Brief
In its 21st issue, the peer-reviewed journal Qalamoun: Syrian Journal for Humanitarian Sciences published a study by Mr. Fadel Abdul Ghany, Executive Director of the Syrian Network for Human Rights (SNHR), entitled, ‘Should there be different standards on how UN sanctions are imposed depending on whether the sanctions are intended to enforce human rights or to maintain peace and security?’.
The study tackled the problematic aspects of the standards adopted by the UN in enforcing sanctions of different kinds, if those sanctions have been imposed for noble reasons, such as binding states to maintain human rights and preserve international peace and security. The study, which uses the Syrian conflict, ongoing since 2011, as a case study, concludes that while sanctions are indeed an instrument for deterrence and accountability, they alone cannot work effectively, as other instruments must to be utilized in tandem to make them effective.
The 10-page study discusses the legal framework for the powers of the Security Council according to the Charter of the UN and international law, noting that sanctions, no matter their forms or types, are a manifestation of political, legal, and human rights accountability that are meant to achieve various different goals. Sanctions have been used by states, whether individually or within alliances, for centuries. However, the establishment of the UN Charter in 1945 enshrined sanctions within a legal framework. According to the Charter, non-military sanctions are based on its Article 41 , while military sanctions are based on Article 42, provided that the Security Council has determined the “existence of a threat to the peace, breach of the peace, or act of aggression” where the purpose of sanctions is to “maintain or restore international peace and security” as per Article 39. The study stresses that the approval of sanctions is a political decision made within a legal framework, and that, as such, the two realms are deeply intertwined. Furthermore, the study shows that sanctions play a dual role – that is through being first and foremost a preemptive attempt to deter a threat, enabling the Security Council to act before the fact rather than waiting for the threatened action to happen, as well as providing a means of remedying a situation after violations have been perpetrated. In this context, the study recommends that sanction committees should be formed to monitor and observe the progress of sanctions.
The study also highlights that, in addition to the Security Council, the UN charter gives the UN General Assembly the power to discuss all UN matters and issue recommendations. The General Assembly has multiple powers in the context of preserving international peace and security; however; it cannot address any conflict that is being discussed by the Security Council. Only when the Security Council is unable to resolve a situation can the General Assembly intervene to find an alternative. The study refers to such a case that gave birth to the well-known resolution ‘Uniting for Peace’ of 1950.
Moreover, the UN Charter does not provide any specific definition for cases that could pose a threat to international peace and security which would prompt action by the Security Council. In the study’s view, this was a deliberate omission on the part of the charter’s founders in order to give the Security Council sole power to make the decision on when and if a case is deemed a threat to international and peace security, in light of how this fits the political interests of the Security Council’s permanent members. For instance, how is it possible that what is being done in Syria at the hands of the Syrian regime that has killed nearly 200,000 civilians and displaced nearly 13 million people, who’ve become IDPs or refugees in other countries, not to mention of its use of chemical weapons on multiple occasions, explicitly breaching Security Council resolutions, is not classified as a threat to international peace and security? It seems as if sanctions aim to preserve and protect peace, but not necessarily in a manner that is consistent with international law. In other words, sanctions are not always imposed for the purpose of preserving and protecting the law.
The study stresses that the Security Council is principally bound to consider international human rights law when designing sanctions in times of peace, and to consider the international humanitarian law when designing sanctions in times of armed conflicts. Additionally, the conduct by which the Security Council exercises its powers should be in line with the goals of the UN Charter that includes promoting human rights and the rules of the international law.
The study also tracks how the standards put in place for sanctions by the UN have changed with time. The study notes that the most prominent of these changes was the shift from comprehensive sanctions to smart sanctions, which are designed by analyzing every case separately based on the specific political, economic, and social conditions while taking into consideration the nature and severity of the violation. Smart sanctions, the study adds, put emphasis on improving the procedures for humanitarian exceptions within the sanction system, and targeting the active and relevant circles, influential individuals, specific outcomes, vital activities, and the institutions that violate human rights and international standards within the ruling authority. Finally, smart sanctions try to strike a balance between gains and suffering, and as such pay particular attention to humanitarian consequences. According to the study, smart sanctions are mainly concerned with flight and travel bans, arms and luxury goods embargo, and freezing the assets of members of the ruling regime and some of the involved state institutions.
The study notes that smart sanctions can achieve the same goals sought by comprehensive sanctions, while minimizing negative outcomes, particularly in relation to vulnerable groups such as women, children, and the elderly. It is difficult for totalitarian regimes to garner political and media momentum against sanctions that have been imposed against them. Rather, totalitarian regimes have found themselves forced to reconsider the feasibility of continuing with their violations of international law against the losses they are incurring. As such, the sanction system of the UN gains more credibility and effectiveness and restores its weight, while shielding it from accusations.
Finally, the study stresses that sanctions alone are not enough to preserve international peace and security and to punish perpetuators of human rights violations. While recognizing that it may be true that sanctions have yielded positive results in bringing about international peace and security and in ensuring respect for principal human rights in the past, acknowledging that sanctions are an effective and supporting instrument for peace, security, and human rights, and noting that smart sanctions adequately consider the principles of the international law, definitely making them a step in the right direction, they alone are insufficient in light of additional considerations that must be taken into account. One of the additional considerations highlighted by the study is the fact that the UN is a card in the hand of the Security Council which is dominated by the political and economic calculations of its five permanent member states which greatly neglects the interests of the peoples and states affected by human rights violations and conflict.
The study recommends that the approach of comprehensive sanctions should be dropped completely, in favor of smart sanctions against hostile totalitarian states. Furthermore, it suggests, each case should be examined separately and a study should be conducted into each case, while progress on achieving the goals proclaimed in each case should be monitored, as well as the degree to which certain sanctions are preserving and protecting international peace and security and human rights. Also, the smart sanctions system should include a preemptive, accurate, and justifiable specification of the entities and individuals they are targeting.
The study also recommends that a mechanism should be established beforehand to address the inescapable humanitarian outcomes from sanctions, no matter how precisely they may be implemented. Lastly, the study recommends that the UN provides aid for the states affected by targeting the state guilty of violations, as well as making a number of additional recommendations.
The study was published in the 21st issue of Qalamoun: Syrian Journal for Humanitarian Sciences
