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Applying the Precision of a Scalpel to Sanctions Regimes

13 May 2021
By Louise McCosker
A Syrian Arab Red Crescent volunteer holds a boy after treating his injures. Source:  ICRC/Ibrahim Malla

The law can be a blunt instrument. Designed to cover the black and white of issues, it rarely allows for nuance.

Nowhere is this more evident – at least in my line of work – than in counterterrorism frameworks and sanctions. Nowhere is this more vexed than when it butts up against humanitarian action.

Syria is a compelling case in point. As we mark 10 years of conflict and displacement, it is timely to reflect on the pernicious effects these measures can have on the millions of civilians caught up in this war, and the organisations doing their best to support them.

It is hard to imagine the misery and despair.  Around 15 million people – 90 percent of the population – live below the poverty line. 12.4 million Syrians are now food insecure – the most ever recorded. The UN is warning of possible famine. An economic downturn and the COVID-19 pandemic have seen unemployment rates soar. The World Food Program says the situation has never been worse and “humanitarian assistance is the difference between putting a meal on the table and going to bed hungry.”

The pandemic is wreaking havoc on a fragile healthcare system. There are indications of widespread community transmission. Over 92 percent of official cases are not traceable to a known case. COVID-19 is disrupting supply chains, causing panic buying, and restricting trade, industry, and agriculture.

You’d think governments and humanitarian organisations would be united in doing everything to address this crisis. The reality on the ground is that sanctions and controls by some governments inadvertently hamper the very work that needs to be done.

As recently as last month, the Syrian Arab Red Crescent (SARC) implored states to stop punishing people who have already suffered so much, understand how sanctions are impacting women and children, and implement recommendations on humanitarian exemptions in sanctions regimes. It had concrete examples: delays in fund transfers, inability to import vital medical equipment, grounding half of SARC’s ambulance fleet because of sanctions on Syrian oil companies. These are just the tip of the iceberg. Sanctions targeting countries like Yemen, Sudan, Iran, Venezuela, and North Korea – to name a few – also create similar challenges.

So what can be done? Dismantle the silos, cross the divide, and talk. As Winston Churchill put it, “Meeting jaw to jaw is better than war.” Common ground must be found in this increasingly complex legal landscape if humanitarian aid is to reach the most vulnerable. States can acknowledge that sanctions and counterterrorism measures can hamper aid work, and humanitarian organisations can appreciate the challenge of balancing security, political objectives, and humanitarian considerations.

There needs to be realistic, robust, and respectful conversations that acknowledge a few simple truths. The more complex the crisis, the harder it is to have zero risk.  Aid organisations must work in line with humanitarian principles.  States are obligated to ensure that sanctions and CT measures do not hinder humanitarian activities. Cross sectoral consultations initiated by states can collectively explore workable carve outs and exemption clauses.  By way of example, in response to Red Cross representations, the Australian government included an exemption for people providing neutral and humanitarian assistance in the 2007 Citizenship Act

There is no shortage of data to inform new policy and legislative approaches. But that evidence base should extend beyond the short term and interrogate the longer-term implications for local humanitarian organisations that are disproportionally impacted by stricter compliance and due diligence requirements.

One of the biggest impacts on humanitarian organisations working in sanctioned countries is around financial transactions and contractual relationships with banks and suppliers. Any mention of Syria is a major risk for financial institutions because of the perceived risks of doing something illegal or copping a regulatory cost. The risks of doing business with humanitarian organisations, particularly ones working in sanctioned countries such as Syria, are increasingly judged as not worth the potential reward.

At best, transfers take months and require under-resourced organisations to spend precious time on explaining and negotiating with financial institutions. At worst, transactions are refused, accounts are closed, volunteers don’t get their meagre per diems, and lifesaving programs get shut down.

Complexity and lack of clarity regarding exemptions for aid groups are driving this disturbing trend, giving rise to the perception that banks can dictate where humanitarian actors can operate. But in so many instances, these transactions are legal because of exemption clauses built into the sanctions. This is where education is needed. States need to produce clear guidelines to financial institutions on exemptions.

Last year, the European Commission issued a guidance note on Syria, giving practical answers to questions it had received from banks, donors, and aid organisations on how to comply with EU sanctions when providing humanitarian aid. This should be common practice.

Humanitarian organisations and human rights experts should also be consulted at the drafting stage to ensure that sanction resolutions comply with relevant international law obligations and principles. I’m not just talking about the big aid organisations – which have the capacity to absorb onerous due diligence and compliance requirements. Small humanitarian organisations should be involved. They are often first on the ground and last to leave, and they have the least capacity to navigate numerous and complex contractual obligations. This is a balancing act that requires the precision of a scalpel, the space for many perspectives, and a shared commitment to human rights and the rule of law.

As Syria descends into a second decade of conflict, it is timely to reflect on how the scales may be rebalanced to allow Syrians the best chance to put food on the table, repair their broken lives, and rebuild their country. It is a matter of urgency and a responsibility for all.

Louise McCosker is Humanitarian Diplomacy Lead, International Programs, Australian Red Cross.

This article is published under a Creative Commons License and may be republished with attribution.