Challenge to the Supreme Court: Can the U.S. Kill Iraqi Children Legally?

by Bert Sacks

“Imagine if a U.S. cruise missile were to land on a kindergarten and kill 165 children. Imagine now that it was launched knowing it would hit that kindergarten, and further, that one of these missiles was launched at a different kindergarten every day for a month. That's 5,000 children.

"To kill that many children as a matter of state policy would be unspeakable. The American commander in chief would be condemned as a barbarian. And yet, that is what the economic embargo of Iraq has done.”

This is from a Seattle Times editorial six years ago. For ten years I have wanted to ask one very basic question: Not were the sanctions barbaric. But were the sanctions legal? Could the U.S cause the deaths of thousands of Iraqi children every month for years and do so legally?

I will finally get a chance to ask this of the U.S. Supreme Court in a petition I’ll file this month.

I need to show what deaths occurred and why: UNICEF reported “there would have been half a million fewer deaths of children under-five [in Iraq] during the eight year period 1991 to 1998.” The New England Journal of Medicine explained: “The [Gulf War] destruction of the country's power plants had brought its entire system of water purification and distribution to a halt, leading to epidemics of cholera, typhoid fever, and gastroenteritis, particularly among children.”

In 2004, Robert Fisk (British International Journalist of the Year seven times) put it this way: “In other words, the United States and Britain … were well aware that the principal result of the bombing campaign – and of sanctions – would be the physical degradation and sickening and deaths of Iraqi civilians. Biological warfare might prove to be a better description. The ultimate nature of the 1991 Gulf War for Iraqi civilians now became clear. Bomb now: die later."

Did U.S. officials intend this or understand it’d occur as a result of U.S. policies? In 1991, USAF Colonel Warden (called the architect of the Gulf Air War) said we bombed Iraq's electrical plants for “long-term leverage.” Another Pentagon bombing planner stated more candidly: “People say, ‘You didn't recognize that it was going to have an effect on water or sewage.’ Well, what were we trying to do with [UN economic] sanctions --- help out the Iraqi people? No. What we were doing with the attacks on infrastructure was to accelerate the effect of sanctions.”

In 1998, Senator Craig of Idaho testified in a Senate hearing on Iraq sanctions: “The use of food as a weapon is wrong. Starving populations into submission is poor foreign policy.” In 1996, Madeleine Albright famously said on national TV that the deaths of half a million Iraqi children were “worth the price” – but that no child would have died if Saddam just complied with the UN. But she contradicted her own position and Secretary of State Baker in 1991 when he informed Congress, “UN sanctions [would stay] in place so long as Saddam remains in power.”

No one can say that our government officials didn’t know what their policies were doing.

In 1997, I traveled to Iraq to deliver medicine to desperately needy civilians. In response, the U.S. government fined me $10,000. I announced I’d refuse to pay the fine. Several Seattle attorneys offered pro bono support. Our case began in district court and then to appeals court.

Despite widespread notions to the contrary, it was not hard to show that U.S. policies lethally targeted civilians, using famine and epidemic as tools of coercion, violating international law.

But the courts declined to invalidate the U.S. embargo. According to the trial court, provisions of the Convention on the Rights of the Child didn't count because the U.S. (along with Somalia) hasn't ratified it. The Geneva Convention is not “self-executing” so it doesn’t help me! And the Genocide Convention, which was partially ratified, created no “substantive or procedural right enforceable by law by any party in any proceeding.” Finally, the court ruled, if Congress wants to violate customary international law it may do so and the U.S. courts are powerless to stop it.

I hope the Supreme Court will decide otherwise. The issue is simple: there are certain norms of international behavior – often called ‘jus cogens’ – that are so fundamental to the rule of law that no nation may violate them. Genocide, wars of aggression, war crimes, and crimes against humanity are among them. So is the killing of 500,000 children to coerce a foreign government.

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