The Legal Implications of UN Sanctions on the Republic of South Sudan
By Tong Kot Kuocnin, Nairobi, Kenya
Monday, June 25, 2018 (PW) — As the conflict in South Sudan continues unabated, the international community in collaboration with regional blocs led by the IGAD, took central stage in bringing together the warring parties to a negotiated political settlement of the conflict.
However, given the inability of the parties to the conflict to strike a sustainable and implementable peace to alleviate and lessen the suffering of the vulnerable people, mostly children, women and elderly people, the international community has embark on the use of threats of arms embargo, individual and economic sanctions as well as freezing the accounts and assets of the parties involved in the conflict.
The US has been leading this crusade of sanctioning individuals from both parties to the conflict who have been seen as obstacles to peace as a punishment mechanism to deter frighten them as well as a hammer to forcefully persuade those peace destroyers.
The central theme of this article is to analyze the legality, implications and effects of sanctions under the UN Charter taking South Sudan as a case study.
The basis for UN sanctions under international law derives from Chapter VII of the UN Charter, and more specifically, Article 41, which covers enforcement measures not involving the use of armed force.
While Article 41 does not specifically mention the word “sanctions”, it lists specific sanctions measures to be taken while at the same time making it clear that the list is not exhaustive.
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 measures 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.
On the same token, Article 41 has been used by the Council for a range of purposes and measures other than sanctions, such as the creation of international tribunals (e.g. the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda) or compensation funds (e.g., UN Compensation Commission).
The Security Council first imposed voluntary sanctions on the apartheid regimes of South Africa in 1963 and Southern Rhodesia in 1965, which subsequently became mandatory sanctions regimes on the unrecognized state of Rhodesia with resolution 253 (1968) and South Africa with resolution 418 (1977).
Comprehensive sanctions on Rhodesia were a reaction to the Unilateral Declaration of Independence from the UK by the white minority regime, while targeted sanctions on South Africa were a response to its apartheid system and its regional military aggression and pursuit of a nuclear weapons capability.
In the immediate aftermath of the Cold War, comprehensive sanctions were applied to Iraq in reaction to its 1990 invasion of Kuwait and its programs to develop weapons of mass destruction (1990-2003) and during the break-up of the former Yugoslavia (1991-1996).
In addition, comprehensive sanctions also were imposed on Haiti (1993-1994) when President Jean-Bertrand Aristide was overthrown in a coup. The 1990s witnessed a proliferation of UN sanctions regimes, most often in the form of targeted sanctions within the context of an intrastate conflict: 751 Somalia (1992-present), 788 Liberia (1992-2001), 820 Yugoslavia (1993-1996), 864 Angola (1993-2002), 918 Rwanda (1994-2008),1132 Sierra Leone (1997-2010) and 1160 Kosovo (1998-2001) sanctions regimes.
Targeted sanctions represented a significant tactical innovation for the Security Council and were prompted at least in part by the perceived drawbacks of comprehensive sanctions, particularly with respect to their adverse humanitarian impact and a lack of precision in targeting those who had most threatened international peace and security.
Although the Security Council first recognized in resolution 326 (1973) “the special economic hardships” confronting a member state (such as Zambia) as a result of the comprehensive sanctions imposed on Southern Rhodesia, it was only in 1995 that all permanent members definitively recognized that “further collective actions in the Security Council within the context of any future sanctions regime should be directed to minimize unintended adverse side-effects of sanctions on the most vulnerable segments of targeted countries”.
While resolving intrastate conflict remains a common objective, there has also been a trend toward using targeted sanctions for other purposes: nonproliferation, counter-terrorism, democratization and protection of civilians (and human rights).
Functionally, there are five main types of targeted UN sanctions: diplomatic, travel ban, asset freeze, and arms embargo and commodity interdiction. The “severance of diplomatic relations” is one of the possible measures specifically mentioned in Article 41 of the UN Charter.
While historically diplomatic sanctions have been one of the more frequently used forms, no UN diplomatic sanctions are currently in effect. Diplomatic sanctions have been previously applied in the following regimes: Southern Rhodesia 253, Libya 748, Yugoslavia 757, Angola 864, Sudan 1054 and Afghanistan/Taliban/Al-Qaida 1267.
In the cases of Libya and Sudan, diplomatic sanctions were imposed on recognized states; in the cases of Southern Rhodesia and Yugoslavia, diplomatic sanctions were imposed on unrecognized states. Thus, it is important to note that recourse to diplomatic sanctions has declined alongside the decline of comprehensive sanctions against state actors.
Travel bans are a common form of targeted sanctions: they are a feature of all but one (Iraq 1518) of the UN sanctions regimes currently in effect. The institutional predecessors to the individual travel ban have taken numerous forms.
A comprehensive ban on travel by all nationals of a country, a ban on travel to an entire country, a ban on travel to rebel-held territory within a country, an aviation ban on all flights into or out of a country and a ban on the operation of a national airline.
Most recently, the Libya 1970 regime added an aviation ban with resolution 1973, which was terminated six months later with resolution 2009 in September 2011. One of the more significant examples of the Council’s ability to be flexible and act quickly was the removal of former President Laurent Gbagbo of Côte d’Ivoire from the 1572 regime travel ban list to enable his transfer to The Hague in November 2011 to face charges at the ICC.
Travel bans are rarely imposed in isolation from other measures: the most common combination is a travel ban with an asset freeze and an arms embargo, which has been applied in 11 of the 13 active sanctions regimes.
Similar to individual travel bans, asset freezes have also been included in all but one (Guinea-Bissau 2048) of the current sanctions regimes. Presumably, the respective purposes are asset recovery, non-proliferation and counter-terrorism.
The other form of sanction is arms embargo which historically, nearly all UN sanctions regimes have included an arms embargo, with the exception of the now-terminated Sudan 1054 regime and the currently active Lebanon 1636 and Guinea-Bissau 2048 regimes.
Arms embargos have taken both general and targeted forms. Among the current regimes, the DPRK 1718 and Iran 1737 regimes are distinctive due to the inclusion of specific nonproliferation measures.
The DPRK sanctions include a ban on heavy conventional weapons and materials, equipment, goods and technology related to nuclear programmes, ballistic missile programmes and other WMD programmes.
The Iran sanctions include a ban on items related to the enrichment or reprocessing of nuclear materials as well as the development of delivery systems for nuclear weapons.
In both sanctions regimes, there is also a prohibition on the export of arms, including conventional, from each country. This is an innovative measure, which theoretically serves the dual purposes of non-proliferation and constraining government financing from weapons sales.
Two-way arms embargos have also been applied in the cases of the Eritrea 1907 and Libya 1970 regimes. As with travel bans and asset freezes, most current arms embargoes include exemptions of one form or another, with the exception of three sanctions regimes: Al-Qaida 1267/1989, Iran 1737 and Taliban 1988.
Last but not the least, is the commodity interdiction. The imposition of commodity sanctions in a UN context dates back to the first comprehensive regime on Southern Rhodesia.
However, the two most significant cases in terms of setting a precedent for the current use of targeted commodity sanctions were Angola (1998-2002) and Sierra Leone (2000-2003), in which sanctions were imposed on rough diamond exports in order to reduce the financing available to two rebel groups, UNITA and the Revolutionary United Front (RUF), respectively.
There are currently commodity sanctions imposed within three sanctions regimes: the export of diamonds from Côte d’Ivoire (resolution 1643 of 15 December 2005), the export of luxury goods to the DPRK (resolution 1718 of 14 October 2006) and the export of charcoal from Somalia (resolution 2036 of 22 February 2012).
While not questioning the authority of the Security Council to impose sanctions, these challenges based on human rights and due process grounds have led to implementation difficulties and generated concerns about the legitimacy of targeted sanctions and their effectiveness.
It is worth keeping in mind (and perhaps too often overlooked by the international community and other entities) that implementation of UN sanctions is dependent upon compatible national legislation and enforcement.
However, before concluding this piece, it is quintessentially crucial to pinpoint that the primary functions of the ICC and UN sanctions regimes are inherently different.
The ICC indicts individuals who are alleged to have committed the gravest international crimes whereas the Security Council imposes sanctions upon threats to international peace and security and aims at changing target behaviour.
The ICC is required to operate as an independent and impartial body following strict rules of procedure and evidence, particularly including the presumption of innocence, which could be compromised with harmonization and information sharing.
Another factor to take into account is the political nature of UN sanctions regimes. For example, the Panel of Experts for the Sudan 1591 Committee has recommended that Bashir be added to the travel ban list several times without success—ultimately attributing this to the presence of complex political factors and dynamics in the listing process.
As many people jumped to the conclusion that certain individuals whom the UN and US government named and sanctioned would definitely be indicted by the ICC, , its apt to say that’s a fallacious misconception of the legality, implications and effects of the UN sanctions which is untenable as the ICC indicts individuals who are alleged to have committed such gravest international crimes meanwhile the UN imposes sanctions upon those perceived to be a threat to international peace and security which is mainly aimed at changing the target behavior.
The author holds Bachelor of Laws (LLB) Degree from the University of Juba and a Master of Laws (LLM) specializing in Law, Governance and Democracy from the University of Nairobi. He is an Advocate before All Courts in South Sudan. His areas of research interest include: Constitutional Law and Human Rights, Rule of Law and Good Governance. He can be reached via his email: tongbullen@gmail.com
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