|By Tom Gjelten
Children die because hospitals cannot get the medicines required to treat them. Factories close and unemployment soars because manufacturers cannot import the supplies and materials they need or export their finished products. Basic foodstuffs are so expensive that the average family can no longer afford to eat well. Can the imposition of sanctions against a nation under some circumstances be a war crime?
Sanctions arise in a variety of ways. Article 41 of the United Nations Charter authorizes the Security Council to decide on “measures not involving the use of armed force… to give effect to its decisions… These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” International embargoes against Rhodesia, Libya, Haiti, Iraq, and Yugoslavia were enacted under this provision. Alternatively, sanctions can be ordered by a regional organization, as the European Union did in the Yugoslav case. They can also be imposed unilaterally by one country against another, as in the example of the U.S. trade embargo against Cuba.
A more important distinction is whether the sanctions were imposed or enforced during wartime by one or more of the warring parties. IHL does not apply in the absence of armed conflict. This means that “nonbelligerent” sanctions, including those against Cuba, Libya, Haiti, Rhodesia, and Yugoslavia, may be opposed on moral or political terms but normally cannot be considered war crimes. Supporters of economic sanctions may even justify them as an alternative to military action.
In the case of Iraq, the United States and other countries applied sanctions before launching the 1991 Gulf War, in an effort to force the Iraqi regime to withdraw from neighboring Kuwait, which it had invaded in August 1990. But the imposing countries, including the United States, continued to enforce the sanctions in wartime, so they had to conform to IHL.
The 1977 Additional Protocols to the 1949 Geneva Conventions prohibit any wartime measure that has the effect of depriving a civilian population of objects indispensable to its survival. Article 70 of Protocol I mandates relief operations to aid a civilian population that is “not adequately provided” with supplies. Article 18 of Protocol II calls for relief operations for a civilian population that suffers “undue hardship owing to a lack of supplies essential for its survival, such as foodstuffs and medical supplies.” Such provisions establish the legally permissible limit of sanctions, though their definition is subject to interpretation. The UN embargo against Iraq exempted “humanitarian” aid, but critics said the sanctions still caused excessive suffering.
Other provisions of IHL similarly restrict the scope and bite of economic sanctions. Article 33 of the Fourth Geneva Convention (on the protection of civilians in wartime), for example, prohibits “collective penalties.” The International Committee of the Red Cross (ICRC) Commentary on the conventions interpreted this provision as prohibiting “penalties of any kind inflicted on persons or entire groups of persons in defiance of the most elementary principles of humanity, for acts that these persons have not committed.”
Supporters of sanctions may defend the measures against this restriction by arguing that they do not constitute collective punishment because they target governments, not people, and that collateral damage to the civilian population is unintended and unfortunate. In the case of Iraq, however, that argument was undercut when U.S. officials suggested that the sanctions were intended to create hardship conditions in the country and thus encourage the popular overthrow of the government.
Sanctions imposed under nonbelligerent conditions must normally be judged on the basis of moral or political considerations rather than legal ones. The U.S. National Conference of Catholic Bishops has argued that “sanctions can offer a nonmilitary alternative to the terrible options of war or indifference when confronted with aggression or injustice.” But some political philosophers disagree, arguing that aggressively applied sanctions, even in the absence of armed conflict, may be considered a form of siege and are objectionable on the same grounds. From this perspective, sanctions run the risk of becoming a form of war against civilians, waged by governments unwilling to expend the blood or treasure necessary to attack an enemy regime directly.