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Humanitarian Goods Transactions and Illicit Payments

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Humanitarian Goods Transactions and Illicit Payments INDEPENDENT INQUIRY COMMITTEE INTO THE UNITED NATIONS OIL-FOR-FOOD PROGRAMME REPORT ON PROGRAMME MANIPULATION CHAPTER THREE HUMANITARIAN GOODS TRANSACTIONS AND ILLICIT PAYMENTS I. INTRODUCTION AND SUMMARY Iraq’s largest source of illicit income in relation to the Programme came from “kickbacks” paid by companies that it selected to receive contracts for humanitarian goods. These payments to the Iraqi regime were disguised by various subterfuges and were not reported to the United Nations by Iraq or the participating contractors—let alone approved by the United Nations as permissible payments from the escrow account. As set forth in the Committee’s recent Programme Management Report, available evidence indicates that Iraq derived more than $1.5 billion in income from these kickbacks.387 As with its selection of oil purchasers, political considerations influenced Iraq’s selection of humanitarian vendors. For the first several years of the Programme’s operation, however, Iraq did not have in place a formal kickback policy. The kickback policy emerged only over time as the Programme extended for a longer period and involved larger amounts than anticipated. The kickback policy developed in mid-1999 from Iraq’s effort to recoup purported costs it incurred to transport goods to inland destinations after their arrival by sea at the Persian Gulf port of Umm Qasr. Rather than seeking approval from the United Nations for compensation of such costs from the Programme’s escrow account, Iraq simply required humanitarian contractors to make such payments directly to Iraqi-controlled bank accounts or to front companies outside Iraq that in turn forwarded the payments to the Government of Iraq. Not only were these side payments unauthorized, but it was an easy matter for Iraq to impose “inland transportation” fees that far exceeded its actual transportation costs. By mid-2000, Iraq instituted a broader policy to impose generally a ten percent kickback requirement on all humanitarian contractors—including contractors shipping goods by land as well as contractors shipping to Umm Qasr. This broader policy was in addition to the requirement that contractors pay inland transportation fees. Iraq dubbed its more general kickback requirement as an “after-sales-service” fee. After-sales-service provisions often were incorporated into contracts as a way to inflate prices and permit contractors to recover from the United Nations escrow account amounts they had paid secretly to Iraq in the form of kickbacks. Contractors paid these kickbacks before their goods were permitted to enter Iraq. For ease of reference, this form of kickback is referred to throughout as an after-sales-service fee—even though Iraq often collected a ten percent fee without labeling it an “after-sales-service” fee or without inserting an after-sales-service provision in the applicable contract. 387 “Programme Management Report,” vol. I, pp. 30, 38; ibid., vol. II, pp. 35-38. The term “kickback” is used to denote an illicit payment to Iraq by a company contractor made in connection with Iraq’s selection of a company to receive a contract to provide humanitarian goods under the Programme. The term “humanitarian contract” includes contracts for all goods imported into Iraq under the Programme, and the term “humanitarian kickback” is used as a shorthand reference to kickbacks made in connection with humanitarian contracts. It is unnecessary to determine whether the illicit payments described in this Chapter were true “kickbacks” in the strict legal sense that this term may be used in criminal corruption laws. REPORT ON PROGRAMME MANIPULATION–OCTOBER 27, 2005 PAGE 249 OF 623 INDEPENDENT INQUIRY COMMITTEE INTO THE UNITED NATIONS OIL-FOR-FOOD PROGRAMME REPORT ON PROGRAMME MANIPULATION CHAPTER THREE HUMANITARIAN GOODS TRANSACTIONS AND ILLICIT PAYMENTS Many companies freely went along with Iraq’s demands. Others made payments to third parties or agents while disregarding the likely purpose of these payments, or perhaps unwittingly. Indeed, the Committee calculates that more than 2,200 companies worldwide paid kickbacks to Iraq in the form of inland transportation fees, after-sales-service fees, or both. Tables of all companies for which there is evidence that kickbacks were paid in connection with their contracts have been separately published by the Committee today. In addition to this listing of companies, this Chapter provides case studies of twenty-three companies (or related company groups) that participated in the payment of kickbacks on humanitarian contracts. The companies fall into four groups: (1) Iraqi front companies (i.e., companies that were controlled covertly or owned in part by the Government of Iraq); (2) major foodstuff providers that ranked at the top of the list in terms of the total value of contracts obtained under the Programme; (3) major trading companies that specialized in obtaining contracts from Iraq to sell goods that they acquired from other companies and countries; and (4) major industrial and manufacturing companies—mostly from Europe and North America—that did not necessarily have large numbers of contracts, but that apparently paid kickbacks and did so despite organizational resources that might have been expected to safeguard against such practices. The sample of companies discussed in this Chapter accounted for approximately twenty-three percent of Iraq’s purchases under the Programme ($7.9 billion). Half of these companies did not sell any goods under the Programme until after the introduction of the illicit kickback scheme during Phase VI. The Committee estimates that these companies collectively made more than $518 million in illicit payments to the Iraqi regime, accounting for approximately one-third of the illicit payments made to the regime in connection with purchases under the Programme. Moreover, several of these companies also bought oil from Iraq and paid illegal surcharges in response to Iraq’s demands.388 As will be discussed in the context of the company examples, the responses of goods suppliers confronted with the Committee’s specific evidence of illicit payments generally followed one of four variations. First, some suppliers asserted that they had been unaware of any side payments to the Iraqi regime in connection with their Programme contracts and that such payments were made by employees or agents acting without authorization. Suppliers that employed agents often stated that they paid agents for their services and had no involvement with any agent’s decision to redirect proceeds to the Iraqi regime. Second, some suppliers indicated that it was their understanding that inland transportation and after-sales-service fees involved legitimate expenses, and that such payments were permissible under the sanctions regime and sometimes even appeared explicitly in the contracts approved by the United Nations. Third, some suppliers denied making any such payments and questioned the authenticity or reliability of the 388 TaR (Apr. 1997 to May 2005). TaR is an analytical database maintained by the Committee that contains information gathered in the course of its investigation, including data from the United Nations Treasury database of payments, the Office of the Iraq Programme (“OIP”) database of contracts, correspondence and data from Iraqi files, data from third-party sources such as Dun & Bradstreet and Platts, correspondence and records from certain companies involved in the Programme, and records from selected banks. REPORT ON PROGRAMME MANIPULATION–OCTOBER 27, 2005 PAGE 250 OF 623 INDEPENDENT INQUIRY COMMITTEE INTO THE UNITED NATIONS OIL-FOR-FOOD PROGRAMME REPORT ON PROGRAMME MANIPULATION CHAPTER THREE HUMANITARIAN GOODS TRANSACTIONS AND ILLICIT PAYMENTS Committee’s evidence. Fourth, some suppliers acknowledged making these illicit payments to the Iraqi regime, characterizing them as the cost of doing business with Iraq and noting that all companies had to pay these fees in order to obtain goods contracts from Iraq. Part II of this Chapter reviews the background rules and trends governing Iraq’s purchases of humanitarian goods under the Programme. Part III discusses the onset of Iraq’s kickback policy through the imposition of fees for inland transportation. Part IV discusses the broadening of Iraq’s kickback scheme with the general requirement that contractors pay a ten percent after- sales-service fee. Part V briefly addresses other means by which Iraq manipulated humanitarian contract transactions, including the diversion of goods within Iraq (from their stated uses and recipients), the resale of goods outside of Iraq, and the provision in some cases of substandard goods. Parts VI through IX review specific company examples for each of the major company groups described above. In addition, there are three tables appended to this Report that summarize the Committee’s data and calculations regarding Iraq’s purchases and related collection of illicit income under the Programme. For each company that supplied Iraq with goods under the Programme, Table 6 (entitled “Humanitarian Goods Purchased by the Government of Iraq by Supplier”) includes the supplier’s mission country, category of goods provided, numbers of contracts, total value and disbursements on contracts, and whether the Committee has evidence of illicit payments. Table 7 (entitled “Actual and Projected Illicit Payments on Contracts for Humanitarian Goods Summary by Supplier”) includes the same categories of information as Table 6, but only for those contracts on which suppliers
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