Humanitarian “Exemptions” to Economic Sanctions, Whatever That Means!

While unilateral sanctions are a “domestic” law in some sense, their greatest (sometimes entire) impact is extraterritorial, domestic laws are hardly relevant. Thus, international law is the framework within which the legality of sanctions should be examined, and that is no easy feat as international law text and precedence are vague on the subject and of little use. Not to mention that when states violate international law, little is done or can be done to dissuade them, due to the way international law works (or does not work), and no one is as experienced at completely disregarding and violating international laws as the US.

 Unlike military actions, for example, which are subject to specific applicable international laws and conventions, economic sanctions have long been a legally-vague area, on which there have been numerous studies that not only do not reach one conclusion, but often within the same study there are contradictory conclusions. We think this is not a coincidence.

 As a start, we should note that a legal analysis of the subject of economic sanctions is not a simple task, so we are going to look at US-imposed sanctions, and more specifically, the Caesar Act – we can touch on other aspects and examples in other pieces. Just Security recently published an overall analysis of the legality (or illegality) of the Caesar Act under international law. Therefore, we will not go into a legal analysis of the entire Act, but we will only look at the issue of “exemptions” with regards to the Caesar Act, which is similar to exemptions in most other sanction programs. Exemptions in the context of sanctions are supposed to minimize the adverse effects on the civilian population of the targeted state, and these usually include humanitarian aid and medicines.

 Exemptions of the Caesar Act

US officials and our Syrian “compatriots” who cheer on sanctions generally and the Caesar Act in particular always have the same response when one criticizes sanctions for their adverse effects on ordinary Syrians by saying “they exclude humanitarian assistance and medicines.” Even some groups and individuals within the “opposition” repeat the same justification while cheering on what is essentially the law of another country, and even boasting about it as if it is one of their greatest accomplishments. Regardless, what does the Caesar Act actually say about these exemptions?

The Caesar Act states the following under the “Waivers and Exemptions” section:

(c) Humanitarian Waiver –

(1) In general – The President may waive, for renewable periods not to exceed 2 years, the application of any provision of this Act with respect to a nongovernmental organization providing humanitarian assistance not covered by the authorization described in section 305 if the President certifies to the appropriate congressional committees that such a waiver is important to address a humanitarian need and is consistent with the national security interests of the United States.

 This is basically the only thing mentioned about a humanitarian exemption, which provides the relevant organizations with very little guidance with regards to whether or not they can proceed with their activities without being penalized. Some might argue that the law provides a lot of detail as to the sanctioned activities; nevertheless, many parts of it give a lot of discretion to the President and other entities within the US government to make determinations based on things such as “national security interests of the US.”

 Some organizations and medical professionals in Syria have already raised several issues relating to the difficulties they are facing under the different sanctions programs, but especially under the Caesar Act, which has secondary sanctions. Some of these issues include the fact that some medical equipment (such as ventilators) could fall under the “dual use” category, because technically they can be disassembled and their parts considered potentially usable for weapons, which means they require a special exemption. Additionally, many organizations working in regime areas cannot operate without registering with the state, thus, they would need to obtain a special exemption by applying to one to the US Treasury Department, a process that is costly in terms of time and resources, and is not very transparent or easy, especially for an organization working in Syria and under the current circumstances. 

Basic Legal Principles

Turning now briefly to the law and considering the simple legal notions of presumption of innocence (that is, one is innocent until proven guilty) and burden of proof (the plaintiff or the party bringing a claim has the initial burden of proving that the defendant caused an injury to plaintiff based on actions violating a “law”). These two principles are almost universal, notwithstanding to what extent they are actually respected in different parts of the world.

 At the international level, if we look at the ICC Rules of Procedure and Evidence, these two principles appear in Rule 26, which states that “any complaint concerning any conduct… shall include the grounds on which it is based” (initial burden of proof is on the complainant or the side filing the complaint) and “the Presidency… shall… set aside… manifestly unfounded complaints” (presumption of innocence).

 The Caesar Act in its application is supposed to exempt humanitarian assistance. However, based on the above and a statement by UN experts (including the Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights and other UN Human Rights Council Special Rapporteurs) on 7 August 2020, entities trying to provide humanitarian assistance have to get the humanitarian exemptions to sanctions, which are “time-consuming and often costly procedures”. This in essence, puts them in the position of having the burden of proof that they are not violating the sanctions before they even take any action, thus also essentially being presumed “guilty” until they prove their “innocence.” Technically and legally, they should be able to carry out their work, and if they are suspected of violating the “law”, then an action would be brought against them, showing with evidence how they violated said “law”, only then, would they have to show evidence that they are in fact exempt.

 Requiring entities providing essential assistance to Syrians, particularly in the middle of the COVID-19 pandemic and already deteriorating humanitarian and medical conditions and a collapsing economy, to bear the responsibility of proving that they are exempt is not only inhumane, but also illegal at the most basic level.

 But the US Cares… Right?

Based on its name and the rhetoric we have heard and continue to hear from US officials and some Syrians, one would think that the US had Syrian civilians in mind as a priority when drafting the Caesar Act. One would also think that the drafters of the Caesar Act exercised due diligence to ensure there will be no adverse effects on the civilians. However, by the admission of their own James Jeffrey, who during an online event about the Caesar Act on June 18, a day after it went into effect, this clearly was not the case. In that event, Jeffrey said: “this has potential secondary and tertiary effects that could impact people in general, and it is true when you do anything with economic sanctions, you cannot be sure what all the effects of that are,” and later explained: “I couldn’t guarantee total protection from any secondary and tertiary effects of any act we as an administration or any administration takes in the foreign policy field.” He also adds: “nothing that we do specifically will contribute to a major economic dislocation for the people, I think it will lead to an economic dislocation of the activities of the regime leadership, I don’t know some of the secondary effects of that.”

 None of this sounds like due diligence was exercised by the US in ensuring that the civilians would not be affected; in fact, it sounds like the US did not even bother figuring out what the adverse effects would be, because civilians never were and never will be a priority for any US policy, not in Syria, not anywhere in the world.

 Moreover, what can be expected about US behavior is, in fact, quite the opposite. Indeed, it is possible that the actual US aim is precisely to harm Syrian civilians, by the deepening of tension and chaos that this generates, which would expand the “quagmire” that Jeffrey describes his mission to be focused on manufacturing in Syria, or rather turning Syria into one.

 (النسخة العربية)