The Dates Case
an argument for my court case for breaking sanction on December 2nd 2002.
This is the legal and factual argument that the sanction against Iraq are unlawful under the british constution and therefore invalid.
1.The Seizure
Mr York’s application is based on article two of statutory instrument 1990/1768, Iraq and Kuwait (UN Sanctions) Order, as amended by SI 2000/3241 Iraq (UN Sanctions) Order:
"Exportation of goods from Iraq … and dealing and processing.
2(1) Except under the authority of a licence granted by the Secretary of State under this Order or the Import of Goods (Control) Order 1954 (c) … no person shall
….
(c ) do any act calculated to promote the exportation of any goods from Iraq …
(2) Except under the authority of a licence granted by the Secretary of State under this Order, no person shall deal in any goods that have been exported from Iraq… after 6th August 1990, that is to say by way of trade or otherwise for gain, acquire or dispose of such goods or of any property or interest in them or any right to or charge upon them or process them or do any act calculated to promote any such acquisition, disposal or processing by himself or any other person."
2. It is common ground between the parties that the seized goods were a sample of those imported in breach of Article two and that I wrote to customs informing them of my actions. Mr York and his colleague Mr Surry interviewed me in Bristol and several months later I received an unsigned letter from Mr York informing me that the items were being seized. I appealed against this seizure on the grounds that the sanctions were illegal.
3. Raising of a public law defence
On the authority of the House of Lords in Boddington v British Transport Police [1998] 2 WLR 639 it is established that a public law defence can be raised to any matter in the courts. Procedural fairness requires that a party can have the issues considered, so all courts have jurisdiction to consider them. If the legal basis of a case is ultra vires, or outside the legislative powers of the person or body making it, it can be called into question in any hearing on any matter.
4. The constitutional framework
The UK constitution is uncodified – that is, it is not written down in a single document but it nonetheless exists as a set of principles which underpin government and law making in this country. There are three "pillars" to the constitution:
* the supremacy of Parliament
* the rule of law
* the separation of powers
5. The separation of powers
Powers are separated between the Legislature, the Executive and the Judiciary as follows:
* The Legislature confers authority by passing Acts of Parliament
* The Executive administers the country in accordance with Acts of Parliament
* The Judiciary has a supervisory role and offers a remedy for any breach.
6. Statutory Instruments
A statutory instrument is secondary or delegated legislation made by a member of the Executive or another body under authority delegated from the legislature because there is not time for every piece of legislation to be passed by the full legislature in a highly interventionist state such as the UK.
7. They are not subject to detailed Parliamentary scrutiny and are passed either by the affirmative resolution – i.e. a vote for them - or the negative procedure, under which they are passed unless there is an objection within a specified time.
8. They must be within the authority given by the Legislature. If there is no specific authorising Act – as for the making of Social Security rules – then the legislation must conform with existing Acts of Parliament. If it does not, then it is ultra vires – outside of the powers granted – and as such unlawful.
9. The House of Lords held in Boddington v British Transport Police [1998] 2WLR 639 that, where a piece of delegated legislation is found to be unlawful it is to be treated as never having had any effect. Therefore if SI 1990/1768 is ultra vires then it had no effect at the time when I imported the goods.
10. The Court of Appeal held in Provincial Picture Houses v Wednesbury Corporation [1948] that there are three grounds for finding that Executive action is ultra vires: illegality, unreasonability and irrationality. While, in the common sense of the words, the sanctions may be entirely irrational and unreasonable, the words irrational and unreasonable in this instance bear a narrower legal meaning which need not be addressed here because they do not apply. It is submitted however that SI 1990/1768 and 2000/3241 are illegal.
11. The sovereignty of Parliament
The constitutional doctrine of the supremacy of Parliament means that any UK Parliament is absolutely sovereign. It can legislate on any subject it chooses and is not bound by the decisions of any previous Parliament, nor by its own previous decisions, nor can it bind any future Parliament. Any Act may contradict any previous Act and thereby impliedly repeal it. Delegated or secondary legislation cannot impliedly repeal provisions of Acts of Parliaments.
12. Any delegated legislation must conform with existing Acts of Parliament, which are primary legislation. The Judiciary has traditionally had no jurisdiction to consider primary Acts of Parliament, though they are now required to interpret all legislation in accordance with European Union Law and the UK Human Rights Act of 1998. They must make a Declaration of Incompatibility against the legislation where there is a conflict with EU law or the Human Rights Act which cannot be resolved through interpretation.
13. It is submitted that SIs 1990/1768 and 2000/3241 contravene provisions of existing primary Acts of Parliament - specifically the Geneva Conventions Act 1957 and the Genocide Act 1969 - and are, therefore, ultra vires, i.e., beyond the powers of the person enacting them and unlawful.
14. Though these Acts enacted international treaties, they are primary Acts of Parliament and as such are binding on the Executive in the exercise of its powers.
15. Background to SI 1990/1768 and 2000/3241
The SI was laid before Parliament on August 29th 1990 and passed by the negative procedure, i.e. it passed in the absence of any objection. Parliament was not, of course, sitting at that time so it is perhaps unsurprising that no objections were registered.
16. SI 1990/1768 was made under the authority of section 1 of the United Nations Act 1946, which authorises the making of legislation to enact measures which the United Nations calls upon its member countries to enact. There is nothing in the Act to authorise the enactment of legislation which contravenes other principles of the law.
17. The position where Acts of Parliament conflict
Where two primary Acts of Parliament appear to conflict the doctrine of implied repeal applies. Any Parliament can repeal any previous Act of its own or a previous Parliament and the earlier provisions are repealed by contradictory or conflicting provisions enacted later. Unsurprisingly there is no case law on conflicts between the United Nations Act and either the Geneva Conventions Act or the Genocide Act.
18. The leading case on implied repeal is Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590, a case on slum clearance and compensation payments to the landowners. The Court of Appeal held that it was bound by the "formalist approach" whereby the courts must obey and apply the most recent Act of Parliament and, should the most recent Act appear to be inconsistent with previous legislation, that previous legislation must give way to the latter.
19. The making of an international agreement by the government in exercise of its prerogative powers cannot have legal effect in this country unless and until it is incorporated by an Act of Parliament.
20. In this case the United Nations Act was passed in 1946, the Geneva Conventions Act in 1957 and the Genocide Act in 1969. Clearly if there is any conflict between the latter two and the former, the conflicting provisions of the UNA are impliedly repealed.
21. The Rule of Law
The Rule of Law is the political and moral principle that every person is bound by the law, including those who make or enforce it. It means that the Secretary of State is bound by the law when he exercises his Executive and Prerogative powers.
22. It also means that, as Dicey expressed it, "A person cannot lawfully be made to suffer in body or goods except for a distinct breach of the law established in the ordinary manner before the ordinary courts of the land." Thus the seizure is a trespass to goods and is a breach of my right to import goods unless it is founded on a distinct breach of the law.
22. In the House of Lords case of Liversidge v Anderson [1942] AC 206, Lord Atkin said, "In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive."
23. In the seminal case of Entick v Carrington (1765) 19 Sate Tr 1029 the Home Secretary ordered searches of premises belonging to supporters of a radical MP, John Wilkes. The search of premises belonging to a printer and the subsequent seizure of papers constituted a trespass. The messengers who carried out the seizure were sued and claimed in their defence the authority of the Home Secretary. The court held that the law prohibited trespass and there was no law giving the Home Secretary the "exorbitant" power to authorise the trespass. There was no such defence as "state necessity" and custom was not relevant.
24. The Secretary of State’s delegated power to make legislation is limited by the Rule of Law such that any legislation which he purports to enact is ultra vires, or outside of his powers, if it contravenes primary Acts of Parliament.
25. The Principle of Legality
I would further refer the court to the Principle of Legality, an aspect of the Rule of Law. As stated by Lord Steyn in the House of Lords case R v Secretary of State for the Home Department, ex parte Pierson [1997] 3 WLR 492, all statutes leave a lot unwritten because of the existence of certain presumptions and general principles, which operate as constitutional principles at a higher level than statutory text. These principles govern civil liberties. If it were not so, Acts would have to be drafted in much longer form than is currently the case.
26. Ex parte Pierson established that the Judiciary can and must apply the Principle of Legality when considering a statute, because it is not possible for those constitutional principles to be changed other than by Parliamentary intent expressed, per Lord Steyn, "with irresistible clearness." In other words a member of the Executive could not impliedly repeal a presumption which operated as a constitutional principle.
27. There is nothing in English law to indicate that Parliament has ever changed the constitutional principle of protection of civilians so that the protections within the Geneva Conventions would not apply when there was no war. Rather, the presumption would be that no such protection would be needed outside the chaos of war.
28. Indeed in R v Simms and O’Brien [1999] 3 WLR 328 the House of Lords established that all statutes, not only delegated legislation, are to be interpreted in the light of the Principle of Legality. Judges have both the power and the duty to consider whether statutes are unconstitutional. You have, of course, always had the power to consider whether statutory instruments are unconstitutional.
29. If there were a conflict between the United Nations Act and the Geneva Conventions and Genocide Acts, the Principle of Legality would be relevant in determining the resolution of the conflict. The protection of civilians operates, I submit, as a constitutional principle beyond any statutory text. It cannot be argued that, in the absence of laws providing for such protection, it would be legitimate to deprive civilians of food, clean water, medical supplies, electricity and so on.
30. Application of the Geneva Conventions Act
I intend to demonstrate shortly that the sanctions order breaches specific provisions of those Acts. However it is necessary to deal first with another matter. HMCE may seek to argue that this country is not at war with Iraq and therefore the Geneva Conventions Act does not apply.
31. The Geneva Conventions apply in peacetime as in wartime and whether or not a state of war is actually declared if the objective evidence is that there are hostilities between states, whether reciprocal or one-way.
33. A report of the United Nations Economic and Social Council explains the legal position. It is written by Marc Bossuyt, a Professor of International Law and International Organisations. He was Commissioner General for Refugees and Stateless Persons from 1987 – 1997, is a judge in the Belgian constitutional court, the Court of Arbitration, has chaired the UN Commission on Human Rights and published many law books, reports and articles.
34. Bossuyt writes that "Any sanctions that are imposed as a result of war or as part of war are regulated by the laws of armed conflict." As the sanctions arose and continued out of the invasion of Kuwait and subsequent Gulf War, the laws of armed conflict apply. He adds "Also the continued air strikes by United States and United Kingdom planes qualify the situation as an armed conflict."
35. On the authority of the House of Lords in Pepper v Hart [1993] AC 593, the intention of Parliament in passing an Act can be part of the establishment of a legal position where there is any doubt. It is submitted that it can safely be presumed that Parliament, when passing the Geneva Conventions Act, intended those principles of protection of civilians to apply at all times but did not feel it necessary to specify that civilians were not to be killed or mistreated when there was no war.
36. During the debates on the Bill, as published in Hansard. Miss Joan Vickers, then MP for Plymouth Devonport, stated: "It seems to me extremely important that these Acts which apply to civilians should be borne in mind, particularly in time of peace."
37. She referred by way of example to Article 100 of the Convention Relative to the Protection of Civilian Persons in Time of War, which prohibits the forcing of physical exertion dangerous to health, physical or moral victimisation or identification by tattooing, imprinting or otherwise marking the body. These practices, she said, were going on in civilian camps in 1957.
38. Her statement emphasises that the provisions of the 1957 Act apply equally when there is no war, and was endorsed by all subsequent speakers in the debate.
38. In the light of this it would be ridiculous to contend that the Conventions do not apply to our current dealings with Iraq, or to our dealings as at August 2001. I will therefore proceed to specific provisions of the Act which are contravened by the Sanctions Order on which Mr York’s application is based.
39. Sch1 Art 50 s1
"Grave breaches… shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property not justified by military necessity and carried out wilfully and wantonly."
40. Wilfulness and wantonness are not disproved by the existence of some other intent, of which the killing or inhuman treatment are a side effect. Professor Bossuyt writes that "Once clear evidence was available that thousands of civilians were dying and that hundreds of thousands would die in the future as the Security Council continued the sanctions, the deaths were no longer an unintended side effect – the Security Council was responsible for all known consequences of its actions." (para 72, p20)
41. There are weekly reports to the Security Council from the Office of the Iraq Programme (OIP) containing information about restrictions on civilian goods. The Secretary General reports to the Security Council every 90-180 days. This information is available to those maintaining the sanctions.
42. There are numerous reports indicating a high level of civilian deaths attributable to the sanctions. Perhaps the most authoritative is the 1999 report of the Humanitarian Panel to the UN Security Council (S/1999/356). Its findings are based on written and oral submissions from the UN bodies working in Iraq states that "As mentioned by UNFPA, the maternal mortality rate increased from 50/100,000 live births in 1989 to 117/100,000 in 1997. The under-five child mortality rate increased from 30.2/1000 live births to 97.2/1000 during the same period. Although figures for infant deaths are based on estimates that may involve a margin or error, the trend is one of sharp increases."
43. Unicef’s Child and Maternal Mortality Survey preliminary report in 1999 draws the conclusion that "[I]f the substantial reduction in the under-five mortality rate during the 1980s had continued through the 1990s, there would have been half a million fewer deaths of children under –five in the country as a whole during the eight year period 1991 to 1998."
44. The deaths are attributed to sanctions via a combination of lack of adequate safe water, nutrition, medicines, vaccines, electricity and family spending power (paras 17-24 Humanitarian Panel Report to Security Council). For example it explains (para 19) that children were suffering from high levels of malnutrition and micronutrient deficiency and that malnutrition is exacerbated (para 20) by the "massive deterioration in basic infrastructure, in particular the water-supply and waste disposal systems" which cannot be repaired under sanctions, and by the degradation of the functional capacity of hospitals and health centres (para 21).
45. While the figures are alarming, they are not the central point: as Professor Bossuyt writes, "It should be emphasised that much of the controversy around the number of deaths is only serving to obfuscate the fact that any deaths at all caused by the sanctions regime indicate grave breaches of humanitarian law and are unacceptable." (para 63)
46. In the Al Mansour paediatric hospital there were children dying of cancer without any painkillers because the supply was restricted by the sanctions. Their parents have to listen to the howls and whimpers of their children in their agony. To make a mother listen to the screams of her dying child is recognised in our society as the greatest possible evil, the perpetrator deserving to die in prison. That is inhuman treatment. It is wilfully inflicted because those who enforce it know of the effects.
47. I submit that the sanctions breach Sch 1 Art 50 s1 of the Geneva Conventions Act 1957.
48. Sch 5 Civilian Population
s1 General Protection Against Effects of Hostilities
Art 50: "The civilian population comprises all persons who are civilians [and] the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character."
49. This means that it is immaterial that there may be a few persons who are legitimate targets within the whole of the Iraqi population. The population remains a civilian one and as such, protected under the Act.
50. Art 51
(4) "Indiscriminate attacks are prohibited. Indiscriminate attacks are:
1. those which are not directed at a specific military objective;
2. those which employ a method or means of combat which cannot be directed at a specific military objective; or
3. those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
(5) Among others, the following types of attacks are to be considered as indiscriminate:
…
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
51. The International Committee of the Red Cross is the most authoritative source of guidelines for interpretation of the laws of war: "A remote advantage to be gained at some unknown time in the future would not be a proper consideration to weigh against civilian loss… The advantage concerned should be substantial and relatively close… There can be no question of creating conditions conducive to surrender by means of attacks which incidentally harm the civilian population."
52. This article is concerned with the twin principles of proportionality and distinction. To be lawful under the Geneva Conventions Act, the sanctions must be capable of distinguishing between civilian and military objectives. Civilian death and suffering on the scale reported is in itself evidence that the sanctions are not distinguishing between the two.
53. Art 52 (1)
Civilian objects shall not be the object of attacks or reprisals.
It is argued that, aside from the prevention of repair of the electricity, sewage and water facilities, the civilian economy can be categorised as an object and, therefore, protected from attack.
54. Unicef reported in 1998 that the purchasing power of an Iraqi salary by the mid-1990s was about 5% of its value prior to 1990. We met a woman called Muna who ran a money exchange shop. She explained that before the sanctions an Iraqi Dinar was worth £2; now it is worth about a fiftieth of a penny, at 3650 Dinar to the pound. If people had savings in the bank they are now worthless, £5000 having fallen to roughly the equivalent of 50 pence since 1990.
55. Under the sanctions and Oil For Food regime, no cash at all flows into Iraq. It is a voucher scheme for an entire country. A vast proportion of public sector jobs have disappeared and those which remain are desperately low paid. Doctors in the north told us that their salaries had risen from about 5000 Dinar a month in 2000 to around 30,000 (£10).
56. While the increase is significant, it must be set against prices: a packet of Aspirin, for example, costs D6100 (£2), a pair of shoes or a child's schoolbag D4-5000 in the market, where goods are cheapest, and an air conditioning unit - not a luxury in sixty degree heat - around D700,000. The increase is attributable to sanction breaking border trade and is mainly visible in the north, where border controls are looser.
57. In the mental hospital outside Baghdad there were only three nurses for all three hundred women because there isn’t any money to pay public sector workers. The chief resident told us there has been a huge rise in mental illness since the sanctions began, particularly post traumatic stress, schizophrenia, manic depressiveness, depression, chronic anxiety and other neurotic diseases. We visited one section where three hundred women were crowded into a courtyard surrounded by rooms. The erratic drug supply means that as soon as they stabilise on one form of medication they have to start again on something else.
58. With the complete destruction of the civilian infrastructure jobs in the private sector have also disappeared, such as retail, leisure and service jobs. A shopkeeper called Hazim told us that people keep their shops open because they have to do something. He rarely sells a computer because people can't afford them. He explained that business is further hindered by the failure of telecommunications. If it's possible to get a line at all, it will often be crossed or cut off. All the shopkeepers we met said that they often make a loss rather than a profit.
59. There are no safety cushions or fallbacks. State welfare no longer exists, having been relatively comprehensive prior to the sanctions (Humanitarian Panel Report to UN Security Council, para 13).
60. One consequence of the private poverty is the high incidence of road accidents because ordinary people cannot afford new, safe tyres. We saw three cars wrecked in a few hours at the UN building in Baghdad, two of them taxis, and their drivers’ entire livelihoods.
61. We got to know two fourteen year old shoeshine boys, Ahmed and Saif, who inhabited the wall outside our hotel. The boys come from Saddam City, the poorest area of Baghdad and it is no exaggeration to say that what they earned cleaning shoes could mean the difference between life and death for members of their family.
62. The Humanitarian Panel Report attributes the rising number of street children to the fact that "more families are forced to rely on children to secure household incomes." School enrolment for all ages has fallen from 75% before sanctions to 53% according to the Report and 83% of school buildings needed rehabilitation. The Secretary General’s Report (S/2001/505) of May 2001 indicates that while some materials for repair of school buildings have arrived in country, operational constraints of the Programme have restricted distribution and use of the materials, while the lack of educational resources is critical (paras 97 – 100). Arguably the education system must be classified as a civilian object,
63. Art 54
(1) Starvation of civilians as a method of warfare is prohibited.
(2) It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether to starve out civilians, to cause them to move away, or for any other motive.
64. Part IV art 14
"Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works."
65. The programme's co-ordinator, Tun Myat, reports that the distribution system is "second to none" (Report to Security Council, October 2000) but he explained that many people were so poor that they have to sell part of their food ration to pay for other essentials (Press Briefing 20001019 19/10/00 p1 para 4).
66. A report of the UN Food and Agriculture Organisation in 2000 highlights "serious and widespread" nutritional deficiency causing "continuing high levels of infant and child mortality… Micronutrient deficiencies are common and iron deficiency anaemia is high." (FAO Press Release 00/49).
67. The food ration consists of flour, rice, dried beans, vegetable oil, powdered milk, sugar and tea; there are no vegetables or fruit because they could not be distributed on a monthly basis. If a contract is delivered late, some of the ration may not be distributed at all. A medical engineer called Gazwan explained to us that the ration is half a kilo of powdered milk per person per month. If the full amount is not delivered in time, no powdered milk can be distributed at all. It cannot be given, for example, to the people in the north and not to the people in the south, and splitting the packets would ruin the product. Some months there is no protein at all.
68. The Humanitarian Report to the Security Council found that "as many as 70% of Iraqi women are suffering from anaemia." (para 18).
69. The most recent Unicef situation analysis, released on November 21st 2002 finds that malnutrition among Iraqi children has fallen to its lowest level since 1996, but acute malnutrition, the best indicator of likely death, remains at 4%. 15.9% of children are moderately to severely underweight. 22.1% suffer from moderate to severe stunting or chronic malnutrition.
70. On 11 July 2001, less than three weeks before I went to Iraq, Unicef reported that "One in five children in the south and centre of Iraq remain so malnourished that they need special therapeutic feeding." It continues "Due to the breakdown of treatment plants and other infrastructure, some 500,000 tonnes of raw sewage discharged directly into fresh water bodies each day, of which 300,000 tonnes is released into rivers in Baghdad. Only 25% of the population are served by piped sewerage systems. Power cuts of up to 12 hours a day have also severely disrupted services."
71. There is a deficit of around 50% in electricity supply (Secretary General’s Report May 2001 para 90), likewise because of damage to generation facilities which cannot be repaired under the programme.
72. The Humanitarian Panel reported that "access to potable water is currently 50% of the 1990 level in urban areas and only 33% in rural areas." As a result Unicef reported in July 2001 that children under five suffer an average of 14 episodes of diarrhoea a year and that "diarrhoea leading to death frm acute dehydration and acute respiratory infections together account for 70% of child deaths."
73. The water pipes are old and corroded with holes in and cannot be replaced through the Oil for Food Programme as they are considered to have dual civilian and military use. They run alongside damaged sewage pipes, becoming contaminated with untreated sewage. When the electricity cuts out, the water flows back along the pipes, becoming more contaminated, and so on, every time it flows up and down, reaching families unsafe to drink. It is hard to imagine a water supply being rendered more useless than when it is actively killing its recipients through gastrointestinal diseases.
74. It is submitted that the sanctions breach Sch 5 Art 54 and Part 5 Art 14 of the Geneva Conventions Act.
75. Part IV Art 33
No protected person may be punished for an offence he or she has not personally committed.
76. Sch 6 Geneva Conventions Act – Protocol II Additional to the Geneva Conventions.
Inserted by the Geneva Conventions (Amendment) Act 1995, s6, Schedule:
Preamble: "Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience."
77. The dictates of the public conscience are significant because they determine interpretation and assessment of the sanctions where there are gaps in the law in force. Essentially their presence is a statutory reiteration of the Principle of Legality. The dictates of the public conscience are also part of the Martens Clause, which requires that all situations arising from war be governed by the principles of law of civilised nations, principles of humanity and the dictates of the public conscience.
78. It is only the UK and US governments which continue to support sanctions in their present form. Organisations throughout the UN, the International Commission of the Red Cross, Amnesty International, NGOs across the world, religious organisations and figures from all the major religions and many many others have spoken out in opposition to the sanctions. The last two humanitarian programme co-ordinators have resigned in protest, as did the head of the World Food Programme in Iraq.
79. A doctor in the Al Mansoor children’s hospital in Baghdad showed us damaged platelet transfusion bags received through the programme and explained that there are not enough undamaged bags to treat the patients. A ten year old boy called Abbas went into a coma in front of us because there weren’t enough platelet bags to treat his leukaemia. His arms went into spasm and the doctor said that indicated brain haemorrhaging. He said the boy wouldn’t live the night.
80. Human rights belong to us all, both to enjoy for ourselves and to uphold for our fellow human beings. They are not the exclusive preserve of governments, NGOs and international bodies like the UN and the truth is that often those bodies are so tied up with other agendas and political concerns that simple humanity is pushed out of the picture. The people have to disobey laws made by greedy, self interested and ignorant people to protect each other.
81. The combined deprivation wrought on children by malnutrition and the lack of educational materials is creating a mental stunting whose effects will be felt for generations. Gazwan said to us, "One day your children will have to explain all this to ours." If not a concern for the children of Iraq, then surely a concern for our own children should direct the public conscience.
82. In the light of all that I have said about the devastating effects of the suppression of the Iraqi economy, the dictates of the public conscience must surely point towards supporting individual Iraqi shopkeepers by buying their goods for sale in this country.
83. The UK Genocide Act 1969 (c12)
The Genocide Act bears the long title "An Act to give effect to the Convention on the Prevention and Punishment of the Crime of Genocide" and applies at all times, regardless of any state of war, peace or otherwise. Genocide is defined in the Schedule to the Act, s1. The relevant part is:
1. "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."
84. Professor Bossuyt writes (para 72) "The sanctions regime has as its clear purpose the deliberate infliction on the Iraqi people conditions of life (lack of adequate food, medicines, etc) calculated to bring about its physical destruction in whole or in part. It does not matter that this deliberate physical destruction has as its ostensible objective the security of the region."
85. The foregoing evidence clearly illustrates the conditions of life which have been imposed on the Iraqi people and the ways in which they are bringing about physical destruction. Known effects are wilful.
86. The doctor in Mosul paediatric hospital told us that gastro-enteritis is now the biggest killer of children in Iraq. The main childhood health problem prior to sanctions was childhood obesity. He explained that the children are treated, time and again, but with each attack their immune systems get weaker until they simply stop coming back because there is no more money for transport or medicine.
87. While certain provisions are allowed through the siege, via the Oil For Food Programme, the Secretary General of the UN has repeatedly stated that the programme cannot meet all the humanitarian needs of the Iraqi populations and, crucially, nor was it ever intended to. (Report of the Secretary General to the Security Council 29 November 2000: s/2000/1132; para 5, p2. Repeated in para 4 of the March 2001 Report S/2001/186.)
88. The system is so cumbersome that there is no quality control procedure. Suppliers know, therefore, that they can offload substandard goods through the programme. Restriction of civilian access to humanitarian goods is prohibited under the Geneva Conventions just as is removal.
89. The UN Secretary General’s Report in May 2001 (S/2001/505) highlighted the problem, as have his previous and subsequent reports: "…a supplier takes undue advantage of the existing vacuum in the commercial safeguards under the programme." He went on to refer to "the large number of unresolved letters of discrepancy filed in connection with the shipments…" (para 39). He stated that such cases were increasing, "[d]espite efforts by the Government of Iraq, including measures to avoid intermediaries and delinquent suppliers and to engage only reliable producers and manufacturers." (para 38).
90. While some drugs are allowed into Iraq, the cumbersome system means that supply is erratic. We met a little girl called Saeda who proudly told us, via the doctor translating, that she was exactly eight years and two months old and came from near Babylon. Then she started crying.
91. The doctor showed us the file containing her treatment protocol. Iraqi hospitals use the UK treatment protocol. The names of the drugs are listed along the top, and the letters "N/A", for not available, are scattered across the chart. There was one called L-Aspargenase, which it seemed couldn’t be found, even if the family went to Jordan. A lot of drugs were available for a week or two and then there wasn't any more. There was always something missing, leading, almost inevitably, to early relapse. The cries of children in those wards dying of cancer without painkillers remain with me: morphine is deemed a non-essential drug by the sanctions committee.
92. Gazwan, a medical statistician, told us there was a 70% cure rate for leukaemia before 1990. Now it is 0 in the absence of facilities and sterile environments for bone marrow transplants and with the poor nutritional and immunological state of the population.
93. While many drugs can be imported, most technical equipment cannot. Cables are embargoed so power from generators cannot be supplied to all parts of hospitals during power cuts. The intensive care unit of Al Mansoor paediatric hospital contained just two life support machines, both donated by a British charity and occupied by desperately ill children. We asked the doctor what happened when more than two children needed the units. He said "We make hard choices."
94. Thalassaemia is a congenital and severe form of anaemia. Bone marrow transplants can extend life expectancy to sixty plus years, compared with no more than sixteen without a transplant. There were two toddlers on the first bed, giggling and putting everything in their mouths. Looking around the room the children got older and sicker, less animated, thinner, their skin yellower, more translucent, their necks more fragile as they lay, heads limp on one side. It was like looking through the years, watching those toddlers die because there wasn’t the equipment for bone marrow transplantation.
95. Restriction of the free passage of goods would fall within the scope of imposition of conditions just as complete prevention would. It is submitted that the sanctions breach the UK Genocide Act 1969.
96. It is submitted that this eyewitness evidence from Iraq, backed up with the reports of the UN officials implementing and monitoring the programme, leaves little room for doubt that the secondary legislation of the Sanctions Order breaches the primary legislation in the Geneva Conventions Act of 1957 and the Genocide Act of 1969.
97. The UK Genocide Act prohibits the deliberate infliction of conditions of life calculated to bring about its physical destruction in whole or in part. The UN estimates that 1.5 million people have died out of a population of 23 million. That is physical destruction in a significant proportion. The conditions of life which are bringing about this destruction were wilfully imposed and have been wifully maintained despite a mass of evidence as to their effects.
98. It is submitted that the Sanctions Order breaches those provisions of primary English law and is, therefore, ultra vires by the fundamental doctrines of the UK constitution: the supremacy of Parliament and the separation of powers.
99. I therefore invite the court to find that the Secretary of State acted ultra vires with regard to his prerogative powers in passing SI 1990/1768 and its successor 2000/3241 and to find, in consequence, that the import of items from Iraq was lawful, not being in breach of any valid law, and that there is no basis for the seizure.
100. Although I have argued this case in terms of the British constitution and primary Acts of Parliament, I broke them not because they are illegal but because they are wrong. We have destroyed the entire foundation of life in that country, causing suffering on an unimaginable scale.
101. While I knew this to be the case an intellectual level before I went to Iraq, to experience it first hand is another matter. I knew that five thousand children under five died every month because of sanctions, but only when I held the hand of one dying child, and then cried with his mother, that that number became meaningful.
1.The Seizure
Mr York’s application is based on article two of statutory instrument 1990/1768, Iraq and Kuwait (UN Sanctions) Order, as amended by SI 2000/3241 Iraq (UN Sanctions) Order:
"Exportation of goods from Iraq … and dealing and processing.
2(1) Except under the authority of a licence granted by the Secretary of State under this Order or the Import of Goods (Control) Order 1954 (c) … no person shall
….
(c ) do any act calculated to promote the exportation of any goods from Iraq …
(2) Except under the authority of a licence granted by the Secretary of State under this Order, no person shall deal in any goods that have been exported from Iraq… after 6th August 1990, that is to say by way of trade or otherwise for gain, acquire or dispose of such goods or of any property or interest in them or any right to or charge upon them or process them or do any act calculated to promote any such acquisition, disposal or processing by himself or any other person."
2. It is common ground between the parties that the seized goods were a sample of those imported in breach of Article two and that I wrote to customs informing them of my actions. Mr York and his colleague Mr Surry interviewed me in Bristol and several months later I received an unsigned letter from Mr York informing me that the items were being seized. I appealed against this seizure on the grounds that the sanctions were illegal.
3. Raising of a public law defence
On the authority of the House of Lords in Boddington v British Transport Police [1998] 2 WLR 639 it is established that a public law defence can be raised to any matter in the courts. Procedural fairness requires that a party can have the issues considered, so all courts have jurisdiction to consider them. If the legal basis of a case is ultra vires, or outside the legislative powers of the person or body making it, it can be called into question in any hearing on any matter.
4. The constitutional framework
The UK constitution is uncodified – that is, it is not written down in a single document but it nonetheless exists as a set of principles which underpin government and law making in this country. There are three "pillars" to the constitution:
* the supremacy of Parliament
* the rule of law
* the separation of powers
5. The separation of powers
Powers are separated between the Legislature, the Executive and the Judiciary as follows:
* The Legislature confers authority by passing Acts of Parliament
* The Executive administers the country in accordance with Acts of Parliament
* The Judiciary has a supervisory role and offers a remedy for any breach.
6. Statutory Instruments
A statutory instrument is secondary or delegated legislation made by a member of the Executive or another body under authority delegated from the legislature because there is not time for every piece of legislation to be passed by the full legislature in a highly interventionist state such as the UK.
7. They are not subject to detailed Parliamentary scrutiny and are passed either by the affirmative resolution – i.e. a vote for them - or the negative procedure, under which they are passed unless there is an objection within a specified time.
8. They must be within the authority given by the Legislature. If there is no specific authorising Act – as for the making of Social Security rules – then the legislation must conform with existing Acts of Parliament. If it does not, then it is ultra vires – outside of the powers granted – and as such unlawful.
9. The House of Lords held in Boddington v British Transport Police [1998] 2WLR 639 that, where a piece of delegated legislation is found to be unlawful it is to be treated as never having had any effect. Therefore if SI 1990/1768 is ultra vires then it had no effect at the time when I imported the goods.
10. The Court of Appeal held in Provincial Picture Houses v Wednesbury Corporation [1948] that there are three grounds for finding that Executive action is ultra vires: illegality, unreasonability and irrationality. While, in the common sense of the words, the sanctions may be entirely irrational and unreasonable, the words irrational and unreasonable in this instance bear a narrower legal meaning which need not be addressed here because they do not apply. It is submitted however that SI 1990/1768 and 2000/3241 are illegal.
11. The sovereignty of Parliament
The constitutional doctrine of the supremacy of Parliament means that any UK Parliament is absolutely sovereign. It can legislate on any subject it chooses and is not bound by the decisions of any previous Parliament, nor by its own previous decisions, nor can it bind any future Parliament. Any Act may contradict any previous Act and thereby impliedly repeal it. Delegated or secondary legislation cannot impliedly repeal provisions of Acts of Parliaments.
12. Any delegated legislation must conform with existing Acts of Parliament, which are primary legislation. The Judiciary has traditionally had no jurisdiction to consider primary Acts of Parliament, though they are now required to interpret all legislation in accordance with European Union Law and the UK Human Rights Act of 1998. They must make a Declaration of Incompatibility against the legislation where there is a conflict with EU law or the Human Rights Act which cannot be resolved through interpretation.
13. It is submitted that SIs 1990/1768 and 2000/3241 contravene provisions of existing primary Acts of Parliament - specifically the Geneva Conventions Act 1957 and the Genocide Act 1969 - and are, therefore, ultra vires, i.e., beyond the powers of the person enacting them and unlawful.
14. Though these Acts enacted international treaties, they are primary Acts of Parliament and as such are binding on the Executive in the exercise of its powers.
15. Background to SI 1990/1768 and 2000/3241
The SI was laid before Parliament on August 29th 1990 and passed by the negative procedure, i.e. it passed in the absence of any objection. Parliament was not, of course, sitting at that time so it is perhaps unsurprising that no objections were registered.
16. SI 1990/1768 was made under the authority of section 1 of the United Nations Act 1946, which authorises the making of legislation to enact measures which the United Nations calls upon its member countries to enact. There is nothing in the Act to authorise the enactment of legislation which contravenes other principles of the law.
17. The position where Acts of Parliament conflict
Where two primary Acts of Parliament appear to conflict the doctrine of implied repeal applies. Any Parliament can repeal any previous Act of its own or a previous Parliament and the earlier provisions are repealed by contradictory or conflicting provisions enacted later. Unsurprisingly there is no case law on conflicts between the United Nations Act and either the Geneva Conventions Act or the Genocide Act.
18. The leading case on implied repeal is Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590, a case on slum clearance and compensation payments to the landowners. The Court of Appeal held that it was bound by the "formalist approach" whereby the courts must obey and apply the most recent Act of Parliament and, should the most recent Act appear to be inconsistent with previous legislation, that previous legislation must give way to the latter.
19. The making of an international agreement by the government in exercise of its prerogative powers cannot have legal effect in this country unless and until it is incorporated by an Act of Parliament.
20. In this case the United Nations Act was passed in 1946, the Geneva Conventions Act in 1957 and the Genocide Act in 1969. Clearly if there is any conflict between the latter two and the former, the conflicting provisions of the UNA are impliedly repealed.
21. The Rule of Law
The Rule of Law is the political and moral principle that every person is bound by the law, including those who make or enforce it. It means that the Secretary of State is bound by the law when he exercises his Executive and Prerogative powers.
22. It also means that, as Dicey expressed it, "A person cannot lawfully be made to suffer in body or goods except for a distinct breach of the law established in the ordinary manner before the ordinary courts of the land." Thus the seizure is a trespass to goods and is a breach of my right to import goods unless it is founded on a distinct breach of the law.
22. In the House of Lords case of Liversidge v Anderson [1942] AC 206, Lord Atkin said, "In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive."
23. In the seminal case of Entick v Carrington (1765) 19 Sate Tr 1029 the Home Secretary ordered searches of premises belonging to supporters of a radical MP, John Wilkes. The search of premises belonging to a printer and the subsequent seizure of papers constituted a trespass. The messengers who carried out the seizure were sued and claimed in their defence the authority of the Home Secretary. The court held that the law prohibited trespass and there was no law giving the Home Secretary the "exorbitant" power to authorise the trespass. There was no such defence as "state necessity" and custom was not relevant.
24. The Secretary of State’s delegated power to make legislation is limited by the Rule of Law such that any legislation which he purports to enact is ultra vires, or outside of his powers, if it contravenes primary Acts of Parliament.
25. The Principle of Legality
I would further refer the court to the Principle of Legality, an aspect of the Rule of Law. As stated by Lord Steyn in the House of Lords case R v Secretary of State for the Home Department, ex parte Pierson [1997] 3 WLR 492, all statutes leave a lot unwritten because of the existence of certain presumptions and general principles, which operate as constitutional principles at a higher level than statutory text. These principles govern civil liberties. If it were not so, Acts would have to be drafted in much longer form than is currently the case.
26. Ex parte Pierson established that the Judiciary can and must apply the Principle of Legality when considering a statute, because it is not possible for those constitutional principles to be changed other than by Parliamentary intent expressed, per Lord Steyn, "with irresistible clearness." In other words a member of the Executive could not impliedly repeal a presumption which operated as a constitutional principle.
27. There is nothing in English law to indicate that Parliament has ever changed the constitutional principle of protection of civilians so that the protections within the Geneva Conventions would not apply when there was no war. Rather, the presumption would be that no such protection would be needed outside the chaos of war.
28. Indeed in R v Simms and O’Brien [1999] 3 WLR 328 the House of Lords established that all statutes, not only delegated legislation, are to be interpreted in the light of the Principle of Legality. Judges have both the power and the duty to consider whether statutes are unconstitutional. You have, of course, always had the power to consider whether statutory instruments are unconstitutional.
29. If there were a conflict between the United Nations Act and the Geneva Conventions and Genocide Acts, the Principle of Legality would be relevant in determining the resolution of the conflict. The protection of civilians operates, I submit, as a constitutional principle beyond any statutory text. It cannot be argued that, in the absence of laws providing for such protection, it would be legitimate to deprive civilians of food, clean water, medical supplies, electricity and so on.
30. Application of the Geneva Conventions Act
I intend to demonstrate shortly that the sanctions order breaches specific provisions of those Acts. However it is necessary to deal first with another matter. HMCE may seek to argue that this country is not at war with Iraq and therefore the Geneva Conventions Act does not apply.
31. The Geneva Conventions apply in peacetime as in wartime and whether or not a state of war is actually declared if the objective evidence is that there are hostilities between states, whether reciprocal or one-way.
33. A report of the United Nations Economic and Social Council explains the legal position. It is written by Marc Bossuyt, a Professor of International Law and International Organisations. He was Commissioner General for Refugees and Stateless Persons from 1987 – 1997, is a judge in the Belgian constitutional court, the Court of Arbitration, has chaired the UN Commission on Human Rights and published many law books, reports and articles.
34. Bossuyt writes that "Any sanctions that are imposed as a result of war or as part of war are regulated by the laws of armed conflict." As the sanctions arose and continued out of the invasion of Kuwait and subsequent Gulf War, the laws of armed conflict apply. He adds "Also the continued air strikes by United States and United Kingdom planes qualify the situation as an armed conflict."
35. On the authority of the House of Lords in Pepper v Hart [1993] AC 593, the intention of Parliament in passing an Act can be part of the establishment of a legal position where there is any doubt. It is submitted that it can safely be presumed that Parliament, when passing the Geneva Conventions Act, intended those principles of protection of civilians to apply at all times but did not feel it necessary to specify that civilians were not to be killed or mistreated when there was no war.
36. During the debates on the Bill, as published in Hansard. Miss Joan Vickers, then MP for Plymouth Devonport, stated: "It seems to me extremely important that these Acts which apply to civilians should be borne in mind, particularly in time of peace."
37. She referred by way of example to Article 100 of the Convention Relative to the Protection of Civilian Persons in Time of War, which prohibits the forcing of physical exertion dangerous to health, physical or moral victimisation or identification by tattooing, imprinting or otherwise marking the body. These practices, she said, were going on in civilian camps in 1957.
38. Her statement emphasises that the provisions of the 1957 Act apply equally when there is no war, and was endorsed by all subsequent speakers in the debate.
38. In the light of this it would be ridiculous to contend that the Conventions do not apply to our current dealings with Iraq, or to our dealings as at August 2001. I will therefore proceed to specific provisions of the Act which are contravened by the Sanctions Order on which Mr York’s application is based.
39. Sch1 Art 50 s1
"Grave breaches… shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property not justified by military necessity and carried out wilfully and wantonly."
40. Wilfulness and wantonness are not disproved by the existence of some other intent, of which the killing or inhuman treatment are a side effect. Professor Bossuyt writes that "Once clear evidence was available that thousands of civilians were dying and that hundreds of thousands would die in the future as the Security Council continued the sanctions, the deaths were no longer an unintended side effect – the Security Council was responsible for all known consequences of its actions." (para 72, p20)
41. There are weekly reports to the Security Council from the Office of the Iraq Programme (OIP) containing information about restrictions on civilian goods. The Secretary General reports to the Security Council every 90-180 days. This information is available to those maintaining the sanctions.
42. There are numerous reports indicating a high level of civilian deaths attributable to the sanctions. Perhaps the most authoritative is the 1999 report of the Humanitarian Panel to the UN Security Council (S/1999/356). Its findings are based on written and oral submissions from the UN bodies working in Iraq states that "As mentioned by UNFPA, the maternal mortality rate increased from 50/100,000 live births in 1989 to 117/100,000 in 1997. The under-five child mortality rate increased from 30.2/1000 live births to 97.2/1000 during the same period. Although figures for infant deaths are based on estimates that may involve a margin or error, the trend is one of sharp increases."
43. Unicef’s Child and Maternal Mortality Survey preliminary report in 1999 draws the conclusion that "[I]f the substantial reduction in the under-five mortality rate during the 1980s had continued through the 1990s, there would have been half a million fewer deaths of children under –five in the country as a whole during the eight year period 1991 to 1998."
44. The deaths are attributed to sanctions via a combination of lack of adequate safe water, nutrition, medicines, vaccines, electricity and family spending power (paras 17-24 Humanitarian Panel Report to Security Council). For example it explains (para 19) that children were suffering from high levels of malnutrition and micronutrient deficiency and that malnutrition is exacerbated (para 20) by the "massive deterioration in basic infrastructure, in particular the water-supply and waste disposal systems" which cannot be repaired under sanctions, and by the degradation of the functional capacity of hospitals and health centres (para 21).
45. While the figures are alarming, they are not the central point: as Professor Bossuyt writes, "It should be emphasised that much of the controversy around the number of deaths is only serving to obfuscate the fact that any deaths at all caused by the sanctions regime indicate grave breaches of humanitarian law and are unacceptable." (para 63)
46. In the Al Mansour paediatric hospital there were children dying of cancer without any painkillers because the supply was restricted by the sanctions. Their parents have to listen to the howls and whimpers of their children in their agony. To make a mother listen to the screams of her dying child is recognised in our society as the greatest possible evil, the perpetrator deserving to die in prison. That is inhuman treatment. It is wilfully inflicted because those who enforce it know of the effects.
47. I submit that the sanctions breach Sch 1 Art 50 s1 of the Geneva Conventions Act 1957.
48. Sch 5 Civilian Population
s1 General Protection Against Effects of Hostilities
Art 50: "The civilian population comprises all persons who are civilians [and] the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character."
49. This means that it is immaterial that there may be a few persons who are legitimate targets within the whole of the Iraqi population. The population remains a civilian one and as such, protected under the Act.
50. Art 51
(4) "Indiscriminate attacks are prohibited. Indiscriminate attacks are:
1. those which are not directed at a specific military objective;
2. those which employ a method or means of combat which cannot be directed at a specific military objective; or
3. those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
(5) Among others, the following types of attacks are to be considered as indiscriminate:
…
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
51. The International Committee of the Red Cross is the most authoritative source of guidelines for interpretation of the laws of war: "A remote advantage to be gained at some unknown time in the future would not be a proper consideration to weigh against civilian loss… The advantage concerned should be substantial and relatively close… There can be no question of creating conditions conducive to surrender by means of attacks which incidentally harm the civilian population."
52. This article is concerned with the twin principles of proportionality and distinction. To be lawful under the Geneva Conventions Act, the sanctions must be capable of distinguishing between civilian and military objectives. Civilian death and suffering on the scale reported is in itself evidence that the sanctions are not distinguishing between the two.
53. Art 52 (1)
Civilian objects shall not be the object of attacks or reprisals.
It is argued that, aside from the prevention of repair of the electricity, sewage and water facilities, the civilian economy can be categorised as an object and, therefore, protected from attack.
54. Unicef reported in 1998 that the purchasing power of an Iraqi salary by the mid-1990s was about 5% of its value prior to 1990. We met a woman called Muna who ran a money exchange shop. She explained that before the sanctions an Iraqi Dinar was worth £2; now it is worth about a fiftieth of a penny, at 3650 Dinar to the pound. If people had savings in the bank they are now worthless, £5000 having fallen to roughly the equivalent of 50 pence since 1990.
55. Under the sanctions and Oil For Food regime, no cash at all flows into Iraq. It is a voucher scheme for an entire country. A vast proportion of public sector jobs have disappeared and those which remain are desperately low paid. Doctors in the north told us that their salaries had risen from about 5000 Dinar a month in 2000 to around 30,000 (£10).
56. While the increase is significant, it must be set against prices: a packet of Aspirin, for example, costs D6100 (£2), a pair of shoes or a child's schoolbag D4-5000 in the market, where goods are cheapest, and an air conditioning unit - not a luxury in sixty degree heat - around D700,000. The increase is attributable to sanction breaking border trade and is mainly visible in the north, where border controls are looser.
57. In the mental hospital outside Baghdad there were only three nurses for all three hundred women because there isn’t any money to pay public sector workers. The chief resident told us there has been a huge rise in mental illness since the sanctions began, particularly post traumatic stress, schizophrenia, manic depressiveness, depression, chronic anxiety and other neurotic diseases. We visited one section where three hundred women were crowded into a courtyard surrounded by rooms. The erratic drug supply means that as soon as they stabilise on one form of medication they have to start again on something else.
58. With the complete destruction of the civilian infrastructure jobs in the private sector have also disappeared, such as retail, leisure and service jobs. A shopkeeper called Hazim told us that people keep their shops open because they have to do something. He rarely sells a computer because people can't afford them. He explained that business is further hindered by the failure of telecommunications. If it's possible to get a line at all, it will often be crossed or cut off. All the shopkeepers we met said that they often make a loss rather than a profit.
59. There are no safety cushions or fallbacks. State welfare no longer exists, having been relatively comprehensive prior to the sanctions (Humanitarian Panel Report to UN Security Council, para 13).
60. One consequence of the private poverty is the high incidence of road accidents because ordinary people cannot afford new, safe tyres. We saw three cars wrecked in a few hours at the UN building in Baghdad, two of them taxis, and their drivers’ entire livelihoods.
61. We got to know two fourteen year old shoeshine boys, Ahmed and Saif, who inhabited the wall outside our hotel. The boys come from Saddam City, the poorest area of Baghdad and it is no exaggeration to say that what they earned cleaning shoes could mean the difference between life and death for members of their family.
62. The Humanitarian Panel Report attributes the rising number of street children to the fact that "more families are forced to rely on children to secure household incomes." School enrolment for all ages has fallen from 75% before sanctions to 53% according to the Report and 83% of school buildings needed rehabilitation. The Secretary General’s Report (S/2001/505) of May 2001 indicates that while some materials for repair of school buildings have arrived in country, operational constraints of the Programme have restricted distribution and use of the materials, while the lack of educational resources is critical (paras 97 – 100). Arguably the education system must be classified as a civilian object,
63. Art 54
(1) Starvation of civilians as a method of warfare is prohibited.
(2) It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether to starve out civilians, to cause them to move away, or for any other motive.
64. Part IV art 14
"Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works."
65. The programme's co-ordinator, Tun Myat, reports that the distribution system is "second to none" (Report to Security Council, October 2000) but he explained that many people were so poor that they have to sell part of their food ration to pay for other essentials (Press Briefing 20001019 19/10/00 p1 para 4).
66. A report of the UN Food and Agriculture Organisation in 2000 highlights "serious and widespread" nutritional deficiency causing "continuing high levels of infant and child mortality… Micronutrient deficiencies are common and iron deficiency anaemia is high." (FAO Press Release 00/49).
67. The food ration consists of flour, rice, dried beans, vegetable oil, powdered milk, sugar and tea; there are no vegetables or fruit because they could not be distributed on a monthly basis. If a contract is delivered late, some of the ration may not be distributed at all. A medical engineer called Gazwan explained to us that the ration is half a kilo of powdered milk per person per month. If the full amount is not delivered in time, no powdered milk can be distributed at all. It cannot be given, for example, to the people in the north and not to the people in the south, and splitting the packets would ruin the product. Some months there is no protein at all.
68. The Humanitarian Report to the Security Council found that "as many as 70% of Iraqi women are suffering from anaemia." (para 18).
69. The most recent Unicef situation analysis, released on November 21st 2002 finds that malnutrition among Iraqi children has fallen to its lowest level since 1996, but acute malnutrition, the best indicator of likely death, remains at 4%. 15.9% of children are moderately to severely underweight. 22.1% suffer from moderate to severe stunting or chronic malnutrition.
70. On 11 July 2001, less than three weeks before I went to Iraq, Unicef reported that "One in five children in the south and centre of Iraq remain so malnourished that they need special therapeutic feeding." It continues "Due to the breakdown of treatment plants and other infrastructure, some 500,000 tonnes of raw sewage discharged directly into fresh water bodies each day, of which 300,000 tonnes is released into rivers in Baghdad. Only 25% of the population are served by piped sewerage systems. Power cuts of up to 12 hours a day have also severely disrupted services."
71. There is a deficit of around 50% in electricity supply (Secretary General’s Report May 2001 para 90), likewise because of damage to generation facilities which cannot be repaired under the programme.
72. The Humanitarian Panel reported that "access to potable water is currently 50% of the 1990 level in urban areas and only 33% in rural areas." As a result Unicef reported in July 2001 that children under five suffer an average of 14 episodes of diarrhoea a year and that "diarrhoea leading to death frm acute dehydration and acute respiratory infections together account for 70% of child deaths."
73. The water pipes are old and corroded with holes in and cannot be replaced through the Oil for Food Programme as they are considered to have dual civilian and military use. They run alongside damaged sewage pipes, becoming contaminated with untreated sewage. When the electricity cuts out, the water flows back along the pipes, becoming more contaminated, and so on, every time it flows up and down, reaching families unsafe to drink. It is hard to imagine a water supply being rendered more useless than when it is actively killing its recipients through gastrointestinal diseases.
74. It is submitted that the sanctions breach Sch 5 Art 54 and Part 5 Art 14 of the Geneva Conventions Act.
75. Part IV Art 33
No protected person may be punished for an offence he or she has not personally committed.
76. Sch 6 Geneva Conventions Act – Protocol II Additional to the Geneva Conventions.
Inserted by the Geneva Conventions (Amendment) Act 1995, s6, Schedule:
Preamble: "Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience."
77. The dictates of the public conscience are significant because they determine interpretation and assessment of the sanctions where there are gaps in the law in force. Essentially their presence is a statutory reiteration of the Principle of Legality. The dictates of the public conscience are also part of the Martens Clause, which requires that all situations arising from war be governed by the principles of law of civilised nations, principles of humanity and the dictates of the public conscience.
78. It is only the UK and US governments which continue to support sanctions in their present form. Organisations throughout the UN, the International Commission of the Red Cross, Amnesty International, NGOs across the world, religious organisations and figures from all the major religions and many many others have spoken out in opposition to the sanctions. The last two humanitarian programme co-ordinators have resigned in protest, as did the head of the World Food Programme in Iraq.
79. A doctor in the Al Mansoor children’s hospital in Baghdad showed us damaged platelet transfusion bags received through the programme and explained that there are not enough undamaged bags to treat the patients. A ten year old boy called Abbas went into a coma in front of us because there weren’t enough platelet bags to treat his leukaemia. His arms went into spasm and the doctor said that indicated brain haemorrhaging. He said the boy wouldn’t live the night.
80. Human rights belong to us all, both to enjoy for ourselves and to uphold for our fellow human beings. They are not the exclusive preserve of governments, NGOs and international bodies like the UN and the truth is that often those bodies are so tied up with other agendas and political concerns that simple humanity is pushed out of the picture. The people have to disobey laws made by greedy, self interested and ignorant people to protect each other.
81. The combined deprivation wrought on children by malnutrition and the lack of educational materials is creating a mental stunting whose effects will be felt for generations. Gazwan said to us, "One day your children will have to explain all this to ours." If not a concern for the children of Iraq, then surely a concern for our own children should direct the public conscience.
82. In the light of all that I have said about the devastating effects of the suppression of the Iraqi economy, the dictates of the public conscience must surely point towards supporting individual Iraqi shopkeepers by buying their goods for sale in this country.
83. The UK Genocide Act 1969 (c12)
The Genocide Act bears the long title "An Act to give effect to the Convention on the Prevention and Punishment of the Crime of Genocide" and applies at all times, regardless of any state of war, peace or otherwise. Genocide is defined in the Schedule to the Act, s1. The relevant part is:
1. "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."
84. Professor Bossuyt writes (para 72) "The sanctions regime has as its clear purpose the deliberate infliction on the Iraqi people conditions of life (lack of adequate food, medicines, etc) calculated to bring about its physical destruction in whole or in part. It does not matter that this deliberate physical destruction has as its ostensible objective the security of the region."
85. The foregoing evidence clearly illustrates the conditions of life which have been imposed on the Iraqi people and the ways in which they are bringing about physical destruction. Known effects are wilful.
86. The doctor in Mosul paediatric hospital told us that gastro-enteritis is now the biggest killer of children in Iraq. The main childhood health problem prior to sanctions was childhood obesity. He explained that the children are treated, time and again, but with each attack their immune systems get weaker until they simply stop coming back because there is no more money for transport or medicine.
87. While certain provisions are allowed through the siege, via the Oil For Food Programme, the Secretary General of the UN has repeatedly stated that the programme cannot meet all the humanitarian needs of the Iraqi populations and, crucially, nor was it ever intended to. (Report of the Secretary General to the Security Council 29 November 2000: s/2000/1132; para 5, p2. Repeated in para 4 of the March 2001 Report S/2001/186.)
88. The system is so cumbersome that there is no quality control procedure. Suppliers know, therefore, that they can offload substandard goods through the programme. Restriction of civilian access to humanitarian goods is prohibited under the Geneva Conventions just as is removal.
89. The UN Secretary General’s Report in May 2001 (S/2001/505) highlighted the problem, as have his previous and subsequent reports: "…a supplier takes undue advantage of the existing vacuum in the commercial safeguards under the programme." He went on to refer to "the large number of unresolved letters of discrepancy filed in connection with the shipments…" (para 39). He stated that such cases were increasing, "[d]espite efforts by the Government of Iraq, including measures to avoid intermediaries and delinquent suppliers and to engage only reliable producers and manufacturers." (para 38).
90. While some drugs are allowed into Iraq, the cumbersome system means that supply is erratic. We met a little girl called Saeda who proudly told us, via the doctor translating, that she was exactly eight years and two months old and came from near Babylon. Then she started crying.
91. The doctor showed us the file containing her treatment protocol. Iraqi hospitals use the UK treatment protocol. The names of the drugs are listed along the top, and the letters "N/A", for not available, are scattered across the chart. There was one called L-Aspargenase, which it seemed couldn’t be found, even if the family went to Jordan. A lot of drugs were available for a week or two and then there wasn't any more. There was always something missing, leading, almost inevitably, to early relapse. The cries of children in those wards dying of cancer without painkillers remain with me: morphine is deemed a non-essential drug by the sanctions committee.
92. Gazwan, a medical statistician, told us there was a 70% cure rate for leukaemia before 1990. Now it is 0 in the absence of facilities and sterile environments for bone marrow transplants and with the poor nutritional and immunological state of the population.
93. While many drugs can be imported, most technical equipment cannot. Cables are embargoed so power from generators cannot be supplied to all parts of hospitals during power cuts. The intensive care unit of Al Mansoor paediatric hospital contained just two life support machines, both donated by a British charity and occupied by desperately ill children. We asked the doctor what happened when more than two children needed the units. He said "We make hard choices."
94. Thalassaemia is a congenital and severe form of anaemia. Bone marrow transplants can extend life expectancy to sixty plus years, compared with no more than sixteen without a transplant. There were two toddlers on the first bed, giggling and putting everything in their mouths. Looking around the room the children got older and sicker, less animated, thinner, their skin yellower, more translucent, their necks more fragile as they lay, heads limp on one side. It was like looking through the years, watching those toddlers die because there wasn’t the equipment for bone marrow transplantation.
95. Restriction of the free passage of goods would fall within the scope of imposition of conditions just as complete prevention would. It is submitted that the sanctions breach the UK Genocide Act 1969.
96. It is submitted that this eyewitness evidence from Iraq, backed up with the reports of the UN officials implementing and monitoring the programme, leaves little room for doubt that the secondary legislation of the Sanctions Order breaches the primary legislation in the Geneva Conventions Act of 1957 and the Genocide Act of 1969.
97. The UK Genocide Act prohibits the deliberate infliction of conditions of life calculated to bring about its physical destruction in whole or in part. The UN estimates that 1.5 million people have died out of a population of 23 million. That is physical destruction in a significant proportion. The conditions of life which are bringing about this destruction were wilfully imposed and have been wifully maintained despite a mass of evidence as to their effects.
98. It is submitted that the Sanctions Order breaches those provisions of primary English law and is, therefore, ultra vires by the fundamental doctrines of the UK constitution: the supremacy of Parliament and the separation of powers.
99. I therefore invite the court to find that the Secretary of State acted ultra vires with regard to his prerogative powers in passing SI 1990/1768 and its successor 2000/3241 and to find, in consequence, that the import of items from Iraq was lawful, not being in breach of any valid law, and that there is no basis for the seizure.
100. Although I have argued this case in terms of the British constitution and primary Acts of Parliament, I broke them not because they are illegal but because they are wrong. We have destroyed the entire foundation of life in that country, causing suffering on an unimaginable scale.
101. While I knew this to be the case an intellectual level before I went to Iraq, to experience it first hand is another matter. I knew that five thousand children under five died every month because of sanctions, but only when I held the hand of one dying child, and then cried with his mother, that that number became meaningful.