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	Coping with the humanitarian impact of Sanctions: An OCHA perspective

Executive Summary

The increased use of sanctions regimes in recent years by the UN Security Council and regional organizations has brought to light a number of difficulties, relating to the elaboration of sanctions regimes and their enforcement. The lack of proper institutional arrangements to address in an objective manner the humanitarian impact of sanctions have limited the capacity of the UN system to respond efficiently to the humanitarian consequences of sanctions regimes.

In his 1998 annual report on the work of the Organization, UN Secretary-General Kofi Annan stressed the need for new mechanisms that render sanctions a less blunt and more effective instrument, aimed at exerting pressure on targeted governments rather than peoples and thus reducing humanitarian costs¹. The effectiveness of sanctions regimes is to be measured not only in terms of the maximization of the political impact of the regimes on the targeted governments, but also in terms of UN efforts to minimize the humanitarian consequences of the regimes on the civilian population and the civil infrastructure. This balanced approach will require specific institutional arrangements to ensure that objective information on the humanitarian impact of sanctions is provided to sanctions authorities in a timely manner and exemptions are managed in line with UN humanitarian objectives.

The purpose of this paper is to review the need for new institutional arrangements in the elaboration and implementation of sanctions regimes with regard to UN efforts to minimize the humanitarian impact of sanctions. The role of OCHA as an intermediary between humanitarian organizations and sanctions authorities is analyzed. Proposals for institutional arrangements to process information on the potential or actual humanitarian impact of sanctions are presented as well as measures to facilitate the provision of humanitarian relief under sanctions regimes. These include measures to:

• Strengthen the capacity of Sanctions Committees to monitor the humanitarian impact of sanctions.

• Elaborate an integrated approach to exemptions.

• Develop more targeted sanctions regimes in order to minimize their overall humanitarian impact.

In many respects, the humanitarian consequences of current sanctions regimes have served as a major impetus to review sanctions instruments. Numerous studies have recently been published on methodologies to address the humanitarian impact of sanctions and on models for targeted sanctions. However, despite the abundance of technical material on more targeted and humane sanctions regimes, tangible progress has yet to be made to reform traditional approaches 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 swift responses by the Security Council to international crises and the benefits of sanctions-inflicted pain on the civilian population², 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 more consistent approach to UN sanctions³, 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 address more effectively these new requirements.⁴

The Office for the Coordination of Humanitarian Affairs (OCHA) has been particularly involved in the development of new approaches to sanctions regimes aiming at minimizing the humanitarian impact of sanctions. Until recently, sanctions regimes were regarded by humanitarian organizations as coercive measures against civilian populations whom agencies intended to serve. Cooperation with sanctions authorities was kept to a minimum. However, in recent complex humanitarian emergencies, humanitarian organizations noticed the extent to which sanctions regimes may actually hamper their capacity to operate in targeted countries such as the Former Yugoslavia and Haiti. In addition, humanitarian organizations also realized the potential benefit of a concerted approach to humanitarian crises among UN entities, combining humanitarian operations with security measures such as the deployment of peacekeeping forces and the imposition of targeted sanctions. Consequently, humanitarian organizations have been increasingly more amenable to cooperation with the Security Council on sanctions issues through an appropriate intermediary, such as OCHA.

On the need for new institutional arrangements

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 requirements for the elaboration and implementation of such complex measures. Compared to the requirements involved in 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 States requested the creation of a Military Staff Committee⁵, only minimal administrative and technical institutional arrangements have been involved in the planning or enforcement of sanctions regimes.⁶

Consequently, the adoption and enforcement of sanctions regimes remain largely submitted to the political contingencies of Security Council work. Most of the sanctions regimes have been elaborated in crisis situations where the timing of the Security Council's response and the search for consensus among its 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 mechanisms in terms of the potential humanitarian impact of the sanctions. Although sanctions have become over recent years the primary UN response to threats to international peace and security, the UN Secretariat and technical agencies have been given only few opportunities to contribute to the deliberations of the Security Council on the modalities of sanctions regimes.

As a result, sanctions have been criticized for their rigidity. The assumption according to which the pressure exerted on the civilian population under economic sanctions is an effective means to oblige political leaders to change their behavior is now being questioned in both practical and ethical terms ⁷. Still, to allow the United Nations to respond to international threats to peace, it must have policy options that lie between military force and mere verbal condemnation. In this context, multilateral sanctions are of critical importance for the maintenance of international peace and security. Sanctions tools and procedures certainly deserve to be further developed as pressure for swift but adequate UN response to international crises is rising in many regions.

The UN system has gained valuable experience in recent years on how to monitor the enforcement of sanctions regimes as well as to respond to their humanitarian impact. Considerable efforts among experts have been devoted in the development of models for targeted sanctions on specific goods, assets and transactions that will optimize the impact of the sanctions on the leadership of targeted countries while minimizing the humanitarian consequences on the civilian population. Specific technical procedures are being proposed to ensure that required information and analysis on the targeted countries' vulnerabilities are provided in a timely fashion in order to assist sanctions authorities in the planning and review of sanctions regimes, particularly with regard to their humanitarian impact.

OCHA's mandate and objectives on sanctions originate from two sources.⁸As part of the humanitarian coordination mechanism established under General Assembly resolution 46/182 (1991), OCHA receives requests from the Inter-Agency Standing Committee (IASC) to develop policy guidelines on various humanitarian issues. As part of the UN Secretariat, the Office may also be invited to provide policy analysis on issues of humanitarian concerns by other UN entities such as the General Assembly, the Security Council or the Secretary-General.

In the recent years, the IASC has expressed major concerns on the humanitarian impact of sanctions. In the course of their operations, humanitarian agencies have faced serious difficulties in providing emergency relief assistance under sanctions regimes such as in Iraq⁹, Haiti¹⁰ and Former Yugoslavia¹¹. These difficulties prompted the IASC to request from DHA, and then OCHA, the elaboration of a methodology to assess the humanitarian impact of sanctions and mechanisms to process humanitarian exemptions expeditiously.

Following a first request in 1994, DHA commissioned a study by consultants Claudia von Braunmühl and Manfred Kulessa to identify strategies for minimizing negative impacts. Their report¹², published in December 1995, offered interesting analytical insights on the issue but did not provide the necessary practical tools for monitoring the impact of sanctions. In 1997, DHA commissioned a new study to elaborate concrete methodologies for assessing the humanitarian impacts of sanctions and to recommend measures to cope with the adverse humanitarian consequences of sanctions. This study, "Toward More Humane and Effective Sanctions Management: Enhancing the capacity of the United Nations system" was published in October 1997 ¹³.It served as a basis for a fruitful exchange of views among experts from UN and other humanitarian organizations on the humanitarian impact of sanctions and the role of humanitarian organizations in this regard. In the course of these discussions, it appeared that humanitarian organizations could play a constructive role under sanctions regimes by providing objective information on the humanitarian consequences of the sanctions and recommending practical measures to minimize their impact on the civilian population. Due to their continuous presence in the field and the ongoing assessments of the humanitarian needs, humanitarian organizations may offer valuable expertise in assisting sanctions authorities in their efforts to minimize the impact of sanctions on the civilian population.

The General Assembly has also expressed its desire to see the UN Secretariat, in particular OCHA, play an expert role on the humanitarian impact of sanctions, especially with regard to the impact of sanctions on vulnerable groups such as children¹⁴. In its resolution 51/242 (1997), it requested that the Secretariat engage in a coordinating role in organizing and conducting assessments of humanitarian needs and vulnerabilities at the time of the imposition of sanctions, and regularly thereafter while sanctions are being implemented. It considered that information on the potential or actual humanitarian impact of sanctions should be brought immediately to the attention of the Security Council. It further decided that guidelines for the exemption of humanitarian goods should be developed to ensure that exemption requests are expeditiously dealt with.

Finally, the UN Security Council twice requested technical assessments from OCHA, or formerly DHA, before deciding on the modalities of a sanctions regimes (i.e. in the case of the proposed UN flight ban against Sudan¹⁵) and during the imposition of a sanctions regime (i.e. in the case of the UN sanctions and ECOWAS embargo against Sierra Leone¹⁶). In both cases, OCHA's work was greatly appreciated by Security Council members.¹⁷

In November 1997, the Inter-Agency Standing Committee confirmed the will of humanitarian organizations to provide objective information and analysis on the humanitarian consequences of sanctions regimes and transmitted a statement to that effect to the UN Security Council on 20 February 1998¹⁸ (See Annex I). It further established a technical group of experts composed of representatives of several humanitarian organizations, entrusted with the following tasks:

The IASC technical group of experts currently maintains a capacity to undertake assessments of the potential or actual impact of sanctions regimes at short notice. Such capacity was used to assess the humanitarian impact of sanctions in Sierra Leone upon a request of the Security Council.

As for OCHA, the development of methodologies with regard to sanctions and the strengthening of its advocacy role toward the UN Security Council were set among the priorities of the Office for the coming years¹⁹. OCHA's tasks include the assessment and monitoring of the humanitarian impact of sanctions and the fostering of new approaches to sanctions regimes, in particular targeted sanctions, and the elaboration of efficient exemption processes. OCHA's attention encompasses both UN sanctions regimes, imposed by the Security Council and managed by its sanctions committees, and regional sanctions regimes imposed by regional organizations, such as the economic embargo against Burundi, assessed in November 1997²⁰, and the ECOWAS embargo on Sierra Leone, assessed in February 1998²¹. In addition, OCHA has been advising individual States and organizations on humanitarian requirements and exemptions procedures under sanctions regimes.

The efficiency of sanctions management resides in the ability of sanctions authorities to develop a coherent and concerted approach to the objectives of the sanctions, taking into account both political and humanitarian contingencies. Efficient sanctions management will result in better designed and more sustainable sanctions, i.e. more effective in stigmatizing the country's leadership and pressing targeted governments to review their unlawful policies.

Although the actual impact of sanctions on the decision-making process of targeted governments remains obscure, recent UN experience shows that more targeted sanctions may exert increased pressure on the country's leadership. More importantly, it appears that some damage resulting from sanctions regimes, such as increased humanitarian needs, may even run counter to the objectives of the sanctions, strengthening the targeted government at a domestic level, triggering international support for the targeted state and improving its international image from one of a transgressor to one of a victim. If unchecked, the humanitarian impact of sanctions may in fact relieve the targeted governments from some of the political pressure of the sanctions. Therefore, the humanitarian impact of sanctions hardly can be seen as "collateral damage", unavoidable under the circumstances and not relevant to the effectiveness of sanctions regimes. On the contrary, the proper management of the humanitarian impact of sanctions appears central to an efficient management of sanctions and, therefore, to their success.

Since sanctions are imposed as a substitute to the use of armed force, - i.e., as a less violent means to coerce targeted governments, general principles of humanitarian law should apply a fortiori to the imposition of sanctions. It implies that the right to exert pressure on the civilian population to force targeted governments to comply with Security Council's demands is not unlimited²². Unnecessary suffering is prohibited, and, in all cases, the civilian population should be spared from the effects of the sanctions with regard to its access to objects indispensable to its survival²³. In addition, sanctions authorities should allow and facilitate rapid and unimpeded passage of humanitarian relief assistance in favor of the civilian population²⁴.

• 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)²⁵ on the relationship between economic sanctions and respect for economic, social and cultural rights focuses on the dramatic impact sanctions have on the rights recognized in the Covenant. It underlines that, despite the inclusion of humanitarian exemptions in the sanction regimes established by the Security Council, recent UN experience shows that these exemptions do not always have the expected effect. It concludes by suggesting that three steps should be taken:

• Economic, social and cultural rights must be fully taken into account when a sanctions regime is being designed.

• Effective monitoring should be undertaken throughout the period that sanctions are in force.

• 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, in certain conditions, sanctions can act as an obstacle to the implementation of the Convention on the Rights of the Child²⁶.

Accordingly, most sanctions regimes have incorporated measures aimed at minimizing their humanitarian impact. Security Council's sanctions committees are given instructions to allow the provision of food and medicine, under general (e.g., Sierra Leone ²⁷) or specific regulations (e.g., Iraq²⁸). Nevertheless, the implementation of these measures has been unequal. Delays and administrative procedures in the processing of humanitarian exemptions have hindered humanitarian operations under the sanctions, as in Former Yugoslavia²⁹. Special efforts have been devoted to correct these deficiencies, especially from 1995.³⁰

Two specific situations are of special concern: the case of prolonged sanctions regimes and the case of regional embargoes.

• Prolonged sanctions regimes

Sanctions regimes may be maintained over extended periods of time causing long-term effects on civil society, the economy, government services, communication and transport infrastructure. These impacts, although not humanitarian in essence, may generate increased and more complex needs for humanitarian assistance. Water and sanitation equipment need to be replaced, power infrastructure deteriorates, 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. In addition, many of the requirements to maintain this infrastructure could have dual use i.e. be also used by the targeted government in 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. In any case, the monitoring of all forms of social impact is essential to address the long-term humanitarian effects of sanctions. Targeted technical assistance could be provided under the exemption process to alleviate the worst effects of the sanctions on the civil infrastructure.

• Regional embargoes

Regional organizations 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 authorized by the Security Council under a Chapter VII resolution. However, recent experience shows that regional embargoes supported by the Security Council, as in the case of Burundi³¹, or Sierra Leone³², 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, fertilizers and fuel for the distribution of humanitarian relief was delayed for months causing the suspension of vital programs of assistance to vulnerable groups, especially among the internally displaced populations³³ In the case of Sierra Leone, 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 OCHA to ECOWAS in the elaboration of exemption procedures.³⁴

The role of the UN Security Council in providing support to humanitarian exemptions mechanisms under regional sanctions regimes is vital. The Security Council should ensure that standards and procedures applied to UN sanctions regimes are respected in regional sanctions regimes, particularly in addressing their humanitarian impact through the establishment of proper humanitarian exemption mechanisms and clearance procedures. The Security Council should also monitor the capacity of the regional sanctions authorities to implement these exemptions and to clear the shipments of humanitarian goods into the targeted country. To assist it in doing so, the Council may consider establishing a "regional sanctions advisory committee" to effectively supervise the activities of regional sanctions authorities.

We saw in the previous section that the effectiveness of sanctions regimes depends in part on the ability of the sanctions authorities to cope with their humanitarian impact. The proper management of the humanitarian impact brings up three sets of issues: 1) the need to strengthen the capacity of Sanctions Committees to monitor the humanitarian impact of sanctions, 2) the importance of an integrated approach to exemptions, and 3) the need to develop more targeted sanctions regimes in order to minimize their overall humanitarian impact.

1.The need to strengthen the capacity of Sanctions Committees to monitor the humanitarian impact of sanctions

In order to deal efficiently with the humanitarian impact of sanctions, Sanctions Committees should be able to monitor the humanitarian situation in the targeted country and evaluate the potential or the current humanitarian impact of sanctions regimes. The humanitarian impact of sanctions should be addressed at an early phase of the Security Council discussions on the imposition of sanctions measures and throughout their imposition. In instances where urgent action is required, the Security Council should withhold its decision on the modalities of the sanctions regimes, such as the list of exempted goods and services, and the mechanism for exemptions, and request the Sanctions Committee to evaluate the humanitarian situation and elaborate on the modalities of the sanctions regime accordingly. The UN Secretariat, in particular OCHA, should stand ready to assist the Council and the Sanctions Committees in this matter, based on information and expertise available among UN and other humanitarian organisations. In addition, the Chairperson of the Sanctions Committees should consider visiting the region to have a first-hand account of the impact of the sanctions and the functioning of exemption mechanisms put in place.

2.The necessity of an integrated approach to exemptions mechanisms

As information on the humanitarian situation in the targeted country and the impact of the sanctions are made available to Sanctions Committees, the Sanctions Committees should adopt practical adjustments to the exemption mechanisms to facilitate the delivery of humanitarian assistance. Sanctions Committees should further decide, on the basis of OCHA's recommendations, 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 nongovernmental 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, and essential medicine. Other non-food items could be considered in specific circumstances, such as water and sanitation requirements.

Sanctions Committees could request reports from humanitarian organisations on the use of exemptions by institutions and for country-specific items, to ensure that humanitarian exempted goods are delivered only to those in need. Focusing on the net result of the exemption process, i.e. 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.

3.The need to develop more targeted sanctions regimes in order to minimize their overall humanitarian impact.

Efforts should be devoted to further develop targeted sanctions in order to ensure that effective sanctions tools are made available to respond to international crises, without endangering the survival of the civilian population. Attention should be paid to the potential humanitarian impact of these targeted tools, such as financial sanctions, and their remedies. In particular, States should consider using targeted sanctions to enhance their efforts to respond to humanitarian needs in the targeted country, for example by allowing frozen financial assets to be used to fund, at least on a temporary basis, urgently needed humanitarian assistance.

This paper aimed at presenting OCHA's perspective on the humanitarian impact of sanctions. We saw that sanctions can be managed in a more humane and, at the same time, effective way. To do so, objective information on the impact of the sanctions and technical expertise must be integrated throughout the elaboration and enforcement of sanctions regimes. Political contingencies will certainly persist to limit the ability of sanctions authorities to search for the most effective and balanced approach to sanctions regimes. However, efforts should be made to ensure that sanctions regimes decided by the Security Council or regional organizations are sufficiently viable and humane to achieve their goal without jeopardizing the survival of the civilian population. Making sanctions management more humane and effective is, in this context, a goal for the whole UN organization.

New York, 2 December 1998.

Footnotes

¹ See the Annual Report of the Secretary-General on the Work of the Organization, New York, 1998, p.62 (A/53/1)

Report by Claude Bruderlein, Special Advisor, OCHA New York.

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