Under the sanctions regimes established by its resolutions adopted under Chapter VII of the United Nations Charter, the United Nations Security Council (UNSC) can currently impose sanctions on those who obstruct the delivery of humanitarian assistance in eight non-international armed conflict situations. This imposition of sanctions stems from the UNSC’s responsibility to maintain peace, security, and stability. Yet, its approach to humanitarian law (IHL) in these eight regimes has been inconsistent. In most of its current sanction regimes, the UNSC arguably has moved beyond the IHL applicable to humanitarian assistance, with the consequence that it can now sanction obstructions, which are broader than those which would constitute a violation of IHL. This post examines what this means for sanctions investigators and for the enhanced protection of civilians.
Different Approaches of the UNSC with Respect to Imposing Sanctions on Obstructions to Humanitarian Assistance
The UNSC imposes sanctions in order to respond to threats to peace, security and stability. In the eight sanctions regimes discussed in this post, impediments to peace, security and stability explicitly or implicitly include obstructions to the delivery and distribution of humanitarian assistance and access obstructions.
Yet, the UNSC takes two different approaches when it imposes sanctions on obstructions to humanitarian assistance. In the first approach, which is taken with respect to Libya and Sudan, there is no stand-alone criterion (the basis for listing by the UNSC or for being sanctioned) on humanitarian assistance, and humanitarian assistance and access obstructions may be considered under other listing criteria relating to violations of human rights or IHL. In these cases, an individual or entity is listed (or sanctioned) because that individual, in obstructing access and assistance, also violated IHL. Once individuals – for example, military commanders or political leaders (here and here), or entities – for example, armed groups – are included in UNSC sanctions lists, there will be asset freezes and/or travel bans introduced against those individuals and/or entities by the UNSC, which should then be implemented by States.
The second approach is to have a stand-alone designation criterion for obstructions to the delivery and distribution of humanitarian assistance. This is independent of the criterion on violations of human rights and IHL. For example, in Yemen, in resolution 2216 (2015), “Obstructing the delivery of humanitarian assistance to Yemen or access to, or distribution of, humanitarian assistance in Yemen” is a stand-alone criterion. In the Central African Republic, Democratic Republic of Congo, Mali, Somalia, and South Sudan sanctions regimes similar criteria are found independently of IHL.
It should be also added that irrespective of the different approaches taken by the UNSC, there is a possibility that individuals and entities obstructing humanitarian assistance and access may also be listed under other listing criteria found in individual sanctions regimes, including as impediments to peace processes, but this is beyond the scope of this post.
The Implications of the Different Approaches of the UNSC with Respect to Imposing Sanctions on Obstructions to Humanitarian Assistance
The implications of the existence of two listing criteria – as elaborated above – are often not widely understood by sanctions actors. Those actors include the UN Panels of Experts – groups of experts mandated to investigate and report on, amongst other things, obstructions to humanitarian assistance; Sanctions Committees – bodies comprising of UNSC members and established to assist the UNSC in implementing sanctions; humanitarian service providers that engage with these entities; and States.
These implications stem from the fact that IHL provides for circumstances where parties to a conflict may take measures that would also obstruct the delivery of humanitarian assistance. This is because, in striving to find a practical balance between military necessity and humanity, IHL acknowledges that there can be legitimate or lawful obstructions to the delivery of humanitarian assistance. In practice, however, these obstructions, even if lawful, can significantly impede access of civilians to life saving assistance.
In certain other situations, parties can also take measures that are ambiguous on their lawfulness, but which nevertheless obstruct assistance and access. These ambiguities are elaborated very briefly below.
Although in recent years, academics (here and here) and institutional writings (here and here) have sought to define the scope and limitations, consent or authorization of the host-State is widely acknowledged as required in non-international armed conflicts (NIAC) before relief operations can be executed. This means that while parties may no longer arbitrarily deny assistance, parties may still resort to “valid reasons” to prevent humanitarians reaching civilians most in need.
The Right of Control
IHL also provides for a “right of control” to parties in facilitating humanitarian assistance. The means that parties are allowed to set out technical arrangements, relating for example, to search of consignments, supervision of delivery, and quality control. The ICRC has interpreted this to mean that humanitarian relief personnel should respect “domestic law on access to territory” and “the security requirements in force”. One of the few caveats appears to be that the parties to the conflict, while exercising this right to control, cannot “deliberately” impede delivery as such.
Yet, in reality, what constitutes a “deliberate” or “willful” impediment can be a question of facts, one that is not easily ascertainable based on the limited information at the disposal of humanitarians or investigative bodies. It is also not clear at what point domestic legislation and policies of armed groups on taxation, work permits, or security requirements will qualify as “deliberate” impediments.
Temporary Denials Based on Imperative Military Necessity and Protection of Relief Personnel
Parties to conflict frequently justify delays imposed on humanitarian movements by invoking imperative military necessity or because military operations may endanger humanitarian personnel. In recent years, there have been significant discussion, internally, within the humanitarian sector on the vacillating boundary between obligations of parties to provide rapid and unimpeded access to humanitarian personnel and goods to active conflict zones, and its concurrent obligations to ensure the safety of humanitarian personnel and their objects and to protect them from dangers arising from the conflict.
The uncertainty on the boundary has led to humanitarians being reluctant to denounce or to take appropriate measures to counter restrictions on movement in areas of active hostilities. This, in turn, has emboldened parties to conflict to deny movements under the pretext of military necessity or to ensure the physical safety of humanitarian personnel, to the detriment of civilians most in need.
Some Considerations for Sanctions Investigators Stemming from the Different Approaches
A stand-alone designation criterion, arguably, has significant implications for the modus operandi of sanctions investigators in their fact-finding investigations.
The first is that in regimes with a stand-alone criterion, Panels of Experts need not seek for, or provide to the UNSC information that demonstrates the “unlawfulness” of the denial of humanitarian assistance. This is because the UNSC, in these sanction regimes, can impose sanctions irrespective of the lawfulness, intent, motive, purpose, or consequences of the obstructions, as long as these obstructions fall within its Chapter VII mandate. In other words, as long as these obstructions are a threat to peace, security, and stability in the contexts under UNSC review, individuals and entities that engage in obstructions can be sanctioned.
However, for those sanctions regimes where there is no stand-alone designation criterion with regard to obstructions to humanitarian assistance, and the latter exclusively comes within the scope of sanctions for violations of human rights and IHL, then Panels of Experts need to undertake an analysis of the obstruction within the scope of IHL, and only if the obstruction is also a human rights or IHL violation or human rights abuse would the obstruction become a sanctionable offence.
What are The Practical Implications of the Different Approaches to Sanctions?
In cases where a stand-alone designation criterion exists, the first, is that sanctions investigators can report any obstruction to the UNSC, including where obstructions are recognized as lawful under IHL. This, then, allows the UNSC to leverage its influence on a wider range of situations and parties to impose sanctions, influence behaviors and policies, and to facilitate assistance in a timely manner.
Secondly, a stand-alone criterion also increases the likelihood that the UNSC may sanction those responsible for obstructions. In most cases, it is the UNSC sanctions committees that designate or sanction individuals. These committees operate by consensus. This means that even if sanctions investigators take a qualified technical position on whether certain obstructions violate IHL, different member States may have different interpretations on what constitutes an unlawful obstruction and recommendations for sanctions may not find consensus, especially in ambiguous circumstances.
For example, In 2018, the UNSC sanctioned a commander in South Sudan for ordering the units under his control “to prevent the transport of humanitarian supplies across the Nile River, where tens of thousands of civilians were facing hunger, claiming that food aid would be diverted from civilians to militia groups.” This resulted in food supplies being blocked from crossing the Nile for at least two weeks. The UNSC does not provide any additional information justifying its decision to sanction this individual.
Purely from an IHL perspective, it is likely permissible (in a situation that does not contribute to starvation) for a reasonable commander to delay supplies reaching civilians in a particular geographical area for two-weeks because intelligence indicated an almost certain diversion to the enemy. The commander may justify the delay on the grounds that measures were being taken to ensure that civilians were the end beneficiaries. While only speculation by the author, she does not discount the possibility that if designations in the South Sudan regime were dependent on IHL, this particular designation may not have met the threshold.
This post argues that the separation of the humanitarian assistance designation criterion from the IHL criterion provides sanctions investigators sufficient leverage to report to the UNSC all serious obstructions, irrespective of whether these obstructions violate IHL. This, in turn, allows the UNSC to maintain an oversight on a broader range of activities relating to humanitarian assistance, thus, augmenting its ability to protect civilians against both lawful and unlawful obstructions. This move to consider humanitarian assistance obstructions outside those acts that also constitute violations of IHL is supported by the UNSC’s broader mandate to maintain international peace, security, and stability.
Author’s note: The author undertook research for this post while at the Human Rights Institute at the Columbia Law School, where she was a Practitioner-in-Residence (January – March 2019). The views presented are her own and may not necessarily reflect the views of any organization she is/was affiliated with.