Three examples of sanctions regimes with safeguards for humanitarian action
This Annex compares three instances when exceptions for humanitarian action were included in international sanctions regimes:
- the UN flight ban into Taliban-controlled areas of Afghanistan;
- the financial sanctions in the UN Somalia sanctions; and
- the prohibition on purchasing oil in the EU Syria sanctions.
For each example consideration is given to the nature of the prohibition; the activities and actors falling within the scope of the exception; and any oversight arrangements to ensure the exception operated as intended.
1. UN flight ban to Taliban-controlled areas, December 2000–
In December 2000 the UN Security Council imposed a ban on flights from or to Taliban-controlled areas but excluded ‘organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, including the United Nations and its agencies, governmental relief agencies providing humanitarian assistance, the International Committee of the Red Cross and non-governmental organizations as appropriate’ on a list maintained by the Taliban Sanctions Committee. The Committee was tasked with keeping the list under regular review, adding new organizations and governmental relief agencies as appropriate, and removing them if it decided that they were operating, or were likely to operate, flights for other than humanitarian purposes.
During the year the flight ban was in force, some fifty organizations were included on the list – the vast majority of which did not actually operate flights to Taliban-controlled areas. Only a small number of humanitarian actors operated regular flights: the UN, the ICRC, and PACTEC. The Sanctions Committee reviewed the applications on a ‘no objection basis’: all that was required was the provision of identification information and a brief description of the operations in Afghanistan. In twelve months, the Committee appears to have rejected applications or removed organizations from the list only on a handful of occasions, and always because the operations of the organizations were conducted by land and not by air.
This is sometimes referred to as successful use of a ‘white list’ of exempted actors. However, its precedential value is limited. It related to an extremely narrow prohibition – operating flights – that only affected a very small number of humanitarian actors, and that was in force for just one year. The fact that the system ‘worked’ on this occasion cannot be taken as an indication that ‘white lists’ are appropriate in other contexts. The specific circumstances of this case meant that some of the concerns expressed about ‘white lists’ simply did not arise. These include:
- that a ‘white list’ necessarily implies a ‘black list’;
- that the criteria for inclusion on the ‘white list’ require those responsible for screening applicants to make subjective judgments on, for example, their compliance with humanitarian principles; and
- that inclusion on a ‘white list’ adversely impacts perceptions of the neutrality of the listed humanitarian actors, associating them with the political entities that impose the sanctions, and thus putting their operations and beneficiaries at risk.
In this case, the number of humanitarian actors that fell within the scope of the flight ban was small, and the criterion for inclusion on the list was factual: did they operate humanitarian flights to or from Taliban-controlled areas? This meant that there was no implicit ‘black list’, and that the Sanctions Committee was not exercising a subjective assessment of whether their activities complied with humanitarian principles. Moreover, as the criterion for inclusion on the list was factual, the risk that the actors on the list could be perceived as privileged or favoured by the body imposing the sanctions, and thus as being associated with its political agenda, were very slight.
2. UN Somalia financial sanctions, 2010 to date
At present, financial sanctions in the UN sanctions regime relating to Somalia are the only UN measures to include an express exception for humanitarian action. SCR 1844 (2008) imposed the sanctions, which included a prohibition on making funds, financial assets or economic resources to or for the benefit of designated individuals or entities. The al-Shabaab group was designated in April 2010. The exception was introduced by SCR 1916 (2010), which excluded from the scope of the prohibition ‘[…] the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the United Nations, its specialized agencies or programmes, humanitarian organizations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners […]’.
The exception has been retained on every renewal of the sanctions. Its terms have changed slightly over the years to reflect the changes in the name of the UN funding mechanism for Somalia.
Of the two criteria mentioned in the exception, no guidance is provided as to what constitutes ‘urgently needed humanitarian assistance in Somalia’. It is possible to factually determine which organizations participate in the UN funding mechanism. The alterative criterion, of UN General Assembly observer status, was included essentially in order to bring the ICRC, which does not participate in UN funding mechanisms, within the scope of the exception. Direct or indirect participation as an implementing partner in UN funding mechanisms can provide the Security Council with the necessary reassurance that the exception will not undermine the purpose of the sanctions. Questions of reliability, a track record of operating in a principled manner and the existence of non-diversion measures are criteria that are applied when reviewing applicants for funding.
A light reporting requirement is associated with the exception. SCR 1916 required the UN Humanitarian Aid Coordinator for Somalia to report to the Security Council every 120 days on ‘politicization, misuse, and misappropriation of humanitarian assistance by armed groups’, the implementation of the exception, and on any impediments to the delivery of humanitarian assistance in Somalia.
This obligation was retained in later resolutions, but amended in two significant ways: first, and, most importantly, SCR 1916 required reporting on interference with humanitarian assistance by just one side to the conflict: the armed groups. This one-sided reporting could have undermined perceptions of neutrality of the UN’s most senior humanitarian representative in-country. Later resolutions required reporting on this issue without referring to any sides. Second, later resolutions tasked the Emergency Relief Coordinator rather than the Somalia-based Humanitarian Coordinator with submitting the reports. Information was still going to come from the field, but ‘elevating’ the reporting requirement to UN headquarters meant that the report could be more analytical, and also shielded the Humanitarian Aid Coordinator from any resentments that might arise at field level.
3. EU Syria oil sanctions, 2012 to date
As originally adopted in 2012, the EU Syria oil sanctions contained an absolute prohibition on the purchase and transport of crude oil or petroleum products originating in Syria.
In May 2013 the measures were amended ‘[w]ith a view to helping the Syrian civilian population, in particular to meeting humanitarian concerns, restoring normal life, upholding basic services, reconstruction, and restoring normal economic activity or other civilian purposes […].’ Member states could issue derogations, provided the Syrian National Coalition for Opposition and Revolutionary Forces was consulted in advance. However, these arrangements proved ‘not sufficiently practical’, and in December 2016 the measures were modified further ‘to provide for an authorisation scheme that better reflects operational conditions’. The revised measures include both an exception and a simplified derogation compared to that of 2013.
The exception allows the purchase or transport in Syria of petroleum products ‘by public bodies, or by legal persons or entities which receive public funding from the Union or Member States to provide humanitarian relief in Syria or to provide assistance to the civilian population in Syria, where such products are purchased or transported for the sole purposes of providing humanitarian relief in Syria or to provide assistance to the civilian population in Syria’. (Emphasis added.)
The derogation covers actors that do not fall within the exception, allowing member states’ competent authorities to authorize, on the general or specific terms and conditions they deem appropriate, the purchase or transport in Syria of petroleum products, provided the activities concerned are ‘for the sole purpose of providing humanitarian relief in Syria or assistance to the civilian population in Syria’.
The same activities are exempted from the ban – either via the exception or the derogation – namely, the purchase or transport of oil products ‘for the sole purposes of providing humanitarian relief in Syria or to provide assistance to the civilian population in Syria’. No guidance is provided of what constitutes ‘humanitarian relief’ or ‘providing assistance’. What differs are the actors. Those receiving public funding from the EU or its member states benefit from the exception, while other actors must apply for a derogation from member states. Individual member states decide what form this may take, in terms of duration, generality and whether to include conditions.