By Emanuela Chiara Gillard, Senior Research Fellow, ELAC; Associate Fellow, International Law Programme, Chatham House.
Many of the contributions to this symposium have -rightly – focused on practices by belligerents that deliberately cause starvation of civilians.
The debate must not overlook a different set of measures adopted by the international community and states unilaterally that also contribute to starvation or acute food insecurity: sanctions.
Considering sanctions is all the more important as frequently their imposition is suggested as a way of promoting compliance with international humanitarian law (IHL) by the parties that impede humanitarian access or otherwise contribute to starvation. Security Council resolution 2417 (2018) itself foresees this possibility (para. 9 of UNSC 2417).
Recognition of the severe adverse impact of comprehensive sanctions on civilian populations, including in terms of access to food and other basic commodities, led to the shift from comprehensive to ‘targeted’ sanctions in the 1990’s. However, it has become increasingly apparent that such measures, and financial sanctions in particular, are affecting humanitarian actors’ capacity to operate in certain contexts.
Sanctions are thus once again, causing or contributing to conflict-related food insecurity. Now it is the most vulnerable sectors of civilian populations – those reliant on humanitarian action – that are being affected.
The UN Security Council has imposed sanctions against groups or individuals in response to violations of IHL in a number of conflicts – including in response to the obstruction of humanitarian activities or of access to humanitarian assistance – and well as pursuant to the ISIL/Al Qaeda sanctions regime. Groups designated under these sanctions, as well as autonomous sanctions imposed by the EU or states unilaterally, are frequently organised armed groups parties to non-international armed conflicts with control over civilian populations in severe need. These include ISIL affiliates in Syria and the Sahel, Al-Qaeda in the Arabian Peninsula in Yemen, Boko Haram in Nigeria, Hamas in Gaza, and the People’s Republics of Lugansk and Donestsk in Ukraine. Many of these contexts have been recently identified as Hunger Hotspots by FAO and WFP.
These sanctions can adversely impact humanitarian actors’ capacity to operate in accordance with humanitarian principles and as foreseen by IHL. Financial sanctions are particularly problematic. They prohibit providing funds, assets or economic resources directly or indirectly to designated persons or groups. There is a real risk that transactions and activities carried out by humanitarian actors in contexts where such sanctions have been imposed may fall within the scope of the restrictions. These can include incidental payments that humanitarian actors may have to make to designated groups as part of their operations; or relief consignments that are diverted and end up in the hands of the groups.
Problems are aggravated as it is not just humanitarian actors that must comply with the restrictive measures: private commercial actors, must also do so. To minimize the risk of liability, banks, insurers and other key service and commodity providers have restricted the services they offer to humanitarian actors for operations in countries perceived as ‘high risk’. Overlooked until fairly recently, these restrictions are having a significant impact on humanitarian actors’ capacity to operate in certain contexts. The impact of banking-sector restrictions in particular is so significant that some humanitarian actors have noted that banks are effectively dictating where they can operate.
These tensions are not new. They first came to the fore in 2010 when famine was looming in parts of southern Somalia, including in areas under al-Shabaab control, a group subject to UN financial sanctions. In response to pressure from humanitarian organisations, the Security Council adopted an exception clarifying that the prohibitions in the financial sanctions did not extend to support that may be provided in the course of humanitarian assistance operations.
Despite the same challenges arising in these and other contexts, including many where there is severe food insecurity, the Somalia sanctions remain the sole UN regime to include such an exception. Problems could easily be alleviated by the systematic inclusion of a similar express exception for humanitarian action. There have been numerous calls for the Security Council to include such exceptions, but to date they remain unheeded.
At a time when the Security Council is imposing sanctions on parties that obstruct humanitarian access with increasing frequency, it is paradoxical that does not also take the steps necessary to ensure that humanitarian actors can provide that assistance without exposing themselves to the risk of liability.
It is regrettable that UNSC 2417 did not address this dimension of conflict-induced food insecurity. All the more so as the solution lies in the hands of the Council.
While the systematic inclusion of exceptions for humanitarian action is an important first step, in certain situations it may be insufficient to prevent sanctions from contributing to severe food insecurity. The US’, fortunately short-lived, designation of the Houthis in Yemen in early 2021 is a case in point.
The Houthis control the main port of entry for Yemen’s commercial imports in a country that imports 90% of its food and where the population is already on the brink of starvation. Fears by commodity suppliers and other private actors involved in the supply chain of exposing themselves to the risk of liability – not assuaged by the granting of broad licences for humanitarian action – would have led to a shortfall in the supply of food and other essential commodities that humanitarian action simply could not have made up for.
Sanctions are simply not the right tool for changing the behaviour of belligerents that are deliberately causing or contributing to starvation or food insecurity.
It is questionable whether their imposition has any effect in modifying this behaviour. But it is clear that sanctions negatively impact humanitarian action, and they may, in fact, impede humanitarian access more than the very behaviour of belligerents they seek to modify.
What does this mean going forwards?
Priority should be given to finding alternative approaches for promoting compliance with all the rules of IHL that play a role on preventing and alleviating conflict-induced food insecurity, as well as avenues for bringing to justice those responsible for their violation.
As far as sanctions are concerned, and focusing just on Security Council measures, three key recommendations can be made:
- Measures that update resolution 2178 (2018) should couple the reference to the possibility of imposing sanctions on parties that obstruct access, with an express reference for the need for any such measures to include exceptions for support provided in the course of humanitarian assistance operations.
- Similar exceptions should be included in all Security Council sanction regimes that can raise tensions with humanitarian action. Exceptions can be coupled with arrangements to report back to the Council on how exceptions were implemented.
- Designations of groups that control territory or have a significant presence in areas where humanitarian operations are conducted should be avoided. Leadership figures should be designated instead. This is likely to have the same, if not greater, effect in modifying the behaviour but will raise fewer risks of liability for humanitarian and commercial actors