by James A. Paul
Sanctions to Enforce International Law
Most people consider sanctions a peaceful and effective means to enforce international law. Under Article 41 of the UN Charter, the Security Council may call on Member States "to apply measures not involving the use of armed force to give effect to its decisions." Typically, sanctions cut off trade and investments, preventing a target country from buying or selling goods in the global marketplace. Sanctions may aim at particular items like arms or oil. They may cut off air traffic, suspend or drastically curtail diplomatic relations, block movement of persons, bar investments, or freeze international bank deposits.
Sanctions enjoy a good reputation that many now question. Increasingly, critics charge that sanctions are cruel, unfair and even violent. International law has developed no standards on which sanctions can be based or the destructive impact of sanctions limited. Ironically, then, sanctions are used to enforce law, but themselves are outside of the law.
Suffering of the Innocent
Sanctions impose hardship -- affecting ordinary people, far more than leaders. In Supplement to An Agenda for Peace, published in January 1995, Secretary General Boutros Ghali called sanctions "a blunt instrument." "They raise the ethical question of whether suffering inflicted on vulnerable groups in the target country is a legitimate means of exerting pressure on political leaders whose behavior is unlikely to be affected by the plight of their subjects." In a Security Council debate on January 19, 1995, Amb. Nihal Rodrigo of Sri Lanka concurred, saying that decisions must take better account of the sanctions' impact on ordinary people and must seek to avoid the "suffering of the innocent."
As evidence has accumulated on the harsh effects of sanctions, particularly in Iraq, experts have increasingly recognized this negative side of sanctions and questioned whether human suffering can be justified by the original purpose.
Collateral Damage
Sanctions also cause hardship outside the target country, in what is known (borrowing from military terminology) as "collateral damage." Sanctions invariably hurt countries that are neighbors or major trading partners, who lose export markets, government revenues, and employment opportunities. Sanctions may harm big business interests and they tend to cause suffering among the poorest and most vulnerable.
Article 50 of the UN Charter directly addresses the right of countries to appeal for financial assistance as compensation for their losses when sanctions are applied. The Secretary General in his 1995 report called for urgent action to respond to this problem, saying that the costs of sanctions "should be borne equitably by all Member States and not exclusively by the few who have the misfortune to be neighbors or major economic partners of the target country." In the January 1995 Council debate, Amb. Danilo Turk of Slovenia argued along the same lines that a disproportionate burden of sanctions is borne by neighboring states and trading partners and he argued for "statements of impact assessment" so that burdens could be more equitably shared.
Double Standards, Changing Rules
Critics argue that sanctions are too often imposed unfairly, using standards that are unevenly applied or biased. The whims or interests of the mighty -- and not clear rules of international law -- too often determine the targets of sanctions and the harshness of the sanction regimes. Sanctions, argued Amb. Joseph Legwaila of Botswana, are meant to bring about a "change of behavior," they are not supposed to be "punishment or retribution." When sanctions were imposed on Iraq to induce its withdrawal from occupied Kuwait, sceptics pointed out that many other invasions and occupations had not resulted in sanctions. Israel, Morocco, Turkey and Indonesia, for example, all avoided sanctions when they invaded neighbors. If the Security Council wants its sanctions to be seen as legitimate, it should impose them more consistently, critics argue.
Once UN sanctions are in place, they are supervised by a "sanctions committee" of the Security Council, which operates secretively and cannot be monitored and made accountable to the public. [See table of frequency of meetings of sanctions committees.] This makes the ongoing sanctions process highly politicised and very open to pressure from Permanent Members. Sanctions may begin with one justification and continue with others. The Secretary General in his 1995 report mentioned this kind of problem: "The objectives . . . have not always been clearly defined. Indeed, they may sometimes seem to change over time. This combination of imprecision and mutability makes it difficult for the Security Council to agree on when . . . sanctions can be lifted."
Elusive but Occasional Success
For all the pain they impose, sanctions usually do not succeed. There is a long history of failure to prove it. League of Nations sanctions, imposed in 1935, failed to force Italy to pull out of Ethiopia. More recently, UN sanctions have failed to induce Libya to turn over two citizens for trial in the Lockerbie airliner bombing, or to induce Iraq to substantially modify its policies. Unilateral sanctions, imposed by a single state, are even more likely to fizzle. The United States grain embargo against the Soviet Union in 1980 did not produce a Soviet withdrawal from Afghanistan, nor have the long and punishing sanctions by the United States against Cuba resulted in political change on that island. Sanctions are often ignored by some governments or circumvented by traders chasing a high profit margin. Unilateral sanctions can even backfire, harming exporters in the sanction-imposing country most of all. In the 1980 grain embargo, US farmers suffered more than Soviet consumers.
The UN Security Council imposed only two sanctions regimes in its first forty-five years. Surprisingly enough, both are generally considered effective. They targeted Southern Rhodesia (now Zimbabwe) and South Africa, both white-only settler regimes. The Security Council imposed its first mandatory sanctions on Rhodesia in 1966 following the white minority's unilateral declaration of independence. The Council finally lifted the sanctions in 1979, after negotiations led to a black government.
Britain and the United States opposed sanctions against apartheid South Africa, in spite of strong pressures in the Security Council. Finally, after weak "voluntary" measures (voted in 1963) had little result, Britain and the US agreed to a Council-imposed mandatory arms embargo in 1977. Efforts to toughen sanctions through the UN met with further Anglo-American opposition, including a draft resolution vetoed by both permanent members on March 8, 1988 (S/19585). But nevertheless, an international campaign, induced private investors and governments to adopt sanctions measures. In 1989, the campaign finally succeeded in pushing a sanctions bill through the US Congress, against the oppositon of the administration. Thoughout, shippers, especially big oil companies, often flouted the embargoes. But thanks to the international campaign, maritime and longshore unions, along with United Nations agencies, helped enforce the sanctions by exposing sanction-breakers to public scrutiny. Many believe that the sanctions helped force the apartheid regime to finally capitulate, in a relatively peaceful transition of power. Whatever hardship the sanctions imposed on both Zimbabwe and South Africa, the outcome seems to have been well worth it.
An influential study argues that of 116 cases of sanctions imposed between 1914 and 1990, between a quarter and a third resulted in some policy change in the target country. The likelihood of "success," concluded the authors, decreases as the goals of sanctions become more general and "ambitious." [see Hufbauer and Schott in bibliography]
Who Has Applied Sanctions?
The survey of sanctions found that the United States was the primary initiator of sanctions -- in about 70 percent of the cases. A third of the cases were unilateral sanctions and most of the rest were ad hoc coalitions. Only 12 percent of all sanctions were applied in a truly collective manner.
How Deep Do Sanctions Really Bite?
Because sanction regimes are so different, their impact on the target economies is quite various. Experts say that partial sanctions may reduce GNP by 1% or so and that major sanctions, like those imposed on South Africa, probably reduce GNP by up to 5%. These modest effects show why sanctions so often fail. But they seem to contradict reports of serious human suffering in target countries. In fact, a GNP decline of 5% in a poor country is likely to result in considerable hardship for the poorest people, especially if food imports are cut. Reduction in imports of medicines and vaccines can also create great hardship and suffering, even though a relatively small proportion of overall GNP is at stake.
In the final analysis, sanctions must be measured in terms of who they effect, in what way and with what final result. Greatly increased disease, malnutrition, and mortality in the target country are results that cannot easily be defended against world public opinion. Sanctions that have such results are likely to lose credibility and eventually collapse.
A Flurry of Recent Sanctions
The Security Council imposed its third set of sanctions on Iraq in 1990 and followed with a number of others: former Yugoslavia (1991), Libya, Somalia, Haiti and Angola (1993), Rwanda (1994), Liberia (1995), Sudan and Burundi (1996). Some of these recent sanctions regimes have attracted sharp criticism, especially the sanctions against Libya and Iraq. Canada's distinguished international lawyer Geoffrey Grenville-Wood wrote in a 1993 article that the sanctions against Libya to force extradition of two suspects in an aircraft bombing was "spurious and ill-founded," since the Council was wrong in claiming international peace and security were threatened. Did France agree to hand over its agent that blew up a Greenpeace ship in New Zealand, Grenville-Wood asked.
With so many sanctions in force, debates about sanctions at the UN have intensified. Scarcely any country is not affected by sanctions to some degree and several dozen have suffered severe trade disruption and economic pain. As a result, the issue of sanctions now arises in many UN forums throughout the year.
Sanctions Against Iraq
Over the course of more than seven years of sanctions against Iraq, several UN agencies and human rights organizations have produced reports showing malnutrition due to blockage of food, severe health problems due to absence of medicines and water purification systems. Some observers have argued that the sanctions policies have been imposed primarily in order to regulate the world's supply (and price) of oil, rather than to change the policies of the target state. This argument seems plausible, but it is difficult to prove. Sanctions experts agree, though, that in general there are often hidden reasons behind the nominal legalities used to justify sanctions.
As time has passed, the humanitarian emergency in Iraq has deepened. Evidence has emerged that the United States and Britain, through their role in the UN Security Council, have blocked shipments to Iraq of harmless but vital goods, ranging from medicines to sewage treatment facilities, clearly damaging public health. The UN sanctions committee on Iraq has been hostage to political pressures that have caused great suffering, widespread malnutrition and many tens of thousands of unnecessary deaths -- perhaps more than during the actual Gulf War hostilities in 1991. The great majority of countries now oppose these sanctions, even if many countries remain sharply critical of the regime of Saddam Hussein.
The Cuba Embargo
The unilateral United States trade embargo of Cuba, in force since 1962, provides evidence of an even more repugnant sanctions regime, which is opposed by a large majority of the world's countries and regularly condemned in the UN General Assembly. The embargo has done harm to the Cuban economy and made travel between the US and Cuba difficult and costly. Even governments that are decidedly unenthusiastic about Cuban President Fidel Castro consider the embargo illegal and see it as unfairly punishing ordinary Cubans. After the UN General Assembly overwhelmingly passed a resolution condemning the US embargo in 1995 for the fourth straight year (A/50/10), the Secretary General wrote to governments and agencies asking for information that could be incorporated into a report. By 5 September, 60 countries and 5 agencies had responded. The responses were all critical of the embargo. This information can be found in a UN document (A/51/355).
Over the years, the United States has imposed many unilateral political and trade sanctions, often to punish "enemies" or win economic advantages. Usually the government justifies sanctions in legal or moral terms -- the target countries are said to "violate" something sacred like "human rights" "democracy" and "fair trade." But often there are less elevated but more economically compelling reasons, such as the drive to control oil reserves and other natural resources. Invariably the sanctions are imposed unilaterally because they would not win support in multilateral bodies. This kind of sanction may now encounter stronger opposition internationally under the rules of the World Trade Organization.
The US Helms-Burton Act of 1996 has imposed penalties on third parties doing business in Cuba, bringing sharp protests from Canada, Mexico, European countries and many others. The European Union is planning a formal protest to the WTO. On June 4, 1996, the General Assembly of the Organization of American States passed a resolution asking for a legal opinion on the embargo from the Inter American Juridical Committee. The Committee returned an opinion that Helms-Burton "is not in conformity with international law." This opinion was sent to the United Nations on September 18, 1996. On November 12, 1996, the UN General Assembly passed a resolution again condemning the embargo by the largest vote ever -- 117 ayes, 3 nays and 38 abstentions. All the European Union countries voted in the affirmative, as did Canada. The new resolution contained language sharply critical of the Helms-Burton law.
Think Tank Studies and UN Assessments
Interest in sanctions has grown at various universities, think tanks and NGOs. When the Security Council began imposing sanctions, a rising tide of U.S. foundation grants funded a number of projects -- at Notre Dame, the Carnegie Commission on Preventing Deadly Conflict, the Carter Center, the Council on Foreign Relations, Brown University, the National Academy of Sciences and the Center for Economic and Social Rights. Some of these studies considered sanctions solely as a US policy tool, while others were deeply concerned about broader humanitarian implications. The Notre Dame Project produced the influential volume Economic Sanctions. Meanwhile, UN agencies commissioned studies, including a major project by the Department of Humanitarian Affairs, undertaken by German scholars. The General Assembly Working Group on Agenda for Peace set up a sub-group on sanctions, chaired by Amb. Amorim of Brazil.
UN staff have also written about sanctions. James Ngobi, Secretary of the Security Council Sanctions Committees, noted in an influential 1995 article that Council-imposed sanctions are rarely imposed swifty or decisively enough, they depend on implementation by member states (which in practice is uneven), they lack punitive measures against sanction-breakers, and they lack means to alleviate suffering of affected innocent people.
Call for Monitoring and a Rule-Based Use of Sanctions
The Secretary General returned to the issue of sanctions in his report on Humanitarian Crises, releasted on 15 July 1995 (A/50/203). Urging the Security Council and the international community to address root causes in order to head off the conflicts, he called attention to the potential of sanctions for creating deeper social distress. "Action taken by the international community to end oppression or bring about change by non-military means," he said, "can have major ramifications for those who are already victimized by inequitable political and economic structures. Economic sanctions hit the poor hardest and can have a deleterious impact on the work of humaniarian organizations."
The critics of sanctions found a powerful ally in the International Red Cross, a highly respected and traditionally non-political body. In its 1995 World Disasters Report, the Red Cross highlighted its growing concern over sanctions' humanitarian impact. The Red Cross President, addressing the General Assembly on 28 November 1995 mentioned his special concern about the situation in Iraq and said that "the high price paid by the most vulnerable groups of the population is apparent." He went on to call for "a formal mechanism" to "assess the potential impact of sanctions and monitor their effect."
In January of 1996, the Secretary General presented another report to the Security Council, asking it to reconsider the impact of sanctions. He pointed out that sanctions may greatly set back development and that sanctions can impede or even block the work of humanitarian relief organizations. He called for more precise definitions of the goal of sanctions and the conditions under which they may be lifted. And he warned that under certain conditions sanctions can defeat their own purpose by "provoking a patriotic response against the international community, symbolized by the United Nations, and by rallying the population behind the leaders whose behavior the sanctions are intended to modify."
Targeting Sanctions
Many experts believe that targeted sanctions can be more humanitarian and more effective. Targeting implies sanctions that deliver pressure where it is most effective. Arms embargoes are one type that is commonly used. Another type seeks to hit key groups most severely -- like the business or political elite. These groups have a major voice in policy making and they are unlikely to suffer bodily harm from sanctions, even if their standard of living is seriously reduced. Sanctions targeted at these groups may block international travel, embargo luxury imports, and (most effectively) seize foreign bank accounts. Unfortunately, banking and business interests vigorously oppose this kind of sanction. As the New York Times reported in March 1996, Britain, France and Germany are "traditionally reluctant to take any action that might damage their position as international financial centers." The Times could well have added the United States and Switzerland to the list. Banks simply do not want to give up information on their private accounts and they are nervous about the wider implications of "political" interference in their relations with their customers. For reasons such as these, sanctions that target individual assets are very rarely considered.
In the fall of 1997, after considerable debate, the Security Council decided to impose targetted sanctions on the leadership of the Unita rebel group in Angola. The sanctions mainly consisted of bans on travel for those identified as in top leadership positions, including the rebel chief, Jonas Savimbi. But the Council extended a sanction deadline set for late September.
Who Enforces Sanctions?
Sanctions often fail because they are not enforced. The United Nations has no means to enforce sanctions in its own right. It must depend on compliance by member states and by traders and businesses. If they refuse to comply, then there is no means to impose penalties or bring them to justice. In many recent sanctions, the UN scarcely has had any monitoring capacity. So sanction-busting has flourished.
The UN actually had one effective monitoring system, developed for its sanctions against South Africa. An office in the Centre on Transnational Corporations, linked to a wide network of monitoring sources, kept track of trade and investments in the apartheid state. Each year the Centre issued a major report, causing serious public criticism of governments and businesses. The permanent members seem keen to avoid a repetition of this embarrassment. Instead they prefer the UN to contract out its monitoring and assessment to one or more powerful states. The United States often acts as the enforcer, only deepening suspicions that sanctions are unfair instruments of great powers.
The Debate Over Iraq
The clash over sanctions took a dramatic form in mid-1996. Well into the sixth year of the sanctions on Iraq -- sanctions that had been originally imposed under very different circumstances -- many countries called for the Security Council to lift its trade embargo, on the grounds that it was causing too much human suffering. The United States and Britain blocked this initiative and insisted on harsh conditions and a limited deal, that would allow the country to sell oil in exchange for food, medicines and other vital necessities under strict UN control. The Iraqi government was at first not willing to accept these conditions. Finally, after a deal was proposed in April 1996, Baghdad's position softened. Pressure on the United States and Britain intensified after a report was issued by the New York-based Center for Economic and Social Rights on 18 May detailing the human suffering caused by the sanctions, as reported by an investigative team of 24 experts from 8 countries. With a green light from the US and Britain, Baghdad signed an agreement with the UN on 20 May, allowing for the sale of $2 billion in Iraqi oil over a six-month period.
Planning for implementation went forward. But on 31 July, the United States government announced that it would oppose the agreement. There was fury in the Security Council where everyone knew that the United States had itself originally set conditions for the agreement. Amb. Tono Eitel of Germany, Chairman of the Council Sanctions Committee on Iraq, told New York Times reporter Barbara Crossette he was "troubled and very sad" over the US action. Observers speculated that US electoral politics had caused the last-minute shift. On August 7, the US changed course and finally gave its formal agreement. Shortly afterwards, however, Iraq's government moved troops into a Kurdish zone in the north. Again, the United States and Britain insisted that the sanctions would have to stay in place.
After intense pressure from Council members and others, the US agreed to yet another deal, that was anounced on November 25, allowing $2 billion in oil sales during a six-month period. Many thought the agreement was strongly conditioned by multinational oil companies. As the New York Times reported, citing "oil analysts," under conditions of strong demand and low reserves at refineries, Iraqi sales "are likely to only slightly reduce the cost of a barrel of oil on world markets."
Burundi and Sudan
The debate over sanctions in the summer of 1996 extended to Burundi, where the Council imposed a new regime in July due to a coup d'etat and deteriorating inter-ethnic conflict. Given the povery of the country, there was serious doubt about the effect of the sanctions. On August 6, the World Food Programme announced that the Burundi sanctions were preventing humanitarian aid from entering the country, threatening the well being of hundreds of thousands of people. WFP warned that the cut-off of emergency food, medicine and fuel may exacerbate ethnic tensions. At about the same time, the UN Department of Humanitarian Affairs dispatched a 5-person mission to Burundi to examine the consequences of sanctions and the mission was at first blocked from the country because of sanctions-imposed barriers to air travel in neighboring Kenya.
The Council has also faced criticism on its Sudan sanctions, likewise imposed in 1996. The Sudan sanctions are similar to the Libyan sanctions, for they are designed to force the Sudanese government to turn over alleged criminals -- in this case people who allegedly attempted to assassinate President Mubarak of Egypt. International lawyers insist that this goes beyond the proper bounds for the Council's action and that it undermines the system of extradition treaties. Sudan's economy is already in very great difficulty, critics point out. Sanctions make matters worse and seem certain to impose hardships that will not be justified.
Broad Debate at the UN
Feelings run high on sanctions at the UN. Many delegations have made heated comments on the issue in 1995 and 1996 -- in the General Assembly, the Charter Committee, the Sixth (Legal) Committee, the Fifth (Finance) Committee, the Security Council and other bodies. The special sub-group of the Working Group on an Agenda for Peace has considered the question at length.
Delegations are insisting on a better monitoring, a more targeted and humanitarian approach, and real burden-sharing. But their opinions are purely advisory. So far, not a dime has been allocated through the UN to help share the burden of trading partners. Nor have targeted sanctions come into general use. Nor has monitoring markedly improved. The Security Council remains in control and permanent members seem intent on following past practices. They prefer not to be burdened with rules and they do not want to be billed for collateral damage.
Iraq Sanctions: the latest turn of the Crisis
On October 28, 1996, UNICEF head Carol Bellamy held a news conference about the crisis in Iraq. She said that 4,500 children are dying every month of hunger and disease because of conditions imposed by the sanctions. Yasushi Akashi, Under Secretary General for Humanitarian Affairs said that nations were not contributing to emergency relief funds because they thought that the embargo was soon to be lifted. Other experts noted that Iraq's water and sewage system is crumbling, leading to greater risk of infectious disease. The World Food Programme announced that 180,000 children under the age of 5 in Iraq are malnourished. In an October 29 article on the subject, the New York Times reported that "The standoff over the oil sales has annoyed other diplomats on the Council who say repeated American efforts to stall the plan make sanctions appear unduly harsh and harmful to the most innocent Iraqis."
On December 9, the UN signed another deal that had been announced on November 25. Secretary General Boutros-Ghali said "This is a victory for the poorest of the poor in Iraq, for the women, the children, the sick and the disabled." And Security Council President Paolo Fulci of Italy said when announcing the deal: "More than 20 million innocent Iraqi civilians will be finally saved from starvation and untold suffering . . . anaesthesia will be finally available for surgery . . . four out of ten new born children will no longer die before they reach age one." The following day, there were reports that oil had started to flow. Many weeks will pass before the oil is actually delivered to buyers and the payments are translated into food and other humanitarian supplies. It remains to be seen whether another crisis will erupt and block the deal as has happened before. Or whether at long last the deal will work and the suffering in Iraq will ease.
Which Way for Sanctions
What way ahead for sanctions? Sanctions advocates would argue that they still hold great promise. But only under conditions of wide international agreement, clear legal basis and purpose, and minimal harm to the innocent. These seem elusive goals in a world where a few powerful states and private interests use sanctions for their own geo-strategic and economic gains. Even so, sanctions continue to offer interesting possibilities. The breadth and intensity of the UN discussions suggests that many delegations (and many NGOs) think sanctions can someday be made to work.
Article on Russian working paper and other developments at the UN in early 1997
