Alena DOUHAN : The United Nations Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights.
Thank you very much Dr. Rastbeen and I would like to start thanking the organizers for convening this important conference, because when we speak about the very purpose of the United Nations organization it was the maintenance of Peace and international security. And unfortunately, despite the fact that it’s already 80 years after the United Nations organization has been established, the discussion about maintenance of International Peace and security doesn’t become less needed. Unfortunately, quite often we need it even more than before. I’m fully joining the previous speakers advocating on behalf of the full observance of International Law, International Public Law and international humanitarian law. And as soon as I’m the international lawyer, I will try to demonstrate some of the perspectives of the impacts of a very specific notion, the use of unilateral sanctions, means of their enforcement and over compliance, on the maintenance of International Peace and security.
Traditionally, as a special rapporteur, I’m supposed to look at humanitarian impact of unilateral sanctions and to assess them from the perspective of Law. And traditionally, countries which impose sanctions insist that it’s a political means only, imposed on behalf of public goods, to make bad governments to change for the better, which do not affect individuals and which do not affect peace and security at all. Unfortunately, after 5 years of being a special rapporteur, I need to say that this all is not true at all. As an illustration I will just mention that the issue of impact of unilateral sanctions on the maintenance of International Peace and security has already been addressed by the UN Security Council three times, within ARA formula meeting. We discussed the general impact, the need to control the use of unilateral sanctions, the impact on delivery of humanitarian assistance to the most targeted societies and the impact on implementation of the UN counterterrorism strategy. Due to the limited period of time I have, I will try to demonstrate the most important elements, and the most important impacts.
Before I will move to specific impacts of unilateral sanctions on maintenance of International Peace and security, I will make an overview of what we’re talking about when we are talking about unilateral sanctions. If you look at the media or political statements, you will see – and even the OHCHR (Office of the United Nations High Commissioner for Human Rights) statements. The High Commission on human rights is blaming economic sanctions. But even he is usually saying that it might be that targeted sanctions are not so bad. But eventually talking about economic sanctions is fully misleading.
What is economic sanctions ? We have sanctions prohibiting trade, they call it trade sanction, they do not recognize them to be economic. Or we have sanctions prohibiting people to do any Financial transactions with interlocutors in the countries affected by sanctions, even interlocutors which might have a surname similar to those coming from the countries under sanctions. As a personal example, I’m Belarusian. Belarus is under sanctions without Financial sanctions, but even now, as a university Professor, I face terrible challenges to be paid from abroad. It’s just a very simple demonstration, but for countries which face Financial sanctions it’s mission impossible task.
To illustrate that, I looked about the changing in US policy towards Syria for example. They say : “we lift sanctions to provide for transfer of remittances to people”. And it’s a clear illustration of the fact that beforehand they were lying when saying “oh, remittances to ordinary people are not affected a lot”. They are. Similarly, they say “we provide for the possibility to cover basic human needs like food and medicine”, which means that when, in 2023, I was terribly criticized when producing a report saying “people are dying, they have no access to medicine, they have no access to food, they drink dirty water and die of cholera”, I was right, and they were lying about efficacy of humanitarian exceptions.
Additionally, sanctions which are called “targeted” are not so much targeted in reality. Sanctions against the president of the country are usually perceived as sanctions against the country as a whole. Very simple example are sanctions imposed against president of Russian Federation, Putin. There are two decisions in the UK courts. The first decision says : as soon as Russia has a centralized economy, anything happening in Russia, to Russian Nationals or anything relevant to Russia shall be considered to be under full control of Russian president and to be targeted. The second decision is a bit softer. It says : it’s not true that everything is fully controlled, but in every specific situation a UK Court shall review whether a specific individual transaction activity or whatever having any relevance to Russia, could be considered to be under control of Putin, taking in mind geopolitical goals of the UK. It’s not about law. It’s about something far beyond the law, which dissolves International Public Law and all agreements as all human rights standards we used to live in. So targeted sanctions are not so targeted, and as a result quite often the whole population is affected.
Another point which we need to consider are measures taken to enforce sanctions, and here the scope of those is expanding incredibly. First of all, they are secondary sanctions. Any person dealing with a person which might be considered to be affected by sanctions, not directly affected but might be considered to be affected, can be placed in sanctions list. It affects third countries Nationals having nothing to do with the country which imposes sanctions and nothing to do which with the country under sanctions. Moreover, now we face more and more cases of bringing civil and criminal charges for Nationals of countries which impose sanctions or any Third Country. And now we Face ridiculous situation when European Union country, for example Greece, arrests Bulgarian nationals and Nationals of another European Union country, and extradites a person to the United States, despite the disagreement of Bulgaria, under the criminal case for alleged cooperation with Russian entities. For me, as a lawyer, it’s nonsense. It has nothing to do to any provision of any treaty in the sphere of extradition, but that is the reality. European Union Parliament submitted a case to the European Union Council, asking “what shall we do, how shall we understand extradition rule” ? And since August, there is no response. No one knows, but these extradition cases continue to happen. And due to this high level of penalties, due to this fear, everyone over complies. So, this over compliance, from the side of businesses, individuals and states, make unilateral sanctions regimes comprehensive, even if there are only targeted sanctions.
Let’s move now to the topic we are discussing, the issue of use of certain means of pressure under international law. Under international law, the rules are pretty clear. It’s possible to act in self-defense if you are under the military attack, that’s definitely not the case, it’s possible to take unfriendly but legal means, what is retortions, but the majority of measures are not legal but unfriendly means. In November 2024, we had a huge conference in Geneva and one of the speakers said that what US is doing to Cuba is retortions because the US has the right not to trade with Cuba. Not to trade, it’s true, but the fact is that both the US and Cuba are members of multiple International treaties and if we are talking about retortions, the measures taken shall not violate any of them. If they do, and that’s the case, it’s not retortions. Another possibility is countermeasures, and for a certain period of time, European Union was advocating that it’s possible to use sanctions as countermeasures, but countermeasures rules are very precise. You can only take countermeasures in response of a specific International legal obligation. You shall say “this obligation is violated”, “under this treaty”, “and we react”. It has never been done.
Measures taken as countermeasures cannot violate fundamental human rights, and multiple facts say they do. They cannot last forever, and they cannot aim to punish a country, they cannot have a political goal, they can only encourage a state to fulfill that specific violated International obligation. Therefore, since two years, the European Union said “no, it’s not countermeasures”, there is a decision of the European Court which says it’s not countermeasures, we are not addressing this issue any longer so it’s our foreign policy.
Moving further, theoretically there is a possibility to use criminal jurisdiction in response to International crimes, but here we face a ridiculous situation : countries which impose sanctions quite often say “we designated these guys because they committed crimes against humanity”, but there has never been an attempt to start a criminal case. If a person did really commit crimes against humanity, you shall at least try. Similarly, many people are designated under Magnitsky law (Act) or under Caesar Act refer, or in the European Union it’s human rights sanctions regime, seeing these persons committed corruption. But under Convention of corruption, it’s not an international crime. It’s only directly affected states which are entitled to start a criminal case.
I’m moving now to the issue of threats to International Peace and security caused by unilateral sanctions. The first problem is that some sanctions are imposed by states with alleged purpose to enforce sanctions of the UN Security Council. And under chapter of the United Nations, states are obliged to implement them, not enforce. And here we see a huge difference. If the UN Security Council prescribed specific measures, for example designated three persons, it’s not possible to designate 100 more referring that we believe we need to punish them to enforce the initial sanctions because the UN Security Council is not effective.
By doing that, we come back to the very idea of humanitarian intervention of early 1990s, when States said the UN Security Council is not effective. We need to demonstrate that we do care. But it’s not about international law demonstrating that we do care. International law is about adhering to the rule of law, including humanitarian law and including human rights law. So, these measures undermine the authority of the UN Security Council and have nothing to do to authorization. Moreover, quite often they make situations much worse than it was before.
Second situation, this arbitrary interpretation of sanctions of the UN Security Council undermines relations between states. If sanctions are imposed, countries under sanctions will definitely not be happy. It will be much less inclined to discuss the situation. On the opposite, it will start to develop legislation aimed to protect its Nationals and policy internally, and that’s what we are currently observing in number of African States, especially within SADC (Southern African Development Community) which has “anti-sanctions day”, and they develop a strategy against sanctions. A certain number of countries adopt anti-sanctions legislation which basically scares countries which impose sanctions.
And I will show you this picture that is the reaction of the European Union Parliament in response to China taking counter-sanctions. They say “wow, China takes terrible steps, economic coercion is not allowed under international law”. When I saw this document, I had a very strange feeling that, as for the arguments, they copied my report published four years ago at that moment, where I try to argue that unilateral sanctions are not legal. So now, when China imposed counter-sanctions they use my argumentation word by word, because unilateral sanctions are not legal, however counter-sanctions might fit the criteria of countermeasure, that makes the situation even more complicated.
Coming back to other elements, one of the issues which is very complicated is the delivery of humanitarian assistance. I have already cited the problems to deliver humanitarian assistance to Syria. It’s all the same, around all countries under sanctions. It’s long, it’s very expensive, it’s not effective, it’s not efficient. And as a result, the UN Security Council, which takes steps at the moment to provide for humanitarian resolutions (for example resolution 2664 to enable delivery of humanitarian assistance even under UN Security Council regimes), they cannot do it, because the general licenses adopted by sanctioning states to implement these resolutions do not remove other unilateral sanctions. So, basically, you say “yes, you can unfreeze assets under UN Security Council resolutions”, but it’s still prohibited to do Financial transfers, it’s still prohibited to recruit the company to deliver, it’s still prohibited to ensure, and you still might face consequences because you interact with this country, so it doesn’t work at all. Absence of control, I have already mentioned.
Referring to another problem, one of the challenges the whole world is facing is struggle against International terrorism and transboundary crime. we all are aware about the existence of the “Global UN counterterrorism strategy”, and eventually the use of unilateral sanctions means of the enforcement and over-compliance undermines all five pillars of this Global counterterrorism strategy, as the use of unilateral sanctions results in poverty, hunger, Health insecurity, degrading education, people are more inclined to involve into criminal activity for basic survival.
Additionally, people do not have chances for the better future, and as a result it’s much easier for terrorist groups to recruit them. People get subjected to human trafficking, to illegal traffic of arms, cultural values and many other elements. And all this has already been recognized by the UN Security Council as constituting a threat to International Peace and security.
Additionally, the use of unilateral sanctions is undermining human rights, and it has already been recognized long ago, even at the level of the UN Security Council, that promotion and protection and respect for human rights is an integral part of struggle against terrorism. If you are not respecting human rights, it basically means that terrorists immediately say “you see, they behave in the same way, that’s why we need to punish them”. And there is clear cut statistic which demonstrate that violation of Human Rights results in growing engagement into terrorist activity and all other types of transboundary crimes.
When unilateral sanctions are imposed, there are challenges to deliver not only food and medicine. You cannot develop domestic systems to prevent and investigate crisis : problems with forensic expertise, problems to recruit staff because usually salary in public sector, even in the police, is very low, you lose experts, you are not able to use online means necessary for investigation and protection, so the country becomes vulnerable for these crimes. Because they cannot criminalize that. Impeded delivery of humanitarian assistance.
I understand that I’m already abusing the time, and at the same time I will show you a few pictures as an illustration. One of the elements which is currently used is qualification of let’s call “bad guy” States, as States sponsoring terrorism. We hear that a lot. Cuba has recently been delisted and designated again. But I would like to draw attention to the fact : what is the purpose of doing that ? The purpose is to trick international law, just playing several layers of international law this qualification of States as “sponsoring terrorism” is aimed to remove immunity of State assets, including assets of central banks, which is fully prohibited by international law. Another interesting situation, I will show again the picture : fear is an important means to enforce unilateral sanctions. On this screen, you see the abstract of one executive order when an Iranian Captain has been designated for doing his job to deliver food and gasoline from Iran to Venezuela. He was proposed to get 5 million dollars, and refugee in the US. He refused and delivered the cargo, so he was designated for delivering gasoline and food, and here is another screen. I do not speak Arabic, but it says that he is a terrorist. It’s the US R(…) for justice program. It says he is a terrorist and 15 million dollars are promised for his hat. That’s how the game is played. From the perspective of law, he doesn’t have any access to Justice. We all know, if you are charged with a criminal charge, you shall enjoy right to fair trial, procedural protection : these people co-designated, regardless the reason, they have absolutely no access to Justice. You have no possibility to appeal, you have no possibility to get legal aid, you will be qualified as a terrible criminal without any proof, without any protection. And as a result, all this complexity of facts undermines International Peace and security. I apologize for being too long and thank you very much for attention.
