Economic Sanctions and Humanitarian Principles: Lessons from International Humanitarian Law
Nathanael Tilahun & Obiora Okafor
The story of the contemporary economic sanctions regime looks like a re-run of the long journey of international law toward humane war (Meron, 2000; Moyn, 2021). Despite their portrayal as peaceful substitutes to war, sanctions too often serve as a means of waging economic warfare in an era of intensified geopolitical tension. In terms of minimizing negative impact on civilians, however, warfare is more rigorously regulated than sanctions, which are currently governed by regimes with scant humanitarian guardrails. To illustrate this point, we discuss the principles of distinction and proportionality as they relate to both international humanitarian law (IHL), which governs warfare, and customary rules on countermeasures, which generally govern sanctions. This is not to imply that IHL applies to economic sanctions, but rather to draw analogies that illuminate how warfare, which is traditionally thought to be more harmful than sanctions, is governed by a regime that has outpaced current sanctions regimes in articulating humanitarian principles.
Principle of Distinction
The principle of distinction in humanitarian law prohibits targeting of civilian persons and objects, including destruction of civilian infrastructure. The protection of civilians and non-combatants (hors de combat) is indeed one of the ‘cornerstones’ of international humanitarian law (Cohen and Zlotogorski, 2021).
Currently, economic sanctions are not subject to a comparable requirement of distinction. Our definition of economic sanctions here encompasses both lawful retorsions and unlawful-but-justified countermeasures governed under general international law, but excludes those under self-contained regimes (for an overview see Frank, 2008). The problem of distinction emerges partly from the fact that in sanctions there is no equivalent to the belligerent vs civilians/non-combatants categorization in war. The customary international law on countermeasures, as articulated in the International Law Commissions Draft Articles on State Responsibility (ARSIWA), prohibits reprisals against protected persons under IHL (ARSIWA, art 50(1)(c)), but there is no clarity as to how this is to be applied in actions not involving the use of force. If the logical interpretation is that all civilians, as protected persons, are to be spared from the reach of sanctions, then customary law flies in the face of long-standing state practice. Economic sanctions are, by definition, tools that target many of the economic resources that civilians rely on.
Although comprehensive sanctions are supposed to be things of the past, studies of heavily-sanctioned states have shown that broadly ‘targeted’ sanctions regimes, in effect, re-enact the older practices of comprehensive sanctions (Moret 2014). States also adopt sanctions that are either not targeted (e.g. denial of access to foreign currency or the SWIFT interbank system to banks from a particular state en masse, or blocking all property and interests of a foreign government), or that are formally targeted but still manifestly very broad in their impact. Examples of the latter include sanctions that restrict trade and activities in a single but decisive sector with reverberating effects throughout the entire economy of a country (e.g. Venezuela oil, Rodriguez 2022). Research has shown that these broad sanctions regimes predictably lead to macroeconomic destabilization, such as currency downfall, hyperinflation in consumables, and broader economic meltdown, affecting, by definition, civilians across the board (Batmanghelidj & Moret, 2022).
These state practices have been partly enabled by the fact that important contemporary sanctions tools, some of which also constitute critical gridworks of the global economy, fall within the domestic prerogatives of certain sanctioning states. To the extent that US dollars or SWIFT are products and services of national origin which are largely beyond international regulation, their restriction could be legally justified as a denial of privilege – meaning that such restrictions would be acts of lawful retorsion and that their use would be unrestrained by international law.
With respect to sanctions that go beyond retorsion, the applicable rules of countermeasures aim to provide some minimal protection to civilians by prohibiting human rights violations and unlawful reprisals, as mentioned earlier. Those provisions, however, require further elucidation if they are to apply to the context of economic sanctions. A more detailed and much clearer understanding of what it means to protect human rights in the context of levying economic sanctions and what it means to not undertake reprisals against protected persons and objects (ARSIWA, art 50(1)(c)) in light of contemporary economic interdependence, is needed. For example, in elaborating on the protection of human rights under art 50 ARSIWA, the ILC Commentary drew an analogy with the IHL concept of not destroying objects indispensable to the survival of the civilian population (p. 132). Could the term “indispensable objects” be interpreted as encompassing basic financial services or global agri-food supply chains? Much greater clarity as to such details is sorely needed.
Interestingly, while the negative impact of such sanctions is often more heavily felt in the Global South, criticism of financial infrastructure sanctions has not come exclusively from that part of the world. Just a few years ago, policy proposals within the EU strategic sovereignty debate called for excluding critical financial infrastructure (in particular SWIFT) from the purview of sanctions, and preserving the ‘independence and political neutrality’ of such infrastructure in the global economy (Geranmayeh and Lafont Rapnouil, 2019).
Principle of Proportionality
Current economic sanctions regimes also lack clarity on proportionality rules, which has essentially opened the door to the limitless levying of sanctions, in terms of both severity and temporal scope. This limitless imposition of sanctions is possible because proportionality is interpreted in ways that privilege the goals of sanctions over their negative impact.
Given that sanctions fall under different international law regimes, there is no ‘uniform legal limit’ (Hofer, 2020: 411) on the severity of the measures that can be applied across the board. Although the ILC has stipulated that countermeasures should be proportional to the original injury that it is responding to, Cannizaro has shown that this contradicts the ILC’s own premise that countermeasures serve to induce the offending state to comply with its international law obligations. That premise implies that the injured state can apply as much countermeasures as necessary to sufficiently induce the offending state into compliance. The ILC Commentary on ARSIWA (pp 147-148 ) further strengthens this premise by stating that proportionality should be interpreted so as to encompass not merely quantitative equivalence between injuries, but also the qualitative weighing of the importance of the rule that was originally infringed and the seriousness of the breach. In other words, the severity of sanctions should also be determined by the purpose they serve. Some scholars have criticised the injury equivalence test under article 51 ARSIWA and thrown their weight behind the purpose test of proportionality (White and Abbas, 2018, p 529-530; Cannizaro, 2001). State practice has also leaned towards this interpretation, as ensuring a ‘change of behaviour’ in the targeted state has become the guiding light for imposing and lifting sanctions (Ridi and Fikfak, 2022).
This “purpose test” allows states to apply sanctions at any level of intensity against targeted states as long as they deem their objectives unfulfilled. Furthermore, discussion of proportionality becomes elusive in many cases as sanctions are adopted by non-injured states in response to violations of collective or universal norms (Ruys 2016, p 25). Equally important, the objectives of sanctions regimes are often not concrete enough, to use Thomas Frank’s term, for an ‘independent second opinion’ to determine when their goal(s) have been fulfilled.
A related problem is the absence of a temporal limit on sanctions’ use. Although countermeasures are supposed to be ‘temporary’ measures, their use is also tied to the objective of behavioural change mentioned above. As such, temporality stretches to mean the continuation of sanctions ‘until the target changes behaviour’. In sanctions regimes with loosely-defined objectives, this construction allows sanctioning states to shift the goalposts for the termination of sanctions (Lopez, 2020). Sanctions adopted in response to, say, an instance of election violence as in the case of Zimbabwe, often live on for years to serve reinterpreted purposes of further democratization or deeper government reform.
When states maintain economic sanctions for protracted periods, the cumulative effect may be debilitating to the targeted state. But there is as yet no adequate legal form to cumulatively capture the impact of protracted sanctions. The closest thing we have is Special Rapporteur Crawford’s elaboration that concurrent collective countermeasures should be aggregated to assess their overall proportionality with the original injury suffered by the sanctioning state(s), which does not say all that much about the duration of sanctions.
Iraq’s experience has been a powerful illustration of the impact of protracted sanctions, with estimated hundreds of thousands of civilians and children killed by disease and starvation during roughly a decade of sanctions (ICRC). In Sudan, Libya, Cuba and others, sanctions have been or were in place for decades. Although the Iraq case is particularly catastrophic because the sanctions were comprehensive, it may become less unique as there is now a slow return to the use of (quasi-)comprehensive sanctions in the context of intensified geopolitical rivalries. The cumulative harm caused by protracted sanctions in today’s heavily-targeted jurisdictions is yet to be fully studied, let alone understood. What is sure, however, is that the results will be grim.
To the extent that the proportionality of sanctions is assessed in a purposive approach (i.e. tested against the objective sought), it resembles the conception of proportionality in IHL. But, unlike in in the area of sanctions, there is growing acceptance in IHL that proportionality entails an obligation to undertake both ex ante and continuous assessment of civilian harm. This includes assessing long-term and reverberating civilian harm (Lubel & Cohen, p 174). There is also evidence of state practice and general principles of law in support of an emerging obligation to undertake cumulative or strategic proportionality assessment, i.e. evaluation of the impact of not merely individual military operations and tactics but of the grand pattern of casualties over time (Ibid; and a major new research project).
There is no comparable legal development or state practice in the domain of economic sanctions. The principle proportionality under ARSIWA is not interpreted as entailing an ongoing or temporally cumulative impact assessment requirement. In state practice, impact assessment is seldom undertaken prior to the adoption of economic sanctions. The ARSIWA does stipulate that countermeasures must not infringe upon the human rights obligations of states. In this vein, sanctions regimes increasingly attempt to incorporate humanitarian exemptions, and try to avoid targeting essential agri-food and medical transactions. In reality, however, these sectors are all-too-often subjected to the same restrictions as other sectors of the economy of the targeted country because the humanitarian economy cannot really be disentangled from the market economy. For example, the Trump administration’s reimposition of secondary sanctions on Iran in 2018 led to 186% and 125% price increases in the food and healthcare sectors, respectively (Batmanghelidj, 2022). Indeed, it is hard to imagine a scenario where a particular economy is strangulated for years without impacting the socio-economic rights of the individuals living within, regardless of the existence of humanitarian exemptions.
A Way Forward: A Code of Conduct for Sanctions?
There is recent momentum towards bringing humanitarian reform to sanctions, spurred by the adoption of Security Council Resolution 2664 establishing a permanent humanitarian carve-out across all UN sanctions regimes. Similar carve-outs are also being introduced at the national level by leading sanctioning states (e.g. recent US humanitarian General Licenses). However, more systemic conceptualization, perhaps in the form of an international code of conduct, is needed to articulate the humanitarian principles that will govern sanctions praxis. Some of the advances in IHL noted above could be useful models for this work. A contextual articulation and reaffirmation of the fundamental principles of distinction and proportionality could, for example, take the form of an exclusionary rule with respect to critical economic infrastructure, a precautionary obligation (ex ante impact assessment), and an obligation to undertake cumulative assessment of harms caused by sanctions over time.
Dr. Tilahun is a Senior Lecturer (Associate Professor) in International Law at the University of Essex, UK. Professor Okafor is the Edward B Burling Chair in International Law, Johns Hopkins University School of Advanced International Studies (SAIS), and the UN Independent Expert on Human Rights and International Solidarity.
This piece is part of a Symposium on Third World Approaches to International Law & Economic Sanctions.