This article has been written by Dr Tamanna Khosla, a first year student of Lloyd Law College.  

“Sanctions haven’t stopped the killings. They’ve only made the invaders more desperate to win.”
― Anthony T. Hincks

“We’re not afraid of sanctions. We’re not afraid of military invasion. What frightens us is the invasion of western immorality.”
― Ruhollah Khomeini

INTRODUCTION

In its first 50 years on the onset of UN and security council, the United Nations Security Council adopted resolutions on economic sanctions in only two cases : Rhodesia (1966) and South Africa (1977). Since the end of the Cold War, the Security Council has increasingly resorted to collective economic sanctions rather than war as a means to control regimes. Sanctions have been foisted upon countries such as Iraq, the former Yugoslavia, Haiti, Somalia, Libya, Liberia, Angola, Rwanda and Sudan and now Russia.UN sanctions may be imposed in peacetime as well as in times of armed conflict. Economic sanctions have presumed a prominent role in world politics since the turn of the twenty-first century. With a lack of public support for military interventions, policymakers have increasingly turned to the non-violent coercive tool of sanctions to address major crises such as Russia’s invasion of Ukraine and political violence in Venezuela.

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 Legal substructure — Chapter VII of the United Nations Charter  

The Security Council can call for partnership in economic sanctions under Article 41 of the UN Charter if it has first determined, under Article 39, the existence of a threat to the peace, breach of the peace, or act of aggression, and if the sanctions are imposed to maintain or restore international peace and security.

 Limitations on sanctions  

 Under the UN Charter and international law  

Charter of the United Nations, Article 39.

There is an argument that the Security Council is not obliged to give effect to human rights law or international humanitarian law when it imposes collective economic sanctions under Article 41 of the UN Charter. This argument is based on the wording of Article 41, which appears to give the Security Council unrestricted power in relation to the imposition of economic sanctions (provided the threshold requirement of a threat to the peace, breach of the peace or act of aggression is satisfied and the purpose of the sanctions is to maintain or restore international peace and security), and on Articles 1.1, 25 and 103 of the Charter. This interpretation suggests  that the Council is not bound by principles of justice and international law in its application of collective economic sanctions under Article 41.

This argument however has not prevailed and it is evident and generally accepted that the Security Council is bound to observe the principles of human rights law and international humanitarian law when designing, monitoring and reviewing sanctioned regimes. The power to thrust sanctions must be viewed in the context of the UN Charter as a whole , which include the promotion of human rights and the prevailing norms of international law.

To determine legal limitations on the imposition of economic sanctions in times of armed conflict, it is necessary to look at the provisions of international humanitarian law and the non-derogable provisions of human rights law. To determine legal limitations on the imposition of economic sanctions in peacetime, it is necessary to look at human rights law. On the basis of human rights law and international humanitarian law, and of elementary considerations of humanity, many authors have argued that a sanctions regime should not bring the standard of living of a significant segment of the population below subsistence level. Along the same lines, others have argued that sanctions may not deprive people of the basic human right to life and survival. 

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 Restrictions under Cosmopolitan law — in times of armed conflict  

Cosmopolitan humanitarian law does not refer specifically to economic sanctions, nor deal with their effects on the civilian population. However, when sanctions are imposed in the context of an armed conflict — whether international or internal — general rules on the protection of civilians against the effects of military operations do apply  .This is however not happening in Israel and hamas conflict. Israel has been violating the international law.  Thus the decision to impose such measures must take international humanitarian law into account, in particular the rules relating to medical and food supplies to different categories of protected persons.

To put in a nut shell ,rules can be summed up as follows:

1. The barring of starvation of the civilian population  

Civilians may not be deprived of access to supplies essential to their survival ; starvation of civilians as a method of warfare is prohibited . It is therefore prohibited to impose a blockade, siege or regime of economic sanctions with the purpose of causing starvation among the civilian population”.

2. The right to humane assistance  

Private citizens have a right to receive humanitarian assistance. This right is assured in two ways : by  allowing the passage of relief goods, and by provisions allowing humanitarian agencies to provide assistance. The provisions differ according to whether the armed conflict is international or non-international.This is not happening in Gaza.Infact many international scholars are calling it Genocide of Gazans.

 In international armed conflicts, the following rules apply :  

(i) States shall allow the free transit of :

– medical and hospital consignments and objects necessary for religious worship intended only for the civilian population ; and

– essential foodstuffs, clothing and tonics intended for children under 15, expectant mothers and maternity cases.

(ii) The rule in paragraph (i) above has been extended by Additional Protocol I of 1977, which provides that humanitarian and impartial relief actions shall be undertaken, subject to the agreement of the parties concerned, if the civilian population is not adequately provided with clothing, bedding, means of shelter, other supplies necessary to their survival and objects necessary for religious worship  . The parties to the conflict and all States shall allow and facilitate passage of these relief consignments, equipment and personnel. The parties to the conflict shall protect relief consignments and facilitate their rapid distribution.

(iii) The ICRC and other impartial humanitarian organizations may, subject to the consent of the parties to the conflict, undertake humanitarian activities for the protection and relief of protected persons. 

In non-international armed conflicts, the following rules apply :

(i) Humanitarian and impartial relief actions shall be undertaken, subject to the consent of the State concerned, if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies. 

(ii) The ICRC and other impartial humanitarian organizations may offer their services to the parties to the conflic

3. Relief supplies in naval blockades  

The same principles apply to naval blockades, that is :

(i) States must allow the “free passage of essential foodstuffs for children, expectant mothers and maternity cases and of medical goods and objects necessary for religious worship for the civilian population generally

(ii) Humanitarian and impartial relief actions shall be undertaken, subject to the agreement of the parties concerned. 

These obligations are stated more forcefully in the San Remo Manual, which provides that the blockading power must allow transit of relief shipments through the blockade . As indicated in the Commentary on the San Remo Manual, however, the issue as to whether such an obligation exists under the Protocol is still heavily debated.

4. Relief supplies for occupied territories  

This means that relief consignments for the population of an occupied territory must be allowed to pass through the blockade, and this obligation is further accompanied by an obligation to guarantee their protection. Thus all States concerned must respect the consignments and protect them when they are exposed to danger through military operations.

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 Conclusion  

In conclusion, economic sanctions now appears to be an entrenched part of the international community’s response to situations involving violence or a risk of violence. Such sanctions are legal in terms of international law, provided they comply with applicable rules of human rights and international humanitarian law. This means that sanctions regimes must be crafted in such a way that they do not endanger the lives or health of the population of the target State. They must provide for benignant exceptions to limit the suffering caused to the civilian population and to comply with human rights and international law. Furthermore, sanctions regimes must be monitored, throughout their duration, to ensure that they do not cause undue suffering for the population of the target State and allows the delivery of humanitarian assistance.

Reference: 

 G.A. Lopez and D. Cortright, “Economic sanctions and human rights : Part of the problem or part of the solution ?”, International Journal of Human Rights, Vol. 1, No. 2, 1997, p. 8.

3. See H.-P. Gasser, “Collective economic sanctions and international humanitarian law — An enforcement measure under the United Nations Charter and the right of civilians to immunity : An unavoidable clash of policy goals ?”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 56, 1996, pp. 871-904.
4. See C. Breining-Kaufmann, Hunger als Rechtsproblem : Völkerrechtliche Aspekte eines Rechts auf Nahrung , Schulthess Polygraphischer Verlag, Zürich, 1991, p. 95.
5. See B.G. Ramcharan, “The concept and dimensions of the right to life”, F. Menghistu, “The satisfaction of survival requirements”, and A. Redelbach, “Protection of the right to life by law and by other means”, in B.G. Ramcharan (ed.), The Right to Life in International suffering for the population of the target State and allows the delivery of humanitarian assistance.