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The Use of UN Sanctions to Address Mass Atrocities

Abstract and Keywords

The chapter demonstrates that the UN Security Council (UNSC) is increasingly applying sanctions with the aim of pursuing the individuals who have committed serious violations of international human rights law and international humanitarian law. The chapter argues that, while the use of UN sanctions to respond to a mass atrocity crisis does send an important signal of global condemnation, sanctions are likely to be most influential as one element in a long-term conflict resolution strategy. Because sanctions require time to take effect, their potential impact is strongest as part of an upstream, preventive attempt to avert a budding crisis, or as part of a post-crisis effort to hold perpetrators accountable. The ability of UN sanctions to make a meaningful contribution to the promotion of the responsibility to protect will depend upon the extent to which broader sanctions reform efforts achieve their goal of making sanctions more effective and more legitimate.

Keywords: sanctions, United Nations Security Council, mass atrocities, accountability, collective security, human rights, humanitarian law

This chapter discusses the use of UN sanctions to prevent and respond to mass atrocities. The UN Security Council (UNSC) is empowered by Chapter VII of the UN Charter to apply sanctions to maintain or restore international peace and security. To date the UNSC has created 33 mandatory UN sanctions regimes. This chapter examines those sanctions regimes that have been created in order to address situations where there have been actual or imminent mass atrocities. Of the cases that are examined in this Handbook, the following have also triggered the application of UN sanctions: Central African Republic (CAR), Côte d’Ivoire, Darfur, the Democratic Republic of the Congo (DRC), Libya, North Korea (DPRK), and Somalia. This chapter discusses the use of UN sanctions in each of these cases. It also discusses the use of UN sanctions in two cases that prompted the development of the responsibility to protect (R2P), namely Bosnia and Rwanda.

The chapter demonstrates that efforts to apply sanctions to enforce R2P have increasingly been expressed in terms of the need to hold accountable individuals responsible for serious violations of international human rights law and international humanitarian law, including perpetrators of genocide, war crimes, crimes against humanity, and ethnic cleansing. It also describes how the UNSC has exhibited a growing willingness to apply targeted sanctions, including a travel ban and/or an asset freeze, against such individuals.

The chapter argues that, while the use of UN sanctions to respond to a mass atrocity crisis does send an important signal of global condemnation, sanctions are likely to be most influential as one element in a long-term conflict resolution strategy. Because sanctions require time to take effect, their potential impact is strongest as part of an upstream, preventive attempt to avert a budding crisis, or as part of a post-crisis effort to hold perpetrators accountable. At a more general level, the chapter also argues that the (p. 656) ability of UN sanctions to make a meaningful contribution to the promotion of R2P will depend upon the extent to which broader sanctions reform efforts achieve their goal of making sanctions more effective and more legitimate. The chapter proceeds in three sections. The first section introduces UN sanctions, describing their legal basis, objectives, scope, and administration. The second section discusses cases where UN sanctions have been applied to address alleged mass atrocities. The third section examines the trends, debates, and lessons that emerge from the use of UN sanctions to address mass atrocities.

United Nations Sanctions

The UN Charter gives the UNSC primary responsibility for the maintenance of international peace and security,1 including the power to apply coercive sanctions short of force.2 Between 1946 and 1990 the ideological divide between East and West constrained the UNSC’s capacity to exercise its sanctions powers. Between its first meeting on 17 January 1946 and its 2933rd meeting on 6 August 1990, the UNSC was able to apply only two sanctions regimes. In December 1966 the Council applied its very first sanctions regime against the illegal white minority regime of Ian Smith in Southern Rhodesia.3 The sanctions regime initially consisted of prohibitions against the import from and export to Southern Rhodesia of specific commodities and products, including petroleum and leather goods,4 but the Council strengthened the sanctions substantially within two years, creating the first instance of UN comprehensive sanctions.5 In 1977 the Council applied its second sanctions regime, an arms embargo, against the apartheid regime in South Africa.6

As a consequence of the early infrequency of UN sanctions, the Cold War era scholarly literature tended to focus on how to enable the UNSC to use its powers more regularly.7 Since 1990, however, the Council has imposed sanctions far more frequently, creating an additional 31 sanctions regimes over 25 years, bringing the total number of UN sanctions regimes to 33.8 The Council has employed its sanctions powers so regularly in the post-Cold War era that the focus of contemporary scholarly literature now tends to be on how to constrain, rather than facilitate, the Council’s use of sanctions powers.9

The Legal Basis of UN Sanctions

The UNSC’s powers are outlined in Chapters V–VIII of the UN Charter. The most important provisions relating to sanctions are contained in Chapters V and VII.10 In Chapter V of the Charter, Article 24 grants the Council primary responsibility for the maintenance of international peace and security.11 Article 25 adds teeth to this responsibility by providing that the Council’s decisions are binding on all UN Member States.12 (p. 657) In Chapter VII, Article 39 requires the Council to ‘determine the existence of any threat to the peace, breach of the peace or act of aggression’ and to take appropriate action to maintain or restore international peace and security.13 The two specific types of action foreshadowed by Article 39 are non-forcible sanctions (under Article 41) and the use of force (under Article 42). Article 50 also specifies that when the Council applies sanctions under Article 41 it should take into account the special needs of third countries unintentionally affected by the application of sanctions.

The text of Article 41, the UN Charter’s sanctions provision, reads as follows:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.14

The Scope of UN Sanctions: Types and Targets

Article 41 articulates an inclusive rather than exclusive list of the types of sanctions that can be employed. This means that the UNSC is not restricted to those measures. On the whole, however, both academic and practitioner uses of the term ‘UN sanctions’ tend to refer to actions that fall within Article 41’s inclusive list. In practice the Council has employed a wide variety of sanctions measures, from comprehensive sanctions that aim to prevent the flow to and from the target of virtually all products and commodities,15 to more specific measures that prohibit trade in particular items, such as arms, timber, or diamonds.16 Sanctions have also sought to circumscribe particular activities understood to benefit a target, such as diplomatic, sporting and cultural relations, as well as travel.17

The UNSC’s early sanctions regimes tended to apply comprehensive or specific sanctions measures against states as a whole.18 This approach was criticized for being too blunt and for causing disproportionate hardship for civilian populations.19 As a consequence the Council has sought to refine its sanctions practice, applying ‘smart’ or ‘targeted’ sanctions against particular actors that it determines to represent a threat to international peace and security, including individuals and organizations. This new generation of sanctions regimes tends to apply one or more of a suite of ‘smart’ sanctions measures, such as an asset freeze, a travel ban, or an arms embargo, against those individuals or organizations deemed to pose a threat to the peace.

Sanctions Objectives

The UNSC has imposed sanctions in pursuit of a growing array of objectives.20 Sanctions have been used to: compel an occupying state to withdraw its troops;21 prevent a state from developing or acquiring weapons of mass destruction;22 counter (p. 658) international terrorism by targeting individuals and entities associated with terrorist organizations;23 protect human rights by targeting individuals alleged to have perpetrated serious human rights violations;24 and promote the implementation of peace processes.25 As discussed later in this chapter, since 2005 the UNSC has increasingly applied targeted sanctions against individuals and entities that have engaged in violations of International Humanitarian Law and International Human Rights Law, including those who engage in attacks against civilians, those who recruit child soldiers, and those who engage directly or indirectly in sexual and gender-based violence.

Administration and Monitoring

The UN Charter does not provide specific guidance on how UN sanctions should be implemented or administered. In terms of implementation, although the UNSC’s sanctions decisions are binding on all UN Member States, the Council relies on those Member States to act in good faith on their legal obligation to implement UN sanctions within their domestic jurisdictions. In terms of administration, Article 29 of the Charter empowers the Council to establish ‘such subsidiary organs as it deems necessary for the performance of its functions’.26 Rule 28 of the Council’s provisional rules of procedure further provides that the Council ‘may appoint a commission or committee or rapporteur for a specified question’.27 The Council has acted under Article 29 and Rule 28 to create a range of subsidiary actors to administer and monitor the implementation of sanctions.28 The most common sanctions administrative bodies are sanctions committees and expert monitoring bodies.

When the UNSC creates a new sanctions regime it usually establishes a new sanctions committee to oversee administration of the new sanctions measures. Sanctions committees are called ‘committees of the whole’, as they comprise representatives from each serving Council member. By convention the responsibility of chairing sanctions committees tends to fall to elected Council members. Another, more far-reaching convention, requires sanctions committees to take decisions by consensus. This effectively means that each committee member wields a veto over every potential committee decision. Sanctions committees undertake a range of tasks, including reporting to the Council on sanctions implementation, administering sanctions exemptions, making recommendations to improve sanctions implementation, and administering blacklists (technically ‘consolidated lists’) of individuals and entities subject to targeted sanctions measures such as asset freezes and travel bans. Sanctions committees also serve as the point of contact between sanctions expert bodies and the Council, as expert bodies report to and through the relevant sanctions committees.

The UNSC routinely creates dedicated expert bodies to improve the implementation of most of its sanctions regimes. These independent bodies tend to be appointed for a temporary period of months, with a mandate to undertake fieldwork investigations on sanctions implementation and violation and to recommend how sanctions might be strengthened.29 These bodies have been given different names, including panels of (p. 659) experts, groups of experts, and monitoring mechanisms. Most bodies serve a similar function, with the main point of distinction being that panels and groups of experts are given shorter mandates and they focus on field investigations. Monitoring mechanisms, by contrast, are given longer mandates and they have a more long-term presence at UN Headquarters in New York.

The Use of UN Sanctions to Address Mass Atrocities

This section discusses how UN sanctions have been used to address situations where mass atrocities have taken place. These UN sanctions regimes are discussed in the order in which they were created. As one would expect, the UNSC did not begin to use the terms ‘responsibility to protect’ or ‘mass atrocities’ until after the World Summit Outcome Document had been adopted in September 2005. Thus the trigger for the application of sanctions to address the cases prior to September 2005 tends to be framed in terms of violations of International Humanitarian Law and/or of International Human Rights Law.

Serbia-Montenegro and the Bosnian Serbs (1992–1996)

The UNSC imposed an arms embargo against Yugoslavia in September 1991, in an attempt to establish peace and stability at a time when civil war was threatening to trigger the dissolution of that state. The arms embargo established by resolution 713 (1991) was maintained after the dissolution of Yugoslavia, becoming a general arms embargo against all of the successor states of the former Yugoslavia. The embargo was terminated in June 1996 after the signing of the Dayton Peace Agreement and the entry into force of a regional arms control agreement.

In May 1992 the UNSC also imposed sanctions against the Federal Republic of Yugoslavia (Serbia-Montenegro) to induce it to cease interfering in Bosnia and Herzegovina.30 The sanctions consisted of a complex blend of comprehensive economic, financial, diplomatic, sporting, and cultural sanctions.31 The sanctions were terminated in October 1996, after free and fair elections had been held in Bosnia and Herzegovina.32

While the Serbia-Montenegro sanctions regime was in place the Council also applied sanctions against the Bosnian Serb forces. In April 1993, following a series of attacks by Bosnian Serb paramilitary forces against towns in eastern Bosnia including Srebrenica, the UNSC reaffirmed that ‘any practice of “ethnic cleansing” is unlawful and totally unacceptable’ and expressed its deep alarm and concern about ‘the magnitude of the plight of innocent victims of the conflict in Bosnia and Herzegovina’.33 The Council also condemned ‘all violations of international humanitarian law’, including ‘ethnic (p. 660) cleansing’ and the ‘massive, organized and systematic detention and rape of women’ and reaffirmed that those who committed or ordered such acts would be held individually responsible.34 It then applied comprehensive sanctions against the Bosnian Serbs,35 with the objective of inducing Bosnian Serb participation in the Bosnian peace plan.36 The sanctions against the Bosnian Serbs were suspended on 27 February 1996, after the Council was informed that Bosnian Serb forces had withdrawn from the zones of separation established in the Peace Agreement.37 They were then terminated in October 1996, after free and fair elections were held in Bosnia and Herzegovina.38

Somalia (1992–)

In January 1992 the UNSC adopted resolution 733 (1992), in which it expressed alarm at the rapid deterioration of the situation in Somalia and the heavy loss of human life and widespread material damage resulting from conflict, and noted its awareness of the potential consequences of the conflict for stability and peace in the region.39 The Council further expressed concern that the continuation of the situation constituted a threat to international peace and security,40 and imposed an arms embargo against Somalia.41 The objective of the 733 sanctions regime was to establish peace and stability in Somalia.42

Since 2008 the UNSC has strengthened the Somalia sanctions regime in ways that target activities that might amount to atrocity crimes. In resolution 1844 the Council applied a travel ban and asset freeze against individuals and entities who: (a) engaged or supported acts that threatened the peace, security, and stability of Somalia; (b) violated the Council’s Somalia arms embargo; or (c) obstructed the delivery of humanitarian assistance to Somalia.43 In resolution 2002 the Council condemned the targeting of humanitarian aid by armed groups, attacks on humanitarian personnel, and all acts of violence against civilians.44 It then expanded the categories of individuals and entities against whom the travel ban and assets freeze would be applied to include: (d) political or military leaders recruiting or using child soldiers in armed conflicts in Somalia; and (e) those responsible for violations of international law involving targeting civilians.45

Rwanda (1994–2008)

In May 1994, at the height of the Rwandan genocide, the UNSC strongly condemned the ‘very numerous killings of civilians’ that had taken place in Rwanda and the ‘impunity’ with which armed individuals had been able to operate.46 It also expressed its deep concern that the consequences of violence in Rwanda, including ‘the death of many thousands of innocent civilians’, the internal displacement of a significant percentage of the Rwandan population, and the massive exodus of refugees, constituted ‘a humanitarian crisis of enormous proportions’.47 The Council then imposed a general arms embargo against the territory of Rwanda, which was subsequently narrowed to target (p. 661) non-government entities in Rwanda or neighbouring states that might supply arms to such entities.48 In March 2007 the Council welcomed recent positive developments in Rwanda and the Great Lakes Region, noted that it had received a request from Rwanda to terminate the sanctions regime, and proceeded to terminate the arms embargo against Rwanda.49

The Democratic Republic of the Congo (DRC) (2003–)

The UNSC imposed sanctions against the Democratic Republic of the Congo (DRC) in July 2003, after expressing deep concern at the continuation of hostilities in the eastern part of the DRC, particularly in North and South Kivu and Ituri, and at the grave violations of human rights and International Humanitarian Law that accompanied those hostilities.50 The 1493 sanctions regime initially consisted of an arms embargo against particular actors, which was broadened to incorporate all recipients in the DRC and expanded to include aviation sanctions, as well as a travel ban and assets freeze against individuals who had violated the arms embargo.51 The objective of the DRC sanctions was initially to foster progress in the DRC peace process,52 as well as the disarmament of foreign armed groups.53

In subsequent resolutions the UNSC has deplored the persistence of violations of human rights and International Humanitarian Law in the eastern DRC, including the killing and displacement of civilians, the recruitment and use of child soldiers, and widespread sexual violence, and stressed that there should be no impunity for violations of International Humanitarian Law and human rights and that perpetrators must be brought to justice.54 The Council has also stressed both the primary responsibility of the government of the DRC for protecting its civilians with respect for the rule of law, human rights, and International Humanitarian Law,55 as well as the importance of the Congolese government actively seeking to hold accountable those responsible for war crimes and crimes against humanity.56

Over time the UNSC has refined the categories of individuals and entities targeted by the DRC sanctions regime. The sanctions respond most directly to mass atrocity concerns by applying a travel ban and asset freeze against the following actors: (a) individuals and entities recruiting or using children in armed conflict in violation of applicable international law;57 and (b) individuals or entities committing serious violations of international law involving the targeting of children or women in situations of armed conflict, including killing and maiming, sexual violence, abduction, and forced displacement.58

Sudan/Darfur (2004–)

In July 2004 the UNSC condemned all acts of violence and violations of human rights and International Humanitarian Law in the Darfur region of the Sudan by all parties to (p. 662) the crisis, in particular by the Janjaweed, including indiscriminate attacks on civilians, rapes, and forced displacements.59 The Council further recalled that the government of the Sudan bore ‘the primary responsibility to respect human rights while maintaining law and order and protecting its population within its territory’,60 and noted with grave concern that up to 200,000 refugees had fled to the neighbouring state of Chad.61 The Council then imposed sanctions against the Janjaweed.62

The sanctions initially consisted of an arms embargo against certain actors in Darfur, but the Council subsequently directed the arms embargo at the government of Sudan and rebel groups in Darfur that were parties to a ceasefire agreement.63 The Council also applied a travel ban and an asset freeze against individuals and entities that impeded the Sudan peace process or threatened stability in Darfur and the region.64 The sanctions respond most directly to mass atrocity concerns by applying the travel ban and asset freeze against individuals and entities that ‘commit violations of international humanitarian law or human rights law or other atrocities’.65 In its subsequent resolutions on the Sudan the Council has consistently demanded an end to all acts of violence against civilians, including indiscriminate attacks.66

Côte d’Ivoire (2004–)

The UNSC imposed sanctions against Côte d’Ivoire in November 2004. In resolution 1572 (2004) the Council deplored a resumption of hostilities in Côte d’Ivoire and repeated violations of a ceasefire agreement of 3 May 2003,67 expressed its deep concern at the humanitarian situation in Côte d’Ivoire and at the use of the media to incite hatred and violence against foreigners,68 and applied sanctions.69 The sanctions initially comprised an arms embargo, an asset freeze, and a travel ban, but the Council subsequently expanded the measures to include diamond sanctions.70 The travel ban and asset freeze were applied against all persons who: constituted a threat to the peace and national reconciliation process in Côte d’Ivoire; were responsible for serious violations of human rights and International Humanitarian Law; incited hatred and violence; or violated the arms embargo.71 The initial objective of the Côte d’Ivoire sanctions regime, namely securing the full implementation of the Linas-Marcoussis and Accra III Agreements,72 has subsequently been broadened to achieving progress in the peace and reconciliation process in Côte d’Ivoire.73

The Council has increasingly referred to elements of R2P in its decisions extending the Côte d’Ivoire sanctions regime. It has thus expressed concern at the ‘persistence of cases of human rights violations against civilians’,74 reaffirmed ‘the primary responsibility of each State to protect civilians’, as well as the ‘primary responsibility’ of parties to armed conflict to ‘take all feasible steps to ensure the protection of civilians’,75 and considered ‘that the attacks currently taking place in Côte d’Ivoire against the civilian population could amount to crimes against humanity’.76

(p. 663) Libya (2011–)

On 26 February 2011 the UNSC condemned the ‘violence and use of force against civilians’ in Libya,77 deplored the ‘gross and systematic violation of human rights’,78 and considered that the widespread and systematic attacks against the civilian population may amount to crimes against humanity.79 The Council then recalled ‘the Libyan authorities’ responsibility to protect its population’,80 and stressed the need ‘to hold to account those responsible for attacks, including by forces under their control’.81 The Council then noted that it was acting under Chapter VII of the Charter and taking measures under its Article 41,82 and applied sanctions against Libya, comprising an arms embargo,83 a travel ban,84 and an assets freeze.85

The objective of the Libya sanctions was to bring about an immediate end to the violence and to facilitate the taking of ‘steps to fulfil the legitimate demands of the Libyan people’.86 The grounds for listing individuals and entities on the travel ban and asset freeze blacklists included: ‘ordering, controlling, or otherwise directing, the commission of serious human rights abuses … including by being involved in or complicit in … attacks … on civilian populations and facilities’.87

Central African Republic (2013–)

In December 2013 the UNSC expressed its deep concern at the continuing deterioration of the security situation in the Central African Republic (CAR), at ‘multiple and increasing violations’ of International Humanitarian Law and Human Rights Law, and at the potential for there to be ‘serious crimes under international law’, including ‘war crimes’ and ‘crimes against humanity’.88 The Council then determined that the situation in the CAR constituted a threat to international peace and security,89 and applied sanctions.90 The sanctions initially consisted of an arms embargo, but were subsequently expanded to include a travel ban and an asset freeze targeting individuals who planned, directed, or committed violations of International Human Rights Law or International Humanitarian Law, or who recruited or used children in armed conflict.91

The objective of the sanctions regime was to stabilize the situation by deterring individuals and entities from undermining peace and the transitional political process in the CAR.92 In its resolutions on the CAR the Council has expressed its continuing serious concern at ‘multiple and increasing violations’ of International Humanitarian Law and human rights,93 as well as its alarm at the ‘increasing cycle of violence’ with the ‘potential to spiral into an uncontrollable situation, including serious crimes under international law’, and in particular ‘war crimes’ and ‘crimes against humanity’.94 The Council has also recalled that the Transitional Authorities have the primary responsibility to protect the civilian population in the CAR,95 welcomed the appointment of an International Commission of Inquiry into reports of violations of International Humanitarian Law and International Human Rights Law,96 and reiterated that all perpetrators of such (p. 664) violations must be held accountable and that some of those acts may amount to crimes under the Rome Statute of the International Criminal Court.97

South Sudan (2015–)

In March 2015 the UNSC strongly condemned past and ongoing violations of human rights and International Humanitarian Law in South Sudan and emphasized that ‘those responsible for violations of international humanitarian law and human rights must be held accountable’.98 At the same time, the Council also emphasized that the government of South Sudan bore the ‘primary responsibility to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity’.99 The Council further expressed grave concern that there were ‘reasonable grounds’ to believe that ‘crimes against humanity’ and ‘war crimes’ had been committed by both government and opposition forces.100 The Council then determined that the situation in South Sudan continued to constitute a threat to international peace and security,101 and applied sanctions, comprising a travel ban and an asset freeze.102

The overarching objective of the sanctions was to prevent actions or policies that threatened the peace, security, or stability of South Sudan.103 Within this broad objective, the Council specified that such actions or policies included: ‘planning, directing or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses’;104 the targeting of civilians;105 and the use or recruitment of children by armed groups or armed forces.106 The Council also expressed its intent to impose appropriate future sanctions, with the objective of encouraging the government of South Sudan and opposition forces ‘to form a transitional government of national unity, take effective and comprehensive steps to cause forces under direct or indirect control to cease military operations, acts of violence, as well as violations of human rights, and enable full access for humanitarian assistance’.107

Trends, Debates, Lessons

It is clear from the cases of UN sanctions surveyed here that the arrival of R2P on the global normative landscape has influenced the way the UNSC frames and targets its UN sanctions regimes. Prior to the 2005 World Summit the UNSC had already employed sanctions to address various situations, including Bosnia, Rwanda, and Somalia, where national authorities had failed to protect their populations from genocide, war crimes, ethnic cleansing, or crimes against humanity. However, since world leaders endorsed R2P in the 2005 World Summit Outcome Document, the Council has more consciously and consistently used the language of R2P when laying a preambular platform for the operative application of sanctions. The Council has also referred increasingly frequently (p. 665) to the need to hold accountable individuals who engage in or support violations of International Humanitarian Law and International Human Rights Law.

More concretely, the Council has begun to target sanctions against individuals and entities that have engaged in violations of International Humanitarian Law and International Human Rights Law, including those who engage in attacks against civilians, those who recruit child soldiers, and those who engage directly or indirectly in sexual and gender-based violence. The rising profile of R2P and its constituent atrocity crimes in UNSC sanctions policy and decision-making raises several questions and suggests various policy lessons.

First, what impact does the UNSC’s more conscious linking of sanctions with R2P have in practice? How effective are sanctions at preventing or responding to genocide, war crimes, ethnic cleansing, and crimes against humanity? Critics have long denounced sanctions as at best ineffective,108 or at worst counter-productive.109 Indeed, in one of the few examples of scholarship about the effectiveness of sanctions as a tool for enforcing the responsibility to protect, specifically addressing the atrocity crimes of genocide, Krain concludes that not only have diplomatic sanctions and diplomatic engagement been ineffective in slowing or stopping instances of genocide, but in fact they may even have increased the severity of genocide.110

Complicating efforts to evaluate the effectiveness of sanctions, it can be extremely difficult to obtain empirical data in real time that would demonstrate that a sanctions regime is proving effective, meaning that most findings of effectiveness can only be reached as a matter of historical analysis. For example, it now appears clear that although the resolution 661 (1990) Iraq sanctions regime did have a shocking humanitarian impact on civilians, it was nevertheless quite effective at preventing Saddam Hussein from acquiring the means to produce weapons of mass destruction. Yet during the build-up to the 2003 intervention in Iraq led by the United States and the United Kingdom, it was practically impossible to obtain sufficient empirical data to demonstrate that the sanctions regime had been effective as a matter of fact in achieving the objective of preventing Saddam Hussein from producing weapons of mass destruction.

One consequence of the difficulty of proving sanctions effectiveness is that there is a danger that, once sanctions are applied, they can serve as a ‘stepping-stone’ or ‘trapdoor’ to the use of force. In the case of both resolution 661 (1990) Iraq and resolution 1970 (2011) Libya sanctions regimes, a short window of opportunity was permitted for sanctions to take effect (four months in Iraq between 6 August 1990 and 15 January 1991 and 19 days in Libya between 26 February 2011 and 17 March 2011). In both instances the Council moved relatively swiftly to authorize the use of force to pursue the same objectives for which sanctions had initially been imposed. The potential for escalation from sanctions to force may serve in some instances as a political constraint on the ability of the Council to use sanctions to prevent and respond to genocide, war crimes, ethnic cleansing, and crimes against humanity, as some members may be reluctant to approve sanctions if they are perceived as the first step on a slippery slope to force. Indeed, differences between permanent members on the lessons of the Libyan case have undermined efforts in the UNSC to employ sanctions to regulate the situation in Syria.

(p. 666) The slow-burn impact of sanctions suggests that their regulatory utility might be greatest as part of R2P’s upstream preventive (responsibility to prevent) or downstream rebuilding (responsibility to rebuild) phases. In fact, as the analysis of the World Development Report 2011 demonstrates, in contemporary conflict management the preventive and rebuilding phases often overlap, due to the striking fact that in the first decade of the twenty-first century 90 per cent of the instances of violence onsets occurred in countries that had previously experienced conflict.111 Thus if the goal is to employ sanctions to maximum effect (rather than as a signalling exercise), then the strategic application of targeted sanctions, including a travel ban and an asset freeze, holds stronger potential to regulate the behaviour of spoilers and perpetrators during the preventive and rebuilding phases than it does during the more urgent protection phase.

Another interesting dimension of the use of sanctions in connection with R2P is the way it intersects with debates on the relationship between sanctions and the rule of law. The connection between sanctions and the rule of law is quite evident in the cases surveyed earlier, particularly when as in the cases of the CAR and South Sudan the UNSC recalls that individuals responsible for violations of International Human Rights Law and International Humanitarian Law, some of which might amount to war crimes or crimes against humanity, must be held accountable. In these cases sanctions are seen as a tool for enforcing law and the rule of law.

At the same time, however, the application and implementation of sanctions has at times come into conflict with the rule of law. The humanitarian impact of comprehensive sanctions against Iraq led to criticism on the basis of disproportionality, prompting a genuine evolution in sanctions away from blunt comprehensive sanctions and towards more targeted, smarter sanctions. Yet the move to sharper sanctions that zero in on individuals considered responsible for threatening the peace has itself clashed with the rule of law. The key rule of law problem here is due process, as individuals listed on the UNSC’s sanctions blacklists for targeting by travel bans and assets freezes have traditionally been denied the opportunity to hear and contest the grounds upon which they have been targeted. The decision-making processes of the UNSC’s sanctions committees have exacerbated this problem, as once an individual is inscribed on one of the consolidated sanctions lists, the requirement of consensus to carry a committee decision effectively means that all committee members have a veto. While the creation of the Office of the Ombudsperson for the 1267/1989 Al-Qaeda sanctions regime has improved the due process predicament of individuals listed on the Al-Qaeda consolidated list, none of the individuals on the other consolidated sanctions lists have the same recourse. Moreover, the European Court found in the Kadi case that the 1267/1989 Ombudsperson process did not even provide sufficient due process protections to individuals on the Al-Qaeda consolidated list.

There is thus a danger that the tempestuous relationship between sanctions and the rule of law might create collateral damage for efforts to use sanctions to promote the R2P agenda. In the way that the ideal of R2P was compromised by the over-enthusiastic implementation of resolution 1973’s authorization of the use of force against Libya, there (p. 667) is also a risk that the unprincipled application of sanctions in connection with R2P could also have the effect of staining the concept’s reputation. In this respect it is imperative to continue efforts to reform UN sanctions practice so that actors inscribed on consolidated lists, including those connected with efforts to promote R2P, are afforded appropriate due process.

Policy Lessons on the Use of Sanctions to Address Mass Atrocities

This analysis suggests three important policy lessons for future efforts to employ sanctions as a tool to address mass atrocities. First, the perceived benefits of applying sanctions should be carefully weighed against the likely negative consequences. On the benefits side of the ledger, the application of sanctions can send a strong message to perpetrators of international community condemnation of action that undermines the responsibility to protect, such as engaging in serious violations of International Humanitarian Law and International Human Rights Law that might amount to instances of genocide, crimes against humanity, war crimes, or ethnic cleansing. The individual targeting of perpetrators through the application of targeted sanctions like travel bans and asset freezes can reinforce this message and demonstrate that such violations will be met with concrete enforcement action. On the negative side of the ledger, however, the questions of effectiveness, sliding into force, and legitimacy and the rule of law loom large.

Second, connected with this, sanctions are best used as part of a comprehensive long-term conflict resolution strategy that incorporates the full range not just of coercive measures under Chapter VII of the UN Charter, but also of peaceful settlement mechanisms envisaged in Chapter VI, including negotiation, mediation, inquiry, arbitration, and conciliation.112 Sanctions require time to take effect and should not be expected to produce immediate results. Indeed, the slow-burn impact of sanctions suggests that their regulatory utility should be greatest as part of R2P’s upstream preventive (responsibility to prevent) or downstream rebuilding (responsibility to rebuild) phases, rather than during the emergency protection phase of a mass atrocity crisis.

Third, in order to offset the potentially negative consequences of applying sanctions, it is extremely important that UNSC Member States negotiate provisions that increase the transparency, consistency, and accountability of sanctions measures, whether sanctions are adopted in the name of R2P or in pursuit of international peace and security more broadly. Thus sanctions objectives should be made crystal clear, the measures applied should follow successful precedents, and accountability mechanisms should be created to decrease the likelihood that sanctions might be used as a mere stepping-stone on the road to force, as well as to increase the likelihood that the application of sanctions adheres to basic rule of law principles such as the need to protect the due process of individuals against whom sanctions are applied.

(p. 668) Conclusion

This chapter has described how UN sanctions work and documented various cases in which sanctions have been applied to enforce the responsibility to protect and the four related atrocity crimes. It has revealed a spreading footprint of R2P vocabulary in the UNSC’s sanctions resolutions since the concept was endorsed in the 2005 World Summit Outcome Document. It has also traced the way that efforts to apply sanctions to enforce R2P have increasingly been expressed in terms of the need to hold accountable individuals responsible for serious violations of International Human Rights Law and International Humanitarian Law, including perpetrators of genocide, war crimes, crimes against humanity, and ethnic cleansing. It has shown that the UNSC has exhibited a growing willingness to apply targeted sanctions, including a travel ban and/or an asset freeze, against such individuals/perpetrators.

At the same time that it has traced the rise and evolution of efforts to promote R2P through the application of sanctions, the chapter also sounds a note of warning about the future potential of sanctions to serve as an effective R2P enforcement tool. Five decades of UN sanctions practice have generated sufficient cautionary scholarly and practitioner analysis to be wary about the capacity of sanctions to serve as an effective and legitimate tool for the rapid restoration of international peace and security in general and the immediate realization of R2P in particular. Sanctions are best used as part of a comprehensive long-term strategy for conflict resolution, incorporating the full range of not just coercive measures under Chapter VII of the UN Charter, but also of peaceful settlement mechanisms under Chapter VI. Moreover, the future ability of the UN sanctions system to make a meaningful contribution to the promotion of R2P will also depend upon the extent to which sanctions reform efforts succeed at making sanctions both more effective and more legitimate.

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                                Notes:

                                (1.) Charter of the United Nations (‘UN Charter’), Article 24.

                                (2.) UN Charter, Chapter VII, in particular Articles 39 and 41. For further discussion of the legal basis for UN sanctions, see sub-section ‘The Legal Basis of UN Sanctions’.

                                (3.) SC Res. 232 (16 December 1966), para. 2.

                                (4.) SC Res. 232 (16 December 1966), para. 2.

                                (5.) SC Res. 253 (29 May 1968), paras. 3–6.

                                (6.) SC Res. 418 (4 November 1977), paras. 2 and 4.

                                (7.) See Farrall 2007, pp. 36–7.

                                (8.) The first 25 UN sanctions regimes are charted in the appendices of Farrall 2007. The most recent eight sanctions regimes have been: the 1970 (Libya) sanctions regime, applied by resolution 1970 (2011); the 1988 (Taliban) sanctions regime, applied by resolution 1988 (2011); the 1989 (Al-Qaeda) sanctions regime, applied by resolution 1989 (2011); the 1907 (Eritrea) sanctions regime, applied by resolution 1907 (2011); the 2048 (Guinea-Bissau) sanctions regime, applied by resolution 2048 (2011); the 2127 (Central African Republic) sanctions regime, applied by resolution 2127 (2013); the 2140 (Yemen) sanctions regime, applied by resolution 2140 (2014); and the 2206 (South Sudan) sanctions regime, applied by resolution 2206 (2015).

                                (11.) UN Charter, Article 24.

                                (12.) UN Charter, Article 25.

                                (13.) UN Charter, Article 39.

                                (14.) UN Charter, Article 41.

                                (15.) For example, 232 Rhodesia, 661 Iraq, 757 Federal Republic of Yugoslavia (Serbia-Montenegro) (FRYSM), 820 Bosnian Serb, and 841 Haiti sanctions regimes.

                                (16.) For example, arms: 418 South Africa, 713 Yugoslavia, 733 Somalia, 1343 Liberia, 918 Rwanda; timber: 1343 Liberia; diamonds: 864 UNITA, 1132 Sierra Leone, and 1572 Côte d’Ivoire.

                                (17.) For example, diplomatic: 748 Libya and 1054 Sudan; sporting and cultural: 757 Federal Republic of Yugoslavia (Serbia-Montenegro) regime; travel: 1054 Sudan, 1132 Sierra Leone, 1718 North Korea.

                                (18.) See, for example, the 232 Southern Rhodesia, 661 Iraq, 713 Former Yugoslavia, 733 Somalia, and 748 Libya sanctions regimes.

                                (19.) For example, UN Secretary-General 1995, para. 70 and Normand 1996.

                                (20.) On sanctions objectives in general, see Farrall 2007, pp. 133–8.

                                (21.) This was the initial objective of the 661 Iraq sanctions regime.

                                (22.) Non-proliferation was an objective of the 418 South Africa, 1718 North Korea, and 1737 Iran sanctions regimes.

                                (23.) Preventing and responding to international terrorism was an objective of the 748 Libya, 1054 Sudan, 1267 Taliban and Al-Qaeda, and 1636 Hariri sanctions regimes.

                                (24.) Stemming human rights violations has been an objective of the 232 Rhodesia, 418 South Africa, 841 Haiti, 1160 FRY, and 1556 Sudan sanctions regimes.

                                (25.) Promoting the implementation of a peace process was an objective of the Liberia, 864 UNITA, 918 Rwanda, 1132 Sierra Leone, 1493 DRC, and 1572 Côte d’Ivoire sanctions regimes.

                                (26.) UN Charter, Article 29.

                                (28.) See Farrall 2007, pp. 146–82.

                                (29.) For a more detailed discussion of sanctions experts groups, see Farrall 2009.

                                (30.) For the Security Council resolution establishing the Federal Republic of Yugoslavia (Serbia-Montenegro) sanctions regime, see: SC Res. 757 (30 May 1992).

                                (31.) SC Res. 757 (30 May 1992), paras. 4–8.

                                (32.) For the resolution terminating the regime, see SC Res. 1074 (1 October 1996), para. 2.

                                (33.) SC Res. 820 (17 April 1993), preambular paras. 5 and 7.

                                (34.) SC Res. 820 (17 April 1993), preambular para. 6.

                                (35.) SC Res. 820 (17 April 1993), para. 12.

                                (36.) SC Res. 820 (17 April 1993), paras. 10 and 31.

                                (37.) UN Security Council 1996, para. 4(h).

                                (38.) SC Res. 1074 (1 October 1996), para. 2. The Council had decided that the sanctions regime would be terminated upon the occurrence of free and fair elections the previous November. See SC Res. 1022 (22 November 1995), para. 4.

                                (39.) SC Res. 733 (23 January 1992), preambular para. 3.

                                (40.) SC Res. 733 (23 January 1992), preambular para. 4.

                                (41.) SC Res. 733 (23 January 1992), para. 5.

                                (42.) SC Res. 733 (23 January 1992), para. 5.

                                (43.) SC Res. 1844 (20 November 2008), paras. 1–2 (applying the travel ban), 3–5 (applying the asset freeze), and 8 (outlining the categories of individuals and entities against whom these measures were to be applied).

                                (44.) SC Res. 2002 (29 July 2011), preambular paras. 11–12.

                                (45.) SC Res. 2002 (29 July 2011), para. 1.

                                (46.) SC Res. 918 (17 May 1994), preambular para. 5.

                                (47.) SC Res. 918 (17 May 1994), preambular para. 8.

                                (48.) SC Res. 918 (17 May 1994), para. 13; SC Res. 1011 (16 August 1995), paras. 7–8 and 11.

                                (49.) SC Res. 1749 (28 March 2007), preambular paras. 3 and 7, and para. 1.

                                (50.) SC Res. 1493 (28 July 2003), preambular para. 6.

                                (51.) SC Res. 1596 (18 April 2005), paras. 6, 10, 13, and 15.

                                (52.) SC Res. 1493 (28 July 2003), paras. 15, 18, 19, and 22.

                                (53.) SC Res. 1552 (27 July 2004), para. 1; SC Res. 1596 (18 April 2005), paras. 5 and 17; SC Res. 1616 (29 July 2005), para. 1; SC Res. 1649 (21 December 2005), paras. 7 and 15–16; SC Res. 1698 (31 July 2006), para. 1.

                                (54.) SC Res. 1804 (13 March 2008), preambular para. 4; SC Res. 1896 (30 November 2009), preambular para. 8; SC Res. 1952 (29 November 2010), preambular para. 9; SC Res. 2021 (29 November 2011), preambular para. 11; SC Res. 2078 (28 November 2012), preambular paras. 9 and 10; SC Res. 2136 (30 January 2014), preambular paras. 4 and 11.

                                (55.) SC Res. 1807 (31 March 2008), preambular para. 4; SC Res. 1857 (22 December 2008), preambular para. 4; SC Res. 1896 (30 November 2009), preambular para. 9; SC Res. 1952 (29 November 2010), preambular para. 10; SC Res. 2021 (29 November 2011), preambular para. 3.

                                (56.) SC Res. 2021 (29 November 2011), para. 15; SC Res. 2078 (28 November 2012), para. 19; SC Res. 2136 (30 January 2014), preambular para. 14.

                                (57.) SC Res. 1698 (31 July 2006), para. 13; SC Res. 1807 (31 March 2008), para. 13(d); SC Res. 1857 (22 December 2008), para. 4(d); SC Res. 2078 (28 November 2012), para. 4(d); SC Res. 2136 (30 January 2014), para. 4(d).

                                (58.) SC Res. 1698 (31 July 2006), para. 13; SC Res. 1807 (31 March 2008), para. 13(e); SC Res. 1857 (22 December 2008), para. 4(e); SC Res. 2078 (28 November 2012), para. 4(e); SC Res. 2136 (30 January 2014), para. 4(e).

                                (59.) SC Res. 1556 (30 July 2004), preambular paras. 7–8.

                                (60.) SC Res. 1556 (30 July 2004), preambular para. 9.

                                (61.) SC Res. 1556 (30 July 2004), preambular para. 20.

                                (62.) SC Res. 1556 (30 July 2004), paras. 7–9.

                                (63.) SC Res. 1591 (29 March 2005), para. 7.

                                (64.) SC Res. 1591 (29 March 2005), paras. 3(d) and 3(e).

                                (65.) SC Res. 1591 (29 March 2005), paras. 3(d) and 3(e).

                                (66.) SC Res. 1891 (13 October 2009), preambular para. 6; SC Res. 1945 (14 October 2010), preambular para. 8; SC Res. 2035 (17 February 2012), preambular paras. 8 and 17; SC Res. 2091 (14 February 2013), preambular para. 8; SC Res. 2138 (13 February 2014), preambular paras. 6 and 10.

                                (67.) SC Res. 1572 (15 November 2004), preambular para. 4.

                                (68.) SC Res. 1572 (15 November 2004), preambular para. 5.

                                (69.) SC Res. 1572 (15 November 2004), preambular para. 9.

                                (70.) SC Res. 1572 (15 November 2004), para. 6.

                                (71.) SC Res. 1572 (15 November 2004), paras. 8–10.

                                (72.) SC Res. 1572 (15 November 2004), para. 13.

                                (73.) SC Res. 1643 (15 December 2005), para. 8; SC Res. 1727 (15 December 2006), para. 6.

                                (74.) SC Res. 1842 (29 October 2008), preambular para. 7.

                                (75.) SC Res. 1975 (30 March 2011), preambular para. 9

                                (76.) SC Res. 1975 (30 March 2011), preambular para. 13.

                                (77.) SC Res. 1970 (26 February 2011), preambular para. 1.

                                (78.) SC Res. 1970 (26 February 2011), preambular para. 2.

                                (79.) SC Res. 1970 (26 February 2011), preambular para. 6

                                (80.) SC Res. 1970 (26 February 2011), preambular para. 9.

                                (81.) SC Res. 1970 (26 February 2011), preambular para. 11.

                                (82.) SC Res. 1970 (26 February 2011), preambular para. 16.

                                (83.) SC Res. 1970 (26 February 2011), para. 9.

                                (84.) SC Res. 1970 (26 February 2011), para. 15.

                                (85.) SC Res. 1970 (26 February 2011), para. 17.

                                (86.) SC Res. 1970 (26 February 2011), para. 1.

                                (87.) SC Res. 1970 (26 February 2011), para. 22(a).

                                (88.) SC Res. 2127 (5 December 2013), preambular paras. 3–5.

                                (89.) SC Res. 2127 (5 December 2013), preambular para. 31.

                                (90.) SC Res. 2127 (5 December 2013), para. 54.

                                (91.) SC Res. 2134 (28 January 2014), paras. 30, 32, and 37.

                                (92.) SC Res. 2134 (28 January 2014), paras. 36–7.

                                (93.) SC Res. 2134 (28 January 2014), preambular para. 5.

                                (94.) SC Res. 2134 (28 January 2014), preambular para. 6.

                                (95.) SC Res. 2134 (28 January 2014), preambular para. 9; SC Res. 2149 (10 April 2014), preambular para. 5.

                                (96.) SC Res. 2134 (28 January 2014), para. 19; SC Res. 2149 (10 April 2014), preambular para. 11.

                                (97.) SC Res. 2134 (28 January 2014), para. 21; SC Res. 2149 (10 April 2014), para. 12.

                                (98.) SC Res. 2206 (3 March 2015), preambular para. 4.

                                (99.) SC Res. 2206 (3 March 2015), preambular para. 4.

                                (100.) SC Res. 2206 (3 March 2015), preambular para. 20.

                                (101.) SC Res. 2206 (3 March 2015), preambular para. 28

                                (102.) SC Res. 2206 (3 March 2015), paras. 9 and 12.

                                (103.) SC Res. 2206 (3 March 2015), para. 6.

                                (104.) SC Res. 2206 (3 March 2015), para. 7(c).

                                (105.) SC Res. 2206 (3 March 2015), para. 7(d).

                                (106.) SC Res. 2206 (3 March 2015), para. 7(e).

                                (107.) SC Res. 2206 (3 March 2015), para. 21.

                                (109.) Galtung 1983, p. 46 (arguing that sanctions can galvanize opposition to UN intervention and strengthen the power of those targeted).

                                (112.) UN Charter, Article 33.