Sanctions: follow-up written evidence from UNA-UK (RTP0018)

1. UNA-UK[1] would like to offer some observations with respect to sanctions, a subject that was raised in the oral evidence session that was held on Tuesday 26 June 2018 as part of the Foreign Affairs Committee’s inquiry on the “Responsibility to protect and humanitarian intervention”.[2]

2. Sanctions are an established part of the coercive elements of the atrocity prevention toolkit, and one that has been steadily developing over the past three decades. As with all coercive measures, they:

1. Come at a cost, which must be weighed against the cost of doing nothing;
2. Tend to be more effective when deployed multilaterally, through the UN Security Council which creates an obligation on all UN Member States or, failing that, through a broad coalition of players;
3. Are best employed alongside a range of other measures[3] as part of a wider strategy for preventing and responding to mass atrocities;
4. Are highly context-specific, with effectiveness depending on how they are constructed and implemented, as well as the unfolding situation on the ground.

3. In these respects, the application of sanctions bears many similarities with the application of the use of force. Indeed, in some cases, particularly where general or long-standing sanctions regimes are concerned, their impact can be more intensively and extensively felt than that of limited, one-off military interventions. However, as the potential for violent loss of civilian life is generally lower when instituting sanctions than when using military force, sanctions should be given serious consideration as part of a graded application of coercive measures ahead of the use of force.

4. Sanctions policy must be integrated with the UK’s approach to other atrocity prevention tools. It is regrettable that discussions on action in relation to atrocity situations are still prone to treating potential measures as mutually exclusive, rather than potential elements of a comprehensive strategy.

5. The record of sanctions as a tool for preventing atrocities is mixed[4] and highly dependent on the situation, the phase of the crisis in which they are used, and the kind of sanction. The notion of applying sanctions on enablers of atrocity crimes, including third party state actors in so-called “proxy war” situations, is underexplored and merits further investigation. UNA-UK is not in a position to indicate under which circumstances sanctions should or should not be used or if sanctions should be used unilaterally if multilateral approaches fail. However, we believe all tools for atrocity prevention merit consideration in all cases where there is a risk of atrocities occurring. In this submission we make some recommendations as to how the government could establish mechanisms to ensure that sanctions are considered strategically and applied appropriately.

What are sanctions?

6. Sanctions take a multitude of different forms[5] including financial sanctions, immigration sanctions or "travel bans", trade sanctions (including arms embargos and blockades of certain types of equipment and material) and the banning of flagged aircraft and shipping from ports, airports, territorial waters and airspace.

7. Sanctions can be broad or targeted. Broad sanctions apply to an entire geographic area or group. Their effectiveness is a matter of debate.[6] Sanctions relating to transfers of arms and weapons of mass destructions have been described as being effective in curbing the actions of would-be perpetrators of atrocities, for example in Liberia and Libya.[7] However it is also argued that such sanctions can serve to “freeze” existing power imbalances in place, which can in some circumstances increase risk.[8]

8. Further, certain sanctions, particularly economic or commodity-based, have been described as constituting collective punishment – even harming the very people they are supposed to be protecting – while having a limited impact on perpetrators. The civilian impact of a broad-based sanctions regime in Iraq in the 1990s was instrumental in the Security Council’s move towards targeted sanctions (see paragraph 9). Moreover, when blanket sanctions are removed suddenly without a coherent strategy for economic recovery, they can cause economic shocks and increase inequality.[9] In 2014 these concerns led the UN Human Rights Council to establish a mandate for a Special Rapporteur on the negative impact of the unilateral coercive measures (ie sanctions) on the enjoyment of human rights.

9. Targeted or “smart” sanctions,[10] are intended to affect perpetrators while minimising broader impacts. They take the form of “individual sanctions” which target the finances and movements of named specific individuals, and “network sanctions” which target the processes, primarily the banking sector and financial instruments, whereby those individuals seek to move and hide assets.

10. Targeted sanctions are still fairly new and so it is difficult to appraise their efficacy. They have become increasingly popular in the United States, where organisations such as the Enough Project argue that they are effective in applying pressure to the “violent kleptocrats” they judge to be a significant risk factor in perpetrating atrocities.[11] However, targeted sanctions are not always tightly limited: network sanctions or individual sanctions that attempt to draw a wide enough net to cover all perpetrators can end up having similar economic consequences to blanket sanctions.[12]

11. Further, targeted sanctions pose specific difficulties when negotiated by the Security Council. Realpolitik and the difficulties of proving complicity frequently results in very few individuals being listed as targets. This was demonstrated in the case of Sudan where an attempt to sanction 33 individuals was renegotiated to the point where the final text was only binding upon four[13]. It can also be difficult to persuade Security Council members that gross human rights violations and atrocities should be accepted as grounds for sanctioning. A Security Council Report publication pointed out that “no individual has been listed solely on human rights grounds. Furthermore, the actual targeting has more often than not only taken place long after the adoption of the relevant sanctions resolution, and the human rights criteria have rarely been invoked in the narratives justifying the imposition of the measures.” [14]

The UK’s sanctions processes

12. The UK currently imposes sanctions in four ways[15]: by enforcing sanctions imposed by the United Nations Security Council (enforcement is currently implemented at an EU level), by the EU (ditto), by the OSCE (which are enforced under UK law using Export Control Orders at OSCE request) and the sanctions the UK imposes unilaterally using powers contained in the Terrorist Asset-Freezing etc. Act 2010 (TAFA). Autonomous UK powers under TAFA are currently limited to counterterrorist asset freezing and to elements of restrictions against weapons of mass destruction and proliferation. They make up around 1% of all sanctions the UK applies.[16]

13. However, in preparation for leaving the European Union, the UK passed the Sanctions and Anti Money Laundering Act 2018 on 23 May 2018 (hereafter “the sanctions act”). It will come into force on a day of the Secretary of State’s choosing. The act enables the UK to unilaterally apply sanctions for the following three purposes:

1. for the purposes of compliance with a UN obligation,
2. for the purposes of compliance with any other international obligation
3. for a purpose within subsection (2) – as discussed in paragraph 17

14. The “purposes of compliance with a UN obligation” is interpreted as “an obligation that the United Kingdom has by virtue of a UN Security Council Resolution”. All nations are obliged to impose Security Council mandated sanctions and, as a permanent member of the Security Council, the UK plays an important role in designing sanctions regimes. However, while the Security Council is the only part of the UN with the ability to impose sanctions, the UN General Assembly and various other members of the wider UN family (such as the Organisation for the Prohibition of Chemical Weapons - OPCW) do have the ability to recommend to member states that they impose sanctions.[17]

15. It would always be preferable for sanctions to be mandated by a Security Council resolution. However, the UK witnessed how difficult this can be when failing to negotiate further sanctions on Syria in March 2017. UNA-UK would like to see the UK participate in efforts (recently endorsed by the Secretary-General[18]) to move the discussion to other UN forums when the Security Council fails to act to maintain international peace and security. This can be achieved by strengthening the abilities of other parts of the UN family to take strong action on the prevention of atrocities. UNA-UK believes it would be helpful if the UK committed to imposing sanctions recommended by relevant UN bodies and agencies in circumstances where elements of the UN system are warning of a risk of atrocities and the Security Council is failing to exercise its primary responsibility because of lack of unanimity of the permanent members.

16. We would like to see a future amendment to the sanctions act widen the definition of “compliance with a UN obligation” to cover recommendations of this nature, but in the interim hope that ministers will use their powers to create sanctions “for the purposes of compliance with any other international obligation” to ensure that recommendations from across the UN family are adopted.

The sanctions act

17. The UK can apply sanctions due to the threat of atrocities. Subsection (2) of the sanctions act lists “to provide accountability for or be a deterrent to gross violations of human rights” as a reason for implementing sanctions, and atrocity crimes are gross violations of human rights. That notwithstanding, an amendment to include an explicit reference to the prevention of mass atrocities as defined by the Rome Statute could serve to create the perception domestically of a stronger obligation to consider sanctions in these situations, and reinforce the perception internationally that the UK prioritises the prevention of atrocity crimes, thereby contributing to international norms.

18. Further, while the act allows for sanctions to be employed for the purposes of “accountability” and “deterrent”, this would not cover all sanctions designed for the purpose of prevention – such as sanctions designed to prevent perpetrators from accessing materials that would help them commit atrocities. UNA-UK would like to see this matter addressed in a future amendment to the sanctions act, either through the insertion of the word “prevention”, or through the addition of a new category of reason under subsection (2) as we suggest in paragraph 17.

19. Nevertheless, we would strongly argue that sanctions for the purposes of preventing atrocities fall squarely within several of the other categories within subsection (2) and therefore feel that the government would be acting within its power by implementing such sanctions without the need for further law. These categories include:

1. in the interests of national security,
2. in the interests of international peace and security,
3. to further a foreign policy objective of the government of the United Kingdom,
4. to promote the resolution of armed conflicts or the protection of civilians in conflict zones,
5. to provide accountability for or be a deterrent to gross violations of human rights, or otherwise promote compliance with international human rights law, or respect for human rights,
6. to promote compliance with international humanitarian law

20. The House of Lords European Union Committee report on “Brexit: sanctions policy”[19] made a strong argument that the UK should closely partner with the EU on a collaborative sanctions policy as sanctions are most effective when applied multilaterally. However, adopting sanctions in tandem with the EU need not be the limit of UK sanctions policy.

Designing an architecture for UK sanctions policy

21. While the UK now has the legal ability to unilaterally implement sanctions it does not yet have a clearly developed architecture to design and target effective sanctions regimes. Best practice[20] suggests that this would include: a close working level relationship with the banking sector who are often best able to track illicit flows of revenue;[21] strong integration with existing money laundering mechanisms and institutions including the Serious Fraud Office and the City of London Police Economic Crime Directorate; and a mechanism for reporting sanctions breaches which is open to the public and civil society and which has greater capacity and resourcing than the current Office of Financial Sanctions Implementation (OFSI). The mechanisms established as a consequence of the “Confiscation of Assets” elements of the Modern Slavery Act[22] could provide a useful model.

22. UNA-UK would like to see the UK stress atrocity prevention as a key goal of its sanctions strategy. Due regard must be given to sanctions as a preventative “upstream” tool, and not merely as a mechanism for punitive action. To this end UNA-UK would like to see atrocity prevention structures and mechanisms in the UK integrated with the UK’s sanctions architecture as the latter is developed. For example, the UK’s Responsibility to Protect focal point should be closely involved with sanctioning decisions and civil society groups from countries at risk of atrocities should have the ability to interact with decision makers in the sanctions process. UNA-UK would also like to see greater collaboration with the War Crimes Unit which investigates perpetrators of atrocity crimes.

23. This architecture should also make itself open to receiving information, advice and best practice from UN offices and entities, as well as civil society. Early warning systems are provided by entities such as the UN Special Advisers on the Prevention of Genocide and the Responsibility to Protect, the Office of the High Commissioner for Human Rights, as well as through resolutions in political bodies such as the Human Rights Council, Security Council and General Assembly. As the committee noted in its report on the crisis in Rakhine state, at present there are weaknesses in the government’s approach to determining whether atrocity crimes are taking place. The government clearly noted the importance of the UN’s role in making this determination. It should therefore establish better mechanisms for allowing UN early warning systems – as opposed to bodies like the Security Council where questions of nomenclature are political – to feed in to government policy.

24. Further, the Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights can provide useful guidance and feedback on the potential negative consequences of sanctions regimes.

25. Finally, UNA-UK believes that the government should announce that it considers the prevention of atrocities to be a core reason for applying sanctions under the sanctions act. It should further indicate that it will consider a process for triggering and adopting sanctions that includes the following elements:

1. United Nations early warning systems indicating that there is a risk of atrocity crimes occurring in a country should act as a trigger for the government’s key atrocity prevention actors to consider a range of non-coercive and coercive measures, including targeted preventative sanctions
2. The “appropriate minister” (in the words of the sanctions act), in consultation with the UK’s atrocity prevention focal point, should the consider whether such sanctions are likely to prevent atrocity crimes from occurring, or dissuade future atrocity crimes
3. The appropriate minister, in consultation with the UK’s atrocity prevention focal point, and having sought the advice of the Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights, should then consider whether the potential negative impact of these sanctions is proportionate to the effect the sanctions will have in preventing atrocity crimes
4. Where the appropriate minister deems sanctions to pass these tests, the UK should attempt to apply sanctions via a Security Council resolution, and if unsuccessful, attempt to use multilateral forums to ensure sanctions are applied as widely as possible
5. Where this is not possible, specific regard should be given to the efficacy and consequences of applying a sanctions regime unilaterally. Where the appropriate minister deems unilateral sanctions to be appropriate they should be applied via the UK’s sanctions architecture

July 2018