■ Sanctions (Diplomatic, Economic, or Military)
Sanctions are part of the measures allowed by international law for the settlement of disputes between States. They are not considered as an act of belligerence or war. They may be imposed against a State or a non-State actor (individual, rebel movement, political party) that does not respect its international commitments or when its behavior infringes on or threatens the international public order.
Sanctions are a non-military means of coercion that may be applied in various domain such as diplomatic, economic, or cultural relations between States. They materialize in decisions ranging from arms embargoes to other trade, finance or travel restriction, or interruption of diplomatic relations. They may be imposed by one State against another (unilateral sanctions) or by a group of States in the framework of an international organization such as the United Nations (UN) (collective sanctions).
Since 1945, the UN Charter prohibit the use of military force in the relationship between States except in the case of self-defense. Therefore, a military sanction can only be decided by the UN Security Council (UNSC) acting under chapter seven of the UN Charter in case of threat to international peace (art. 42, UN Charter). Military sanction can only be decided by the UNSC in last resort when other type of non-military sanction provided by the UN Charter appear inadequate (art. 41, UN Charter).
Historically, sanctions were used mainly against a State with the view to put pressure on State authorities to obtain a change of behavior or ultimately toward a regime change. To limit their wide humanitarian impact on the population they have become more targeted to focus on groups and individuals acting as a prominent member of a State apparatus. Sanctions have more recently been applied to non-State actors. They are used as a central component of the Global counterterrorism strategy restricting financing and material support against international designated group and individuals. In situations of armed conflict, IHL guarantees the right of civilians to receive humanitarian relief. Therefore, humanitarian relief shall always be exempted from sanctions and embargoes imposed on States and non-State actors.
I. UNILATERAL SANCTIONS
Under the UN Charter, States are not allowed to use armed force to settle their disputes. However, States can still resort against each other to lesser form of coercive measure such as diplomatic or economic sanctions. For instance, sanctions have been adopted by the US and Europe against Russia and reciprocally following Russian annexation of Crimea during the war in Ukraine and in 2014, following the alleged poisoning of a former Russian spy in the UK. As well, sanctions have been imposed in 2021 by the US on China and reciprocally following repression of the Uighurs minority.
States can also submit their disputes to the International Court of Justice (ICJ) for arbitration or to regional bodies, such as the Court of Justice of the European Union. Although these judgments represent a legal ruling and are binding on the States concerned, these courts do not pronounce any criminal sanctions. The only enforcement mechanism available is in case of State failure to abide by an ICJ judgment and it depends on the UNSC voting to use coercion to enforce the ruling (art. 94(2) of the UN Charter).
II. COLLECTIVE SANCTIONS
Collective sanctions can be decided at the level of international or regional organizations such as the UN, EU and the AU. The UN Charter establishes a system of collective security that regulates the pacific settlement of disputes among States at its chapter 6. In case of “threats to the peace, breaches of the peace, and acts of aggression.” the UN Charter’s Chapter 7 (arts. 39–51) foresees the possibility of imposing collective sanctions on states or non-State actors. This includes diplomatic and economic sanctions such as complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations (art. 41, UN Charter). They also include the use of military force, necessary to maintain or restore international peace and security when other type of sanction would be or have proven to be inadequate (art. 42, UN Charter). The aim of collective sanctions is to pressure the concerned State or non-State entity into changing its behavior and to manage threat and breaches to international peace and security.
Sanctions and coercive measures adopted by the UNSC are binding and must be implemented by all UN member States. Before resorting to military sanctions, which are to be used only in exceptional circumstances, the UN Charter sets forth other type of sanction that do not involve armed force. The UNSC can hence adopt mandatory measures to implement economic sanctions that may be selective or limited (for example, embargoing weapons exports, freezing financial assets, imposing travel bans, or instituting various type of economic embargoes). The implementation of each sanction regime created by resolution of the UNSC is monitored by a sanction committee set up within the UNSC under the number of the relevant resolution.
Currently, the UNSC has instituted travel bans and asset freezes to sanction over 1000 individuals and entities connected to threat to international peace and security in 15 situations and countries: Afghanistan-Taliban by resolution 2615 (2021) Central African Republic (11 individuals and 2 entities), by resolutions 2127 (2013), 2134 (2014), 2399 (2018)), Democratic Republic of the Congo (36 individuals and 9 entities, by resolution 1533 (2004)), Democratic People’s Republic of Korea (80 individuals and 75 entities, by multiple resolutions including 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013), 2270 (2016), 2321 (2016), 2356 (2017), 2371 (2017), 2375 (2017) and 2397 (2017)), Guinea-Bissau (10 individuals, by resolution 2048 (2012)), Iraq (86 individuals and 61 entities, by resolution 1518 (2003)), Haiti (1 individual by resolution 2653(2022), ISIL (Da’esh) and Al-Qaida (262 individuals and 84 entities, by resolution 2368 (2017) and resolution 2253 (2015)), Libya (28 individuals and 2 entities, by resolution 1970 (2011) and resolution 1973 (2011)), Mali (8 individuals, by resolutions 2374 (2017) and 2432 (2018) ), Somalia (15 individuals and 1 entity, by resolution 1844 (last updated on 8 March 2018)), South Sudan (8 individuals, by resolutions 2206 (2015), 2428 (2018) and 2471 (2019)), Sudan (4 individuals, by resolution 1591 (2005)), Taliban (135 individuals and 5 entities, by resolutions 1988 (2011), 2082 (2012), 2160 (2014) and 2255 (2015)) and Yemen (5 individuals, by resolution 2140 (2014)). Regarding Lebanon, the 1636 sanctions regime was set up in 2005 by the UNSC to assist with the continuing investigation of the UN International Independent Investigation Commission in the 14 February 2005 attack that killed the former Lebanese Prime Minister Rafiq Hariri. It imposed a travel ban and assets freeze on all individuals designated by the Commission or the Government of Lebanon, suspected of involvement, in the terrorist attack. After the mandate of the UN International Independent Investigation Commission ended on 28 February 2009, jurisdiction was transferred to the Special Tribunal for Lebanon (STL) (which was created by the UNSC resolution 1757 in 2007). The 1636 sanctions regime currently targets no individual or entity and will remain active until all investigations and judicial procedures have been completed at the STL.
III. HUMANITARIAN EXEMPTION IN UN SANCTION REGIMES
In situation of armed conflict, humanitarian relief according to IHL shall always be exempted from restrictions created by economic sanction or a “total embargo” on all forms of economic trade. To ensure that international sanction regime comply with IHL obligations, special language has been introduced in some resolutions to clarify that humanitarian relief remain out of the scope of sanction.
For instance, the resolution 2593(2021) on sanction regime in Afghanistan, provides that: “ all parties [need] to allow full, safe, and unhindered access for the United Nations, its specialized agencies and implementing partners, and all humanitarian actors engaged in humanitarian relief activity , (…) to ensure that humanitarian assistance reaches all those in need ”. (our emphasis)
The resolution 2582(2021) on sanction regime in the Democratic Republic of the Congo: “ Demands that States ensure that all measures taken by them to implement this resolution comply with their obligations under international law, including international humanitarian law , international human rights law and international refugee law, as applicable”. (our emphasis)
The need to preserve humanitarian activities according to IHL from negative impact of sanction regime have been most acute in the specific case of international sanction adopted by UN resolution since 2000 to counter terrorism. Indeed, many humanitarian organisations, due to the nature of their work, are operating in certain areas under the control of UNSC designated entities or individuals where there were risks that humanitarian dialogue and activities would be assimilated to material support to criminal groups in violation of the UNSC and domestic Counterterrorism regulations. This concern has been raised over the years by humanitarian organisations asking explicit humanitarian exemption language in UNSC resolution.
Starting in 2016, special provisions have been included to limit negative impact on humanitarian assistance. The UN General Assembly resolution 70/291 consistently “Urges states to ensure, in accordance with their obligation under international law and national regulations, and whenever international humanitarian law is applicable, that counter-terrorism legislation and measures do not impede humanitarian and medical activities or engagement with all relevant actors as foreseen by international humanitarian law”
Since 2019, UNSC resolutions also decided to “[…] urges states to take into account the potential effect of counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law.” (see for example, resolution 2482(2019)).
Progress in that regards started to show in December 2021 when the UNSC adopted a broad exemption to the Afghanistan sanctions regime, covering the provision, payment and processing of funds and assets necessary for humanitarian action and for activities to meet basic human needs. A similar exemption was adopted in October 2022 in the Haiti sanctions regime.
On 9 December 2022, the UNSC adopted resolution 2664(2022) entitled “General issues relating to sanctions” which provides for a global and automatic exemption for humanitarian actors regarding the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services to individuals and entities that are listed under UNSC sanctions resolutions. The humanitarian exemption provided by this resolution is applicable to all former and future UNSC sanctions resolutions whenever there might be conflict as to the application of this new global humanitarian exemption. It gives a broad definition of humanitarian activities excluded from the scope of the asset freeze UNSC sanctions measures: “the provision of funds and assets necessary to ensure the timely delivery of humanitarian assistance or to support other activities that supports basic human needs”. It is important that the resolution explicitly extended the application of this humanitarian exemption to the special counterterrorism sanction regime of 1267 (ISIL and Al-Qaida). Although resolution 2664 (2022) stipulates that the humanitarian exemption with regard to special counterterrorism regime 1267 will be applicable for an initial period of two years and that it will either be extended or suppressed regarding these individuals, it provides a basis for stronger humanitarian engagement on this political and legal sensitive topic. The 2664(2022) resolution has yet to be replicated and integrated into the sanctions regulations and legislations of all UN members States and of regional organizations. As of January 2023, the United States, who was one of the penholders behind resolution 2664(2022), has adopted a series of new exemptions and amendments to its legislations.
**For Additional Information:
Biersteker, Thomas, Zuzana Hudakova, and Marcos Tourinho, UN SanctionsApp: An Interactive Database of UN Sanctions , August 2020, available at https://unsanctionsapp.com.
Decaux, Emmanuel. “The Definition of Traditional Sanctions: Their Scope and Characteristics.” International Review of the Red Cross , Vol. 90, No. 870 (June 2008): 249–57.
Gillard, Emmanuela-Chiara, Humanitarian exceptions: A turning point in UN sanctions , Chatham House, 20 December 2022.
Huvé, Sophie, Dr. Rebecca Brubaker, Dr. Adam Day, and Dr. Zuzana Hudáková, Enforcing UN Sanctions and Protecting Humanitarian Action: Towards Coherent and Consistent Approach? , United Nations University, Centre for Policy Research, March 2022.
La Rosa, Anne-Marie. “Sanctions as a Means of Obtaining Greater Respect for Humanitarian Law: A Review of Their Effectiveness.” International Review of the Red Cross , Vol. 90, No. 870 (June 2008): 221–47.
Minear, Larry. “The Morality of Sanctions.” In Hard Choices: Moral Dilemmas in Humanitarian Intervention , edited by Jonathan Moore, 229–50. Lanham, MD: Rowman & Littlefield, 1998.
Renault, Celine. “The Impact of Military Disciplinary Sanctions on Compliance with International Humanitarian Law.” International Review of the Red Cross , Vol. 90, No. 870 (June 2008): 319–26.
“Sanctions” International Review of the Red Cross , Vol. 90, No. 870 (June 2008): 209–479.
Segall, Anna. “Economic Sanctions: Legal and Policy Constraints.” International Review of the Red Cross , Vol. 81, No. 836 (December 1999): 763–84.
Weiss, Thomas G., David Cortright, George A. Lopez, and Larry Minear. Political Gain and Civilian Pain: Humanitarian Impacts of Economic Sanctions . Lanham, MD: Rowman & Littlefield, 1997.