Legal, ethnic and other potentially useful elements of Iraq's past as enlightening sources of inspiration for meeting the legitimate aspirations of Iraq’s constitutive communities with regionally stabilizing solutions which promise to effectively address the challenges of the presence and the future (see also: www.aemam.net).

1.    Iraq’s still fully valid constitutive Declaration of 30 May 1932: providing for international minority protection & property rights guarantees, availing themselves for UN General Assembly and/or Security Council actions.

2.     UN General Assembly Resolution 24 (I) of 12 February 1946: providing authority to assume or delegate any "function or power" incumbant, under international law, to the Council of the League of Nations.

3.     "STUDY OF THE LEGAL VALIDITY OF THE UNDERTAKINGS CONCERNING MINORITIES"of 7 April 1950 by the UN Secretary General, pursuant to ECOSOC Resolution (116 C (VI)) of 2 March 1948

4.    UN Department of Humanitarian Affairs memorandum of April 1992: discussing some implications of Iraq’s apparently limited sovereignty with regard to the Mosul Vilayet (Northern Iraq).

5.    UN Security Council Resolution 688 of 5 April 1991: discussion of current and future significance of this humanitarian resolution.

6.     „Who – in International Law – Now Owns the Oil in the Mosul Vilayet“.

7.    „Protection of Minorities“, UN Commission on Human Rights (3 Sep 92, 30 Aug 95)

8.    "Humanitarian Relief aid: does it protect the needy?", Sadruddin Aga Khan, Sorbonne (25 Oct 92)

9.     „A Pathway to Human Rights for Northern Iraq“, Senator John Nimrod, Chicago, Secretary General, Assyrian Universal Alliance, UN Commission on Human Rights (8 Aug 96)

10.    „‘Oil-for-Food‘ vs Assyrian Property Rights in Iraq“, UN Commission on Human Rights (8 Aug 96)

11.    The case for smart, i.e. self-eliminating sanctions on Iraq.

12.    Lausanne Treaty of 24 July 1923: proposed commemorative July 2003 meeting for stock-taking of past and future ideas for healing the wounds of the Ottoman Empire breakup.

13.    „Against some Holy Grail Mantras“: Atoni’s observations of 21 Sep 02 on Tariq Aziz’s invitation "to come up with ideas which would  a) assure the Republican Party’s return to full control of the US Congress in the next elections without a nice little war in a far-away place;  b) assure regional peace & security in the Middle East with maximum containment of the danger of weapons of mass destruction being used there or elsewhere;  c) assure a decent footnote in history books for both George W & his nemesis Saddam.“

14.    Pro Memoria (2 Jan 03)

15.    „Is Mona Lisa finally smiling?“: „UN foam carpet“ plan for all or parts of Iraq (7 Feb 03)

16.    AMSTERDAM RESOLUTION, adopted by representatives of 26 Assyrian associations of the diaspora at the Assyrian Amsterdam Conference of 25-27 April 2003

17.    U.S. Congress H.RES.272 "Expressing concern for the status of the Assyrian people in post-war Iraq"
Sponsor: Rep Cardoza, Dennis A. [CA-18] (introduced 6/12/2003, no action taken in Committee):

SUMMARY:   "Expresses the sense of the House of Representatives that: (1) Assyrians should be entitled to freely practice their religion and customs, speak their language, celebrate their culture, and be consulted and included in discussions regarding the composition of the future government of Iraq; and (2) the President should call for the future government of Iraq to uphold the rights of Assyrians and instruct the U.S. Ambassador to the United Nations (UN) to work with the UN to ensure that the rights and concerns of Assyrians in Iraq are considered as debate over post-war Iraq continues."

19.    Iraqi draft constitution (arabic) by Mohammed S.Mahmoud (July 04)

20.    WE, THE IRAQI PEOPLE - RECONCILIATION RESOLUTION (draft 8, 21 Nov 04)

21.    "Iraqi Peace, Security & independence", note by Mohammed S.Mahmoud (20 Jan 07: Arabic, Kurdish)

22.    U.S. Congress, Joint Resolution (draft 9), 27 April 2007:

"to commend and support the Assyrian people in their efforts to bring about safety, reconciliation and well-being in their Iraqi homeland for themselves and for their Yezidi, Jewish, Shia and Sunni Arab, Kurdish and Turkoman brethren in One God, by way of equitable power-sharing, cooperation and fruit-sharing institutions and services, a follow-up to the 1923 Lausanne Conference, and an Advisory Opinion by the International Court of Justice on Iraq's international minority and private property protection garantees and obligations."

 
 

DECLARATION OF THE KINGDOM OF IRAQ, MADE AT BAGHDAD ON MAY 30th, 1932,
ON THE OCCASION OF THE TERMINATION OF THE MANDATORY REGIME IN IRAQ,
AND CONTAINING THE GUARANTEES GIVEN TO THE COUNCIL
BY THE IRAQI GOVERNMENT
[related official League of Nations and United Nations documents: www.solami.com/a3a,htm]

Chapter 1
Article 1          Protection of Minorities

     Nevertheless, should measures taken by any Member of the League of Nations, whether such measures are in force at the above-mentioned date or are taken during the period contemplated in the preceding paragraph, be of such a nature as to disturb to the detriment of Iraq the balance of trade between Iraq and the Member of the League of Nations in question, by seriously affecting the chief exports of Iraq, the latter, in view of its special situation, reserves to itself the right to request the Member of the League of Nations concerned to open negotiations immediately for the purpose of restoring the balance.

     Should an agreement not be reached by negotiations within three months from its request, Iraq declares that it will consider itself freed, vis-à-vis of the Member of the League in question, from the obligation laid down in the first sub-paragraph above.

     2.     The undertaking contained in paragraph 1 above shall not apply to any advantages which are, or may in the future be, accorded by Iraq to any adjacent country in order to facilitate frontier traffic, or to those resulting from a Customs union concluded by Iraq. Nor shall the undertaking apply to any special advantages in Customs matters which Iraq may grant to goods the produce or manufacture of Turkey or of any country whose territory was in 1914 wholly included in the Ottoman Empire in Asia.

     The judicial system at present in force, and based on Articles 2, 3 and 4 of the Agreement between the Mandatory Power and Iraq, signed on March 4th, 1931, shall be maintained for a period of 10 years from the date of the admission of Iraq to membership of the League of Nations.

     Appointments to the posts reserved for foreign jurists by Article 2 of the said Agreement shall be made by the Iraqi Government. Their holders shall be foreigners, but selected without distinction of nationality; they must be fuly qualified.

     Any difference of opinion which may arise between Iraq and any Member of the League of Nations represented on the Council, with regard to the interpretation or the execution of the said provisions, shall, by an application by such Member, be submitted for decision to the Permanent Court of International Justice.

     The undersigned, duly authorised, accepts on behalf of Iraq, subject to ratification, the above provisions, being the declaration provided for by the resolution of the Council of the League of Nations of May 19th, 1932.

DONE at Baghdad on this thirtieth day of May 1932
in a single copy which shall be deposited in the archives of the Secretariat of the League of Nations.

(Signed) NOURY SA'ID,
Prime Minister of Iraq

         "Under various treaties and international conventions, agreements and other instruments, the League of Nations and its organs exercise, or may be requested to exercise, numerous functions or powers for the continuance of which, after the dissolution of the League, it is, or may be, desirable that the United Nations should provide. ...   Therefore:
          1.     The General Assembly reserves the right to decide, after due examination, not to assume any particular function or power, and to determine which organ of the United Nations or which specialized agency brought into relationship with the United Nations should exercise each particular function or power assumed.
         2.     The General Assembly records that those Members of the United Nations which are parties to the instruments referred to above assent by this resolution to the steps contemplated below and express their resolve to use their good offices to secure the co-operation of the other parties to the instruments so far as this may be necessary.
          3.     The General Assembly declares that the United Nations is willing, in principle, and subject to the provisions of this resolution and of the Charter of the United Nations, to assume the exercise of certain functions and powers previously entrusted to the League of Nations, and adopts the following decisions, as set forth in A, B and C below.

[A. Functions pertaining to a Secretariat ...
B. Functions and Powers of a technical and non-political character ...]
C.  Functions and Powers under Treaties, International Conventions,
Agreements and other Instruments having a political character

          The General Assembly will itself examine, or will submit to the appropriate organ of the United Nations, any request from the parties that the United Nations should assume the exercise of functions or powers entrusted to the League of Nations by treaties, international conventions, agreements and other instruments having a political character."

"A.  The question raised by the Economic and Social Council

      The Economic and Social Council requested the Secretary-General to initiate a study of the present legal validity of the undertakings relating to the protection of minorities placed under the guarantee of the League of Nations.

     The Economic and Social Council's resolution (116 C (VI)) reads as follows:

      "The Economic and Social Council,
     "Taking note of chapter VIII, paragraph 37, of the report of the Commission on Human Rights,*
     "Requests the Secretary-General to study the question whether and to what extent the treaties and declarations relating to international obligations undertaken to combat discrimination and to protect minorities, the texts of which are contained in League of Nations document C.L. 110.1927.I Annex, should be regarded as being still in force, at least in so far as they would entail between contracting States rights and obligations the existence of which would be independent of their guarantee by the League of Nations; and to report on the results of this study to a later session of the Commission on Human Rights the recommendations, if required, for any further action to elucidate this question."1/

[FN 1/  "See Resolutions adopted by the Economic and Social Council during its sixth session: resolutions of 1 and 2 March 1948, page 18."]
*see Official Records of the Economic and Social Council, Third Year: Sixth Session, supplement No. 1, pages 10 and 11. "
 

E/CN.4/367, p.50

"17. Minorities in Iraq:

     Resolution of the Council of the League of Nations of 11 May 1932,
     approving the Text of a Declaration to be signed by Iraq. "

"In five cases out of seventeen, the undertakings regarding the protection of minorities were the result of a Declaration made before the Council of the League of Nations, which adopted a resolution taking note of the said Declarations.1/

[FN 1/  These five cases are as follows:
1.  Minorities of Albania - Declaration of 2 October 1921;
2.  Minorities of Lithuania - Declaration of 12 May 1922;
3.  Minorities of Latvia - Declaration of 7 July 1923;
4.  Minorities of Estonia - Declaration of 17 September 1923;
5.  Minorities of Iraq - Declaration of 30 May 1932.]"

UNITED NATIONS
Department of Humanitarian Affairs

[internal memorandum]
April 1992

          Following the fall of the Ottoman Empire, the area which is now Iraq was under British mandate until 1932 when it became an independent state with its present, but potentially contested, borders. The issue of the Iraq/Turkey border occupied the League of Nations Council for years.

          The attached League of Nations documents reflect Turkey's concerted efforts to obtain international recognition for its legal claims to the Mosul Vilayet, northern (Kurdish) Iraq, which the League of Nations Council conditionally attached to Iraq in 1926. The principal document in the annexed collection is Iraq's Declaration of 30 May 1932. The conditional attachment and the declaration illustrate the meticulous efforts made by the League to protect the inhabitants of the contested area in religious, language and property matters. These inhabitants were mostly of non-Arabic origin, Assyrians, Kurds, Turkomans, etc. The 1932 Declaration appears to have fixed the limits of Iraqi sovereignty in that the detailed minority rights thus prescribed [of particular interest to Mr. M.van der Stoel, Special Rapporteur of the Commission on Human Rights] take precedence over subsequent Iraq "laws, regulations or official actions" (art.1) and are even "placed under the guarantee of the League of Nations." (art.10)  Moreover, "all rights of whatever nature acquired before the termination of the mandatory regime by individuals, associations or juridical persons shall be respected." (art.14)

          In 1945, Iraq joined the United Nations while it was still a member of the League of Nations, i.e., without altering the "obligations of international concern" (art.10) which Iraq incurred as a condition of its independence. The articles mentioned above, some of which have a direct bearing on the question of oil ownership, could not have been unilaterally abrogated by Iraq and consequently, remain fully in force.

          Since the Iraqi invasion of Kuwait, Iraq has been repeatedly condemned for grave breaches of international norms. Yet the Security Council has throughout affirmed the commitment of all Member States to the "independence, sovereignty and territorial integrity of Iraq." (Resolutions 686 and 688). Given the implications of the League of Nations documents, Iraq's "sovereignty and territorial integrity" under international law are conditioned; use of these terms in official UN documents does not convey rights Iraq has not acquired in due course.

         With regard to the oil ownership question, these documents provide a prima facie ownership case in favor of some Turkish citizens and Kurdish tribes in whose ancestral lands the largest oil field, in Kirkuk, is situated. Accordingly, the seizure protection wording of Resolution 712, paragraph 5, may not stand in a tribunal. It is thus advisable to execute Resolutions706 and 712 either exclusively on the basis of oil pumped from uncontested Iraqi fields not in the Mosul Vilayet area or on the basis of corresponding agreements with the Turkish Government and the involved Kurdish tribes.

The UN Security Council resolution 688 (1991) is reviewed in light of actual conditions and foreseeable needs in Iraq. The effects of, and the options concerning the Memorandum of Understanding are discussed. Also, the conditions under which Iraq acquired independence on 3 October 1932 (date of termination of Britain's Mandate and Iraq's admission to the League of Nations) are reviewed with particular regard to the people of the Mosul Vilayet. Iraq's violations of these "obligations of international concern" open the way to appropriate solutions reflecting Iraq's limited sovereignty.
 

THE PROBLEM: Mainly due to the UN's unreserved signature and tacit ratification of its 1991 MEMORANDUM OF UNDERSTANDING (MOU) with Iraq (wherein it is unreservedly acknowledged that resolution 688 "has not been accepted" by Iraq), the UN's humanitarian programmes in Iraq - in fact if not in law - have been based not on 688 but on the MOU which gives Iraq otherwise unavailable discretionary powers hampering and even jeopardizing UN reliefworks (1). With the need for at least continuation of these works demonstrated beyond reasonable doubt by various UN reports (2) and other accounts, further dependence on the present Iraqi leadership's good faith, goodwill and effective cooperation is not seen to be compatible with either the rôle or stature of the involved United Nations organs. For this could also seriously undercut the prestige and credibility of the United Nations as an effective instrument for international peace, security and relief.

THE SOLUTION: Baghdad-independent alternative or complementary legal instruments to those now in place, ie. 688 and the MOU. The latter will run out automatically 30 June 1992. It should not be prorogated, even if Baghdad deigns to extend it, lest the people it is designed to protect are to be left without effective protection and minimum human rights standards, and the world community be subjected to still further humiliations and complications. Such new legal instruments may consist of corresponding Security Council texts which may be making creative use of existing texts, such as the UN Statute on Trust Territories, in combination with the still valid IRAQI DECLARATION of 30 May 1932. And they may be brought to bear in the sense of the "exceptional response" recommended by the Special Rapporteur of the UN Human Rights Commission. That Commission, on 5 March 1992, with 35 votes for and Iraq's vote against, adopted a resolution condemning human rights abuses in Iraq, and requesting its Special Rapporteur "to develop further his recommendation for an exceptional response" notably to the policies of "genocide-type" treatment of the Kurdish people by the Iraqi authorities. Measures short of formally withdrawing recognition from the present Iraqi Government: enforcing international minority rights and protection guarantees with Human Rights Monitors, National Sponsorship for Non-Self-Governing Territories, Trusteeship System, UN troops, Neutralized Zones, etc; Security Council review of the conditions under which Iraq gained independence, under which the League of Nations attached the Mosul Vilayet (northern region) to Iraq rather than to Turkey, and under which Iraqi oil property rights were - or were not legally - acquired by the State of Iraq; etc.
 

With its resolution 688 of 5 April 1991 (3), the Security Council

In the "FURTHER REPORT OF THE SECRETARY-GENERAL ON THE STATUS OF COMPLIANCE BY IRAQ WITH THE OBLIGATIONS PLACED UPON IT UNDER CERTAIN OF THE SECURITY COUNCIL RESOLUTIONS" (S/23687, 7 March 1992), on the subject of resolution 688, it is stated:

Experiences made, imperatively call for a fundamental policy review, with the objective of enhanced effectiveness of the UN's various humanitarian efforts in Iraq. Existing measures must be checked against resolution 688, so as to strengthen - rather than weaken - this reference date in international humanitarian law. An assertive 688-based policy is thus called for, seeking to abrogate the MOU at the earliest possible moment, and to replace it - rather than to renew it - with an independent interim regime, in line with UN rights and obligations, as appropriate responses.

In order to secure the widest possible political support, the world community's response to the Iraqi authorities' actions and inactions should be specific, with the envisaged independent interim regime based on generally recognized legal fundaments. The 4^th Geneva Convention on the protection of civilians in war and the UN Charter are seen to avail themselves to that effect. Appropriate structures may be built on that basis in application of the still valid constituent IRAQI DECLARATION of 30 May 1932 (5). Having been stowed away in the Archives of the League of Nations, this fundamental document has only recently been re-discovered. It provides for the effective protection of human, minority (religious, ethnic, language) and property rights by way of "obligations of international concern" which, as "fundamental laws of Iraq", are specifically declared to take precedence over any present or future Iraqi "law, regulation or official action". Moreover, these obligations have explicitly been "placed under the guarantee of the League of Nations" (with related rights and obligations now seen to be residing with the UN Security Council, in line with the principles reflected in articles36 and 37 (6) of the Statute of the International Court of Justice as well as with those principles which have repeatedly been confirmed and strengthened by various UN institutions, notably in the case of South Africa's League of Nations Mandate on South-West Africa(7)).
 

ON IRAQ'S LIMITED SOVEREIGNTY IN THE MOSUL VILAYET

In line with art.3 of the Treaty of Lausanne of 24 July 1923 (8), and art.22 of the Covenant of the League of Nations(CLN) (9), the Council of the League set up a special Commission of Inquiry (CI) on the Mosul Vilayet which was disputed by Turkey and Iraq (the subject of a League Mandate entrusted to Great Britain (10)). This Commission was to assemble and examine the relevant facts and to submit its recommendations to the Council of the League.

After extensive consultations among the different ethnic groups (11) who have inhabited this contested Mideastern crossroad for centuries, the CI completed its report 16 July 1925 (12).

The Turkish Government has strongly opposed the formal attachment of the Mosul Vilayet to Iraq, citing notably its Turkish and Kurdish inhabitants' right to self-determination as well as historical and conventional rights (13). Although it has eventually accepted the border with Iraq as stipulated by the Council of the League, and in 1946 and later has concluded bilateral agreements with Iraq pertaining to border questions, some see Turkey to have never formally renounced its claims to the Mosul Vilayet which it considered to be an integral province of its national territory.

Also, the League's Commission of Inquiry authoritatively concluded in these terms:

Iraq is the first League-mandated country to gain independence, but that might explain only partially the apparent tiptoeing. The documents, reports and correspondences undug so far in the Archives of the League, moreover, do not support the view that over the years the notoric ethnic tensions between Arabs, Turks and Kurds have subsided to a level affording to reduce or even abolish the above strict reservations and conditions recommended by the CI. On the contrary, the League Council found itself compelled to enact these recommendations in every detail and at every step and, in the end, even to complement and to stiffen them - regardless of how much, in law and in practice, these safeguards effectively have encroached on Iraq's sovereignty. Indeed, those who, in the late twenties and early thirties, were charged with the task of monitoring the situation must have quickly come to the conclusion that - short of an outright amputation of the contested territory - an early termination of Britain's Iraq Mandate could not responsibly be envisaged without a new set of strict, verifiable and permanent safeguard measures, particularly for the inhabitants of the Mosul Vilayet.

Eventually, the partisans of Iraq's early national independence developed a formula for a solemn irrevocable international Iraqi guarantee which made key human rights the subject of Iraqi "obligations of international concern ... placed under the guarantee of the League of Nations", over-riding Iraqi national law, and thus going in some points even beyond the measures stipulated by the League's Commission of Inquiry. As an integral part of Iraq's ascension to national independence they were then seen to adequately cover the foreseeable contingencies. Following are some excerpts from this apparently not widely known - and heeded - key document (16) (see annex; fn 5) with the title:

CONCLUSIONS

Iraq, by fiat of the League of Nations, on 3 October 1932, was formally, but only conditionally, relieved of the tutelage bonds entailed in the Mandate the League had entrusted to Great Britain. As such it became on that date a closely observed, yet independent subject of international law, thus being subject only - but nevertheless fully - to the international obligations entered into by Iraq's constitutional authorities.

The above Declaration of 30 May 1932, is seen to constitute such an instrument unconditionally and permanently binding Iraq on the international level. The beneficiaries of these rights are the Iraqi, notably the Kurdish citizens living in the Mosul Vilayet. These rights have been declared officially to constitute for the Iraqi Government solemn "obligations of an international concern [that are] placed under the guarantee of the League of Nations." They take precedence over all present and future Iraqi laws and regulations, and interested third nations are thus empowered to initiate proceedings in the appropriate international fora, ie. the United Nations and/or the International Court of Justice.

This Iraqi Declaration is thus seen to be a constituent element - and a still indispensable one at that - of both Iraq's existence as an independent subject of international law and of Iraq's territorial integrity. Moreover, its collatoral, ie. Iraq's far-reaching obligations flowing from it can also fairly be assumed to have in no way suffered a diminution in international law. The question then arises on the degree of effective compliance or non-compliance, and on eventual consequences and remedy measures.

The UN Human Rights Commission, no less than the Security Council, on various occasions, has condemned Iraq for wide-spread, systematic and officially sanctioned human rights violations particularly vis-à-vis Kurds (17). These violations involve fundamental modern texts of international humanitarian law which have been duly ratified by Iraq, such as the 4^th Geneva Red Cross Convention and Additional Protocols. But these violations are also seen to be compatible neither with Iraq's 1932 Declaration, nor with the minority protection guarantees thus incumbent upon the United Nations. Pointedly, the Council of the League of Nations linked the attachment of the Mosul Vilayet to Iraq to strict conditions.

Has Iraq thus forfeited whatever limited sovereignty rights it was entrusted with regarding the Mosul Vilayet? This may be a matter for the International Court of Justice to decide. Until then - with the burden of proof resting clearly with Iraq, and in light of the prevailing human rights circumstances and the genesis of the Mosul Vilayet's conditional attachment to Iraq - the United Nations, in international law, are not seen to be obliged to respect whatever territorial claim Iraq may have beyond the internationally recognized borders surrounding the Basra and the Baghdad Vilayet. Accordingly, the Mosul Vilayet, in international law and for the time being, may be treated as a NON-SELF-GOVERNING TERRITORY in the sense of articles 73 and 74 of the UN Charter, with those members of the Security Council so wishing eventually assuming corresponding responsibilities (18).
 

OPTIONS FOR PROMPT REFLIEF, REDRESS AND RECONSTRUCTION

Non-Self-Governing or Trust Territories and/or Neutralized Zones?

The UN Charter (articles 75 to 91) provides for an international trusteeship system (19) under the authority of the United Nations. On the surface of it, none of those articles is seen to fit the case of the Mosul Vilayet. A closer look provides better insights.

In the above light, the Security Council, upon further analysis, may conclude that the League of Nations Mandate entrusted to Great Britain, on Iraq's independence day of 3 October 1932, lapsed only conditionally. That could provide some legal mileage for developing various options. In the event, they could affect either the whole of Iraq, or only the Mosul Vilayet and/or those areas on the northern border of the Tigris wherever officially perpetrated violations of internationally guaranteed minority protection rights cannot be safely ruled out. Placing these territories promptly under the UN trusteeship system is the least what those officially abused minorities may expect from the UN.

In view of the special legal circumstances of the Mosul Vilayet, a step-by-step approach may also provide a practical pathway, eventually leading to independence by way of the status of a non-self-governing territory in the sense of articles 73 and 74 of the United Nations Charter. This may or may not involve, as an immediate first step, the establishment of a Neutralized Zone in the sense of article 15 (20) of the 4^th Geneva Convention of 1949. And it may or may not take advantage of the entry vehicle to the UN trusteeship system provided for in the Charter (art. 77, 1c). At any rate, evidence suggests that the present "safe haven" in Northern Iraq, being a part of the Mosul Vilayet, in international law, is neither a legal no-man's land nor need it be treated as being subject to Iraq's internationally recognized sovereignty.

As to the best choice among the various available instruments for effectively relieving the plight of the Iraqi civilian minorities in Northern and Southern Iraq, all those discussed are based on solid legal grounds, yet the experience with these instruments and the available infrastructure for their application vary greatly. Security is seen to be a prime concern in each case. The interim solution(s) eventually adopted on the basis of the UN Charter would seem to offer no significant problem in that regard. For the Security Council, using authority granted to it in articles 39ss of the Charter, could in each case provide for adequate physical protection of the populations concerned with all the necessary means, including UN troops.

In the case of Neutralized Zones - which may be set up promptly anywhere in Iraq - Iraq's obligations under resolution 688 (art.3), together with art.15 of the 4^th Geneva Convention, are seen to provide the legal basis for unilaterally (21) established neutralized zones for the protection of civilians. These zones might be exclusively administered by the International Committee of the Red Cross ICRC and the League of Red Cross and Red Crescent Societies. And the inhabitants of these zones might be protected by police forces (22) flying the Red Cross flag; in the event, they might be drawn in particular from Allied Forces.
 

NOTES

(*)6 April 1992, this paper was prepared by the CORUM Research Group under the direction of J.A.Keller; it expands on earlier studies - "Sovereignty Questions Regarding the Mosul Vilayet", 2 February 1992, and "Who - in International Law - Now Owns the Oil in the Mosul Vilayet", 27 February 1992, by CORUM, POB 2580, 1211 Geneva 2, Switzerland (fax: 004122-7400362,e-mail: swissbit@solami.com). Without necessarily sharing the views expressed, have thus contributed in one way or another notably: A.Albonetti, P.Dimier, B.Elbert, C.Vieira dos Santos, P.Martin, E.Querio, F.Ruiz, M.Soleiman, L.Takla, P.Wainwright. The editor, of course, is alone responsible for eventual errors & omissions. He wished to express his gratitude for the assistance and numerous services provided by the Secretariat of the United Nations Office in Geneva, by Mr.Pierre Pelou (Director of the UN Geneva Library), by the League of Nations archivist Mme Ursula Ruser, and by T.Dimitrov, N.Leneman, J.Ribes, S.Rodin, W.Simon, M. and N.Wasser

(2)      see notably the Report of the Special Rapporteur of the Commission on Human Rights (S/23685, 18 February 1992), and the "FURTHER REPORT OF THE SECRETARY-GENERAL ON THE STATUS OF COMPLIANCE BY IRAQ WITH THE OBLIGATIONS PLACED UPON IT UNDER CERTAIN OF THE SECURITY COUNCIL RESOLUTIONS" (S/23687, 7 March 1992).

(3)      S/RES/688 (1991); for background material see notably: BETTATI Mario, "Un droit d'ingérence?", Revue Générale de Droit International Public, 3, 1991, p.639; BETTATI Mario, KOUCHNER Bernard, et al. "Le devoir d'ingérence", Denoel, Paris 1987.

(4)      With regard to financial limits an offer for "Kurdish contributions to pay for UN humanitarian services meeting urgent needs" was formally submitted to the Secretary-General's Executive Delegate on 12 November 1991 in response to the above-quoted Security Council appeal and in light of Iraq's persistent refusal to comply notably with related Security Council resolutions (eg. 706). The offer, which was made by Sardar Pishdare (Chief of the Soisne tribe, senior Kurdish leader and co-founder of the Kurdish Red Crescent) was warmly welcomed by letter of 19 November 1991. Reportedly, the technical feasibility demonstration thus anticipated is under way, and the first uncapped oil wells in Kurdish-controlled territory North of the 36th parallel were successfully tested beginning 20 March 1992. Yet, apparently due to unwitting constraints associated with the MOU and misunderstandings concerning resolutions 661, 688 and 706, there has been no active pursuit of this plan from the UN side. Prior formal lifting of embargo measures decided in resolution 661 (1990) has been invoked by some sources as a condition of such cooperation with the Kurds - even though the Security Council is not seen to have intended that, just as its explicit (and still not lifted) embargo against Kuwait, naturally, is not applied to liberated Kuwait. Effective UN cooperation on this Kurdish self-help scheme may thus also have to await the MOU's formal termination.

(5)      "Request of the Kingdom of Iraq for Admission to the League of Nations", Official No: A.17.1932. VII, League of Nations, August 16, 1932; see annex.

(6)      Article 36:     5.     Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their term.

     Article 37:     Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.

(7)      "South West Africa Case, Judgement of 21 December 1962", International Court of Justice, Reports of Judgments, The Hague 1962, p.347; see also: Krystina MAREK (edit.) "A Digest of the Decisions of the International Court", Graduate Institute of International Studies Geneva II, Nijhoff The Hague 1978, p.726: "The resolution of the last League Assembly of April 18th, 1946, shows that all League Members agreed for the Mandates to remain in force until new arrangements were reached between the Mandatories and the United Nations." [nota bene: Iraq became a Member of the United Nations on 21 December 1945, i.e. while it was still a Member of the then still existing League of Nations, and without having then or since sought, obtained or effectuated any reduction in the formal international obligations it incurred volontarily, as a conditio sine qua non of its independence, and laid out bindingly in said Declaration];
p.726: "The Court however holds that the rule that provisions must be interpreted according to their natural and ordinary meaning cannot be applied if it leads to 'a meaning incompatible with the spirit, purpose and context' of the clause or instrument in question. The recourse of individual Members of the League to the Permanent Court, in addition to the administrative supervision by the organs of the League, served as 'the final bulwark of protection by recourse to the Court against possible abuse or breaches ..."

(8)      pertaining to the Turkey/Iraq border; League of Nations Treaty Series, vol. 28, 1924, p.11; J.C.HUREWITZ (edit.) The Middle East and North Africa in World Politics, vol.2, Yale University Press, London 1979, p.326/7.

(9)      Sunderland House, London 1919; Henry U.HOEPLI, "England im Nahen Osten - Das Königreich Irak und die Mossulfrage", Erlangen 1931, p.130 (deutsche Fassung)

(10)     Iraq, then called Mesopotamia, was occupied by British forces in 1917 and formally became a mandated - in United Nations parlance: Trust - territory when the League Council, on September 27, 1924, approved the Abreviated Mandate and entrusted Great Britain with it. This was preceded by a plebiscite of the Iraqi population (90% favoring monarchy; ascencion to the throne in 1921 by Emir Faisal, brother of the grandfather of Jordan's King Hussein). The Original Mandate of September 1921 provided "authority to establish a system of local autonomy for the areas which were predominantly inhabited by Kurds; and it was made a condition subsequently by the Council of the League, when it awarded the Vilayet of Mosul to Iraq, that this condition should be extended" (Norman BENTWICH, The Mandates System, Longmans London 1930, p.61). Shelved in September 1922, this draft gave way to the Treaty of Alliance between Great Britain and Iraq of October 10, 1922 (HUREWITZ, op.cit., p.310) and a May 1923 British declaration, accepted by the Council, offering to carry out Britain's obligations under art.22 CLN by means of this Treaty. Iraq's Constituent Assembly accepted the Treaty 1924 "on condition that Great Britain should safeguard the rights of Iraq to the Vilayet of Mosul in its entirety ... [and might have rejected it, had] it not been for the anxiety of the people of Iraq to secure for their country the disputed province, which was claimed by the Turks at the Conference of Lausanne" (BENTWICH, p.52ss).

(11)     According to the Report by HM's Government to the League Council on the Administration of Iraq for year 1929 (p.71), the 1920 census revealed:

vilayets  surface km2  Sunnites    Shiites     Jews   Christians    total
Baghdad     141227      524414      750421    62565      20771     1360304
Basra       138741       42558      721414    10088       2551      785600
Mosul        91009      579713       22180    14835      55470      703378
total       370977     1146685     1494015    87488      78792     2849282

(12)"Question of the Frontier between Turkey and Iraq", Commission of Inquiry Report, 16 July 1925, League of Nations Publication C.400, M.147, 1925

(13)     With the arrival of the nationalists under Kemal Pacha (Atatürk) on the political, military and diplomatic scene in Turkey, their successful campaigns and territorial policies ruled out many of the concessions their predecessors had found themselves constrained to make in the Peace Treaty of Sèvres of 10 August 1920 (which thus never came into force, yet, is formally referred to in art.XIV of the British-Iraqi Alliance of 10 October 1922). However, these policies do not appear to have been fundamentally against the creation of autonomous regions or even independent states on "core-Turkish" territory, notwithstanding rejection of the Sèvres Treaty which, in art.62-64, explicitly provided for the eventual creation of an "independent Kurdish State" involving notably Turkish Kurdistan and the Mosul Vilayet. For one thing, these Turkish policies are seen to be largly inspired byPresident Woodrow Wilson's principle of self-determination, as expressed notably in point 12 of his 14 Points on World War I peace terms:

     "The Turkish portions of the present Ottoman Empire should be assured a secure sovereignty, but the other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development, ..." in: SCOTT, J.B., "Official Statements of War Aims and Peace Proposals" Carnegie Endowment Washington 1921, p.238.

    "We accept that in the case of the three Sandjaks [Kars, Erdehan and Batoum] which united themselves by a general vote to the mother country when they first were free, recourse should again be had, if necessary, to a free popular vote." (art.2; HUREWITZ, op.cit, p.210)

(14)     Great Britain, Parliamentary Papers 1925, Treaty Series no.17, Cmd.2370

(15)     HOOPER, op.cit., p.85

(16)     In the MEMORANDUM FROM THE IRAQI GOVERNMENT of 12 July 1932 (fn 5) it is stated:

    "... The Council, on January 28th, declared itself prepared in principle to pronounce the termination of the mandatory regime upon admission of Iraq to the League of Nations, provided that Iraq should in the meantime have entered into undertakings before the Council, the nature of which were specified in the Council's decision.
     6.     These undertakings have been assumed by Iraq in a Declaration the text of which was approved by the Council in its Resolution of May 19th, 1932, and which has been signed and ratified by Iraq and deposited with the Secretary-General. The text of this Declaration is annexed to the present memorandum. ...
     12.     The Declaration referred to in paragraph 6 above ensures the full observance of all international engagements assumed by the Iraqi Government or by the Government of the United Kingdom on behalf of Iraq."

(18)     Looking beyond the time needed to rebuild the some 4000 villages razed by the Iraqi Government, after the deliberately destroyed agriculture as well as the local economy and the political, judicial and administrative infrastructures will have been set on a course to recovery and development, self-government of the inhabitants of the Mosul Vilayet can and should be envisaged in line with the United Nations Charter. Turkey's early call for a solution honoring the time-tested right to self-determination of the Mosul Vilayet inhabitants offers interesting prospects and opportunities worth exploring - both inside and outside of the United Nations.

(19)Article 77

    1.     The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:
a.  territories now held under mandate;
b.  territories which may be detached from enemy states as a result of the Second World War; and
c.  territories volontarily placed under the system by states responsible for their administration.
    2.     It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trusteeship system and upon what terms.

    The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.

(a)  wounded and sick combatants or non-combatants;
(b)  civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.
     When the Parties concerned have agreed upon the geographical position, administration, food supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the neutralization of the zone."

(21)     Though art.15 provides for an agreement among the "Parties concerned" and Iraq, of course, has every right - but so far has vainly been invited by different humanitarian organizations and NGOs - to initiate the establishment of neutralized zones, resolution 688, in international law, may effectively curtail Iraq's sovereignty, in as much as actions or inactions by its leadership might jeopardize the establishment or independent operation of such zones. In this sense Iraq need no longer be considered a "concerned Party" whose formal consent, in international law, is indispensable for establishing neutralized zones in Iraq, wherever Allies consider this to be indicated. Thus they may proceed unilaterally, as would be the case with open towns, with a simple notification to whoever may be in charge in Baghdad.

(22)     Art.15 is deliberately flexible and does not rule out the use of military forces. Under the circumstances any force providing for otherwise unavailable prompt and indispensable humanitarian services is seen to be not only compatible with international humanitarian law, buttobe called for. The ICRC Commentary on the Draft Agreement re the here irrelevant art.14 ("Hospital and safety zones"; op.cit., p.55) specifies that these zones

     "may be defended against certain dangers, and may, for example, have sufficient police to ensure order and to prevent the entry of irresponsible groups, whether or not they belong to the enemy. ... The prohibition of military defence thus excludes only a systematic military defence, or network of fortifications." (emphasis added).

"2.     The 1950 [E/CN.4/367] study's much-quoted general conclusion seems to be at the heart of a widely shared, important misunderstanding. It concerns the continued validity of the minority protection clauses contained notably in those international agreements and declarations made between the First and the Second World Wars in favour of peoples not affected by the peace treaties which ended the latter. They can be seen to be of direct relevance to the victims of the infamous ethnic cleansing and relocation campaigns which have been conducted under the direction of the Presidents of the former Yugoslavia and of Iraq, respectively. We are referring to the inhabitants of Bosnia and Herzegovina and about Iraq's so-called "un-Iraqi" Assyrians, Kurds, Turkomans and Shiites.

3.     Received wisdom holds that the wide-ranging formal protection enjoyed by these peoples under the League of Nations minority protection system has not survived the dissolution of the League in 1946. Yet, the 1950 study of the United Nations [Secretariat] ... suggests otherwise in its lesser-known but no less relevant case-by-case section. Concerning Yugoslavia, the protection regime laid down by the Treaty of Versailles of 1919 is thus said to be gone only "as regards the minorities which assisted Yugoslavia's enemies" (p. 65). Accordingly, the League of Nations' individual-oriented protection and redress system may be activated in the actual case of Bosnia and Herzegovina, should its authorities or other imaginative diplomats or concerned citizens be interested. And in the equally current case of Iraq, the authors of the United Nations study on page 51, expressed the view that the dissolution of the League of Nations did not annul but merely "suspended" Iraq's all-important and even constitutive Iraqi Declaration of 30 May 1932 with its wide-ranging minority protection and other "obligations of international concern".

4.     In fact, this so-called suspension of solemnly undertaken obligations in favour of minorities has been less a matter of international law than it has been an ill-founded, opportunistic practice. For the United Nations General Assembly, on 12 February 1946, unanimously adopted the resolutions proposed by its League of Nations Committee. Its resolution 24 (I), section I, paragraph 1 specifies that:

   "The General Assembly reserves the right to decide, after due examination, not to assume any particular function or power, and to determine which organ of the United Nations or which specialized agency brought into relationship with the United Nations should exercise each particular function or power assumed."

5.   Iraq, of course, was never relieved of its 1932 obligations; Iraq's territorial integrity, independence and sovereignty are thus subject to review by the United Nations General Assembly."

        Increasing instability in certain parts of the world produces civil strife, famine and displacement of populations, genocide, ethnic cleansing, torture: man's capacity to harm his neighbor is enhanced through the proliferation of sophisticated weaponry.  Until international structures are adapted or complemented with better ones, tragedies similar to those which are unfolding in Somalia, the former Yugoslavia and Iraq, will multiply.

        There are fundamental problems with the present means of providing humanitarian aid.  The United Nations, for example, is criticized for applying a "band-aid" approach in providing relief assistance.  In the past, this was in part due to constraints placed upon the UN by governments during the Cold War period.  The UN had to separate the provision of humanitarian aid from political attempts to address causes of strife.  This was particularly true during my days as United Nations High Commissioner for Refugees from 1965 to 1977.  If one waited until the root causes of conflict were resolved, relief aid would never reach those in need in time to alleviate suffering.  Assistance was not always satisfactory, but being apolitical, its delivery could be facilitated, albeit on a limited basis, in a bi-polarized world where conflict often remained beyond resolution.

        For a number of reasons, the UN has never been able or allowed to achieve a level of optimum operational efficiency.  The situation was further aggravated by bureaucratic contradictions in responding to humanitarian emergencies.  UN aid agencies sometimes compete with one another for scarce funds.  During emergencies, internal competition adds to other duplications of effort.  Furthermore, the UN has not always been able to find sufficient personnel competent to handle emergencies, particularly in the field.

        In order to reduce reaction time to emergencies, the operational capability of the International Committee of the Red Cross (ICRC) and private voluntary organizations to provide relief aid need to be strengthened as these organizations will often be the first on the ground due to their flexible structures and terms of reference.  Private voluntary organizations should be the operational partners of the UN.  Timely and coordinated interaction by these different actors is necessary (1).  The technical expertise of UN agencies makes the UN better able to provide long-term assistance which is, for example, beyond the resources of private voluntary organizations.  In some situations, governments may be willing to lend the UN specially trained military units, e.g. medical personnel, engineers, for rapid deployment where an emergency strikes.  This, however, would require the consent of the authorities where relief aid would be provided.  Unilateral deployment of such units would fall outside the purview of the UN.  The use of special military units is, however, a costly short-term solution.  This was the case in northern Iraq, where the UN was asked to assume relief operations begun by the Coalition north of the 36th parallel.

        Humanitarian aid experiences should be examined in order to extract ideas and derive inspiration which may help us prevent future disasters.  Events in Somalia, the former Yugoslavia and Iraq show that the provision of relief aid based on traditional concepts of international humanitarian law is often impossible.  The right of intervention on humanitarian grounds is proposed as a means of overcoming this problem.

        The right of intervention on humanitarian grounds (droit d'ingérence humanitaire) is to legitimize an intervention to assist people in need of relief even when opposed by the "host" country.  Although a relatively new concept, it nevertheless finds some historical precedence.  The right of intervention is no longer an excuse for intrusion justified by brute strength as in the 19th century example of a western government starting a war with China on the "humanitarian" basis that Chinese people, contrary to the Emperor's wishes, should have the right to smoke opium.

        A doctrine of humanitarian intervention is based on an even older concept which called for the protection of people from abuses by their own government.  One thinks of de las Casas and other Spanish churchmen who tried to protect indigenous peoples of South America against the rapacity of the Viceroy (2).  In the early 16th century, such intervention was carried out in the name of God.  To meet the complexities of challenges today, a secular, rigorously defined right of humanitarian intervention, rooted in accepted principles of international law, is required.

        A look at the development of the ICRC is helpful.  Within fifty years of its foundation, the ICRC had developed the right of humanitarian observation (droit de regard).  This permitted the institution to encourage nations to make war less cruel, first for soldiers and then for civilians.  The ICRC exercises a tacit, unarmed right of humanitarian interference.  Unfortunately, attacks such as the recent ones against the ICRC in Sarajevo make armed protection inevitable.

        Be it armed or unarmed, the right of humanitarian intervention must be part of a doctrine of humanitarian international law which will protect the fundamental rights of individuals, as well as the rights of minorities in civil war and other man-made disasters.  A first step which will give the ICRC a stronger mandate to protect civilians is for the United States to ratify the Geneva Additional Protocols I and II (3).  The support of a great power is urgently required.

        Establishing the protection of minorities is a much tougher problem.  The United Nations has under its Charter a general jurisdiction to protect minorities.  The lack of specifics means that, in practice, when the UN tries to exercise this right in situations like the one facing the Kurds in Iraq or Moslems in Bosnia, the UN's mandate to justify an infringement of national sovereignty is contested.  Older and more precise treaties which came into force under the auspices of the League of Nations could be invoked.

        The League of Nations had at its disposal a corpus of treaties, preventive instruments and redress mechanisms providing for intervention on humanitarian grounds to protect minorities.  Corresponding League guarantees focused on related "obligations of international concern"  (4) which were incurred by League members as a condition of their joining the League.  In the case of Iraq, such obligations were not only sine qua non conditions for membership but also for national independence upon termination of the League mandate in 1932.

        The League's international minority protection obligations were recognized as fundamental laws for countries concerned, i.e. inter alia, Turkey, Iraq, Serbia-Croatia-Slovenia.  They could not be altered without the consent of the League Council and were explicitly declared to take precedence over any existing and future national "law, regulation or official action"  (5).

        The League focused on preventing minority rights abuses through the possibility of early public exposure of violators.  To this effect, issues could be brought before the League Council by any of its Members, and in some cases even by individuals.  Before Nazism embarked on armed aggression, this method was quite successful.

        In the aftermath of World War II the League of Nations was replaced by the United Nations. Some writers  (6) suggest that minority protection obligations put in place at the time of the League could perhaps be a means of reinforcing UN resolutions and that certain relevant treaties and obligations under the League should be considered as remaining valid.  They contend that the UN, as the legal successor of the League, can accede to League instruments through simple General Assembly resolutions. The argument is advanced that League obligations could be applied with respect to Iraq and the former Yugoslavia (7).  It would be helpful if international law experts were to examine the validity of this proposal.  If it were valid, this might strengthen the UN's position.  Indeed, some observers have argued that UN Security Council resolutions are not an adequate basis for intervention on the scale carried out in, for example, Iraq.

        If humanitarian aid is to be provided reliably and effectively, we must seek to universalize the rights of man.  The question is how to champion individual human rights without encouraging unjustified violation of national sovereignty by outside powers or cutting across age-old spiritual and social values.  The western concept of Individual Human Rights is not universally
shared.

        Evolution of society requires the development of a cross-cultural humanitarian ethic.  Ideally, this ethic should define a right of intervention to protect populations at risk. When governments violate fundamental principles, a line must be drawn lest inaction results in even greater harm (8).  However, a right of humanitarian intervention must never be an excuse to interfere in the affairs of states or redraw borders.

        An ethic based on the right of intervention for humanitarian purposes should have as its foundation the defense of the basic common values of civilization.  It should provide effective protection of fundamental rights which are recognized throughout much of the world.  Chief amongst them is the right to life, including freedom from genocide.

        Suppressed genocidal tendencies may be unleashed in other hot spots (9) as they have been in the former Yugoslavia.  There, as in Iraq and Somalia, suffering has been so well publicized that it has catalyzed international action. Security Council Resolutions 688, 751 and 780 (10) have set limits to the harm governments can inflict on their populations with impunity.  These resolutions have marked a precedent-setting watershed in the way the international community can impinge on national sovereignty.  But these resolutions lack specifics governing military intervention for humanitarian purposes.

        The Security Council obliged Iraq to immediately end the "repression of the Iraqi civilian population" since it constituted a "threat to international peace and security" (11).  Resolution 688 requested the Secretary-General  "to use all the resources at his disposal ... to address urgently the critical needs of the refugees and displaced Iraqi population" and it appealed "to all Member States and to all humanitarian organizations to contribute to these humanitarian relief efforts." (Resolution 688, pares. 1, 2, 5 and 6)

        Resolution 688 was not militarily enforced beyond the Kurdish areas when it came to relief operations.  The UN sought prompt access to Iraqi victims and an agreement was reached which resulted in a Memorandum of Understanding, enabling the UN and private voluntary organizations to conduct relief operations to benefit all civilian populations affected by the war.  The Memorandum was not based on Security Council resolutions.  Later, when the Government of Iraq chose not to renew the Memorandum, the UN took no concrete action to enforce Resolution 688.  The suffering of civilians was temporarily alleviated, but the UN's ability to manoeuvre was substantially limited.  The root causes of the problem and the fears of affected groups in Iraq were not removed.  Neither were the sanctions.

        Although Resolution 688 was adopted, it was never fully enforced.  Some argue that this may have weakened the UN's credibility or its ability to influence the government.  Whether this is true or false, the consequences are evident.  Winter is coming and more suffering in Iraq may be unavoidable.

        Thus, one comes to the question of practical means to make humanitarian relief effective.  The international community may wish to reconsider its response to humanitarian needs which cannot be met at the national level.  This is all the more necessary as some governments use the distribution of aid as an instrument of power against their own people.  The establishment of temporarily neutralized zones, e.g. hospitals, schools, as called for in Article 15 of the Fourth Geneva Red Cross Convention should become more common, especially as attacking the ICRC neutralized zones is a war crime.  The establishment of larger, militarily protected safe havens under longer-term UN supervision, before and during hostilities and the facilitation of the repatriation and resettlement of displaced populations, are desirable.  The UN guard contingent formula, introduced to support the relief operation in Iraq, could also prove useful in this regard.  A "preventive" UN presence in, for example, Kosovo may one day be necessary to thwart hostilities and prevent the spread of conflict to surrounding non-"Yugoslav" areas from becoming a reality.

        Providing humanitarian assistance through governments in power may not always be effective.  This is certainly the case if the government in question is a belligerent and is the party accused of violating the basic human rights of its people, including minorities.  Therefore, it may be that emergency relief aid can sometimes only be provided under military or police protection.  How else can a sufficiently secure environment be assured in places such as Somalia and the former Yugoslavia where aid would be impossible without it?  Should specialized military units be on stand-by, ready to go into danger zones?  They could assist in operations by providing logistics, heavy machinery, engineering capacity and specialist knowledge.  They could also assist in channeling and distributing emergency relief aid and provide protection as required.  The use of military power to protect the provision of humanitarian aid implies the full application of the right of humanitarian intervention, with or without the consent of belligerents.

        Economic sanctions are sometimes used.  If they are imposed, sanctions must be examined so that victims or neighboring countries are not hurt more than aggressors.  A blockade within blockade can easily be created, evidenced by the use by Iraq of international sanctions as an excuse to establish de facto internal blockades.

        The setting up of special protected areas for humanitarian intervention is not meant to constitute a violation of a nation's rights under international law.  The goal of humanitarian intervention is to bring medical assistance, food, clothes, heat and shelter to people in need; in a word, ensure their survival.

        In the aftermath of the Gulf War, governments felt that the UN's response to humanitarian problems was less than satisfactory.  They hoped that the creation of a Department of Humanitarian Affairs to manage large-scale and complex emergencies would overcome the problems of the past.  The Department was established at UN headquarters in New York to coordinate inter-governmental and private voluntary organizations in preparing rapid and coherent responses to emergencies through, inter alia, early-warning, facilitating and negotiating access by relief organizations to emergency sites - including the establishment of relief corridors, and managing a fifty million dollar fund for emergencies.

        Many felt that Geneva would have been a more appropriate venue for the Department given the fact that the ICRC, the office of the UN High Commissioner for Refugees, the World Health Organization and other humanitarian agencies are already based there.  In light of multiplying tragedies, the Department has been overwhelmed by these tasks.  The work of aid agencies remains largely uncoordinated and some have had to take initiatives in areas under the Department's mandate.  This mandate is perhaps too generally defined.  Has the result been only the creation of yet another layer of UN bureaucracy?

        Recent events suggest that new approaches to the management of humanitarian emergencies in conflict situations quired and should be kept under review.  Is the Security Council not a more logical forum for direct involvement in handling emergencies, particularly if the Council were expanded as a number of Member States wish?  The increasing magnitude of man-made disasters is a growing threat to peace.  A Department of Peace-Keeping that would include the humanitarian component in its interventions could, under the supervision of the Secretary-General, serve as the Council's operational arm in protecting victims and bolstering the work of relief agencies.  The litmus test would be the extent to which Member States are prepared to give tangible support to such an initiative.

        To be effective and impartial, the right of humanitarian intervention should never become an  instrument of power politics.  Humanitarian intervention is based on universal ethical concepts and the practical needs of people who continue to suffer in this, the modern age.  The challenge lies in turning these principles into practice.
..

(*)    speech given in the course of the RENCONTRES DE LA SORBONNE at the Cité de la Réussite in Paris on 25 October 1992 (text adapted to the Internet by  CORUM, 1211 Geneva 2 - www.solami.com/UNGA.htm; version française).

(1)     For UN reform see:  Boutros Boutros-Ghali, "An Agenda for Peace", United Nations, York, 1992;  E. Childers, and B. Urquhart, "Towards a More Effective United Nations", Development Dialogue 1-2, Dag Hammarksjold Foundation, Uppsala, 1991;  L. Minear, et al., "United Nations Coordination of the International Humanitarian Response to the Gulf Crisis 1991-1992", Thomas J. Watson Jr. Institute for International Studies, Occasional Paper 13, Brown University, Providence, 1992.

(2)     "Don Fray Bartolome de las Casas", Mouton, Paris, 1974.

(3)Protocol I deals with the protection of victims of international armed conflict and Protocol II with the protection of victims in non-international armed conflict.

(4)     Art.44, Treaty of Peace with Turkey Signed at Lausanne, July 24, 1923, League of Nations Treaty Series, vol.28, 1924, p.35; Art.10, Iraq Declaration of 30 May 1932, League of Nations Publications, VII Political, 1932, VII.9.

(5)     Art.10, Iraq Declaration, op.cit.; Art.37, Lausanne Treaty, op.cit.

(6)"UN Resolution 688 - A Mandate for 'Exceptional Response'", CORUM, Geneva, 6 April 1992.  See also UN documents E/CN.4/1992/31, S.24386 and E/CN.4/1992/L.11/Add.6.

(7)     The UN General Assembly set out mechanisms for this possibility with its Resolution A/28 of 12 February 1946 (598/9, vol.I, p.402).

(8)     George KENNEY, "If the West Fails to Halt Serbia...," International Herald Tribune, 1 October 1992.

(9)     Jacques ATTALI, "Will Balkan Tribalism Spread to the West?" and Peter CONRADI, "A little Free-Thinking for the Republics of Caucasia," The European, 13 September 1992.

(10)     UN Security Council Resolution 688 provides for the right of limited intervention in Iraq and Resolution 751 in Somalia. Resolution 780 establishes a commission of experts to investigate war crimes in the former Yugoslavia.

(11)     The French co-author of SC Resolution 688, Professor Mario Bettati, expressed no reservation as to the binding character of Resolution 688. He stated:

"... pas plus que la loi interne n'est moins obligatoire du fait qu'elle est rarement votée par un parlement unanime, la résolution du Conseil de Sécurité (sous réserve de l 'accord des cinq membres permanents) n'est pas moins obligatoire du fait de l'opposition de certains Etats.  C'est le cas de la résolution 688." (Mario BETTATI, "Un droit d'ingérence?", Revue Générale de Droit International Public, 3, 1991, p.639; Mario BETTATI, Bernard KOUCHNER, et al. "Le devoir d'ingérence", Denoel, Paris, 1987.)

1.     Following the suggestion made by the Representative of Nicaragua to consider migrant workers as a minority which should be covered by the Working Group, the speaker expressed the view that this growingly important issue deserves a more suitable framework for debate - lest the achievements in the domain of minority protection risk to be further diluted.

2.     The speaker pointed to the evolution of the term minorities since the 1st World War. Then, in the wake of the break-up of the Ottoman Empire in particular, borders were redrawn radically over much of Europe and the Near East, and many constituant parts of national, religious and linguistic entities thus found themselves forcibly confronted with new frameworks, legal systems and neighbors.

3.     In order to accomodate, appease and secure these newly created and isolated and thus - if not physically, then socially and politically - uprooted and destabilized groups and minorities, the complement of the Versailles Treaty of 1919, ie. the League of Nations, provided for corresponding international minority protection obligations which were placed under the surveillance and guarantee of the international community. Indeed, much of the League of Nations’ work concerned minorities. And though that attempt to organize the business of the family of nations and to harness the forces of its members towards peaceful ends failed, this failure, by most accounts, occurred not because but despite of the League’s relatively successful minority protection mechanism and work. At any rate, the speaker was of the opinion that there were still lessons to be learned from that experience, and he expressed the hope that after 47 years of the Sub-Commission’s existence, this newly created Working Group will finally be able to effectively address the issues related to minorities à fond and in a constructive and mutually beneficial way.

4.     The Sub-Commission’s Special Rapporteur, Francesco Capotorti, had amply demonstrated in his excellent report on minorities of 1977 (UN Sales Nr. E.91.XIV.2) that after the 2nd World War, for "at least 20 years, ... the question of international protection of minorities was no longer topical. The system of protection built up under the League of Nations had collapsed with the demise of that organization, and the Universal Declaration of Human Rights adopted in 1948 by the General Assembly of the United Nations did not mention the question of the treatment of persons belonging to ethnic, religious or linguistic minorities. Moreover, the emphasis placed in the international legal order on the imperative need to ensure respect for basic human rights seemed to imply that it was no longer necessary to protect in any special way the interests of minority groups or, more specifically, of individuals belonging to such groups." (p.ii).

5.     Indeed, as was pointed out in the UN Secretariat’s "Study on the Legal Validity of the Undertakings Concerning Minorities" of 1950 (E/CN.4/367), the United Nations Charter focused on and "recognized a new concept which did not appear in the Covenant of the League of Nations, the concept of human rights and non-discrimination. The protection of human rights is a substantial element in the protection of minorities. The obligations regarding the protection of minorities provided that minority groups should enjoy personal and civil liberties, in fact what has been termed human rights, and that they should not be subjected to discriminatory measures as compared with other elements of the population." "Consequently, might it not be said that the United Nations Charter, by adopting the concept of human rights, which to a large extent coincides with the idea of the protection of minorities, intended to substitute the former concept for the latter and thus implicitly abrogated the special obligations regarding the protection of minorities?" The authors of said authoritative study answered themselves by saying: "The question might be answered in the negative ..." (p.19).

6.     Nevertheless, in the opinion of the speaker, a dilution of the term minority had indeed occured, and the special rights and protective measures which were granted to specific groups had suffered accordingly. With the re-emergence of wide-spread identity problems in the form of ethnic, religious and linguistic tensions as telltale signs of inadequately organized or goverened, unstable and potentially explosive societies, effective and trust-worthy minority protection tools involving international guarantees are more than ever called for. The trend towards ever more diluted and ever less enforced rights must be reversed and not favored, as would be the case if minority status were extended to refugees, asylum seekers, frontaliers, migrant workers, etc. To these effects, the speaker recommended to the Working Group to see to it that corresponding opportunities not be missed.

7.     In his second intervention, the speaker reflected on the references made by Professor Cherenenko to the minority protection régime of the League of Nations, on the opportunity indicated by others for the Working Group to develop its work with a foreward-looking yet historical perspective, and on the issue pointed out by Professor Ali Khan concerning the continued validity of minority protection obligations incurred by States in light of the 1992 Minority Rights Declaration and of possible actions and inactions taken by the Working Group.

8.     The speaker was of the opinion that said Declaration, which was brought into focus by the mandate given to the Working Group, should not be construed as a limiting factor for the Working Group's attention, neither timewise, nor as regards minority protection obligations entered into by States outside the framework of the United Nations. The President had previously expressed a similar view and declared himself open to look at the experiences gained with the League of Nations minority protection system; he expressed particularly interest for information to be provided to the Working Group on three points:

a)     Which, if any, of the minority protection obligations incurred in relation with the League of Nations are still valid in international law?

b)     What is at present the status of the related review, surveillance and enforcement powers and functions which were attributed to the League of Nations and its Permanent Court of International Justice in relation to the United Nations system?

c)     What are possible pathways for what related actions towards what objective?

9.     Indeed, article 8 of the 1992 Declaration stipulates unmistakably:
     "Nothing in the present Declaration shall prevent the fulfilment of international obligations of States in relation to persons belonging to minorities. In particular, States shall fulfil in good faith the obligations and commitments they have assumed under international treaties and agreements to which they are parties."

10.     Furthermore, the International Court of Justice, in its Advisory Opinion on the South African mandate of June 1950, expressed the opinion:

     "These obligations represent the very essence of the sacred trust of civilization. Their raison d'être and original object remain. Since their fulfilment did not depend on the existence of the League of Nations, they could not be brought to an end merely because this supervisory organ [i.e. the Council of the League of Nations] ceased to exist. Nor could the right of the population to have the Territory administered in accordance with these rules depend thereon." (I.C.J. Reports 1950, p.133)

12.     In this light, the speaker drew attention to the cases of the minority protection regimes of the Baltic States, former Yugoslavia and Iraq, all of which were concluded in relation with the League of Nations and seemed not only to have remained in force but, as detailed in the written statements submitted to the Sub-Commission, may provide effective answers to current and future minority problems (E/CN.4/Sub.2/1992/NGO/27; E/CN.4/Sub.2/1993/NGO/27; E/CN.4/Sub.2/1993/NGO/29; E/CN.4/1994/NGO/48; E/CN.4/1994/NGO/54; E/CN.4/1995/NGO/47; E/CN.4/1995/NGO/51; E/CN.4/1995/NGO/52). He pointed out that the widely quoted conclusion of the UN Secretariat's 1950 study (E/CN.4/367) was a general statement and concerned only the League of Nations' minority protection regime as a whole, but was not meant to and did not provide a generally valid assessment of the eventual continued validity, in international law, of each and every minority protection obligation entered into by States in relation with the League of Nations. In fact, the substantive part of this study concluded in almost all cases that the circumstances were not radically changed, thus leaving the obligations intact. In the case of Iraq, the study concludes:

  "1.     As regards ordinary causes of extinction of obligations, since Iraq was bound by a Declaration made before the Council of the League of Nations, the dissolution of the latter suspended the obligation, which would return into force only if the United Nations decided to take the place of the League of Nations.
   2.     As regards change of circumstances, there seems to be no special circumstance affecting the position of Iraq."

14.     Accordingly, the speaker underlined that in the above-mentioned cases at least, the UN Secretariat's authoritative 1950 study came to positive and thus highly interesting conclusions which, of course, required to be reviewed anew particularly in light of developments which occurred since then (e.g. the successor state problems are particularly acute and challenging in the cases of the Baltic States and the former Yugoslavia). He expressed the view that the Working Group, too could benefit in many ways if it invested its scarce resources also into efforts to avoid reinventing the wheel by seeking inspiration from these extremely valuable, for life-size minority protection experiences and, in the event, to seek to transfer, adapt and complement the League of Nations mechanisms and methods to present circumstances in and outside of the United Nations system.

15.     Concretely, this may involve the re-enrootment, re-enactment and development of international minority protection guarantees. And it may require the creation of a new type of human rights minitors who, upon nomination by the beneficiaries of these guarantees, would be put into office by the guaranteeing body or powers with the mandate to see to it that the guarantees in question are being observed on every level and that the beneficiaries of these guarantees have a direct means of communication with the guarantor(s) through his good offices. As such, these and other ideas might be developed into effective tools of diplomacy for getting the leaders of abused minorities to be able to consent to political solutions which otherwise might not be accessible with peaceful means.

COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination
and Protection of Minorities
48th Session

 Mr. Chairman,

On behalf of the world`s over three million dispersed Assyrians, we wish to express our gratitude to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities for the opportunity to give testimony about the human rights situation of those Assyrians who have managed to remain in their ancestral homeland, particularly in Mesopotamia. In summary, I am encouraged by the reports I have received from Syria and by the testimonies I have taken personally concerning Iran, and I believe that the time has come for important human rights developments in Iraq.

Let me begin by clarifying a few things. I am not talking about the inhabitants of Syria, even though the Assyrian Empire of some four thousand years ago did indeed embrace all of what is now modern Syria. Assyria was destroyed as a political system in 612 BC but not as a nation or as a race. However, there are definite and continuous traces of Assyrians throughout history since 612 BC. They were among the first to embrace Christianity in the first century AD, and as a consequence they have suffered persecution and massacres. During the First World War they were invited by Great Britain as an ally, helped win a desicive battle against the Ottoman Empire and were caused to lose two thirds of their nation in this war. The British had promised the Assyrians independence, autonomy and a home for all Assyrians. Instead the British mandate in Iraq was terminated and the Assyrians were released to the Iraqi Government with guarantees as a minority pursuant to the 1932 Declaration of the Kingdom of Iraq (reproduced in: E/CN.4/Sub.2/1992/NGO/27). Since then Iraq has failed to comply with the articles of its 1932 Declaration (see also: E/CN.4/1995/NGO/52). This also meant that Iraq has ignored the land ownership and special rights and privileges that were accorded to the inhabitants of the Mosul Vilayet which, in 1925, were conditionally placed under the authority of the Kingdom of Iraq.

In Iraq we have a very unique situation which offers an opportunity to demonstrate to the World of Nations that we can do something about effectively providing human rights to minoritiesthat are under the perview of your Sub-Commission. To be sure, the Government of Iraq cannot alone be blamed for the present denial of human rights to the minorities in Northern Iraq. Nevertheless, Iraq must be held fully accountable for the denial of human, religious, and linguistic rights to the Assyrians, Kurds and Turkoman, and other minorities residing in the rest of the country. Examples of violations affecting the Assyrian community are detailed by the Special Rapporteur on Iraq of the Commission on Human Rights (E/CN.4/1992/31, p.30, 31; E/CN.4/1994/58, p.33; E/CN.4/1995/91).

The situation in Iraq is such that not only are the Assyrians politically discriminated against but they are also deprived of their freedom to practice their religion and preserve their idendity, culture and language. To the Assyrians which are the indigenous people of Iraq, religion and language are so intertwined that to suppress either one will effectively mean the destruction of the Assyrian identity.

The events of 1991 have brought about some responsibilities to the Commission and Sub-Commission by the acts of the United Nations which, without questioning the integrity of the country of Iraq, provides for a Comfort Zone where the majority of inhabitants North of the 36th parallel are part of the minorities of Assyrians, Kurds and Turkoman.

The results of the efforts of the past few years speak for themselves: Three thousand killed or wounded. A continuous struggle for power through control of humanitarian aid being supplied to the divided Kurds "governing" the area. A population kept captive under Kurdish control. And elections which gave false hopes of an independent Kurdish Nation. Those members of the minorities which are not allied with either of the armed camps fear for their safety and for that of their family. They struggle to provide ways of earning a living and protect their property from each other while those in command do little or nothing to help.

Yet, the opportunities exist to effectively safeguard and promote human rights to all Assyrians, Kurds, Turkoman and others of Northern Iraq. To accomplish this it is in the hands of the Sub-Commission to call for corresponding steps to be taken by the appropriate United Nation bodies. Most urgently, the power to distribute humanitarian aid must not be left in the hands of those who no longer have the confidence of the people.

AN INTERIM CIVIL ADMINISTRATION, SUPPORTED MILITARILY BY THE ALLIES, MUST BE PUT INTO PLACE WITHOUT FURTHER DELAY, IN ORDER TO PROVIDE THE NECESSARY SERVICES AND ENSURE THE EQUITABLE DISTRIBUTION OF HUMANITARIAN AID,

This administration must adaquately reflect Middle East customs and traditions, and it must ensure freedom, liberty and justice for all. As such it would have to provide the necessary services and security, giving the local inhabitants the opportunity to effectively pursue the reconstruction of their villages and homes, and ensuring their civil, human, and property rights. The necessary financial means do not depend on further taxpayer money; they are already in hand and present no problem. Whatever the future holds, this process must provide a solution which is also acceptable for Iraq and the neighboring peoples and governments. For it must not become a source of regional instability, but rather one of stability, security and economic well being.

UNITED NATIONS

COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination
and Protection of Minorities

48th Session, item 6

1.       Six years of an effectively applied economic boycott could not fail to take its toll, even if its authors carefully sought to cushion the effects of the UN sanctions regime for the Iraqi population in that they exempted from the beginning food, medicine and other humanitarian supplies. These programs in favor of the Iraqi people (and the way they were handled) developed a dynamic of their own with some unforeseen consequences. The longer the sanctions lasted and produced ever graver effects on Iraq's inhabitants and social fabric, the more effective aid grew into a humanitarian, moral and political imperative. In light of the growing donor fatigue - due to the increasing needs created by natural and man-made disasters taxing the world community's relief resources - it was also indispensable to devise ways and means for financing these humanitarian aid programs for Iraq without reliance on already burdened foreign taxpayers.

 2.       Accordingly, the United Nations Security Council adopted successively improved"oil-for-food" resolutions SCR 706, 712 and 986, providing notably for covering the external costs of related humanitarian aid programs (1).  Thereby, an old and unsettled question, i.e. "Who owns Iraq's oil?", seems to have been overlooked, if not prejudiced without due process - at the expense of the "internationally protected" Assyrian (2), Kurdish, Turkoman and other landowners, and in favor of the Iraqi State. Alternatively, being alerted to this delicate legal problem by way of an internal UN memorandum dated April 1992, the authors of said resolutions seem to have not only recognized the pitfalls but left it to the courts to finally settle eventual claims.  For SCR 986 provides immunity against seizure only while "petroleum or petroleum products", or proceeds from them, are "under Iraqi title", suggesting that the Iraqi State, in the event, would have to carry the burden of proof that it has good title for the petroleum resources located in Iraqi territory, i.e. that it obtained these rights with due process and in line with Iraq's international obligations.

 3.       In 1932, when the League of Nations carved Iraq out of the remains of the Ottoman Empire, Iraq incurred permanently binding international minority protection obligations which were supposed to protect also the Assyrians.  These freely accepted obligations cover not only such specific human rights as freedom of practicing the Assyrian's Christian beliefs, language privileges and preferential employment stipulations but, most importantly, the obligation of the Iraqi State to respect the land ownership and other private property as it existed prior to Iraq's independence  (3). Some of these rights and special privileges concern in particular the Northern part of Iraq, called the Mosul Vilayet which was conditionally attached to the Kingdom of Iraq in 1925 (4). Iraq thus incurred international obligations which it could not alter unilaterally, and from which it could be relieved only by the League of Nations or, in the event, by the United Nations acting as the League's succesor in accordance with UN General Assembly resolution 24 (I) of 12 February 1946.

 4.       The conditions under which Iraq obtained its independence have never been altered.  The circumstances which gave rise to these international minority protection and other conditions have essentially remained.  According to testimony published by the UN Human Rights Commission's Special Rapporteur on Iraq, past and present human rights conditions in Iraq have provided no justification for abrogating any of Iraq's related international obligations (e.g. E/CN.4/1993/45, §§89-126; E/CN.4/1995/138, p.8).  Iraq's constitutive international obligations, too have thus remained fully binding (E/CN.4/367/Add.1), in as much as the ruling on South-West Africa, handed down by the International Court of Justice, by analogy, applies to Iraq:

   "These obligations represent the very essence of the sacred trust of civilization.  Their raison d'être and original object remain.  Since their fulfilment do not depend on the existence of the League of Nations, they could not be brought to an end merely because this supervisory organ [i.e. the Council of the League of Nations] ceased to exist.  Nor could the right of the population to have the Territory administered in accordance with these rules depend thereon." (ICJ Reports, 1950, p.133).

     "With regard to the oil ownership question, these documents provide a prima facie ownership case in favor of some Turkish citizens and Kurdish tribes in whose ancestral lands the largest oil field, in Kirkuk, is situated.  Accordingly, the seizure protection wording of Resolution 712, paragraph 5, may not stand in a tribunal.  It is thus advisable to execute Resolutions 706 and 712 either exclusively on the basis of oil pumped from uncontested Iraqi fields not in the Mosul Vilayet area or on the basis of corresponding agreements with the Turkish Government and the involved Kurdish tribes."

     1.     as a new source of economic and political power, and thus as a direct cause for further infighting between those who have essentially lost the confidence of the people yet continue to be supported by outside forces for "governing" Iraq's non-government-controlled Northern Governorates;

     2.     as a bailout of the cash-short United Nations;

     3.     as a formal UN-sponsored transfer of title to the Mosul Vilayet's oil resources from the present, internationally protected Assyrian, Kurdish and Turkoman landowners to the Iraqi State without consultation, compensation or due process; and

     4.     as being incompatible with the U.S. Constitution in as much as it would deprive U.S. citizens to seek protection for their property rights from a U.S. Court.

 8.       Most urgently, the power to distribute humanitarian aid must not be left in the hands of those who no longer have the confidence of the people.  In order to provide the necessary de-mining, rebuilding and other services, including the equitable distribution of humanitarian aid, it has become indispensable to replace the present power structure in the Mosul Vilayet with an interim administration which is to be militarily supported by the Allies and which is also acceptable for the neighboring peoples and governments.

 9.       This sanctions-free and self-financed interim administration must adaquately reflect Middle East customs and traditions, and it must ensure freedom, liberty and justice for all.  As such, it would have to provide the necessary services and security, giving the local inhabitants the opportunity to effectively pursue the reconstruction of their villages, churches and homes, and ensuring their civil, human, and property rights.  Authorized to develop the local resources and to trade freely, the necessary financial means would no longer depend on ever scarcer taxpayer money.  Thus, these resources could finally become a source of regional stability, security and economic well-being.

NOTES

(§)    Like the preceding Written Statement "A European Solution to Turkey's Minority Problems" (submitted to the Sub-Commission on 11 August 1995 by another NGO in consultative status with ECOSOC, i.e. the International Committee for European Security and Cooperation), this paper, on grounds which have not been clarified, has yet to be published by the UN Secretariat.  Curiously, the editor of these and the other preceding Written Statements (published by the UN), while attending the March 1996 session of the Commission on Human Rights as duly accredited Representative of a third ECOSOC NGO, i.e. the Germany-based World Society of Victimology, was prevented from exercising his functions at the UN in Geneva by an administrative ukase, without due process and in violation of ECOSOC Resolution 1296 (XLIV).  This suggests precedent-setting illegal interferences with the work of the United Nations by influential third parties.

(*)     prepared in cooperation with John Nimrod, Secretary-General, Assyrian Universal Alliance (7055 North Clark Street, Chicago, Il. 60626, U.S.A.; t:1773-2749262, f: 1773-2745866) and the CORUM Research Group (box 2580, 1211 Geneva 2, Switzerland, t+f:4122-7400362, e: swissbit@solami.com).

(1)     in addition to various UN administrative costs and compensation payments for damages incurred in the course of Iraq's occupation of Kuwait.

(2)     Assyria is not to be confounded with Syria, even though the Assyrian Empire of some 4000 years ago did indeed embrace all of what is now modern Syria - and much more.  Assyria was destroyed as a political system in 612 BC but not as a nation, not as a race and not as a language.  However, there are definite and continuous traces of Assyrians throughout history since 612 BC.  They were among the first to embrace Christianityin the first century AD, and as a consequence they have suffered persecution and massacres.  During the First World War, on the side of Great Britain, they helped win a decisive battle against the Ottoman Empire and were caused to lose two thirds of their population in that war.  The British had promised the Assyrians independence, autonomy and a home for all Assyrians.  Instead the British mandate in Iraq was terminated and the Assyrians were released to the Iraqi Government, covered by the international minority protection guarantees written into the Declaration of the Kingdom of Iraq of 30 May 1932.  Since then Iraq has failed to comply with most articles of its still binding 1932 Declaration (see also: E/CN.4/1995/NGO/52).  In particular, Iraq has violated article 14 (covering land ownership rights), and it ignored special rights and privileges that were accorded to the inhabitants of the Mosul Vilayet which, in 1925, were placed under the conditional and limited authority of the Kingdom of Iraq.

(3)Declaration of the Kingdom of Iraq of 30 May 1932, article 14 (E/CN.4/Sub.2/1992/NGO/27).

(4)To the South, the Mosul Vilayet borders on Iraq's Baghdad Vilayet, to the West on Syria, to the North on Turkey and to the East on Iran.  It includes the Diala District, as defined in the League of Nations inquiry of 1925.  According to the last available census (1920), its surface is 91009 km², and its inhabitants were 579713 Sunnites, 22180 Shiites, 14835 Jews and 55470 Christians, i.e. mostly Assyrians (Report by HM's Government to the League Council on the Administration of Iraq for the year 1929, p.71).

26 September 1999

way out of Iraq sanctions impasse?

Your Excellency,

1.    This is to present our compliments and to solicit your good offices for bringing the ideas on Iraq sanctions outlined below to the attention of the competent authorities and decision-makers.  Of course, we have no monopoly for good ideas, either.  But as neutral think-tank, informal go-between and adviser in the 1979/1980 Iran hostage affaire, the Falklands/Malvinas conflict, the break-up of former Yugoslavia and the Iraq-Kuwait conflict, we have developed some useful insights and expertise which, in cooperation with the International Committee for European Security and Cooperation and other NGOs with ECOSOC status, have led to some noted UN contributions on security and humanitarian questions.

2.    In light of the persistent impasse on the matter of Iraq, we believe some alternative ideas to merit serious consideration and we trust this communication to assist you in your own bridge-building efforts.

3.    In as much as international economic sanctions are justified and constitute legitimate tools for encouraging a sovereign government to reconsider and eventually bring national policies on internal matters in line with duly incurred international obligations, enforcement of corresponding sanctions by the international community can be meaningful, helpful and legitimate
a)    only as long as the sanctions' stated limited purposes are attainable
       -    on the chosen road,
       -    within reasonable time and
       -    without excessive collateral damages,
b)    only if the objectives thus pursued cannot be attained more reliably, promptly and cost-effectively with alternative means involving the full cooperation of the government concerned, and
c)    only in relation to areas which are under effective control of the government concerned.

4.    In the case of Iraq, the above principles give rise to serious misgivings and questions on both security and humanitarian grounds.  Nine years of a multitude of sanctions have failed to bring about the desired changes.  And essentially more of the same cannot reasonably be expected to make a positive dent anywhere anytime soon.  Thus, the current apparent stalement on how best to resolve the conflicting views and interests over the various sanctions decided by the UN Security Council is also seen as an opportunity to seriously examine alternative approaches.  To this effect, we are inviting you to consider actively supporting the idea of a

dynamic quid pro quo, resulting in a prompt, effective and reliable suspension of economic sanctions for all areas - but only for those - in which Baghdad sees to it that all of Iraq's international obligations, including but not limited to effective armament controls by UN inspections, can be and are verifiably fulfilled.

6.    Furthermore, the above general idea reflects the feedback we have received from many sources - and for which we are most grateful - to the memorandum which was drawn up and is supported by representatives of Iraq's constitutive Arab, Assyrian, Kurdish and Turkoman communities (this memo was submitted for consideration by your authorities on 27 August 1999 by way of your good offices; it's titled: "Are Protective Sanctions Appropriate in the case of the Mosul Vilayet (Northern Iraq)?" and can be down-loaded from the Internet at: www.solami.com/MVmem.htm).

7.    Trusting this to receive your prompt and benevolent consideration, we shall be happy to assist you in whatever way we can and are looking forward to hearing from you at your earliest convenience.  Meanwhile, we take this opportunity to re-assure Your Excellency of our highest consideration and remain, sincerely yours,

Anton Keller, Secretary
GOOD OFFICES GROUP OF EUROPEAN LAWMAKERS
 
 

  Anton Keller, Secretary

July 24, 2002

His Excellency, The Minister of Foreign Affairs
Ministry of Foreign Affairs

Your Excellency,

Today, 79 years ago, besides your own predecessor, the foreign ministers or plenipotentiaries of the other signatory and observer countries (British Empire, France, Italy, Japan, Greece, Romania, Serb-Croate-Slovene State and Turkey, as well as Germany, Russia and the United States) concluded the formal wrap up of the Ottoman Empire breakup with the Lausanne Treaty of 24 July 1923.  Having failed to provide adequate and lasting answers to the special conditions and legitimate aspirations of the people concerned, the current generations appear to be entitled to revisit the roots, evolution and results of this particular treaty.

With a view to explore further opportunities to advance on the path towards a regionally stabilizing, ethnically balanced and economically viable settlement of outstanding issues in the Middle East by drawing inspiration notably from the minority protection clauses of the Lausanne Treaty (http://www.solami.com/Lausanne.htm) and of subsequent instruments of international public law (http://www.solami.com/a3b.htm), duly elected representatives of Iraq's Arab, Assyrian, Kurdish and Turcoman communities are thus proposing to hold a commemorative seminar or forum next year, with the agenda, place and time to be decided at a preparatory meeting to be held at an early date at a suitable venue.  Having been requested to assist in the organization of this meeting, it is our privilege to invite you to express your views on this proposal and, in the event, to consider taking an active role in this matter in line with your country's foreign affairs traditions and policy objectives.

Trusting this communication to receive your benevolent attention and to elicit your prompt response, we take this opportunity to assure Your Excellency of our highest consideration and remain, sincerely yours,

Anton Keller, Secretary
Good Offices Group of European Lawmakers

annexe:
"Commemorative 2003 Lausanne Treaty Seminar - Preparatory Meeting" (www.solami.com/partypres.htm)

Geneva, 21 Sep 02  -  Last week live on CNN, Saddam’s longest-surviving mouthpiece, Tariq Aziz, sought to deflect both George W‘s call to arms and the ensuing chorus for Iraq to prove that it no longer has any teeth.  Even traditionally neutral Switzerland used the occasion of its maiden speech as a full UN member to fall in line with the Piper of Hamelin on Iraq; it, too uses Security Council resolutions like a modern Holy Grail mantra - as if they were a substitute for well-considered policies befitting sovereign nations. That looked like a no brainer, and so I called my guru for lost causes to look into Tariq‘s invitation for anyone to come up with ideas which, in effect, would

1. assure the Republican Party’s return to full control of the US Congress in the November mid-term elections without a nice little war in a far-away place;
2. assure regional peace and security in the Middle East with maximum containment of the danger of weapons of mass destruction being used there or elsewhere;
3. assure a decent footnote in future history books for both George W and his nemesis Saddam.

1. Traditionally, in times of war, the US voter tends to support the Commander-in-Chief at the polls.  This time, with the implosion of the bubble of the virtual economy seriously affecting the real economy, the unprecedented numbers of ordinary US voters who have been burnt in the stock market may actually turn in a protest vote if they see themselves taken for a ride against a possibly overblown threat from Saddam. Conversely, they may honor at the poll the foregoing of an obvious election gimmick in favor of sound measures to regain the investors’ confidence in the US market. With the US economy already looking at a tail spin due to confidence factors and administrative overreach, an accelerated run to the door by its Mideastern and other foreign investors could be globally devastating.  Thus everything should be avoided which risks to breach the dykes, and everything should be done to stem that tide.  In fact - and on a global scale at that - it would be enormously helpful if the US economy were to keep or get every dollar of foreign investment it could attract.  To this end the White House may want to promptly set up a Presidential Council for Foreign Investors which, through its composition and advisory role, may effectively reassure foreign investors that their investment in the US market is not only safe but also administratively and fiscally privileged as well as fully protected against foreign snoopings and non-US taxations.
2. Though a result of the breakup of the Ottoman Empire and the creation of the predecessor of the United Nations, Iraq is a sovereign country, like the United States, Italy, Switzerland and others.  The system of equal sovereignty is a time-tested one; if the events of 9/11 demonstrated one thing it is that it needs to be strengthened, not weakened.  Appearances to the contrary notwithstanding, in international law, the United Nations is not a sovereign entity and neither is its Security Council; the UN is no more and no less than a governmental organisation in the service of its members.
3. Contrary to other countries in the Middle East and elsewhere, Iraq is also bound by a key treaty negociated under UN auspices, i.e. the Nuclear Non-Proliferation Treaty of 1968.  The NPT covers only what is forbidden, not what is allowed.  Wrightly or wrongly, it devides the world into haves and have-nots, and it relies on the risk of early detection as a deterrent against cheating.  Moreover, it provides for international controls of nuclear material and activities only if they are for peaceful purposes.  In contrast, the acquisition of nuclear material of any quantity and quality, and related assistance and activities designated for military purposes are neither prohibited nor subject to international controls. Under the NPT - and contrary Security Council mantras notwithstanding - any signatory country might thus legally seek related services and, in the event, even build a nuclear submarine.  Any capable and willing sovereign country - NPT member or not - might thus legally supply Iraq also with all related material, know how and technical assistance.  That was the price for non-nuclear weapon states to sign on the dotted line.  And if that quid-pro-quo were no longer assured, Iraq might be the first, but not the only country wishing to reconsider its commitments under the NPT, even exercise its sovereign right to withdraw from the NPT.
4. Prior to the NPT, statesmen were expected to act on the level of responsibility entailed in their sovereign capacities and obligations, with security effectively served by the system of mutual awareness, preparedness and deterrent.  There is no apparent reason to expect such a system to have been useful only up to, and not also beyond the fall of the Berlin Wall, in Europe, the Middle East or anywhere else where human aspirations and fears are at work.
5. If he wants to be seen to seriously seek to promptly and conclusively win the war already at hand – i.e. that against politically-motivated and religiously-driven global terrorism - George W, too might be well advised to rule out no option.  In this light, even Saddam might again be turned into an objective ally.  E.g. by following and indeed furthering both Yassir’s and Ariel’s legitimate agendas in an original, balanced and mutually beneficial way.  For Saddam, too could probably be prodded into offering the Palestinians a modern version of the regenerative Babylonian exile their brethren experienced some 2600 years ago.  This could take the form of a 99-year Hong Kong-type lease for Iraq’s water-rich and oil-bearing 19000 km²Diyala Province.   And it would be in exchange for getting his own Principality of Tikrit while abdicating power to suitable successors properly reflecting Iraq’s great cultural past and its more recent political, notably royal background.  Perhaps somebody could remind Switzerland of its past Good Offices functions in relation to the Middle East.  Alternatively, some suitable organization or institute of a signatory, observer or other country might be found for arranging a timely review of the genesis, current results and outlook of the Lausanne Treaty of 24 July 1923 which sealed the breakup of the Ottoman Empire with its still festering and inadequately attended wounds.

1.    to those who queried me on the proposed "UN mandate or other UN foam carpet":
The idea derives from the method to extinguish some chemical fires with foam rather than with unhelpful and perhaps even dangerous water.  Essentially, letting the Iraqi opposition play out its antagonisms on its own would amount seem to amount to a formula for further, prolonged and regionally destabilizing disaster.  A generally acceptable and mutually helpful post-Saddam solution for Iraq (www.solami.com/salve.htm) - with or without war, with or without external and/or internal asylum for Saddam and his entourage, and with or without the proposed linkage to the Palestine/Israel conflict by way of a second Babylon (.../babylon2.htm) - might thus have to be found within the confines of and with the help of the instruments available to the UN (Trusteeship Council, Security Council and/or General Assembly), with the genesis of Iraq as the League of Nations' first nation-building product (.../a3a.htm) revisited in the course of an correspondingly set up international conference, possibly using the Lausanne Treaty of 1923 (.../Lausanne.htm) as a point of departure.  On that occasion, the UN's role as successor to the League of Nations and the minority protection and property rights guarantees thus enshrined in international law might be more fully appreciated and brought to fruition - at least as a source of inspiration - with all parties and communities involved contributing their fair share in the search for, exploration and development of common ground for a generally acceptable and viable formula for Iraq.  This may entail a UN-mandated interim administration for the three composite parts of Iraq (Basra Vilayet, Baghdad Vilayet and Mosul Vilayet), with France, Germany, Iran, Jordan, Russia, Turkey, UK and USA conceivably sharing correspondingly designed mandates which should and could adequately reflect this area's history, culture and applicable international law standards (notably such agreements as the Jaffa Treaty of 1229: .../jaffa1.html, the Sykes-Picot Agreement of 1916: .../a33f.htm#WATERLOO III , the Treaty of Lausanne of 1923: .../Lausanne.htm, the constitutive Declaration of the Kingdom Iraq of 1932: .../a3a.htm#DECLARATION, the applicable resolutions of both the UN General Assembly and the UN Security Council, the related Advisory Opinion of the International Court of Justice of 1950: .../a3a.htm#367/Add.1, and the UN Memorandum LEAGUE OF NATIONS DOCUMENTS QUESTION IRAQ'S CLAIMS AND OWNERSHIP OF PETROLEUM RESOURCES IN KURDISH AREA of 1992 .../a3a.htm#OWNERSHIP).

2.    for those who haven't received my observations of Feb 1 to the Bulletin of Atomic Scientists on "Why should Switzerland not question its NPT membership?", here they are again:
       1.    I greatly appreciate your prompt and most informative response on the "Report from Iron Mountain" (now electronically available also at: .../iron.html) - even as a hoax, the study's underlying out-of-the-box analysis, in my humble opinion, is still relevant, goes under the skin and, in my case at least, has been quite influential, starting with our NPT study of 1968 (.../NPT68.htm) to which I suggest you consider including a hyperlink on your website (in the event, in return for me including a link there to your Bulletin).

        2.    Linda's current Bulletin editorial "Why not Switzerland" (www.thebulletin.org/), unwittingly, may come closer to the truth than she might have thought.  Seen from my outsider perspective, there are, however, a few things she might want to take into consideration next time around:
a)  Switzerland had two overwhelming popular votes against foresaking its nuclear armament, one even rejecting the proposal that its eventual nuclear armament be decided not by its government but by the Swiss voters;
b)  I understand that - in line with the solemn obligations accruing from its time-tested and internationally recognized traditions of permanent armed neutrality - Switzerland, in the 50ies at least, had very serious intentions to keep all options open and, like in the related civil defense matters, to be fully prepared for all eventualities, including to acquire the wherewithall for over 100 devices, with an approximately three weeks lead-time for assembling the parts (again, for theoretical details look at: .../NPT.htm), and though the corresponding delivery vehicles were not designed to reach beyond any European theatre, Switzerland's now-replaced Mirage III jets are understood to have been capable of delivering a device e.g. to Kiew (which capability, incidently, reportedly was demonstrated in a never-publicly-revealed deterrent show of force); and
c)    Switzerland was thus one of the last countries to sign and ratify the NPT, with the understanding
-    that the NPT has a limited duration of 25 years,
-    that if and when it will be infinitely extended, the constitutional requirements of a mandatory Swiss vote on Switzerland's continued NPT adherence will be respected, and
-    that sovereign Switzerland might freely withdraw from the NPT if its supreme interests require such a course of action.
    Now that the NPT has been extended indefinitely, and a popular vote thus looms on Switzerland's continued NPT membership, the question of whether sovereign Switzerland could in reality still withdraw from the NPT without being threatened with sanctions, etc. may become an issue again.  Also, is Switzerland thus next in line to be fingered for disarmament?  And could such flat earth visions not lead to additional destabilizations and - perhaps overdue - questioning of the NPT's underlying assumptions by other concerned sovereign countries, e.g. Egypt, Iran, Japan, South Korea, Taiwan, Turkey, etc.?

salve!  Anton Keller, Geneva

re: Iraqi olympic athletes training abroad; interim constitution; telecoms in the Mosul Vilayet

Your Excellency,

Iraq’s participation in the Olympic Games in August 2004 will be a defining moment. It will foster the spirit of national unity, reconciliation and reconstruction the more so as Iraq’s athletes will be well prepared. To these effects, we have sought and obtained offers of support by Swiss sports clubs, lawmakers and the Swiss Federal Council. And we are looking forward to work with the Coalition Provisional Administration in order to fully realize the potential of the corresponding training project (www.solami.com/olymp.htm). Please make the necessary arrangements on your side and advise us of how best to communicate with your office on this subject.

The current efforts for developing a new Iraqi Constitution might benefit most if the constitutive and – in international law - still fully valid Declaration of 30 May 1932 (www.solami.com/UNGA.htm) were used at least as the basis for an interim constitution, giving the United Nations an opportunity to activate its dormant role as a garantor of the significant minority & private property protection clauses thus already enacted (www.solami.com/UN92.htm). To these effects, and as outlined in our letters to you of last July and August (www.solami.com/bremer1.doc), we intend to hold as soon as possible a general assembly of our Mosul Vilayet Council which embraces all ethnic tribes and the other constitutive communities of the Mosul Vilayet thus represented through their leaders, including – ex officio - the presidents of all political parties and professional associations. We understand the CAP to have no objection to these treaty-based Iraqi efforts. And we expect your office to give corresponding instructions for facilitating them.

Finally, in the socially, culturally and politically important field of telecommunications, we support the creation of a backbone system accomodating both world standards in mobile and fixed telephony. We are currently discussing corresponding proposals involving such companies as Bechtel, Orascom, Nortel Networks and SR Telecom (www.solami.com/mvcsr.doc). And we’d appreciate your guidance on the responsible CAP officials.

Trusting this to be helpful, we take this opportunity to reassure Your Excellency of our highest considerations, and remain with our best wishes, sincerely yours,

Najim Khedher Al-Sourchi
Registrar & Keeper of Records

cc: Anton Keller, Adviser & Permanent Representative, Geneva (swissbit@solami.com)
Naguib Sawiris, Chairman, Orascom, Cairo (nsawiris@otelecom.com)
Wido Hoville, Vice President, SR Telecom, Montreal (sales@emergingmarketscanada.com)