The new U.S. sanctions on Syria, which came into effect last month, are likely to bring the suffering of the Syrian people to new heights. In a country wrecked by more than a decade of conflict, where 83 percent of the population live below the poverty line as defined by the Syrian Government, more than 11 million people rely on humanitarian assistance, and more than six million have been forced from their homes, the sanctions are expected to plunge the country even further into crisis. If that’s not enough, the sanctions program also represents an illegal exercise of U.S. jurisdiction abroad in the form of so-called “secondary sanctions.”
The sanctions were enshrined in U.S. legislation in December 2019 when President Trump signed the National Defense Authorization Act for Fiscal Year 2020, which incorporated the Caesar Syria Civilian Protection Act. The Caesar Act, named after a code-named Syrian military photographer who documented torture inside Bashar al-Assad’s prisons, provides for sanctions to be imposed 180 days after the coming into effect of the law. Offending individuals or entities may be subject to travel bans, denied access to capital, or face other measures, including arrest.
The Illegal and Extraterritorial Reach of Secondary Sanctions
The United States, EU, and some other countries have other sanctions programs in place against Syria. Pre-existing U.S. sanctions restrict U.S. trade with, and investment in, Syria, and prohibit business dealings with the Syrian Government by U.S. individuals and entities or denominated in U.S. dollars. The EU has also imposed various restrictions, such as asset freezes and import/export restrictions, applicable to individuals or entities either in the EU or otherwise under EU jurisdiction.
The new Caesar sanctions are of a different character. Unlike the pre-existing sanctions, they apply to transactions anywhere in the world that engage the Syrian Government or certain sectors of the Syrian economy, even when those transactions have no connection to the United States. Such sanctions – those that purport to apply to transactions with limited or no connection to the sanctioning state – are known as “secondary sanctions,” or “extraterritorial sanctions.”
International law limits the matters over which a state may exercise jurisdiction. As a general rule, a state may exercise jurisdiction over individuals and entities within its borders, and over its nationals wherever they are. There are a few other limited circumstances in which a state may exercise jurisdiction. For example, in some very limited circumstances a state may exercise jurisdiction in relation to conduct that has a direct effect in its territory, or impacts its citizens; and some argue that a state may in some circumstances exercise jurisdiction over entities controlled by its nationals. These rules are not generally regarded as permitting the imposition of secondary sanctions.
Nevertheless, the United States has a history of applying secondary sanctions. The legal justification provided has varied depending on the nature of the measures imposed. In some cases jurisdiction has been asserted on the basis that the sanctioned conduct affects the United States; in some cases the United States has asserted that the sanctioned entities are controlled by U.S. nationals; and on other occasions it has relied on arguments related to universal jurisdiction, which holds that some crimes are so heinous that perpetrators can be punished by any state, wherever they are found. Most scholars do not accept these legal arguments as providing a legal basis for the enactment by the United States of domestic legislation that purports to regulate the economic activity of foreigners in foreign states.
Other states and regional organizations have vehemently objected to such measures, including by adopting legislation to block their effect. In 2018, for example, in response to the U.S. adoption of extraterritorial sanctions concerning Cuba, Iran, and Libya, the EU adopted a regulation stating that, if any court located outside the EU made a decision giving effect to specified U.S. sanctions laws, the decision would “not be recognised or enforceable,” and directing EU nationals and persons located in the EU not to comply with the U.S. laws. The EU has also affirmed in its own sanctions policy that it regards extraterritorial sanctions as contrary to international law.
The U.N. General Assembly and the Human Rights Council have similarly condemned extraterritorial sanctions as illegal. In its most recent resolution on the subject, the General Assembly said that it “strongly object[ed]” to extraterritorial sanctions, and “call[ed] upon all member states neither to recognise those measures nor to apply them.”
Extraterritoriality Combined with Comprehensiveness
Sanctions that purport to apply extraterritorially are often also comprehensive, meaning that they target the sanctioned country as a whole, as opposed to just the ruling elite. Examples include the U.S. sanctions imposed against Iran and Libya in the 1990s, or the decades-long sanctions against Cuba. In addition to being illegal, sanctions of this nature have a devastating impact on human rights.
The logic behind comprehensive sanctions is that the misery inflicted on the population will be so extreme that people are forced to rise up against their government and demand change. Such sanctions cripple a state’s economy; disrupt the availability of food, medicines, drinking water, and sanitation supplies; interfere with the functioning of health and education systems; and undermine people’s ability to work. These are not unintended effects – they are the whole idea.
Multilateral comprehensive sanctions used to be more commonplace, until their impact was famously highlighted by the humanitarian crisis in Iraq in the 1990s. Sanctions imposed by the U.N. Security Council against Iraq led to an immediate shortfall in the supply of essential goods, skyrocketing food prices, and widespread malnutrition. Access to primary healthcare and medicines collapsed, infant mortality tripled, and living standards fell by one third. In 1994, UNICEF warned that as a result of the sanctions, 1.5 million Iraqi civilians were at risk of malnutrition and death.
In Syria, some analysts believe the chilling effects of the Caesar sanctions were felt even before they came into effect. The Syrian currency has plunged by 70 percent since April, and prices have been rising so fast that goods are sometimes cheaper in the morning than in the evening. The specter of the looming economic crisis and the misery that will inevitably result has – in accordance with the plan – prompted public protests against the Assad regime, at a level not seen since the early years of the war.
A Role for Targeted Sanctions that Respect International Law
Even if one accepted that the imposition of widespread civilian suffering could be justified as a way of achieving the downfall of the Assad regime — one might argue that without regime change, Syrian civilians will continue to suffer anyway — comprehensive sanctions would not be the strategy of choice. Studies into the effectiveness of sanctions broadly agree that sanctions have a limited success rate. One major study of 174 sanctions regimes from the First World War through to 2000, for example, found that sanctions had been “at least partially successful” in just over a third of cases.
That said, well-targeted economic sanctions – so-called “smart sanctions” – have an important role to play in the foreign policy toolbox of states, and there have undoubtedly been situations in which sanctions have promoted compliance with international law.
Sanctions are most effective when imposed as part of a multilateral initiative. Otherwise, the sanctioned state can simply take its business elsewhere – which is why the United States has sought to give certain of its sanctions programs, including the Caesar sanctions against Syria, extraterritorial reach. In a well-functioning international security system, a multilateral initiative would be led by the U.N. Security Council. If the Security Council were to impose mandatory, targeted sanctions against senior Syrian Government officials, all U.N. member states would be obliged to adopt their own sanctions legislation. The effect would be significantly increased pressure on the Syrian Government to comply with international human rights and humanitarian law. But with Russia and China consistently vetoing Security Council resolutions seen as offensive to the Assad regime, this is an unlikely scenario.
As an alternative, the General Assembly could step up and recommend to states that they impose sanctions. The General Assembly has done so on various occasions in the past, including in relation to struggles for self-determination and independence in Africa in the 1960s-1980s, South African aggression and apartheid in the same period, and Israeli aggression in the 1980s and 1990s. States wouldn’t be obliged to act on such a recommendation, but they would likely feel pressured to do so.
Regardless of whether sanctions are recommended by the Security Council or imposed unilaterally by states, including on the General Assembly’s recommendation, they should comply with international law. Unfortunately, though, the issue of unilateral sanctions is a grey area of international law that is not easy for states to navigate. In 2017, the U.N. Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights took a step towards remedying this situation by developing a Draft Declaration on Unilateral Coercive Measures and the Rule of Law. On legality, the current draft text asserts that sanctions are illegal if they purport to apply extraterritorially and/or if they inflict undue suffering on a civilian population. It affirms that when sanctions “produce effects comparable with those of a wartime blockade, the relevant rules of international humanitarian law applicable to blockade, as well as the general requirements of necessity, proportionality and discrimination and the prohibitions of starvation and collective punishment,” should apply.
Critically, for as long as states continue to use unilateral sanctions, the draft declaration sets out “rules of behaviour” to mitigate the adverse impacts of sanctions. These include: conducting a human rights impact assessment prior to sanctions being imposed and monitoring their effect; providing exemptions for humanitarian items; and ensuring that impacted groups are able to obtain “remedies and redress.”
The Caesar Act does provide for a “humanitarian waiver,” although it’s not hard to imagine the bureaucratic hurdles associated with the need for the U.S. president to certify to Congress that the waiver is “important to address a humanitarian need” and “consistent with the national security interests” of the United States. The Act says nothing about human rights impact assessments or monitoring, and there is certainly no mention of remedies or redress for the impacted population.
For states wanting to promote compliance with international law, well-targeted sanctions, ideally authorized or at least recommended by the U.N., are a critically important tool. But comprehensive, unilateral, extraterritorial sanctions that have egregious impacts on the human rights of a civilian population have no place in international law, and should have no place in foreign policy.