992 between representatives of the U.N. Secretariat and Iraq over the implementation of Resolutions 706 and 712 did not produce any agreement, the Iraqis asserting that the sanctions should be lifted and objecting to the terms under which the United Nations would authorize the limited exports of oil. In February 1992 the president of the Council announced that there was still no agreement among the Council members to lift the sanctions, that the members deplored Iraq’s decision to discontinue talks with the U.N. Secretariat, and that Iraq would bear full responsibility for the humanitarian consequences of this decision on its population.⁸⁴

Discussions on the implementation of the oil-for-food program resumed in 1993, only to be suspended once again by Iraq. In 1995 the Council sought to satisfy some of Iraq’s objections to Resolutions 706 and 712, by providing for limited sales of oil under a third Resolution which stressed the UN commitment to Iraq’s sovereignty and territorial integrity, and described this program of oil sales as being only temporary. Resolution 986, issued in April 1995, provided for the sale of $1 billion of Iraqi oil during each of two quarters, or up to $2 billion over 6 months, to finance the purchase and equitable distribution of essential goods to the people of Iraq and to help defray the costs of the many U.N. activities relating to Iraq, including up to $300 million in each of two quarters (30 percent) to pay a portion of the more than $3.3 billion awarded by the U.N. Compensation Commission to victims of Iraq’s aggression. The Resolution requested the Secretary General to enter into necessary arrangements with Iraq over the implementation of this latest proposal.⁸⁵

Once again, Iraq objected, notifying the Secretary General in May 1995 that it would not implement Resolution 986.⁸⁶ In December 1995 the General Assembly issued a resolution concerning Iraq’s disregard for human rights in which it urged the Government of Iraq to cooperate with the United Nations in implementing Council Resolution 986. In January 1996 the Secretary General invited the Deputy Prime Minister of Iraq to enter into discussions with the United Nations for such implementation.⁸⁷ It is fair to assume that the Secretary General’s anxiousness to implement the oil-for-food program was not solely out of concern with the human suffering of the Iraqi population; it also stemmed from a desperate need for funds to finance the steadily mounting costs of various U.N. activities relating to Iraq and to pay the sums awarded to victims of Iraq’s aggression by the U.N. Compensation Commission.

Discussions between the United Nations and Iraq resumed in February 1996 and ultimately resulted in the signing of a Memorandum of Understanding on May 20, 1996, leaving for further negotiation only some procedural details relating to the sales of oil and the distribution of the food and medicines in Iraq.⁸⁸ On July 31 the Chairman of the Sanctions Committee, Germany’s representative at the United Nations, complained that all the Council members had reached tentative agreement over procedures, only to have these objected to by the U.S. representative who wanted to clear up what he described as "technical problems." The Chairman noted with some impatience that the procedures objected to had already been renegotiated once before to meet previous U.S. objections.⁸⁹ However, irrespective of the U.S. motives for delaying final approval of the oil-for-food program, implementation negotiations were held up by the United Nations in September 1996 after Saddam Hussein’s military intervention in northern Iraq against a faction of the Kurds.

Some believed that Saddam Hussein also wanted to delay implementation of Resolution 986 and that he would continue to create incidents to derail its implementation indefinitely. In support of this contention, they pointed out that any shortages in basic commodities and other domestic problems could be blamed by him on the embargo, an issue which he exploited domestically and with other Arab nations, to his political advantage. They also noted that any suffering of the Iraqi people resulting from the embargo was a matter of indifference to a dictatorial regime which was actually enriching itself by involvement in smuggling and black market operations made possible by the embargo.

Some oil traders also supported this contention, claiming that Saddam and his entourage had also enriched themselves by speculating in oil futures, manipulating the market to their advantage by periodically sending false signals that they were about to comply with Resolution 986. The prospect of a substantial increase in world supply resulting from the sale of Iraqi oil would trigger a price drop in oil futures, only for the price to soar up again, each time Saddam derailed implementation of the oil-for-food program with another incident. Reportedly, since the end of the Gulf War, Saddam had used $2 billion of his covert income to build huge palaces for himself and his supporters.⁹⁰

Nevertheless, in November 1996 the last remaining obstacles to implementation of the oil-for-food program were eliminated when Iraq agreed to all the procedures proposed by the Council to implement the Memorandum of Understanding. On December 3 the press reported that Iraq had signed contracts with foreign companies for the oil to be exported during the next 6 months under the oil-for-food program, but that it would probably take 3 months before any food purchased with proceeds from the sale of this oil would reach needy Iraqis. This forecast proved to be optimistic. Because of U.N. bureaucratic delays, the first shipments of foodstuffs purchased under the oil-for-food program did not arrive in Iraq until the latter part of March 1997. Food traders in Baghdad reported on March 25 that although the food would not be distributed to the population for another several weeks, the arrival of these first shipments had already resulted in lowering food prices by as much as 50 percent. ⁹¹

Under Resolution 986 and the Memorandum of Understanding of May 20 between the United Nations and Iraq, Iraqi petroleum and petroleum products were to be exported only through two routes: overland via the Kirkuk-Yumurtalik pipeline to Turkey and directly by sea from the Iraqi oil terminal at Mina al-Bakr on the Persian Gulf, with the larger share to be exported via the Kirkuk-Yumurtalik pipeline.⁹²

Iraq would have preferred the larger share be exported from Mina al-Bakr because any exports via the Kirkuk-Yumurtalik pipeline require Iraq to pay Turkey with some Iraqi oil for use of the pipeline and the costs of repairing and maintaining it. However, exports via the pipeline were favored by the United States as a means of providing financial assistance to Ankara, in recognition of the economic losses suffered by Turkey as a result of the sanctions. After remaining closed more than 6 years, except for a single flushing operation in 1994,⁹³ Iraqi crude was expected to resume flowing by the end of 1996 from Kirkuk in Iraq toward the Turkish terminal at Yumurtalik, near the Mediterranean port of Ceyhan. In accord with Resolution 986, as long as Iraq retained legal title to the oil, it would be immune from any legal proceedings (including attachment or garnishment to satisfy outstanding claims against Iraq), and all States would be required to provide total immunity protection under their respective legal systems.

The press reported in December that out of the $2 billion expected to be generated over the next six months from the sale of this oil, $1.32 billion would be used to purchase humanitarian supplies (including $260 million earmarked for the Kurds in Northern Iraq), $600 million would go into the U.N. Compensation Fund to pay a portion of its awards to innocent parties for losses caused by Iraq, and the rest would go to defray the costs of various U.N. programs relating to Iraq, including $20 million to the U.N. Commission monitoring the elimination of Iraq’s involvement in weapons of mass destruction.⁹⁴

On December 10, although some repairs were still needed before the pipeline could become fully operational, Saddam Hussein symbolically reopened it in a ceremony staged to portray him as triumphing over those nations which would deny Iraq’s return to full sovereignty. Exports of oil through the seaport terminal at Mina al-Bakr were also expected to begin shortly. U.N. monitors were to be posted at seaports and at the pipeline metering station where the pipeline crosses the border into Turkey, to verify compliance with the terms of the program.⁹⁵

The United States disputed any suggestion that this was the first step in lifting any of the sanctions against Iraq, although many nations, including France, Russia, China, Brazil, Turkey, Jordan, and even most of the Arab nations which joined the coalition against Iraq during Desert Storm, had for some time advocated easing the oil embargo, whether on humanitarian grounds or out of economic interest in resuming trade with Iraq.⁹⁶

Many have blamed the continuing sanctions for the lack of food, medicines, and sanitation, which has been taking its toll on Iraq’s population, particularly on the children and the poor, but the causality is not fully established. The bombing targets destroyed during Desert Storm included industrial plants essential to assuring basic needs of a modern civilian population, such as health and sanitation, clean water, electricity, agricultural machinery and supplies, telecommunications, and storage facilities. Clearly, it was the Gulf War rather than the sanctions that destroyed the civilian infrastructure, but many believe that by depriving Iraq of oil revenues, the oil embargo has denied Iraq the foreign currencies it needed to rebuild facilities and to purchase abroad adequate quantities of food and medicines.

There is little disagreement that dismal conditions prevail in Iraq. All the U.N. agencies concerned (the U.N. Children’s Fund (UNICEF), the World Health Organization (WHO), the Food and Agriculture Organization (FAO), and the World Food Program (WFP)) agree that since the end of the Gulf War many Iraqis have been dying of malnutrition and disease. In a joint report issued in June of 1995, UNICEF, WHO, and FAO, warned that up to four million Iraqis depended on government rations and that the lives of one million of these was in jeopardy. A survey undertaken by two independent scientists in November 1995 on behalf of the FAO found that more than 500,000 Iraqi children had died since the end of the Gulf War in 1991. Although the two researchers blamed these deaths on the sanctions,⁹⁷ the Director of FAO’s food and nutrition division sought to distance the United Nations from any such conclusions, noting that the study had not been designed to establish causality, but only to investigate the nutritional status of the population.⁹⁸

Throughout the past 5 years, the United States has acknowledged the suffering of the Iraqi people but has placed the entire blame on Saddam Hussein’s regime, noting that immediately following the end of the Gulf War, humanitarian shipments to Iraq pursuant to Resolution 687 were authorized under simplified "no objections" procedures, and that from 1991 until 1996 Iraq failed to avail itself of the opportunity to earn foreign currencies to pay for the basic needs of its population under the oil-for-food program. During the past years, whenever other nations urged easing the oil embargo on humanitarian grounds, the United States was able to defeat such proposals at the periodic meetings of the Council to review the sanctions by producing evidence that Saddam Hussein was spending substantial amounts of Iraq’s scarce foreign currencies to rebuild his military and his government infrastructure.⁹⁹ It remains to be seen whether implementation of the oil-for-food program will ease future pressures for lifting the sanctions, or whether it will prove to be "the camel’s nose under the tent," for nations anxious to resume unlimited trade with Iraq. In a recent article, two former national security advisers, Zbigniew Brzezinski and Brent Scowcroft noted that "sanctions against Iraq continue to be necessary, but the United States should try to mitigate the sanctions’ effect on ordinary Iraqis." ¹⁰⁰

Although the port of Aqaba was never blockaded, ships destined for Aqaba had been subjected to particular scrutiny by the MIF since the beginning of the maritime interception operations in 1990, given Jordan’s less than enthusiastic embrace of the sanctions against Iraq. Because a thorough verification of cargo by boarding parties at sea was always difficult, and often dangerous, particularly when containers were involved,¹⁰¹ ships destined for Aqaba, had to choose between operating at less than full capacity in order to afford access space for inspectors to verify their cargoes at sea, or risk being diverted to another port where their cargoes could be unloaded and inspected. In either event, this resulted in increased shipping costs for legitimate cargo destined for Aqaba, and a loss of business to competing ports in Syria, Turkey, and Iran.

After 4 years of Jordanian complaints about undue interference with its inbound ocean traffic, which King Hussein alleged had cost Jordan over $1 billion in lost revenues, the United States agreed in April 1994, subject to U.N. approval, to having the inspections of inbound cargo performed on land at the port of Aqaba by representatives of Lloyd’s Registry, after the cargo had been unloaded. According to the press, the cost of these inspections, estimated at $2 million to $3 million per year, would be paid to Lloyd’s by the United Nations which would be reimbursed by Jordan. Although Secretary of State Warren Christopher’s public statements about this new procedure were very upbeat, assuring the press that "the United States is convinced that the new inspection regime will be as effective as that conducted by the multinational force," and even that "we believe in some respects that land based inspection will be an improvement in our ability to enforce sanctions against Iraq," it was reported that the United States had agreed only reluctantly to cease inspecting at sea vessels bound for Aqaba, because King Hussein had threatened not to cooperate in the Middle East Peace process, unless Jordan obtained some relief.¹⁰²

With U.N. approval, MIF offshore inspections of ships bound for Aqaba officially ended on August 25, 1994. Critics of this decision, which allegedly included officials from U.S. Customs and the Pentagon, and Robert Gates, Director of Central Intelligence under the Bush administration, charged that it would make it easier for Iraq to obtain all the materials it needed for its military through Jordanian holding companies. They also accused the Clinton administration of deliberately ignoring Jordan’s repeated violations of the sanctions against Iraq and of failing to report these violations to the Congress or to U.N. international monitors, for the sake of obtaining Jordan’s support of the Middle East peace talks.¹⁰³

On December 16, 1996, it was reported by the Jordanian news agency that upon being informed of U.N. intention to have Lloyd’s move its inspection operations from the port of Aqaba to the Tirbil border point between Jordan and Iraq, the Jordanian Government had requested the Sanctions Committee to direct Lloyd’s to cease all inspections, quoting Jordan’s Minister of Transportation: "It is illogical that Lloyd’s should conduct it operations on Jordanian territory, while inspection is not carried out at other outlets that surround Iraq."¹⁰⁴

During 1996, the MIF, which had implemented the naval enforcement program since its inception in August 1990, encountered renewed efforts on the part of Iraq, with Iranian complicity, to ship exports of oil in violation of the embargo. Although support for the sanctions by some of the coalition partners continued to weaken, the President reported to the Congress in July 1996 that the MIF had experienced increased cooperation on the part of the Arab nations in enforcing the embargo. This cooperation allegedly took the form of allowing the MIF to despatch to their ports for seizure and confiscation of the cargo, any vessels caught violating the embargo. Expeditious diversion of these vessels to the nearest port was allegedly simplifying the task of the MIF. In his report of July 8, 1996, to congressional leaders, President Clinton noted, "For the first time in Iraq sanctions enforcement history, all states of the Gulf Cooperation Council (GCC) have accepted diverted vessels and have enforced the U.N. sanctions regime. Once vessels have been turned over, and oil and date cargoes have been seized, the sales proceeds are then deposited in the U.N. escrow account and the vessels’ crew deported." The President also noted greater cooperation from nations such as Honduras, India, Belize and the United Arab Emirates in "deflagging" vessels registered under their flags that violated the sanctions.¹⁰⁵

In this report, the President warned Congress that implementation of the "oil for food" program would result in an increased work load for the MIF, but it is unclear how this program would significantly increase monitoring activities at sea. Although implementation of the oil-for-food program will undoubtedly increase the volume of goods shipped to Iraq to meet the basic needs of the population, all these goods will be subjected to inspection and verification by land-based U.N. inspectors at relevant Iraqi entry points. With respect to exports from Iraq, as previously discussed, most of the Iraqi oil to be exported under the oil-for-food program will be transported by land through the Kirkuk-Yumurtalik pipeline into Turkey. The smaller portion to be exported directly from Iraq by sea, should be easy for the MIF to monitor, because it will have to be exported through a single outlet, the Mina al-Bakr oil terminal. Moreover, as previously noted, all such oil exports, whether through the pipeline or out of Mina al-Bakr, will also be verified and inspected by land-based U.N. inspectors at the loading facilities at Ceyhan, Turkey, at the pipeline metering station at the Iraq-Turkey border, and at the loading facilities at Mina al-Bakr.

Despite the President’s reassuring report to Congress on the increased effectiveness of the naval blockade, stories continue to circulate of widespread illegal exports of Iraqi oil sold at heavily discounted prices, as low as $8 a barrel. In February 1995, a press article reported that senior oil executives and traders estimated the volume of such exports, mostly through land borders with neighboring States, but also through Iranian coastal waters, to be about 200,000 barrels a day, providing Iraq with a revenue over the past year in excess of $700 million, but others dispute this, estimating the daily volume of oil smuggled out of Iraq at one-tenth that figure.¹⁰⁶

Since June 1991, Iraq has been exporting overland to Jordan 50,000 to 70,000 barrels of oil per day for Jordan’s domestic consumption. Jordan had assured the Sanctions Committee that Iraq would not receive any payment for this oil; such payments would be applied entirely to reduce Iraq’s outstanding debt to Jordan. Technically, donations of oil may not constitute a violation of the oil embargo, but Jordan has been extending new credits to Iraq for the purchase of goods and services (these credits were reported by the Jordan press to have amounted to $400 million in 1995 and $220 million in 1996), which is tantamount to paying Iraq for the oil in the form of barter, since it allows Iraq to draw on those credits.¹⁰⁷

Widespread smuggling of goods and equipment into Iraq from Jordan, Turkey, and Iran has been ongoing since the sanctions were imposed. In May 1995 the press reported that luxury items and consumer goods were in ample supply in the Baghdad black market and quoted a U.N. official as observing, "Basically, everything is available in the market, even 486 computers, which did not exist when the sanctions were imposed."¹⁰⁸ In October 1996 there were reports in the press of alleged evasion of the sanctions at border crossings into Syria, as part of an attempt by Saddam Hussein at a rapprochement with Syria’s President Hafez Assad. The press reported, "A marked increase in traffic has also been noted at supposedly closed border crossings, in violation of the U.N. embargo on Iraq. The sources report the smuggling of ‘sizable quantities’ of food preserves, textiles, medicines and other consumer goods as well as contraband military supplies for the Iraqi Army."¹⁰⁹

In February 1997 the Commander of the U.S. Fifth fleet, Vice Admiral Thomas B. Fargo, blamed Iranian complicity for the smuggling of hundreds of thousands of gallons of Iraqi oil through Iranian territorial waters. He was quoted as saying: "Our indications are that this is a rather sophisticated effort centrally controlled within Iran." The press also reported several recent incidents where Iranian vessels sought to intimidate U.S. warships enforcing the oil embargo. At the end of January an Iranian tug towing a barge carrying contraband oil out of Iraq twice rammed a U.S. frigate before escaping to an Iranian port, and in early February an Iranian patrol boat armed with missiles circled two U.S. destroyers that were boarding a smuggler in international waters.¹¹⁰

In March 1997, the Deputy U.S. Representative at the United Nations charged that since the start of the oil-for-food program Iraq has been diverting to other uses funds it had previously used to purchase foodstuffs to feed its population. He stressed that the oil-for-food program was designed to produce additional income needed to increase Iraq’s food and medecine supply and not to enable Iraq to cut back on the food purchases it had previously funded from other sources.¹¹¹

At a periodic review of the sanctions in March 1997, the Council was also concerned that Iraq may not have destroyed the stocks of deadly VX nerve agent it produced in 1990, and it decided not to lift any of the sanctions for another 60 days.¹¹² Assuming that Saddam Hussein does not engage in any new provocations, it remains to be seen if the United States can convince other nations to enforce all the sanctions against Iraq for as long as he remains in power. Even if the United States exercised it’s veto to prevent the Council from lifting any of the sanctions against Iraq, the more time passes, the less these may be effective in curbing Saddam Hussein’s ambitions, because an increasing number of nations will cease to participate (either on humanitarian grounds or on grounds of economic self-interest), and the United States may eventually stand alone, as is currently the case with U.S. sanctions against Iran.

Given Saddam Hussein’s hegemonic ambitions, his still-significant conventional military force, and his past proclivity for acquiring weapons of mass destruction, exclusive reliance on ineffective sanctions would increase the risks of a new conflict in the region. On the other hand, if the United States were to yield to pressures from other nations to lift the sanctions while Saddam Hussein is still in power, this would also increase the risks of renewed conflict, unless other effective measures were in place to curb his ambitions. In short, it would seem unwise for the United States to rely solely on sanctions to keep Saddam Hussein indefinitely in check. Sanctions currently still may be the preferred U.S. instrument, but they should only be viewed as part of a package, and not be retained for the sake of political expediency after they have outlived their usefulness.

Some believe that part of the problem has been the failure of the international community to explicitly link any lifting of the sanctions to the overthrow of Saddam Hussein, and not to have instituted other measures to achieve this objective such as the establishment of an international tribunal to indict and try him for crimes against humanity. It is argued that this might give the Iraqi people an even greater incentive to topple him and provide a clearer justification for retaining the sanctions than debates over whether or not all the conditions set in previous Council Resolutions have been met. On March 26, in a major foreign policy speech delivered at Georgetown University, Secretary of State Madeleine Albright sought to establish such a link without explicitly calling for Saddam’s ouster by making it clear that the United States would maintain the sanctions against Iraq as long as Saddam Hussein remained in power.¹¹³

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Last Update:  October1, 2002