An appalling majority of unilateral sanctions violate international law

Current Concerns: With forceful statements, you recently called for the lifting of sanctions in Syria (26 December 2020) and in Venezuela (14 February 2021). What prompted you to do so?
Alena Douhan: These sanctions, as well as many others, are violating the human rights of entire populations in the countries affected. The problem is particularly acute in view of the COVID-19 pandemic, as the sanctions have prevented these countries from getting all of the medicines, medical equipment, testing supplies and other materials needed to fight the disease. Both countries in different ways were experiencing serious economic problems before sanctions had been imposed. At the same time, the sanctions exacerbated enormously these pre-existing situations, turning them into economic, social and humanitarian crises.
  In Syria, reconstruction after years of conflict is being impeded by sanctions against people and companies who cooperate with the government’s efforts to restore vital infrastructure, or with its efforts to revive oil and gas production. This prevents the economy from functioning, and slows down the process of building housing, hospitals, power supply networks and much more.

Venezuela: Malnutrition and mortality on the rise

In Venezuela, the government must operate on a fraction of the income necessary to ensure the well-being of its people. With fuel shortages already severe, sanctions are being used to prevent it from getting foreign supplies. This has led to shortages of electricity, and since water pumps need electricity, to water shortages as well, affecting most of the population. The unavailability of new equipment and spare parts prevents maintenance and restoration of infrastructure. Hospitals can’t do as many operations, people who are ill can’t get to the hospitals because of petrol shortages, and malnutrition and mortality rates are growing.
  People become more and more dependent on governmental social aid and international humanitarian aid. All sorts of human rights are affected by this, from the right to education and access to information to the right to health, the right to food, the right to life and the right to development, especially affecting people in extreme poverty, women, children, medical workers, people with disabilities or life-threatening or chronic diseases, and the indigenous population.

Unilateral sanctions are a violation of international law and human rights

Can you explain your criticism of the sanctions policy? 
Several aspects shall be mentioned here. First of all, a devastating majority of unilateral sanctions today are taken in the breach of international law. Every country has the right to choose how it conducts its relations with other countries, or to not have relations at all. At the same time, under the UN Charter, only the UN Security Council has the right to authorize sanctions as a mechanism to enforce aspects of international law. Unilateral measures may only be taken with due account of the rule of law, human rights law, refugee law and humanitarian law; must comply with states’ international legal obligations; and may only be applied in the course of internationally lawful countermeasures. In most circumstances, the legality of unilateral sanctions is questionable under international law, and by harming human rights the sanctions clearly violate it.
  Secondly, sanctions imposed unilaterally – that is, by individual countries or groups like the European Union or ECOWAS in Africa – virtually always violate human rights, often many rights at once despite the fact that rather often they allegedly intend to improve human rights records. In the majority of cases the whole population of the country is affected, including their fundamental human rights: right to health, to food, to life. With the scarcity of resources, countries have to stop or suspend all reconstruction and developmental projects, which undermines the achievement of sustainable development goals. Figures provided in my reports of the impact of unilateral sanctions in the course of the pandemic (October 2020) and the preliminary assessment report on my country visit to Venezuela are rather illustrative. I believe that it is absurd to protect human rights by violating them. There is no such thing as a tolerable level of “collateral damage” when countries are obliged by international conventions and customary law to protect the rights of everyone and to behave in accordance with international law.

Found guilty outside any legal system

Third, targeted sanctions against individuals usually involve freezing their bank assets and other property and impeding their ability to travel, and this generally occurs without due process. There is simply a determination that occurs outside of any legal system that someone is guilty, and the sanctions are the penalty imposed. Due process rights, such as a right to fair trial and the right to be presumed innocent unless proven guilty, as well as the right to freedom of movement, are denied when international law says they must be protected. The European Court of Human Rights provides for some possibility of access to justice on the ground of Article 275 of the European Treaty on the Functioning of the European Union, and the number of so-called sanctions cases is rapidly growing. At the same time, a mechanism of appeal for the U.S. sanctions is virtually non-existent.
  It is also necessary to mention problems which exist as concerns the delivery of humanitarian aid and the growing extraterritoriality and over-compliance with sanctions regimes.

Impact of secondary sanctions and extraterritoriality

What do the extraterritorial – or secondary – sanctions, which are illegal under international law, mean for a country like Syria, which is in the process of reconstruction after 10 years of war?
Secondary sanctions and extraterritoriality are two different but closely related things. Secondary sanctions are unilateral sanctions that are imposed on people and companies accused of doing business with sanctioned countries, individuals or entities. The United States in particular uses secondary sanctions to enforce the original sanctions it applies. The people and companies targeted by secondary sanctions may be in the sanctioning country, or they may be in other countries. Indeed, some U.S. secondary sanctions can target anyone, anywhere, who is accused of dealing with a sanctioned party. 
  This is where the issue of extraterritoriality comes in, because here, too, the legality of extending a country’s jurisdiction by enforcing its sanctions abroad through secondary sanctions is highly doubtful. Once again, a penalty is imposed without regard for the due process rights of a person targeted by secondary sanctions. Indeed, under the law of the country where that person is, it may be perfectly legal to have dealings with the target of U.S. sanctions.
  The main danger of secondary sanctions is that every individual and company may be targeted by them, which has the effect of causing enormous over-compliance. During my country visit to Venezuela, the private sector, non-governmental organisations, universities, sport clubs and citizens of Venezuela were reporting the rejection or reluctance of foreign banks to open or keep their bank accounts, including those with correspondent banks in the United States and Europe; difficulties with getting visas and buying tickets; the need to act via third-country agents; and the need to pay extra insurance costs. Similar problems have been repeatedly cited by international humanitarian organisations involved in the delivery of humanitarian aid to the targeted areas or societies.

So-called humanitarian exemptions do not withstand in practice

What is the status of international humanitarian aid and to what extent is it hampered by the sanctions?
On paper, most unilateral sanctions regimes today have provisions that allow for flows of humanitarian goods and services to sanctioned countries and individuals. The problem is that these so-called “humanitarian exemptions” don’t work very well in practice. There are many reasons for this. The rules are often complex, causing humanitarian aid providers to be reticent to export humanitarian goods to sanctioned countries out of fear of accidentally violating the sanctions and being targeted themselves by secondary sanctions. Even those that are willing to export humanitarian goods may be unable to do so because banks and other service providers have the same fears, affecting sources of finance for this humanitarian trade and the ability to transport it to the sanctioned country. The multilayer character of sanctions (sanctions imposed by several states or regional organisations with their own sanctions lists and exemption mechanisms) make the situation even more complicated.
  Other problems include the time it takes to approve humanitarian exports to sanctioned countries, and the requirements that must sometimes be met before permission is granted. For example, exporters of humanitarian goods that might be dual-use (civilian and military) items, such as certain medical equipment or substances, are asked to ensure that the goods won’t be diverted to military use upon arrival in the sanctioned country. This can be impossible in some cases. Even toothpaste has been reported to be among the personal hygiene products that are affected by such rules. Overall, the complexity and time necessary for approving humanitarian exports adds to their cost, which is another obstacle.
  It shall also be taken into account that “humanitarian exemptions” provisions, even when applied, are traditionally interpreted very narrowly, excluding in particular equipment and spare parts as well as other goods which are necessary for reconstruction of the economy, impeding there the right of people to development.

How sanctions prevent humanitarian aid

What impact do the sanctions have on humanitarian aid? Can you give us concrete examples?
The COVID-19 pandemic has allowed us to see many examples of how sanctions have impeded the ability of sanctioned countries to get humanitarian aid, even when the sanctions have humanitarian exemptions to allow for such assistance. Doctors in some countries targeted by U.S. sanctions could not avail themselves of telemedicine meetings on Zoom because its use is blocked in those countries. Medical equipment donated by a Chinese businessman to help Cuba fight the coronavirus could not arrive as planned because the U.S. company hired to transport the equipment withdrew, fearing it would be targeted by secondary sanctions for shipping goods to a sanctioned country. Swiss humanitarian organisations that had intended to collaborate with Cuban medical entities were thwarted by banks that refused to transfer the money necessary for this to happen. U.S. sanctions against Iran and Venezuela resulted in electricity supplies being disrupted in both countries, affecting the normal functioning of hospitals. The lack of fuel in Venezuela, a situation exacerbated by sanctions, has prevented people from getting to hospitals and impeded the use of ambulances.
  Unilateral sanctions, fear of secondary sanctions and growing over-compliance result in a growing number of bank transfer refusals; the extension of bank transfer periods (from 2 to 45 days); higher delivery, insurance and bank transfer costs; as well as reported price rises for all (especially imported) goods, sometimes up to 2-4 times. Humanitarian exemption mechanisms also put enormous burdens on humanitarian operators, which have to prove the “pure” humanitarian purpose of the deliveries and face all posible risks. This negatively impacts their ability to act, limits their resources, negatively affects the willingness of donors to provide assistance and therefore affects their beneficiaries in targeted and other countries.

The Caesar Act has opened a very wide door

The Caesar Act, enacted by the US government in June 2020, has an impact on the health care of the population in particular. It includes sanctioning all those persons and entities who want to trade with the Syrian government or with Syria at all. How do individual countries or aid organisations that want to help deal with this? Can you give us a concrete description?
The Caesar Act, actually enacted in 2019 and implemented in 2020, does indeed cast a very wide net with the sanctions that it authorises. The best advice I can give countries and aid organisations is to inform the US authorities and also my office of problems they encounter in providing humanitarian aid to Syria, and about anything they learn about the human rights impact of sanctions against persons who want to trade with Syria – how their rights are being affected. Keeping silent because of the fear of secondary sanctions does not help to settle but rather exacerbates the situation.
  A report just issued by the U.S. Government Accountability Office revealed that U.S. authorities don’t systematically monitor the humanitarian impact of the sanctions against Venezuela, and I assume the same is true for the U.S. sanctions against Syria. It is important that this information is known as a first step toward resolving the human rights problems that arise from the Caesar Act sanctions and others.

The problem of sanctions is too little known

You said that much stays in the shadows of public discussion and that questions of humanitarian impact are unfortunately often forgotten or ignored. Why is there so little resistance?
Most likely the problem is not well-known because of a lack of public exposure and because it has not been studied very much. It is usually assessed as very politically motivated – in “black and white” terms as something good used against something bad. I believe, however, that the only mechanism to guarantee human rights is to observe the law. That is why we shall speak about international obligations of states, the rule of law, humanitarian impact assessment and humanitarian precaution. 
  The multiplicity of notions, the absence of consensus among countries, the unclear notion and characteristics of unilateral sanctions and unilateral coercive measures; the absence of agreement about targets; the increasing involvement of private actors and therefore consequent over-compliance, the absence of assessment of the humanitarian impact and political concerns are all influencing the situation and its assessment by country leaders and the public. It happens because of the unawareness about the problem and insufficient humanitarian assessment, insufficient legal assessment, the lack of discussion with victims and those who are working in the field.
  That is why I try now to bring attention to the problem; to assess the legality of measures taken from the point of international law; to initiate precaution and assessment of the humanitarian impact of unilateral sanctions; to deal with individual cases and to invite scholars and humanitarian non-governmental organisations as partners for the dialogue.
  I would also like to use the chance to invite contributions of states, scholars, NGOs and other relevant partners for the preparation of a report on the notion, types, elements and targets of unilateral sanctions for the UN Human Rights Council and UN General Assembly as a way of raising awareness, identifying the rule of law, protecting human rights and starting the dialogue.

Professor Douhan, thank you very much for this interview.  •