A Note by the Director (Ditchley 1999/03)
19-21 February 1999
Non-military sanctions had, our conference knew, a long history in the international arena, even if we were to exclude from that term’s ambit – as most of us were minded – actions like blockade forming part of economic warfare between belligerents, trade-related steps in retaliation for perceived commercial misbehaviour, and (so we heard also argued) constraining conditions attached to the grant of foreign aid. The concept of seeking to impose or threaten injury to a state by means other than armed force in order to influence behaviour had however been applied in recent years with growing readiness and span, for a mix of reasons. The end of the Cold War had both made it less difficult for the United Nations Security Council to agree on Chapter VII action of this kind, and removed the East/West straitjacket that had in some settings served to limit or prevent state behaviour seen as intolerable. The increased immediacy and pervasiveness of media reporting had heightened public awareness of such behaviour alongside a strong distaste for the direct application of force; and the juxtaposition of these two factors had created – especially though not only in the United States – an understandable demand, often now amplified by the urgings of non-governmental organisations, to find and exercise remedial options intermediate between war and apparent inaction.
Did the historical record bear out hopes that such intermediate options would work? At best very patchily, most of our participants thought. In Iraq Saddam had clearly been hurt and impeded, but by no means persuaded to change his ways; Poland in the early 80s, arguably South Africa, and perhaps some aspects of Libya-related events ranked on the credit side; and Serbia’s Milosevic had been persuaded thus to give ground at some points though far from all. We doubted whether Rhodesia was a success for sanctions, save eventually as an adjunct to civil war; and Haiti (sustained by the Dominican-Republic loophole) was a clear failure. Overall, reasons for cautious scepticism, albeit not for outright dismissal.
We asked ourselves what motivations should be accepted as proper ground for imposing sanctions. The desire to end or change behaviour seriously unacceptable in the international dimension (for example as peace-threatening), certainly. The desire to change objectionable internal behaviour, as in respect of human rights? – many of us were wary of this (and still more of attempts to change governments themselves), believing that while international practice in the past decade had moved significantly away from regarding the principle of state sovereignty as sacrosanct even against massive individual-right violations, the line of legitimacy was hard to draw and entitlement to draw it not easily codified. No participant however argued “Never” – some human values, such as abhorrence of genocide, must be capable of moving the international community to act. Scarcely any voice was to be heard in favour of either the utility or the legality of sanctions whose purpose was essentially punitive (though a conjecture was heard that perhaps deterrence-for-next-time just might have a place). And we did not like sanctions – though we suspected that they occurred often enough – where the prime driving force was an urge to express disapproval, to expostulate. We understood that stigmatisation could have a proper place in international relations, but we mostly thought that sanctions were a poor vehicle for the purpose, and that using them thus risked discrediting the concept and eroding the will to enforce them.
This phase of our discussion brought home to us the importance of defining real objectives before decisions to impose were taken – a point seemingly obvious enough, but far from regularly observed in practice. There ought, so many participants held, to be much stronger commitment to, and better procedures for, cool collective appraisal of likely merits and consequences against explicit objectives in advance of decisions; and the appraisal should include setting benchmarks against which operational success would thereafter be measured. Fine in theory, said practitioners amongst us, but uncommonly awkward to do in practice. The competence and resources to make assessments of the kind envisaged were hard to muster even if political sensitivities did not corrode the necessary will – just for example, the evident appropriateness of careful consultation with countries neighbouring upon the to-be-targeted state would usually clash uncomfortably with public demands for swift and decisive action; objectives might reasonably alter in nature or emphasis with the passage of time; and procedures in the Sanctions Committee under the Security Council made obstruction (of either implementing decisions or indeed removal) an easy option for almost any member. All that acknowledged, the optimists among us hoped that new public awareness of complexities in such instances as Iraq might foster a climate in which trigger-happy under-considered impositions might in future more easily be resisted.
Appraisal, it was strongly urged, ought to consider not only likely effectiveness in hurting the targeted régime and inducing it to alter course, but also real long-term effects in economic and social terms. The international community would scarcely benefit if sanctions, by damaging or even corrupting the polity as a whole, perversely weakened the forces for healthy change or stood to make the country eventually an even less stable or satisfactory partner in international affairs.
We were keen to foster greater readiness, and find better ways, for judging whether sanctions were truly achieving their aims (again easier said than done, we knew), and for modifying or ending them if they were not. Practical concepts for termination were desirable both so that the burdens entailed – not only for the targeted – did not continue pointlessly, and also so that a credible prospect of relief could play a part in dialogue to end the ills which sanctions sought to rectify. Most of us were persuaded against time-related “sunset” clauses – these might serve merely as an encouragement to the misbehaver to batten down the hatches till the storm passed. Regular periodic review (even if supported by properly-pointed reports) was not entirely free of similar dangers, in that it risked providing recurrent opportunity for manipulative lobbying; but it might well be a necessity, and salutary if it was properly rooted in a commitment to relate the process clearly to the continuing purposes of imposition – another reason for striving hard for good definition and appraisal in the first place.
Much of the practical weakness afflicting sanctions related to defective enforcement. Even where – as was far from routinely the case – aims and guidelines were clear from the start, operational arrangements often had to be complex; and even where (again, by no means regularly) a shared international will to comply existed, countries might well lack the domestic legislation and procedures needed for the purpose. Technical help from more advanced states, or the provision under UN auspices of “model” legislation which countries could adapt to their own circumstances, might help. There remained nevertheless the problem that a few “loophole” neighbours could eviscerate a sanctions régime; and this brought home to us both the problems of penalising deliberate breach and those of providing compensation for innocent states economically damaged. The UN Charter contained general provision for this, but neither systematic machinery nor international resources existed for the purpose. We noted that full compensation for every loss would be wholly impracticable, but some assistance – even if unilateral or ad hoc – would sometimes be essential for the hardest-hit if evasion or régime-destroying exception was to be averted. (We were reminded that, whether fairly or not, there existed a widespread undercurrent of perception that sanctions were mostly an imposition by the first world upon the third.)
We wondered how far the various difficulties we perceived, such as those of efficient implementation and of effective outcome (two different matters, as appraisal procedures should recognise), might be alleviated by more sophisticated targeting, for example upon financial operations or air services; options of this kind, we noted, were increasingly under study, and there were one or two mildly encouraging illustrations. But further problems emerged. For example, the more selective the régime the more fine-tuned and elaborate the enforcement system might need to be; and effective financial sanctions, as well as needing faster action and more expert design than came naturally to the UN, might be hard to frame amid the realities of globalisation, offshore centres and new communications technology.
We did not however wish to despair of the need for more discriminate targeting; the aspiration to find ways of penalising leaderships rather than peoples had powerful force on both practical and ethical grounds. We observed rather uncomfortably that sanctions were inherently intended to inflict hurt; their impact always had rough edges; and effects upon peoples could not as easily be regretfully characterised “collateral” (itself a rather dehumanising term, said one participant) as could, say, the results of a bomb missing its aim-point. Public opinion was – rightly – becoming increasingly sensitive to the importance of due proportionality in sanctions effects, as well as to the fact that the categorisation “non-violent” might often downplay the real injury inflicted. Saddam’s Iraq – admittedly an especially awkward instance – illustrated moreover the facility with which a determined and scruple-free tyrant could manipulate or divert sanctions impact away from himself and onto his impotent subjects; by disagreeable paradox, the more unpleasant the tyrant (and so the more clamant the need to try and change his behaviour) the harder he might be to hit directly.
The Iraq conundrum led us on to the relationship between sanctions and the use of military force. They were often complementary, we recognised, though the mode might vary: sometimes – as in 1990-1 in the Gulf – sanctions might be a clear “we’ve tried everything” precursor; sometimes the evident reality of the military alternative (and the will to use it) was necessary for the credibility of sanctions. We heard a brief appeal that military force should not too automatically be regarded as “worse” than sanctions and so to be used only after sanctions had been extensively essayed; it might be more genuinely discriminate, and to regard it as always temporally the last resort might merely ensure that it was invoked only in circumstances often too desperate for its effective use. In many situations, however, so several of us thought, the more important relationship was between sanctions and the diverse armoury of customary diplomacy, often unfairly dismissed as representing a “do-nothing” option. Sanctions were themselves a form of engagement and needed always to be viewed and managed within the context, progress and aims of the engagement as a whole.
Legality and legitimacy much exercised us, though we came to no clearcut conclusion. Sanctions cut across a general presumptive right not to be deliberately injured, and their imposition ought therefore to require proper imposing authority as well as a legal foundation not always at present (so some argued) adequately considered. Most of us were uneasy about the imposition of unilateral sanctions (especially where these sought to compel the adherence of others to the imposition) and would ideally prefer to envisage operation only with UN validation. We recognised however that given the composition and functioning of the Security Council – the only body with a formally-recognised international right to cut across normal lawful relations – to make this an absolute rule would at present be unacceptably limiting; recourse to the UN should be the first presumption, but other narrower groupings like OSCE or ECOWAS might sometimes have to be the basis for action.
Amid pressures on our discussion time numerous pertinent points escaped thorough scrutiny – comment noted, just for diverse example, that unilateral action by the United States sometimes reflected discontent at perceived inadequacy in burden-sharing by others; that within governments coordination was frequently imperfect between imposers and prospective implementers; and that though the picture was changing, the influence of business communities upon sanctions decisions was uneven and sometimes surprisingly weak.
The overall sense of our conference was perhaps of very diverse circumstances, complexity and a great deal of practical difficulty, pointing however not to a discarding or wholesale decrying of the sanctions concept but to a cooler, more measured and in some ways more modest view of when they were appropriate and what they might achieve. Different judgements clearly persisted about the success of past applications, but scarcely about the need to learn from these and in future to think carefully and plan thoroughly before triggers were pulled.
PARTICIPANTSChairman : The Rt Hon The Lord Howe of Aberavon CH QC
Formerly Secretary of State for Foreign & Commonwealth AffairsCANADA
Mr Michael R Leir
Director General, US Bureau, Department of Foreign Affairs and International Trade
Professor David Leyton-Brown
Dean, Faculty of Graduate Studies and Professor of Political Studies, York University, Toronto EUROPEAN COMMISSION
Mr Anthonius W de Vries
Head of Unit and Coordinator of Economic Sanctions, European Commission FRANCE
Monsieur Philippe Moreau Defarges
Senior Adviser, Institut Français des Relations Internationales GERMANY
Ambassador Dr Antonius Eitel
Professor of International Public Law; formerly Permanent Representative to the United Nations, New York
Ambassador Dr Wilhelm Höynck
Formerly Permanent Representative to the United Nations, Geneva HOLY SEE
Rt Rev Bishop Diarmuid Martin
Secretary, Pontifical Council for Justice and Peace SWITZERLAND
Ambassador Dr Rolf M Jeker
State Secretary and Director, Federal Office of Foreign Trade; Chairman, “Interlaken Process” on targeted UN financial sanctions UNITED KINGDOM
Sir Franklin Berman KCMG QC
Legal Adviser, Foreign and Commonwealth Office
Ms Rita Bhatia
Policy Analyst, Save The Children Fund
Mr Gary Campkin
Head, International Section, Confederation of British Industry
Mr Jeremy P Carver CBE
Partner and Head, Clifford Chance International Law Group
Mr Bruce Clark
International Security Editor, The Economist
Dr Sarah Collinson
ActionAid (Policy Division)
Mr Anthony Gammon
Head, Sanctions Emergency Unit, Bank of England
Professor Christopher Greenwood
Law Department, London School of Economics and Political Science
Sir David Hannay GCMG
British Government Special Representative for Cyprus; formerly Permanent Representative to the United Nations, New York
Dr Athar Hussain
Deputy Director, Asia Research Centre, London School of Economics and Political Science
Dr Peter Jarman
Convenor, Council on Christian Approaches to Defence and Disarmament working group on the ethics of sanctions; Secretary, Churches’ Human Rights Forum
Mr Donald A Lamont
Office of the High Representative, Sarajevo
Mr John Marshall
Head of Sanctions Unit, United Nations Department. Foreign and Commonwealth Office
Dame Pauline Neville-Jones DCMG
Vice Chairman, Hawkpoint Partners Limited; formerly Political Director, Foreign and Commonwealth Office
Dr Charles Reed
Assistant Secretary, International and Development, Affairs Committee, Church of England Board for Social Responsibility
Professor Adam Roberts
Montague Burton Professor of International Relations, University of Oxford
Mr Christopher Saunders
London Programmes Officer for the Middle East and Iraq, Save The Children Fund UNITED NATIONS
Sir Kieran Prendergast KCVO CMG
Under Secretary General for Political Affairs, United Nations, New York
Mr Hansjorg Strohmeyer
Department of Humanitarian Affairs, United Nations, New York UNITED STATES OF AMERICA
The Honorable Dick Clark
Senior Fellow and Director, Congressional Program, Aspen Institute, Washington DC; formerly United States Senator
Rev Fr John P Langan SJ
Rose Kennedy Professor of Christian Ethics, Kennedy Institute of Ethics, Georgetown University
Mr Marc A Thiessen
Spokesman, Committee on Foreign Relations, United States Senate.