No. 06-____


In The
Supreme Court of the United States






OFFICE OF FOREIGN ASSETS CONTROL, United States Department of the Treasury; R. RICHARD NEWCOMB, Director, Office of Foreign Assets Control,





On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit





Donald B. Scaramastra

Counsel of Record

Gary D. Swearingen

Eighteenth Floor
1191 Second Avenue
Seattle, Washington  98101-2939
(206) 464-3939


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 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, 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, 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$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).