Sanctions and Embargoes – Should Civilian Populations Be Less Protected in Peacetime than in War?

13 November 2018  (Wall Street International)* – Everyone remembers the catastrophic consequences on human rights of broad trade embargoes imposed under the authority of the United Nations in the 1990s, especially with respect to Iraq. This was widely documented at the time. It prompted a shift away from comprehensive to so-called ‘smart’ sanctions.

The past months, unfortunately, have witnessed increased recourse to economic sanctions, some of which are clearly not ‘targeted’ nor intended to be ‘smart’ – but clearly comprehensive, as in the case of the measures re-introduced by the United States against Iran. I noticed that the US Secretary of State openly spoke of the ‘strongest sanctions in history’.

I make the point in my latest reports to the Human Rights Council and to the UN General Assembly that applying a comprehensive sanctions regime in the form of a quasi-complete embargo, all the more when this purports to extend « extraterritorially », that is to apply to third parties to discourage them to do business with the target country, entails effects that almost equate those of a blockade on a foreign country, and thus qualifies as ‘economic warfare’.

The potential far-reaching adverse consequences of these actions on human rights are obvious.

My findings are that embargoes of this kind violate some of the most basic rules of international humanitarian law and human rights law.

One may recall that blockades in wartime may result in « collective punishment » of the populations affected, a behaviour that contradicts the internationally accepted rules of the law of armed conflict, especially the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) of 1949.

Irrespective of whether these are applied in connexion with military operations or in peacetime, de factoblockades imposed as a result of measures aiming at the « economic isolation » of a target country, through restrictions or prohibitions of imports and exports abroad and transfers of goods between the target and the rest of the world, also entail some form of « collective punishment ». « Humanitarian exceptions » as practiced so far get caught up in bureaucratic webs.

Therefore, what I say is basically that the requirements of the law of armed conflict (or international humanitarian law) of necessity, proportionality and discrimination (between combatants and non-combatants, and between civilian and military objectives), should also apply in cases of economic sanctions in peacetime, irrespective of potential legal niceties about the applicability of humanitarian law only to armed conflict.

Otherwise, this would result in an absurd outcome: that civilians would be deprived in peacetime of the protection offered in wartime by international humanitarian law against the very same kinds of indiscriminate coercive measures applied by outside powers.

In that context, there appears to be no valid reason why peacetime measures having basically the same effects as wartime blockades could be considered as lawfully inducing situations of starvation or collective punishment (in addition to adversely affecting a range of basic human rights), where such situations would have been deemed unacceptable during conflict under the rules of international humanitarian law.

Thus, I call for an immediate evaluation of de factoblockades against the criteria set in international humanitarian law, and for the immediate cessation of those measures found to disregard the imperatives of necessity, proportionality and discrimination.

The international judiciary has an important role to play in that respect, and I have suggested that the United Nation’s General Assembly request an advisory opinion of the the International Court of Justice in this regard. But other relevant bodies, such as human rights bodies of the UN, and the international community at large, should also engage in serious discussions involving all stakeholders with a view to addressing this issue.

More generally, my main concern is when unilateral sanctions – especially those purporting to have extraterritorial effect – used as a foreign policy tool, do not spare the innocent population of targeted States, on the basis of questionable ‘evidence’ or mere suspicions or allegations that would be insufficient evidence in the court of law of a democratic country. First this sets a poor precedent for advocates of the rule of law everywhere.

Second such action is a violation of an internationally recognized human rights tenet : that civilians should not be made to pay for perceived misdemeanor of their government. And third if peacetime blockades are tolerated, the very architecture of the international system based on the Charter of the United Nations and the International Bill of Rights is at risk.

The international community must react against the resulting destabilization of the rule-based international system. We appeal in particular to the main architects of the post-World War II international institutions to be true to the fundamentals of international law and to the architecture of the human rights system whose enforcement implicitly relied and still depend on them as central framers of the present international order.