No. 06-____
In The
Supreme Court of the United States
BERTRAM SACKS,
Petitioner,
v.
OFFICE OF FOREIGN ASSETS CONTROL, United States
Department of the Treasury; R. RICHARD NEWCOMB, Director, Office of Foreign
Assets Control,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
PETITION FOR
A WRIT OF CERTIORARI
|
Donald B. Scaramastra Counsel of Record Gary D. Swearingen GARVEY SCHUBERT BARER January 8, 2007 |
|
In 1990,
the United States began a years-long military and economic campaign that
targeted Iraq’s civilian population, contributing to the mass deaths of
children and other civilians there. The regulations at issue here, and under
which petitioner Bertram Sacks was fined, were part of that effort.
Bombing
worked hand in hand with an embargo, exacerbating its effect. This was
intended, one military planner explained to the Washington Post:
The
worst civilian suffering, senior [American] officers say, has resulted not from
bombs that went astray but from precision-guided weapons that hit exactly where
they were aimed --- at electrical plants, oil refineries and transportation
networks. …”People say, ‘You didn’t recognize that it was going to have an
effect on water or sewage,’” said the planning officer. “Well, what were we
trying to do with [United Nations-approved economic] sanctions -- help out the
Iraqi people? No. What we were doing with the attacks on infrastructure was to
accelerate the effect of the sanctions.”[1]
Before
the First Gulf War, U.S. officials were aware of the potential consequences of
targeting Iraq’s infrastructure. In January 1991, just as the First Gulf War
was beginning and six months into the embargo, the Pentagon’s Defense
Intelligence Agency projected that the embargo would cause Iraq’s ability to
provide clean drinking water to collapse within six months. Chemicals for water
treatment, the agency noted, were “depleted or nearing depletion,” chlorine
supplies were “critically low,” the main chlorine-production plants had been
shut down, and industries such as pharmaceuticals and food processing were
already becoming incapacitated. “Unless the water is purified with chlorine,”
the agency concluded, “epidemics of such diseases as cholera, hepatitis, and
typhoid could occur.”[2]
After
the war, the United Nations Secretary‑ General dispatched a mission to
assess the situation in Iraq.[3] The mission reported that the ware had “wrought near‑apocalyptic
results,” that the bombing had relegated Iraq “to a pre-industrial age,” and
warned that Iraq could face “epidemic and famine if massive life-supporting
needs are not rapidly met.”[4] The
report called for an immediate end to the embargo on imports of food and other
essential supplies to prevent “imminent catastrophe.”[5]
The
U.S. embargo’s initial goal was to force an Iraqi withdrawal from Kuwait. This
was consistent with Security Resolution 661, which called for sanctions “to
secure compliance with paragraph 2 of resolution 660,” which in turn
“demand[ed] that Iraq withdraw immediately and unconditionally “ from Kuwait.[6]
But
after the First Gulf War ended, U.S. officials expanded the embargo’s objective
had expanded to encompass the removal of Saddam Hussein from power. In a May
22, 1991 written statement prepared for delivery to the Subcommittee on Foreign
Operations of the House Appropriations Committee, then-Secretary of State James Baker announced: “[W]e will act with
others to continue to isolate Saddam's regime. … That means maintaining UN
sanctions in place so long as Saddam remains in power.”[7]
Military
planners explained the logic underlying this decision:
Col.
John A. Warden III, deputy director of strategy, doctrine and plans for the Air
Force, agreed that one purpose of destroying Iraq’s electrical grid was that
“you have imposed a long-term problem on the leadership that it has to deal
with sometime.”
“Saddam
Hussein cannot restore his own electricity,” he said. “He needs help. If there
are political objectives that the U.N. coalition has, it can say, ‘Saddam, when
you agree to do these things, we will allow people to come in and fix your
electricity.’ It gives us long-term leverage.”
Said
another Air Force planner: “Big picture, we wanted to let people know, ‘Get rid
of this guy and we’ll be more than happy to assist in rebuilding. We’re not
going to tolerate Saddam Hussein or his regime. Fix that, and we’ll fix your
electricity.’”[8]
But
the embargo remained in effect. As expected and intended, its post-war
continuation prevented Iraq from rebuilding water and sewage treatment plants –
and the electric-generating plants used to power them – that were destroyed
during the First Gulf War.[9] This, and the resulting lack of potable water, had
widespread lethal consequences that were visited with particular ferocity on
children under five.[10] In 1992 the New England Journal of Medicine reported:
strong
evidence that the Gulf war and trade sanctions caused a threefold increase in
mortality among Iraqi children under five years of age. We estimate that an
excess of more that 46,900 children died between January and August 1991.[11]
In 1997, the same
journal reported:
The
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. Mortality
rates doubled or tripled among children admitted to hospitals in Baghdad and
Basra. Cases of marasmus appeared for the first time in decades. The team
observed "suffering of tragic proportions.... [with children] dying of
preventable diseases and starvation." Although the allied bombing had
caused few civilian casualties, the destruction of the infrastructure resulted
in devastating long-term effects on health.[12]
Since 1992,
sanctions have contributed to the deaths of three to six thousand children
under five in Iraq every month.[13] According to UNICEF’s Director, sanctions reversed a
decades‑long decline in infant mortality in Iraq.[14] She relied upon UNICEF reports that between 1991 and
1998, this reversal contributed to the deaths of a half million children under
five.
Page 3 of a
2000 UNICEF report entitled “UNICEF in Iraq” warned: “Mounting evidence shows
that the sanctions are having a devastating humanitarian impact on Iraq.”
[15] UNICEF quoted a 1997 report by the UN Human Rights
Committee, which lamented that “the effect of sanctions and blockades has been
to cause suffering and death in Iraq, especially to children.”[16]
In 2003,
UNICEF published another report, entitled “The Situation of Children in Iraq.[17] Page 13 of that report stated that a country like
Iraq, which had an infant mortality rate of 40‑60 deaths per 1,000 live
births in 1990, was expected to achieve a rate of 20‑30 by 2003.[18] Instead, the infant mortality rate in southern and
central Iraq climbed to 107 deaths per 1,000 live births by 1999.[19] There was a similar upswing in the under‑five
mortality rate, which nearly tripled between 1985 and 1999.[20] UNICEF attributed the increase in childhood mortality
in Iraq to economic sanctions.[21]
The “oil‑for‑food”
program failed to eliminate widespread embargo‑related infant and child
mortality[22] and the first two directors of the oil‑for‑food
program resigned from the UN in protest.[23] The first, Denis Halliday, explained:
Malnutrition is running at about 30
percent for children under 5 years old.
In terms of mortality, probably 5 or 6 thousand children are dying per
month. This is directly attributable to
the impact of sanctions, which have caused the breakdown of the clean water
system, health facilities and all the things that young children require. . .
. I do not want to administer a program
that results in these kinds of figures.[24]
He later warned:
“We are in the process of destroying an entire society. It is as simple and
terrifying as that.”[25]
The second
director, Hans von Sponeck, resigned after he “became aware that I was
associated with a policy of implementing an oil‑for‑food program
that could not possibly meet the needs of the Iraqi people.”[26] “If we continue this policy when we fully recognize
its consequences,” he warned, “we move toward genocide.”[27]
UNICEF
reports confirm that the oil‑for‑food program “did not greatly
improve conditions for most Iraqis. This is partly because revenue has not been
sufficient to comprehensively rehabilitate the country’s infrastructure.”[28] UNICEF’s 2003 report, cited above, concluded: “since
the introduction of the Oil for Food Programme, the nutritional status of
children has not improved. One in five children in the south and centre of Iraq
remain so malnourished that they need special feeding, and child sickness rates
continue to be alarmingly high.”[29]
Meanwhile,
a 2000 working paper for the Office of the UN High Commissioner for Human
Rights concluded, “The sanctions regime against Iraq is unequivocally illegal
under existing international humanitarian law and human rights law. Some would
go as far as making a charge of genocide.”[30]
Many in
government not only anticipated these consequences, they were aware or accepted
them as they unfolded. In 1996, for example, then-UN Ambassador Madeleine
Albright was asked: “We have heard that a half million children have died. I
mean, that’s more children than died in Hiroshima. …[I]s the price worth it?”[31] She
responded, “I think this is a very hard choice, but the price ‑‑ we
think the price is worth it.”[32]
Two years later, in a prepared statement submitted to a May 21, 1998 joint
hearing before the Senate Committees on Foreign Relations and on Energy and
Natural Resources, Senator Larry Craig insisted: “The use of food as a weapon
is wrong. Starving populations into submission is poor foreign policy.”[33]
In response
to this, Mr. Sacks transported medicine to children and other civilians in
Iraq. He expected to incur the ire of the authorities by doing so. This, he
expected and hoped, would put the U.S. embargo before the judiciary of the
United States, where the rule of law prevails. And there he proposed to ask the
question: Is the deliberate targeting of children and civilian populations –
with resulting mass deaths – legal under peremptory norms of international law
(also known as “jus cogens”), norms from which civilized nations may not
legally depart.
[1] Barton Gellman, Allied
Air War Struck Broadly in Iraq; Officials Acknowledge Strategy Went Beyond
Purely Military Targets, The Washington Post, June 23,
1991, at A1.
[2] Iraq Water
Treatment Vulnerabilities, Defense Intelligence Agency (Jan. 18, 1991).
[3] See Amended
Complaint ¶ 8. A copy of the report is available on the UN’s website at http://www.un.org/Depts/oip/background/reports/
s22366.pdf.
[4] Id.
[5] Id.
[6] S.C. Res. 661, U.N. SCOR, 2933rd mtg, U.N. Doc.
S/RES/661 (1990), available on‑line
at http://www.un.org/Docs/scres/1990/scres90.htm,
last visited 4/8/05.
[7] U.S. Department of State Dispatch, Vol. 2, No. 21, May
27, 1991.
[8] Barton Gellman, Allied
Air War Struck Broadly in Iraq; Officials Acknowledge Strategy Went Beyond
Purely Military Targets, The Washington Post, June 23,
1991, at A1.
[9] Amended Complaint ¶ 18.
[10] Id.
[11] Alberto Ascherio, et al., The Effect of the Gulf War on Infant and Child Mortality in Iraq, 327
New Eng. J. Med. at 931 (Sept. 24, 1992); see also
Amended Complaint ¶ 19.
[12] Leon Eisenberg, The
Sleep of Reason Produces Monsters -- Human Costs of Economic Sanctions, 336 New England Journal of Medicine, at 1248-50 (April 24, 1997) (citing The Harvard Study Team, The Effect of the Gulf Crisis On the Children of Iraq, 325 New Eng.
J. Med. 977-80 (1991).
[13] Amended Complaint ¶ 19.
[14] Amended Complaint ¶ 21.
[15] Amended Complaint ¶ 20.
[16] Id.
[17] Amended Complaint ¶ 22; see http://unicef.org/publications/index_4439.html,
last visited 4/8/05.
[18] Amended Complaint ¶ 22.
[19] Id.
[20] Id.
[21] Id.
[22] Amended Complaint ¶ 26.
[23] Amended Complaint ¶ 27.
[24] Id.
[25] Id.
[26] Amended Complaint ¶ 28.
[27] Amended Complaint ¶ 28.
[28] Amended Complaint ¶ 29.
[29] Amended Complaint ¶ 29; see UNICEF, The Situation of
Children in Iraq, at 11 (2003).
[30] Marc Bossuyt,
The Adverse Consequences of Economic Sanctions On the Enjoyment of Human Rights
(2000) ¶ 71. This report is available on-line at www.unhchr.ch/huridocda/huridoca.nsf/e06a5300f90fa0238025668700518ca4/c56876817262a5b2c125695e0050656e/$FILE/G0014092.doc,
last visited April 8, 2005.
[31] Amended Complaint ¶ 25.
[32] Id. Ms.
Albright later expressed regret for this statement, but insisted that sanctions
were justified notwithstanding the “starvation” and “horrors” they caused. Id.
[33] Iraq: Are
Sanctions Collapsing?: Joint Hearing before the Senate Committee on Foreign
Relations and the Senate Committee on Energy and Natural Resources, 105th
Cong., S. Hrg. 105-650, at 59-60
(1998).