Economic Sanctions Leading to Human Rights Violations: Constructing Legal Argument

Fig. 10.1
Concept map on sanctions lifecycle and legal phenomena therein

At this stage, arguments concerning the attribution of responsibility to States and/or international organizations arise.10 A way is opened for legal and/or semi-legal or political contestation. For instance, in Iran’s case, Iran has constantly contested the legal basis of sanctions against it before the IAEA. Iran argues that the IAEA lacks internal authority to act to enforce compliance with State Party obligations under the NPT and Iran’s Safeguards Agreement, which in turn would affect the UNSC’s procedural authority to impose sanctions. In addition Iran raises the claim of the breach of the confidentiality obligation embedded in the IAEA Statute itself.11 In an ideal world such weighty claims should be given due consideration at the IAEA through internal mechanisms, but politics more often than not tend to outweigh the resort to internal conflict resolution mechanisms. This accentuates the importance of using the right forum for successful legal argumentation.

The second stage (2) in sanctions’ lifecycle features their effects. The evaluation of effects is done against thresholds found in international humanitarian and human rights law mentioned above at stage 1. The causal link between the decision to impose sanctions and their effects has not been discussed much in legal literature. The causal link will be evaluated in concreto in the actual contestation phase, which, in turn, emphasizes the role of the judiciary or the competent political organ in the evaluation and allocation of the burden of proof. Recourse to such general principles of law recognized by “civilized states”12 that are relevant for the causality, such as due diligence, direct and indirect damage, strict liability, as well as the demand for respect for principles of procedural justice are part of the evaluation of causality in the judiciary’s delicate task of balancing interests to be protected in concrete cases.

In addition to thresholds found in humanitarian and human rights law, the application of sanctions may exceed other legally established thresholds, for example rules adopted for the safety of civilian aviation. If the harm or risk to civilian aviation, imputable to sanctions, affects the purposes and objectives of relevant treaties,13 issues of State responsibility and attribution may arise.14 This latter question raises highly interesting human rights issues. For example, obligations to protect life in the form of preventative measures—i.e., before airline accidents have taken place. Finding a right balance between the fundamental purposes and objectives of treaties and the application of sanctions is a delicate task, and some of the ECJ’s argumentation hereunder, on human rights, may be applicable ex analogia.

The third stage (3) involves the actual contestation of sanctions, varying from legal to semi-legal to political contestation. At this stage, the identification of the correct forum, whether it be the national court of the State imposing sanctions or a regional or international judiciary, and the type of argument is decisive as to whether the claim crosses a legal threshold or the imposition of sanctions did not have an initial legal basis can be given legal protection as an individual claim, by a private person or a company, or both, and/or as a State claim.

At the fourth stage (4), the contestation has effects in legal, political, and factual spheres, in different, often overlapping relations: compensation for the damage, annulation or modification of relevant sanctions, and improvement of procedures for the imposition and monitoring of sanctions. At this stage legal decision-making and decisions confront politics. It is sufficient to refer to a recent scandal at the ICTY concerning the Danish Judge Frederik Harhoff and the President of the Court Theodor Meron. Judge Harhoff claimed that President Meron could have exercised pressure in cases against Croatian Commander Ante Gotovina and Serb Commander Momčilo Perišić to limit superior’s criminal responsibility.15 Both commanders had been convicted with long sentences of imprisonment for crimes against humanity and war crimes but the Appeals Chamber, led by President Meron, overturned the convictions in both cases.16 The real battle over what can be defined as legal by the judiciary in an international society is likely to be fought at this stage, which in fact only emphasizes the judiciary’s importance in the defense of law.

Contextual mapping of sanctions’ lifecycle is a workable tool for understanding the manifestation of different legal phenomena—sources of law, legal regimes, single rules, law in practice—during the lifecycle. Understanding a whole phenomenon, its composite parts, and their reciprocal relations precedes understanding a particular case and the construction of legal argument thereunder.

10.3 The European Courts’ Role in Humanizing Sanctions: The Kadi Cases

In the European jurisprudence the European Courts have affirmed that they have the right of full judicial review of various community acts imposing sanctions in the light of those fundamental rights the EU has pledged to respect. These rights include those protected by the ECHR, the EU Charter of Fundamental Rights (the EU Charter), and Article 6(1) of the TEU.17 Hence, in Joined Cases Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission 18 (Kadi I/ECJ) the ECJ annulled EC Regulation No. 881/2002 of 27 May 2002 imposing restrictive measures directed against certain persons and entities associated with Osama bin Laden, the Al Qaeda network and the Taliban,19on the grounds that the regulation infringed Mr. Kadi and Al Barakaat’s fundamental rights under EC law.

Unlike the Court of First Instance in Yusuf and Al Barakaat International Foundation v. Council and Commission 20 and Kadi v. Council and Commission 21 (Kadi I/CFI/GC) the ECJ clearly reserved the right to review the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including the review of Community measures which, like the contested regulation, are designed to give effect to resolutions adopted by the UNSC under Chapter VII of the UN Charter.22 This ‘obligation’ is repeated by the ECJ in Joined Cases Commission, Council, United Kingdom v. Yassin Abdullah Kadi 23 (Kadi II/ECJ), Joined Cases Hasan and Ayadi v. Council and Commission 24 and Bank Melli Iran v. Council.25 The General Court also agreed later on with this jurisprudence in Kadi v. Commission (Kadi II/CFI/GC), although with some concerns.26 The ECJ went on to specify that these general principles of law are part of primary law, to which the primacy of the UN Charter does not apply.27

What are the contents of those rights the Community judicature intends to concretely protect? The ECJ stated in Kadi I/ECJ that fundamental rights form an integral part of the general principles of law whose observance the ECJ ensures. For that purpose the ECJ draws inspiration from constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECJ considered that the ECHR has special significance in this connection.28 What is more, the ECJ specified that provisions, such as EC Article 307, which may allow derogations even from primary law, do not apply when at issue are “principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) EU as a foundation of the Union,” or, in other words, “the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights.”29 Later on, in Kadi II/ECJ, the ECJ specified that those fundamental rights include, inter alia, respect for the rights of the defense and the right to effective judicial protection, affirmed in the EU Charter and specified further their contents and evaluation through references to its earlier jurisprudence.30

Concretely, the ECJ found in Kadi I/ECJ that in the inclusion of the Appellants’ names on the list of persons and entities whose funds are to be frozen, the rights of the defense, in particular the right to be heard and the right to effective judicial review, were not respected.31 What is more, the ECJ reserved the community judicature the right to balance protected interests. The Court considered that it is the task of the Community judicature to apply techniques which accommodate, on the one hand, legitimate security concerns about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need to accord the individual sufficient measures of procedural justice.32

Such balancing of interests for procedural justice and the need to combat terrorism continued in the Kadi II cases at the General Court and at the ECJ. Kadi initiated new procedures at the General Court, due to his almost immediate relisting by means of a new Commission Regulation after the ECJ’s decision in Kadi I/ECJ, which annulled EC Regulation No. 881/2002.33 Later, the case was brought in appeal by the EC, the EU Council, and the United Kingdom to the ECJ. On the indispensable role of the European judiciary’s role in balancing human rights concerns with the requirements of the fight against international terrorism, the General Court made reference in Kadi II/CFI/GC to an earlier ECJ case in Criminal Proceedings against E and F 34 and its own case law in Organisation des Modjahedines du peuple d’Iran v. Council 35 and People’s Mojahedin Organization of Iran v. Council of Europe 36 emphasizing that the Court’s review is the only procedural safeguard to ensure the fair balance between concerns for the protection of the State and the individual in question.37 The ECJ further added in Kadi II/ECJ that according to Article 52(1) of the EU Charter, limitations on the exercise of the rights enshrined in the Charter are possible, subject to the conditions that the limitation concerned respects the essence of the fundamental right in question and, subject to the general principle of proportionality in international law, that it is necessary and genuinely meets the objectives of general interest recognized by the EU.38

The issue of burden of proof is highly relevant for the causal link discussed in the concept map above. On this account, the ECJ considered in Kadi II/ECJ that it is the responsibility of the competent EU authority (having produced the ‘terrorist list’) to establish, in the event of challenge that the reasons relied on against the person concerned are well founded. It is not the responsibility of that person to adduce evidence to the contrary. If the authority is unable to accede to the request by the Courts, it is then the duty of those courts to base their decision solely on the material that has been disclosed to them. If the material is insufficient for a finding that a reason is well founded, the Courts shall disregard that reason as a basis for the contested decision to list or maintain a listing.39

In sum, the European judiciary has been at pains to affirm its right to judicial review of community acts in the light of European commitments to respect fundamental rights, even when community acts are simply made for the execution of preceding UNSC resolutions. So far, the Courts have accorded legal protection to individual human rights in the field of procedural justice—rights of the defense, right to judicial review—and this protection has been made effective by allocating the burden of proof and balancing the different interests to be protected. Such protection of the elements of procedural justice has been enough to make one commentator wonder whether this court-imposed practice of disobedience could constitute practice and opinio juris for considering even that certain rights have reached the status of jus cogens.40 In fact, what of other fundamental rights—those often termed in legal literature as peremptory, giving rise to obligations erga omnes for their protection, such as those deriving from the prohibition of aggression and of genocide, or from the principles and rules concerning the basic human rights, including protection from slavery and racial discrimination?41 Does the European judiciary’s intention to protect the European value community and its fundamental rights mean that the European judiciary will be ready to give legal protection if it can be established that fundamental human rights are breached because of the imposition or continued imposition of sanctions by an EC act either directly or indirectly, that is through the imposition of a preceding UNSC resolution?

10.4 Some Unconventional Conclusions on Judges’ Role in Humanizing Sanctions

Recalling for a moment that regardless of human rights and humanitarian exemptions, sanctions can kill by preventing the import of vital and life-saving medical supplies and medical equipment (Iran), or by deteriorating living conditions, leading to high child mortality (Iraq), or risks to health (Haiti). Under human rights law, one sanctions-caused death should be enough.

European Courts could play a considerable role in humanizing sanctions’ effects, by upholding and enforcing the relevant human rights and humanitarian commitments assumed by Member States and by holding them responsible under their commitments made in human rights and humanitarian law.42 In fact, European Courts seem to be ready to give legal protection to human rights that Member States have committed to uphold and which, inter alia, can be found in the ECHR, the EU Charter and Article 6(1) of the TEU. The ECHR’s Preamble states:

Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration [of Human Rights].

The first of the protected rights is the right to life. It is considered by the UNHRC to be “the supreme right from which no derogation is permitted even in time of public emergency” and is a likely candidate for higher normative category in the sense intended by the ICJ in the Barcelona Traction Case.43 Due to the lack of vital and life-saving medical supplies and medical equipment, patient deaths are likely in Iran. It seems to follow that this should be an issue of common concern and interest both for the European judiciary and Member States.44

The extent of legal protection lays, fundamentally, on the Judges’ shoulders in their task of interpreting and balancing concerns for human rights and humanitarian law versus concerns over national interest. Provided a jurisdictional link can be established, the quest for greater legality of sanctions is a hard case. The Judges’ interpretative margin is relatively wide.45 But it is a hard case also for the simple reason that enforcement of human rights law is bound to tramp on many policy considerations relevant to Member States’ foreign relations. However, it is exactly in hard cases that the strength of the rule of law and the values it protects are weighed. Legal skill, imagination, and the will to make use of all interpretative tools available is needed when navigating such uncharted territory.

In connection with the heyday of humanitarian intervention and its position in the legal structures of international law at the end of the 1990s and the beginning of the 21st century, humanitarian intervention garnered significant attention.46 Some argued that precise criteria are undesirable because they would also constitute a permission specifying how far an offender could proceed without consequences (i.e., if the killing of 500 people is prohibited, would there be no reaction to the deaths of 450?).47 Others argued that there is already an abstract consensus on what these criteria are: we are all capable of deciding, on the basis of facts at our disposal, for example whether foreigners are really at imminent risk or which interventions are bona fide for reasons of extreme humanitarian emergency.48

Both schools of thought can be put to good use in the context of this chapter. For instance, of those rights protected under the ICESCR, those most relevant to this discussion are the rights to freely pursue economic development and not be deprived of one’s own means of subsistence (Articles 1.1–1.2); the rights of all workers to fair wages and a decent living (Article 7); the right to an adequate standard of living for oneself and one’s family, including adequate food, clothing, and housing (Article 11.1); the right to be free from hunger (Article 11.2); the right to the enjoyment of the highest attainable standard of physical and mental health (Article 12.1); and the right to education (Article 13). Sanctions affect the enjoyment of these rights directly by undermining a country’s development prospects and slowly causing the deaths of the most vulnerable. Iraq’s high child mortality rate is a case in point.49

The problem with these rights and their enforcement in the context of sanctions is that the ICESCR as well as its sister Convention, the ICCPR, are designed to give rights to individuals against their own government. Similar problems of attribution and its practical execution arise in connection with the CRC (Articles 6 and 24) and, with the UDHR (Articles 22, 23, 25 and 28).50 A common argument used by those imposing sanctions is that the hardship caused is due to the government of the target State51; consequently, claims of violations of civil, political, economic, social, and cultural rights caused by sanctions should be addressed to the targeted government, in the hope of regime change. However, it is also the responsibility of States imposing sanctions not to undermine the objectives of the ICESCR or, for that matter, commitments made under other treaties, conventions, or the UDHR with their own actions. Human rights protected under these conventions are in no way nullified or diminished by the imposition of sanctions.52

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