Alfred de Zayas / Human Rights Corner

(July 2, 2019) — Excellencies, distinguished colleagues, ladies and gentlemen,

The world order established by the UN Charter takes precedence over other international and regional treaties and imposes positive and negative obligations on member states, including the United States of America and the European Union. This is stipulated in Article 103 of the Charter, the supremacy clause.

The question arises whether in the light of the UN Charter unilateral coercive measures could be considered compatible with modern international law? The orthodox answer is that only those sanctions that are imposed by the Security Council under Chapter VII can be considered legal. Article 41 of the charter stipulates “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions “.

But even Security Council decisions and resolutions must be compatible with the purposes and principles enunciated in articles 1, 2, 55 and 56 of the UN Charter and not violate fundamental norms of international law, customary international law, or treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which stipulate inter alia the right to life, the right to health and the right to medical care.

Allow me to quote from the 1993 Vienna Declaration and Programme of Action, which called upon States “to refrain from any unilateral measures… that create obstacles to trade relations among states and impedes the full realization of the human rights set forth in the Universal Declaration of Human Rights.” [1]

The Security Council is not above international law, as its mandate is circumscribed by article 24 of the Charter [2]. Thus the imposition of sanctions regimes that are tantamount to “collective punishment” and cause widespread death and suffering [3] of innocent people are contrary to article 24 of the Charter and therefore ultra vires. 

At some future date, the International Court of Justice should demonstrate the courage to say exactly that, even as an obiter dictum in a pending contentious case or in an advisory opinion requested by the General Assembly under article 96 of the UN Charter.

In any event, nothing in the UN Charter can be read as authorizing in any way unilateral coercive measures, which are incompatible with general principles of international law , violate the prohibition of interference in the internal affairs of other states and violate their sovereignty.

A problem arises when numerous powerful states become rogue States, deliberately ignore their erga omnes obligations and breach international law and do it with impunity. The self-serving argument that a new State practice has thereby emerged is fallacious. This fundamentally flawed argument fails because it is incompatible with general principles of law (article 38 ICJ Statute) such as ex injuria non oritur jus (from a violation of law no new law can emerge).

The very concept of the rule of law rejects the proposition that a violation of a norm invalidates the norm. The situation is different: A breach of international law occurs, which for the time being cannot be reversed in the absence of an effective enforcement mechanism. There are many historical precedents, e.g. Apartheid was incompatible with international law, human rights law, advisory opinions of the International Court of Justice, resolutions of the Security Council, and yet it persisted for decades.

On 1 November 2018, the UN General Assembly adopted its 27th resolution condemning the embargo (bloqueo) against Cuba (A/RES/73/8), nearly unanimously (189 votes in favour, 2 against (US and Israel), and two non-voting [4].

This resolution “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba” can be seen as a restatement of the law on unilateral sanctions. In its preambular paragraphs the resolution reaffirmed “the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments”.

It further expressed concern “about the continued promulgation and application by Member States of laws and regulations, such as that promulgated on 12 March 1996 known as “the Helms-Burton Act”, the extraterritorial effects of which affect the sovereignty of other States, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation”.

In its operative paragraphs the resolution called upon all States “to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation”.

It further urged all States “that have and continue to apply such laws and measures to take the steps necessary to repeal or invalidate them as soon as possible in accordance with their legal regime”.

This Resolution illustrates the fact that the primacy of the UN Charter entails a restriction of a State’s prerogatives in international relations. An older view on unilateral sanctions had justified them as a form of “retorsion” or “countermeasure” against a State that had violated international law.

The burden, however, was always on the sanctioning State to establish prior unlawful conduct by the targeted State. This requirement was rarely satisfied. That is why the better view (in unenforceable international law doctrine) is that States have relinquished unilateral coercive measures and recognized that economic sanctions can only be imposed by the Security Council.

This, as we know from the reality of the unilateral sanctions against Cuba, Iran, North Korea, Syria, Venezuela, has not yet become operative. US sanctions do not aim at persuading the targeted States to renounce previous “unlawful conduct” but are intended as economic war or regime-change strategy. Many UN rapporteurs have condemned unilateral coercive measures as incompatible with the UN Charter, but rapporteurs are little more than an assembly of Cassandras.

What is needed is an advisory opinion by the International Court of Justice stating unequivocally that unilateral sanctions are incompatible with the UN Charter and in some cases constitute crimes against humanity. States that impose sanctions and claim that they are legal are not impartial but acing as judex in causa sua.

Ladies and gentlemen,

Allow me to refer to the pertinent sections of my 2018 report to the Human Rights Council on my mission to Venezuela and Ecuador. [5]

The Charter of the United Nations rests on the philosophy of multilateralism, a commitment to international cooperation, and the sovereign equality of States. Countries must not be isolated and boycotted, but helped in strengthening their democratic institutions.

Over the past sixty years, non-conventional economic wars have been waged against Cuba [6], Chile [7], Iran, Nicaragua [8], North Korea, Sudan, the Syrian Arab Republic [9] and the Bolivarian Republic of Venezuela [10], among other victims. The goal has been to make their economies fail, facilitate regime change and impose a neo-liberal socio-economic model without the “inconvenience” of winning a democratic election.

The overthrow of Salvador Allende in Chile in September 1973 led to 17 years of dictatorship and torture under General Augusto Pinochet. So too the overthrow of the governments in the Dominican Republic, Grenada, Haiti, Honduras, etc. But the US client regimes and the oligarchic elites of those countries were happy enough to return to “the good old days” when the rich were rich and the poor were poor, and when the US investors and transnationals could loot ad libitum the natural resources of these countries, all in the name of privatization and profit.

In order to discredit selected governments, failures in the field of human rights are maximized so as to make violent overthrow more palatable. Human rights are thus being “weaponized” against rivals. Yet, human rights are the heritage of every human being and should never be instrumentalized as weapons of demonization. Instead, measures of inclusion are necessary, as is reliance on the expertise of international organizations such as the United Nations Development Programme (UNDP),the United Nations Children’s Fund (UNICEF), FAO, WHO, the Joint United Nations Programme on HIV/AIDS (UNAIDS), the Office of the United Nations High Commissioner for Refugees (UNHCR), UNODC, ILO, the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Pan American Health Organization, among others, to provide effective advisory services and technical assistance.

The US – and sometimes the EU – show little interest in such international solidarity and cooperation, since what is really intended is a forced return to uncontrolled capitalism and retrogression in economic, social and cultural rights. Thus, the first thing that the 2002 coup d’état in Venezuela achieved was the attempted dismantlement of the social acquis of the Bolivarian Revolution.

The Carmona decree [11] of the coup-presidency of Pedro Carmona [12] entailed the abrogation of 49 pieces of social legislation, the dismantlement of the Chavez-National Assembly and even of the Supreme Court. The 48-hour coup ended with the restoration of Chavez, but the “model” had been shown, notwithstanding the legal principle of non-retrogression in human rights. [13]

The principles of non-intervention [14]and non-interference [15] in the internal affairs of sovereign States belong to customary international law and have been reaffirmed in countless General Assembly resolutions, including 2625 (XXV) and 3314 (XXIX), and in the 1993 Vienna Declaration and Programme of Action.

Article 32 of the Charter of Economic Rights and Duties of States, adopted by the General Assembly in 1974, stipulates that no State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights.31.

In its judgment of 27 June 1986 concerning Nicaragua v. United States, the International Court of Justice quoted from resolution 2625 (XXV): “no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State”.

In the context of the inter-American system, the International Court of Justice cited the Convention on the Duties and Rights of States in the Event of Civil Strife, which was confirmed by resolution 78 adopted by the General Assembly of the Organization of American States on 21 April 1972, in which it resolves “To reiterate solemnly the need for the member states ofthe Organization to observe strictly the principles of non-intervention and self-determination of peoples as a means of ensuring peaceful coexistence among them” and “To reaffirm the obligation of those states to refrain from applying economic, political, or any other type of measures to coerce another state and obtain from it advantages of any kind”.

Similarly, chapter 4, article 19, of the Charter of the OAS stipulates that “No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements”.

Notwithstanding the above, it must be said that not every economic sanction is ipso facto illegal or contrary to the UN Charter. Indeed, arms sales embargoes may be justifiable against some countries like Saudi Arabia and Libya, in order to facilitate dialogue and peacemaking, economic sanctions that hurt innocent populations contravene the spirit and letter of the Charter of the United Nations.

Again and again, United Nations bodies have condemned unilateral coercive measures [16], notably in the landmark 2000 study of the Sub-Commission on the Promotion and Protection of Human Rights [17], documenting the adverse human rights impact of those measures.

As indicated above, multilateral sanctions, even those imposed by the Security Council under Chapter VII of the Charter, can also cause suffering and death. In the 1990s, two United Nations Assistant Secretary-Generals, Denis Halliday and Hans-Christof von Sponeck [18], quit their Humanitarian Coordinator functions in Iraq to protest against UN sanctions, which had caused more than a million deaths among Iraqis, particularly children, and which they qualified as a form of genocide. [19]

On 23 March 2018, the Human Rights Council condemned unilateral coercive measures by a vote of 28 in favour, 15 against and 3 abstentions, recalling that economic sanctions demonstrably cause death, aggravate economic crises, disrupt the production and distribution of food and medicine, constitute a push factor generating emigration, and lead to violations of human rights. On 21 March 2019 the Council adopted a similar resolution. [20]

It is particularly shameful to note that, in November 2017, Colombia refused to deliver anti-malaria medicine that had been ordered to combat an outbreak in November 2017 [21], as well as the absence of condemnation from the international community, entails joint responsibility for the aggravation of the crisis. In that case, the anti-malaria medicine had to be imported from India.

What is particularly pertinent and urgent today is to address the issue whether sanctions can amount to crimes against humanity under Article 7 of the Rome Statute of the International Criminal Court. An investigation would be appropriate, but the geopolitical submissiveness of the Court may prevent this.

One thing that we must all realize is that today’s economic sanctions and financial blockades [22] are comparable with medieval sieges of towns with the intention of forcing them to surrender. Twenty-first century sanctions attempt to bring not just a town, but sovereign countries to their knees.

Contemporary blockades can also be compared with blockades during World War II. Thus we recall that the Nazi siege of Leningrad, lasting for nearly 900 days, resulted in 670.000 deaths according to Russian sources, with a significant number attributable to starvation. Other estimates place the death toll as high as one million.

Another difference, perhaps, is that twenty-first century sanctions are accompanied by the manipulation of public opinion through “fake news”, aggressive public relations and a pseudo-human rights rhetoric so as to give the impression that a human rights “end” justifies the criminal means.

There is not only a horizontal juridical world order governed by the Charter of the United Nations and principles of sovereign equality, but also a vertical world order reflecting the hierarchy of a geopolitical system that links dominant States with the rest of the world according to military and economic power. It is the latter, geopolitical system that generates geopolitical crimes, hitherto in total impunity.

Economic asphyxiation policies as already practised against the people of Chile, the Democratic People’s Republic of Korea, Nicaragua and the Syrian Arab Republic are criminal, but the mainstream media under-reports the level of suffering and death and sometimes even argues that the sanctions are “targeted” and that they only affect government officials and not the populations of the countries concerned.

In January 2018, Middle East correspondent of The Financial Times and The Independent, Patrick Cockburn, wrote on the sanctions affecting Syria: There is usually a pretence that foodstuffs and medical equipment are being allowed through freely and no mention is made of the financial and other regulatory obstacles making it impossible to deliver them.

An example of this is the draconian sanctions imposed on Syria by the US and EU which were meant to target President Bashar al-Assad and help remove him from power. They have wholly failed to do this, but a UN internal report [23] leaked in 2016 shows, all too convincingly, the effect of the embargo in stopping the delivery of aid by international aid agencies. They cannot import the aid despite waivers because banks and commercial companies dare not risk being penalised for having anything to do with Syria.

The report quotes a European doctor working in Syria as saying that “the indirect effect of sanctions makes the import of the medical instruments and other medical supplies immensely difficult, near impossible”. [24]

In short: economic sanctions kill. Moreover, they violate the commitments undertaken by UN member States pursuant to articles 55 and 56 of the UN Charter and render the achievement of the Sustainable Development Goals impossible.

UN WORKSHOPS

The Office of the UN High Commissioner for Human Rights has organized numerous workshops on unilateral coercive measures, in which Marc Bossuyt, Idriss Jazairy and myself — among many others — have participated. I duly reflected this in my 2013 report to the Human Rights Council [25] and General Assembly [26], as well as in subsequent reports. The Advisory Committee to the Human Rights Council produced an indispensable report on this issue in 2015 (A/HRC/28/74).

For decades the United Nations Secretary General has been issuing reports on the adverse human rights impacts of sanctions regimes. In all of these reports, the violations of international law are documented. Year after year.

At a Workshop on sanctions held at the Office of the High Commissioner for Human Rights in April 2012, Professor Marc Bossuyt, then President of the Belgian Constitutional Court, presented a paper on the Adverse Effects of Economic Sanctions on the Enjoyment of Human Rights.

He referred to the earlier Sub-Commission report dating back to 2000 (E/CN.4/Sub.2/2000/33), submitted pursuant to decision 1999/111 of 26 August 1999, of the UN Sub-Commission on the Promotion and Protection of Minorities. This report was the follow-up to resolution 1997/35 of 28 August 1997, in which the Sub-Commission had stressed four specific points concerning economic sanctions, namely that:

“(i) They should always be limited in time;

(ii) They must not affect the innocent population, especially the most vulnerable;

(iii) They must not aggravate imbalances in income distribution;

(iv) They must not generate illegal and unethical business practices.

Benchmark questions were proposed to evaluate sanctions, namely:

(i) Are the sanctions imposed for valid reasons?

Sanctions under the United Nations system must be imposed only when there is a threat of or actual breach of international peace and security. Sanctions should not be imposed for invalid political reasons and should not arise from or produce an economic benefit for one State or group of States at the expense of the sanctioned State or other States.

(ii) Do the sanctions target the relevant parties?

Sanctions should not target civilians who are not involved with the threat to peace or international security, nor should they target, or result in collateral damage to “third party” States or peoples.

(iii) Do the sanctions target the relevant goods or objects?

Sanctions should not interfere with the free flow of humanitarian goods and they should not target goods required to ensure the basic subsistence of the civilian population, nor essential medical provisions or educational materials of any kind. The target must have a reasonable relationship to the threat of or actual breach of peace and international security.

(iv) Are the sanctions reasonably time-limited?

Legal sanctions may become illegal when they have been applied for too long without meaningful results. Sanctions that continue for too long can have a negative effect long after the wrongdoing ceases.

(v) Are the sanctions effective?

Sanctions must be reasonably capable of achieving the desired result in terms of threat or actual breach of international peace and security. Sanctions that are targeted in ways that would not affect the wrongdoing, may be viewed as ineffective.

(vi) Do the sanctions violate the “principles of humanity and the dictates of the public conscience”?

Profressor Bossuyt noted “that it is not sufficient that the policy of the targeted country justifies the imposition of economic sanctions. There should also be a reasonable expectation that the measures taken may lead to the desired result. Within regular intervals of not more than one year at the maximum, the effects of sanctions must be evaluated.

The impact of sanctions on the enjoyment of human rights by the population should be taken prominently into account. If the desired results cannot be attained within a reasonable time period, the measures should be suspended. If not, the sanctions may not only lose their legitimacy, but may also become counter-productive.”

It should also be borne in mind that the intent of the party imposing unilateral sanctions is less important than the foreseeable consequences thereof. It is no excuse that the death of civilians was “unintended” or was merely “collateral damage”. Such collateral damage is imputable to the State imposing the sanctions, which has thereby committed an internationally wrongful act, for which there is State responsibility and the obligation to make reparations.

Professor Bossuyt concluded that the whole theory behind economic sanctions is fallacious. It is assumed that pressure on civilians will in turn translate into pressure on the Governments for change. However, in regimes where political decision-making is not democratic, there is simply no pathway through which civilian pressure can bring about change in the Government.

As sanctions are generally imposed on countries where the Governments are not periodically subjected to free and transparent elections, the population has no chance to penalize their leaders that pursue a policy resulting in sanctions imposed upon them. It is also unlikely that those leaders, once they become aware of the suffering their policy entails for their population, will modify that policy.

In the light of the above, allow me to formulate the following Recommendations

1 The General Assembly should refer the following legal questions to the International Court of Justice and request an advisory opinion pursuant to article 96 of the UN Charter:

A: Under what conditions can unilateral coercive measures be deemed legal?

B: Assuming that a sanctions regime was legitimate at its outset, does it lose its legality when coercive measures cause large-scale suffering and death ?

C: What is the legal responsibility to make reparation to victims of unilateral sanctions ?

2 The Human Rights Council should reject the apologetics of powerful countries intent on imposing neo-imperialist sanctions and unanimously condemn sanctions regimes.

3 The Independent Expert on the adverse effects of unilateral coercive measures should be invited to draft guidelines on the strict limits of such measures and rules for reparation of the victims.

4 The Special Rapporteur on the promotion of truth, justice, reparation and assurances of non-recurrence should study the human rights impacts of sanctions against the populations of Cuba, Iran, Syria, Venezuela and other targeted countries, and make an estimate of the reparation due to the victim populations.

5 The International Criminal Court should start an investigation into the question whether certain sanctions can amount to “crimes against humanity” under article 7 of the ICC Statute.

6 The ICC should establish the international penal responsibility for the imposition of unilateral sanctions and make an estimate of the reparation due to the victims.

7 The ICC statute should be amended to add the categories of “geopolitical crimes” and “State terrorism”.

8 Inter-State complaints before the Human Rights Committee under article 41 of the International Covenant on Civil and Political Rights should be submitted against those states that have imposed unilateral coercive measures and thereby violated provisions of the ICCPR.

9 World religions should unite in condemning economic sanctions. Pope Franciscus should remind Catholics that such sanctions are diametrically opposed to the letter and spirit of the Sermon on the Mount. [27]

Footnotes

 [1]https://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx

 [2] “The Security Council shall act in accordance with the Purposes and Principles of the United Nations”.

 [3] According to a study by Professor Jeffrey Sachs and Mark Weisbrot, sanctions on the Venezuelan people caused an estimated 40,000 deaths in 2018. http://cepr.net/publications/reports/economic-sanctions-as-collective-punishment-the-case-of-venezuela. http://cepr.net/press-center/press-releases/report-finds-us-sanctions-on-venezuela-are-responsible-for-tens-of-thousands-of-deaths

 [4] Resolutions adopted during the 73rd session https://undocs.org/en/A/RES/73/8https://undocs.org/en/A/RES/72/4 Resolution 72/4, https://undocs.org/en/A/RES/72/4https://www.un.org/press/en/2018/ga12086.doc.htm

 [5] http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/39/47/Add.1

 [6]http://www.amnestyusa.org/pdfs/amr250072009eng.pdf;www.cetim.ch/the-effects-of-the-us-embargo-against-cuba-and-the-reasons-of-the-urgent-need-to-lift-it/;www.cubavsbloqueo.cu/sites/default/files/InformeBloqueo2017/informe_de_cuba_sobre_bloqueo_2017_ingles.pdf;www.sela.org/media/264635/t023600006305-0-cuba_ing.pdf

 [7] United States of America, Covert Action in Chile, 1963–1973: staff report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (94th Congress, Washington, 1975);National Security Council, “Options Paper on Chile”(NSSM 97), 3 No. 1970; “National Security Decision Memorandum 93, Policy Toward Chile”, 9 November 1970;“Report on CIA Chilean Task Force Activities, 15 September to 3 November 1970”.

 [8]http://www.washingtonpost.com/archive/opinions/1989/08/27/uncle-sams-money-war-against-the-sandinistas/f78e064a-1ca1-4e07-90d2-bebdeff1717d/?utm_term=.9dd20f649246.

 [9] https://theintercept.com/2016/09/28/u-s-sanctions-are-punishing-ordinary-syrians-and-crippling-aid-work-u-n-report-reveals/.

 [11] https://www.aporrea.org/actualidad/n155077.html

 [12] https://venezuelanalysis.com/news/2329

 [13] https://www.escr-net.org/resources/progressive-realisation-and-non-regression

 [14] Marcelo Kohen, “The principle of non-intervention 25 years after the Nicaragua judgment”, Leiden Journal of International Law, vol. 25 (2012)

 [15] Naigen Zhang, “The principle of non-interference and its application in practices of contemporary international law, Fudan Journal of the Humanities and Social Sciences, vol. 9, No. 3 (September 2016).

[16]http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22072&LangID=E.The Movement of Non-Aligned Countries has also repeatedly condemned sanctions. Seehttps://venezuelanalysis.com/analysis/12896.

[17]http://www.ohchr.org/Documents/Events/WCM/MarcBossuyt_WorkshopUnilateralCoerciveSeminar.pdf;Sub-Commission on Human Rights resolution 2000/25

 [18] Hans-C. von Sponeck, A Different Kind of War: The UN Sanctions Regime in Iraq (Berghahn Books, Oxford, 2006/.

 [19] http://news.cornell.edu/stories/1999/09/former-un-official-says-sanctions-against-iraq-amount-genocide. In a 1996 interview, when asked about reports that half a million children had died in Iraq owing to the sanctions, the United States Secretary of State, Madeleine Albright, replied “we think the price is worth it”. Seehttps://fair.org/extra/we-think-the-price-is-worth-it/.

 [20] In Favour (27): Angola, Bahamas, Bahrain, Bangladesh, Burkina Faso, Cameroon, Chile, China, Cuba, Democratic Republic of the Congo, Egypt, Eritrea, Fiji, India, Iraq, Nepal, Nigeria, Pakistan, Philippines, Qatar, Rwanda, Saudi Arabia, Somalia, South Africa, Togo, Tunisia and Uruguay.
Against (15): Australia, Austria, Brazil, Bulgaria, Croatia, Czech Republic, Denmark, Hungary, Iceland, Italy, Japan, Slovakia, Spain, Ukraine and United Kingdom of Great Britain and Northern Ireland.
Abstentions (5): Afghanistan, Argentina, Mexico, Peru and Senegal.

 [21] http://www.colombiainforma.info/santos-bloquea-venta-de-medicamentos-a-venezuela/;https://venezuelanalysis.com/news/13782;http://m.avn.info.ve/contenido/venezuela-denuncia-que-euroclear-mantiene-secuestro-recursos-destinados-medicinas-y-alimen.

 [22] Pasqualina Curcio, La Mano Visible del Mercado, Caracas 2016; Hiperinflación, Caracas 2018. https://www.aporrea.org/tiburon/a271967.html,http://www.15yultimo.com/2019/02/18/acelerar-el-colapso/

 [23] https://assets.documentcloud.org/documents/3115191/Hum-Impact-of-Syria-Related-Res-Eco-Measures-26.pdf

 [24] http://www.independent.co.uk/voices/economic-sanctions-north-korea-syria-hospital-supplies-a8168321.html.

 [25] http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/24/38

 [26] http://ap.ohchr.org/documents/dpage_e.aspx?si=A/68/284

 [27] https://www.biblegateway.com/passage/?search=Matthew+5-7&version=NIV

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