Memorandum submitted by Claude Bruderlein,
Research Fellow, Centre for Population and Development Studies,
Harvard University
TOWARD MORE HUMANE AND BETTER TARGETED
SANCTIONS:
A HUMANITARIAN RESPONSE TO COMPREHENSIVE
EMBARGOES
TARGETED SANCTIONS
IN A
HUMANITARIAN PERSPECTIVE The
use of sanctions regimes over the recent years by the UN Security
Council and regional organisations has increased significantly
It brought to light a number of concerns regarding the limited
effectiveness of comprehensive sanctions regimes and their undesired
impact on the civilian population. Traditionally, economic sanctions
were designed to create discontent among the civilian population
as a means of exerting pressure on the targeted state. Comprehensive
embargoes, as in the case of the UN sanctions against Iraq, were
drawn precisely to cripple the social and economic infrastructure
of the targeted country in order to increase the cost of the unlawful
policies of the targeted state and encourage restlessness against
the targeted government. However, this approach has shown its
limitations over the long run. The effectiveness of comprehensive
sanctions, such as in the case of Iraq and Haiti, has been cast
into doubt. More importantly, the humanitarian consequences of
comprehensive embargoes over the years have raised questions concerning
the morality of such measures, undermining the necessary support
and co-operation of all states, To respond to these criticisms,
proponents of multilateral sanctions advocate the use of "surgical"
or "targeted" sanctions measures that aim at exerting
pressure directly on the targeted country's elite, sparing as
much as possible the civilian infrastructure of the society. In
this context, the feasibility of sanctions, both in technical
and political terms, appears to rely increasingly on the capacity
of the UN system to design and maintain a better-targeted and
more humane sanctions regime. This understanding implies a new
fundamental linkage between the sanctions' effectiveness and their
humane character. Such linkage contradicts most of the traditional
assumptions regarding the imposition of sanctions, without yet
offering clear guidelines as to how more humane sanctions can
effectively exert pressure on targeted governments. The development
of targeted sanctions is based on the observation that targeted
governments perceived differently the impact of sanctions on particular
sectors. The effectiveness of sanctions could, therefore, be enhanced
by targeting the sanctions towards the most sensitive sectors
of a government and its political elite, such as the import of
arms and other military equipment, communication equipment, or
its access to financial markets. More importantly, it appears
that the humanitarian needs resulting from the imposition of comprehensive
economic embargoes may even run counter to the objectives of sanctions.
It may result in strengthening the targeted government at a domestic
level, triggering international support for the targeted state
and transforming its international image from one of a transgressor
to one of a victim. If unchecked, the humanitarian impact of sanctions
may in fact relieve targeted states of most of the political pressure
intended under traditional sanctions. Although the actual impact
of sanctions on the decision-making process of targeted states
remains unmeasured, recent studies have shown that more targeted
sanctions may exert increased pressure on the country's leadership.
Better-targeted sanctions, in addition of being more humane, could
offer, in this context, new potential in terms of the overall
effectiveness of sanctions regimes. Despite the political character
of sanctions debates within the UN Security Council, there has
been a growing sense among Security Council members that sanctions
regimes need to be better designed and monitored on technical
grounds. However, beyond the technical aspects of the targeting
of particular sanctions, the elaboration and imposition of targeted
sanctions by the UN system raise critical institutional and methodological
issues. I will argue in this paper that international legal standards
pertaining to humanitarian and human rights law, far from impeding
the capacity of the UN system to impose sanctions on security
terms, have provided a remarkable opportunity to review the overall
effectiveness of sanctions regimes and to elaborate new institutional
arrangements facilitating the targeting of sanctions instruments.
The attention paid to international standards has encouraged all
the parties concerned to better understand the vulnerabilities
of targeted countries to sanctions. These standards also better
equipped the relevant actors to address on objective grounds the
issue of sanctions' effectiveness. These international standards
do not provide, of course, much technical help to better target
specific sanctions instruments. Nevertheless, they appear to have
contributed significantly to the search for new methods and institutional
arrangements necessary for minimising the humanitarian consequences
of sanctions as much as to maximising sanctions' impact on the
targeted government.
HUMAN RIGHTS
AND HUMANITARIAN
STANDARDS APPLICABLE
TO SANCTIONS
REGIMES We will review here the
applicable international standards that have been referred to
over recent years with regard to the imposition of sanctions.
Under Chapter Vll of the UN Charter, sanctions regimes figure
among the coercive measures available to the UN Security Council
to respond to threats to international peace and security. Since
sanctions are imposed as a substitute for the use of armed force,
ie, as a less violent means to coerce targeted states, general
principles of humanitarian law should apply a fortiori
to the imposition of sanctions. These principles imply that the
right to exert pressure on the civilian population to force targeted
states to comply with the Security Council's requests is not unlimited.
The imposition of unnecessary suffering is prohibited under humanitarian
law, and, in all cases, the civilian population should be spared
from the effects of the sanctions with regard to access to necessary
means of survival. In addition, sanctions authorities should allow
and facilitate the unimpeded passage of humanitarian relief supplies
to the civilian population. States parties to the Geneva Conventions
adopted specific measures to encourage compliance to international
humanitarian standards'. States parties to the Geneva Conventions
of 1949 adopted at 26th International Conference of the Red Cross
and Red Crescent Movement in 1995 a resolution that encourages
states to consider:
(a) when designing, imposing and reviewing economic
sanctions, the possible negative impact of such sanctions on the
humanitarian situation of the civilian population of a targeted
State and also of third States which may be adversely affected
by such measures;
(b) assessing the short- and long-term consequences
of United Nations-approved economic sanctions on the most vulnerable,
and monitoring these consequences where sanctions have been applied;
(c) providing, including when subject to economic
sanctions and to the extent of their available resources, relief
for the most vulnerable groups and the victims of humanitarian
emergencies in their territories. In terms of human rights,
treaty-monitoring bodies have also stressed the need for sanctions
regimes to include specific measures protecting the human rights
of vulnerable groups. The Committee on Economic, Social and Cultural
Rights has argued that such considerations must be fully taken
into account when a sanctions regime is being designed. Its General
Comment No 8 (1997) on the relationship between economic sanctions
and respect for economic, social and cultural rights focuses on
the dramatic impact sanctions have on the rights recognised in
the Covenant. It underlines that, despite the inclusion of humanitarian
exemptions in the sanction regimes established by the UN Security
Council in order to ensure basic respect for economic, social
and cultural rights, recent UN experience shows that these exemptions
do not have always the expected effect. The Committee on Economic,
Social and Cultural Rights recommended, in its General Comment
No 8 (1997), that three steps should be taken to minimise the
humanitarian impact of sanctions:
(1) Economic, social and cultural rights must
be fully taken into account when a sanctions regime is being designed;
(2) Effective monitoring should be undertaken
throughout the period that sanctions are in force;
(3) The parties responsible for the imposition,
maintenance or implementation of the sanctions have the obligation
"to take steps, individually and through international assistance
and co-operation, especially economic and technical", in
accordance with article 2, paragraph 1, of the Covenant, in order
to respond to any disproportionate suffering experienced by vulnerable
groups within the targeted country. The Committee on the Rights
of the Child took a similar approach, pointing out that, under
certain conditions, sanctions can act as an obstacle to the implementation
of the Convention on the Rights of the Child.
IMPLEMENTATION OF
HUMANITARIAN STANDARDS Accordingly,
most sanctions regimes from the early 1990s onward, have incorporated
measures aimed at minimising their humanitarian impact. Security
Council's Sanctions Committees have been given instructions to
allow the provision of food and medicine, under general (eg, Sierra
Leone) or specific regulations (eg, Iraq). Nevertheless, the implementation
of these measures has been unequal. Delays and administrative
procedures in the processing of humanitarian exemptions have hindered
UN agencies' operations under the sanctions, as in Former Yugoslavia
or Iraq. Special efforts have been devoted to correct these deficiencies,
especially from 1995 in the case of Former Yugoslavia. The elaboration
of the oil-for-food arrangement under UN Security Council resolution
S/1995/986 in 1995 also aimed at correcting deficiencies in the
processing of humanitarian goods in terms of delays and funding.
Experts argue, however, that, in the case of Iraq, the extent
to which such corrective measures have contributed to check the
humanitarian impact of sanctions seems to have been off-set by
long-term consequences of the economic embargo. Two types of situation
remain of special concern for humanitarian organisations: the
case of prolonged sanctions regimes and the case of regional embargoes.
—Prolonged sanctions regimes As
sanctions regimes may be renewed over extended periods of time,
like in the case of Iraq, their long-term effects on the civil
society, including the economy, government services, communication
and transport infra-structure, generate increased and more complex
needs for humanitarian assistance. Water and sanitation equipment
need to be replaced, power infrastructure deteriorates, and schools
and hospitals need to be rehabilitated. In many cases, the targeted
government may even have contributed to the deterioration of the
civil infrastructure by not allocating the necessary resources
to compensate for the damage caused by the sanctions regimes.
Many of the resources necessary to maintain and repair this infrastructure
could have dual use, ie, could be also used by the targeted government
for a purpose contrary to the objective of the sanctions.In the
long run, as the complexity of the humanitarian impact of sanctions
increases, sanctions authorities may not be in a position to manage
the long-term humanitarian consequences of the sanctions. This
would suggest that diversified targeted sanctions could offer
better long-term capabilities in terms of management of the humanitarian
impact of sanctions.
—Regional embargoes Regional
organisations and groups of states may decide to impose sanctions
in response to a threat to regional peace and security. According
to article 53 of the UN Charter, these measures must be authorised
by the UN Security Council under a Chapter VII resolution. However,
recent experience shows that regional embargoes supported by the
Security Council, as in the case of Burundi, or Sierra Leone,
have created new obstacles to UN operations in humanitarian crisis
situations. The lack of resources and adequate expertise in the
administration of sanctions regimes at the regional level has
significantly complicated the delivery of critical humanitarian
assistance by UN agencies and international NGOs. In the case
of Burundi, the importation of food, seeds, fertilisers and fuel
for the distribution of humanitarian relief was delayed for months
causing the suspension of vital programmes of assistance to vulnerable
groups, especially among the internally displaced populations.
In the case of Sierra Leone, the Economic Community of West African
Sates (ECOWAS) was unable to clear for five months urgently needed
food shipments for UN agencies and NGOs active in the country,
despite the considerable support provided by the United Nations
Office for the Coordination of Humanitarian Affairs (OCHA) to
ECOWAS in the elaboration of exemption procedures.
REVIEW OF THE CURRENT DEBATE ON THE HUMANITARIAN
IMPACT OF SANCTIONS In many respects, the humanitarian consequences
of current sanctions regimes have served as a major impetus to
review sanctions instruments. Numerous studies have been recently
published on new methodologies to address the humanitarian impact
of sanctions and on models of more precisely targeted sanctions.
However, despite the abundance of technical material on more targeted
and humane sanctions regimes, the UN Security Council seems reluctant
to engage in a substantive manner in reforming its traditional
approach toward sanctions. Many argue that political contingencies
specific to the work of political organs such as the Security
Council limit their ability to address the issue of sanctions
on technical grounds. Others point to the prevailing assumptions
about the necessity for the Security Council's swift responses
to international crises and the ultimate benefits of sanctions-inflicted
pain on the civilian population, limiting even further the extent
to which new methodologies for targeted and more humane sanctions
are being seriously considered.
Still, the confidence of states and public opinion in UN sanctions,
critical for the maintenance of any sanctions regime, is at a
record low. States have been calling for the elaboration of a
new and more consistent approach to UN sanctions, as experts from
all sectors of sanctions activities are exploring the technical
requirements of new targeted sanctions. Beyond these requirements
however, the whole process under which sanctions are currently
being adopted and implemented may also need to be reviewed to
allow political organs to deliberate on these new requirements. Recognition
of the shortfalls of the UN sanctions regime against Iraq in terms
of its impact on the civilian population and third countries drove
much of the debates on the need to better target sanctions regimes.
Interestingly, the difficulties encountered at the Security Council
level to address the specific case of Iraq due to opposing views
within the Council's membership forced most of the protagonists
to focus their attention on the general issue of targeting sanctions
in other fora. Substantive debates on the targeting of sanctions
regimes took place in official fora, such as the UN General Assembly
and the Sanctions Committees. More technical discussions took
place in various informal networks of experts sponsored by states
and international organisations, such as the Interlaken Process
on Targeting Financial Sanctions and the Inter-Agency Technical
Group of Experts on Sanctions. Following the work of the Informal
Open-Ended Working Group of the UN General Assembly on the Agenda
for Peace, the General Assembly adopted in September 1997 a resolution
that set the agenda for much of the work achieved since then.
Under this resolution, the General Assembly requested that information
on the potential or actual humanitarian impact of all the sanctions
imposed by the UN be brought immediately to the attention of the
Security Council. It requested also that the UN Secretariat should
coordinate and organise assessments of humanitarian needs and
vulnerabilities of the civilian population at the time of the
imposition of sanctions. It further decided that guidelines for
the exemption of humanitarian goods should be developed to ensure
that applications are expeditiously dealt with. In particular,
the General Assembly requested that exemptions be granted on humanitarian
goods, such as food and medicines, and other essential items.
Some have argued that these recommendations may remain for the
most part letter more since the Security Council has retained
considerable discretionary powers over its working procedures.
Others argue that, on the contrary, despite the political implications
of the assessment of humanitarian impact of specific UN sanctions,
the Council has become increasingly aware of the shortfalls of
UN sanctions regimes. Representatives of non-permanent Security
Council Members' states in particular, as Chairpersons of the
Sanctions Committees, have invested considerable efforts in convincing
permanent members to develop a more methodological approach to
the implementation of sanctions regimes. Contrary to voting procedures
to suspend existing open-ended sanctions regimes that can be vetoed
by any of the permanent members, the imposition of new sanctions
regimes require the support of all permanent members plus four
non-permanent members. In this context, non-permanent members
are in a position to exert much more influence on new sanctions
regimes than existing one under the present rules.
The Chairperson of the Sanctions Committees, representing eight
out of 15 Security Council members, developed in late 1998 a list
of recommendations to improve the effectiveness of sanctions regimes
and to limit their undesirable humanitarian consequences. These
recommendations were adopted by the Council on 29 January 1999
and made public in a Note by the President of the Security
Council. The note of the President offers a series of practical
proposals to improve the work of the Sanctions Committees. Although
this note does not have the strength of a resolution of the Council,
it provides the Sanctions Committees, as subsidiary organs of
the Council, with a set of specific instructions regarding the
management of the humanitarian impact of sanctions. Moreover,
the note clearly indicates a new political willingness of the
members of the Council to address critical aspects of current
and future sanctions regimes: their enforcement mechanisms, their
humanitarian and economic impacts, the exemptions mechanisms and
the transparency of the work of Sanctions Committees. The note
of the President indicates also a series of measures to strengthen
the role of the Sanctions Committees as an enforcement agent of
the sanctions regimes. It recognises the competence of the Sanctions
Committees to take strict actions on alleged violations of the
sanctions regimes. Furthermore, it de-politicised, to a large
extent, the provision of information on the humanitarian impact
of sanctions. In the past, the provision of such information was
seen as politically biased and disruptive to the work of the consensus-driven
Council. From now on, Sanctions Committees are instructed to request
an assessment of the humanitarian impact of sanctions regimes
when deemed necessary. Whenever it appears that a sanctions regime
may have a humanitarian impact, an assessment should be
requested from the Secretariat. It may give a substantial leverage
to non-permanent members of the Council to request such assessments
at the level of the Sanctions Committees. Furthermore, the Sanctions
Committees are requested to monitor the impact of the sanctions
throughout the regimes. It implies a continuous relationship with
the Secretariat on the humanitarian impact of sanctions, as an
integral part of the UN humanitarian response. In terms of exemptions,
there is an understanding that generic exemptions should include,
beyond food and medicines, material used for the livelihood of
the civilian population, such as medical equipment, agricultural
and educational material. In a recent development, the President
of the Security Council requested on 30 January 1999 that the
humanitarian situation in Iraq should be assessed as part of a
review of the UN sanctions against Iraq. The President of the
Council, Ambassador Amorim of Brazil, established a panel composed
of UN officials to "assess the current situation in Iraq
and make recommendations to the Security Council regarding measures
to improve the humanitarian situation in Iraq". Although
the panel was not requested specifically to evaluate the humanitarian
impact of the UN sanctions against Iraq, its report acknowledged
the "continuing degradation of the Iraqi economy with an
acute deterioration in the living conditions of the Iraqi population"
since 1990 prior to the imposition of the UN sanctions. The panel
concluded its report by proposing a series of measures under the
sanctions regime to improve the humanitarian situation in Iraq.
ON THE NEED FOR NEW INSTITUTIONAL ARRANGEMENTS TO
MINIMISE THE HUMANITARIAN IMPACT OF SANCTIONS
According to Article 41 of the UN Charter, the Security Council may call upon member
states to apply sanctions measures to maintain or restore international
peace and security. However, the Charter remains silent on the
technical and institutional requirements for the elaboration and
implementation of such complex measures. Compared to the deployment
of peacekeeping forces under Chapter VI for which the UN Secretariat
created a whole department, or the use of force under Chapter
VII, for which Member states requested the creation of a Military
Staff Committee, only minimal administrative arrangements have
been involved in the planning and enforcement of sanctions regimes. Consequently,
the adoption and enforcement of sanctions regimes remain largely
subject to the political contingencies of Security Council work.
Most of the sanctions regimes have been elaborated in crisis situations
where the timing of Security Council's response and the search
for consensus among members appear to matter as much as the technical
character of the measure. Complex modalities of sanctions regimes
elaborated by the proponents of each regime at the Council have
been adopted under no specific technical review. Although sanctions
have become over the recent years the UN's primary means of response
to threats to international peace and security, the UN Secretariat
and technical agencies have been given only few opportunities
to contribute to Security Council deliberations on the modalities
of sanctions regimes. New arrangements must therefore be set in
place to meet the challenges of targeted sanctions in terms of
information channels to the Security Council and the Sanctions
Committees and expert analysis of the impact of sanctions within
the UN system and among Member states. In his 1998 annual report
on the work of the organisations, UN Secretary-General Kofi Annan
stressed the need for new mechanisms that renders sanctions a
less blunt and more effective instrument in exerting pressure
on a targeted government rather than the country's population
and thus reducing humanitarian costs. In its latest report on
Africa, the Secretary-General recommended to the UN Security Council
the greater use of limited embargoes on arms and other sensitive
goods, as well as targeted sanctions aimed at decision makers
and their families, including financial sanctions and travel restrictions. These
developments are likely to present the UN Secretariat with substantive
new tasks for which it may not be prepared, or it may not have
the resources to fulfil them satisfactorily. Some have argued
that the development of targeted sanctions involves a dramatic
expansion of the reach and capacity of sanctions regimes, suggesting
that a new dedicated institution may be required to handle the
imposition of targeted sanctions. However, the lack of resources
and political constraints within the UN Security Council suggest
that these new tasks will need to be performed within the existing
structures and resources before one can hope for sufficient and
more adequate institutional structures for the imposition of targeting
of sanctions. The institutional aspects of these arrangements
will need to be addressed by the competent authorities within
the UN system. I would like to concentrate here on the methodological
issues involved in the proper management of the humanitarian impact
of UN sanctions. I have highlighted above that the efficiency of
sanctions regimes depends in part on the ability of the relevant
sanctions authorities to cope with their humanitarian impact.
The proper management of the humanitarian impact brings up three
sets of issues:
(1) the importance of comprehensive, objective
and updated information; (2) the need for regular review of
sanctions modalities; and (3) the need for an integrated approach
to exemptions mechanisms.
1. The importance of comprehensive,
objective and updated information on the humanitarian situation
in countries under sanctions, including on the humanitarian impact
of sanctions In order to deal efficaciously with the humanitarian
impact of sanctions, the UN Security Council and its Sanctions
Committees should receive objective information on the potential
or the current humanitarian situation of countries under sanctions
in a regular and timely manner. The potential humanitarian impact
of sanctions should be addressed at an early phase of the Security
Council discussions on the imposition ofsanctions measures. As
in the case of the UN flight ban against Sudan (1996), the Security
Council should request, at an early stage, the UN Secretariat
to undertake an objective assessment of the humanitarian situation
and of the potential humanitarian impact of sanctions in the targeted
country, based on a critical review of information available among
UN and other humanitarian organisations. In instances where urgent
action is required, the Security Council should request an assessment
of the humanitarian situation and the possible impact of the sanctions
immediately after its decision to impose sanctions has been taken,
as it did in the case of Sierra Leone (1997). The Council could,
in such instances, withhold its decision on the modalities of
the sanctions regimes, such as the list of exempted goods and
services, and the mechanism of exemptions, and entrust the Sanctions
Committees with the task of elaborating these modalities afler
receiving information on the humanitarian situation in the targeted
country and an analysis of the potential humanitarian impact of
the sanctions.
2. Regular review of the modalities of sanctions
regimes in light of the humanitarian situation Sanctions
management implies regular review of sanctions regimes to allow
the implementation of corrective measures to maximise the desirable
impact of sanctions and minimise their negative consequences.
It is in this context that the regular evaluation of the humanitarian
impact of sanctions assumes its full relevance. Accordingly, an
update of the original humanitarian assessment should be requested
each time the Council intends to review its sanctions regimes.
Modalities of sanctions regimes should be adjusted to allow Sanctions
Committees to better target sanctions regimes and relieve the
humanitarian impact of the sanctions.
3. Integrated approach to exemption mechanisms Sanctions
Committees should monitor throughout the sanctions regimes the
humanitarian impact of the sanctions on vulnerable groups and
adopt the required adjustments of the exemption mechanisms to
facilitate the delivery of humanitarian assistance. In particular,
it should request regular updates of the assessment provided by
the Secretariat to the Council in order to ensure the adequacy
of its approach on exemptions. In addition, the Chairperson of
the Sanctions Committees should consider visiting the region to
gain a first-hand perspective on the humanitarian situation and
the functioning of exemption mechanisms put in place.Sanctions
Committees should further decide on institutions and country-specific
items which should be exempted from the sanctions regime. Humanitarian
organisations that should benefit from institution-based exemptions
include members of the UN system, their non-governmental implementing
partners, and the international members of the Red Cross and Red
Crescent Movement (the ICRC and the IFRC). Country-specific item
exemptions should take into account the specific nature of each
crisis and country and include foodstuffs that are staples of
vulnerable groups. Other non-food items could be considered in
specific circumstances, such as water, sanitation, education and
agricultural requirements.
Sanctions Committees could request reports from humanitarian organisations
on the use of institutions and country-specific items exemptions
to ensure that humanitarian exempted goods are delivered only
to those in needs. Focusing on the net result of the exemption
process, ie, the delivery of essential humanitarian requirements,
rather than the processing of requests for exemptions, will allow
a tighter control on the humanitarian impact of sanctions regimes
and strengthen the objective character of Sanctions Committees'
decisions.
CONCLUSION
The foregoing discussion has indicated
that sanctions can be managed in a more humane and, at the same
time, effective way, in line with human rights and humanitarian
legal standards. One could observe the extent to which the implementation
of these standards has prompted serious reflections on the overall
effectiveness of sanctions regimes and engaged the UN Security
Council members in a substantive revision of their approach toward
sanctions. Political contingencies will certainly persist to limit
the ability of the UN system to search for the most effective
and humane regimes. However, with the help of new institutional
arrangements established over the recent years for the provision
of information on the impact of sanctions and further development
of the technical expertise related to targeted sanctions, we believed
that effective targeted sanctions are within reach. However, these
new techniques cannot, by themselves, change the sanctions policies
of UN Member states. The future of targeted sanctions relies on
their commitment to prevent the unnecessary suffering of innocent
civilians under UN-mandated sanctions.
Claude Bruderlein
22 April 1999
|
