Dr Mohammad Hadi Zakerhossein, Assistant Professor at University of Tehran, Researcher at Amsterdam Center for International Law
On 11 March 2020, the World Health Organization (WHO) labelled the Coronavirus outbreak as a pandemic. This emerging crisis requires a shift and change in the dominant paradigm under which States might treat others. Fabricio Guariglia, from the International Criminal Court, in his piece discuss the role of international criminal law (ICL) in responding to the crisis. He refers to several scenarios, but his piece has a significant missing, namely economic sanctions. In the Corona era, ICL plays a prominent role in easing sanctions to enable states to fight the virus outbreak. The present piece intends to offer more insight in this role of ICL in the current crisis. In response to the outbreak of a disease, the international community calls for solidarity, which requires moving from indifference to responsibility. At this backdrop, economic sanctions should be seen as a deviation. In this piece, I will have a brief overview of the UN’s reaction to the epidemics, in particular regarding the Ebola outbreak. Then, economic sanctions against Iran, as an ongoing situation, will be discussed to prove that this practice violates the recommendations of the UN as well as international law. Moreover, due to their harmful consequences and the deliberate failure of the US to lift them, sanctions may amount to crimes against humanity because they constitute attack against Iranian civilians in furtherance of the maximum pressure policy adopted by the US government.
Dr Tedros Adhanom Ghebreyesus, the WHO Director General, has expressed his deep concern about alarming levels of inaction. At the time of writing, the wide majority of the world has been affected by the Coronavirus. It means that there is no safe haven for human beings to protect them from this contagious virus. Now as a global problem, the pandemic needs a global solution. It is a time that the world should move to adopt the policy of non-indifference towards this ongoing human crisis. From this perspective, the UN Secretary-General called for a global solidarity that is not only a moral imperative, but is in everyone’s interests.
The International Response to the 2014 Ebola Outbreak
Contrary to its current inaction, in 2014, in response to the outbreak of the Ebola virus, the UN Security Council (UNSC) promptly adopted Resolution 2177. The Resolution determined that “the unprecedented extend of the Ebola outbreak in Africa constitutes a threat to international peace and security”. A similar determination has not been made by the UNSC regarding the current outbreak. Reportedly, China does not support the UNSC’s intervention in the matter. Nevertheless, as some authors have correctly pointed out, the Corona outbreak warrants the same determination by the UNSC, because it poses a threat to international peace and security. It is suggested that in 2014 both the rapid spread and high mortality rate encouraged the UNSC’s members to consider the Ebola outbreak as an international threat. Ebola was predominantly a regional crisis that was considered as a threat to international peace and security. Compared to Ebola, the Corona virus is a universal and worldwide pandemics of a much higher mortality. Accordingly, the African Union labelled the Coronavirus as a threat to peace and security. As such, all those recommendations put forward by the UNSC concerning the Ebola outbreak could and should be endorsed and submitted with respect to the Corona crisis.
At the time, by underscoring the fact that the control of outbreaks of major infectious diseases requires urgent action, the UNSC stressed “the crucial and immediate need for a coordinated international response to the Ebola outbreak”. In addition to this, currently states need to concentrate on the outbreak’s control and management. In effect, no state can succeed in fighting the infectious disease such as COVID-19 in isolation and under external pressure. To improve circumstances for fighting the outbreak, the UN chief recently called for an immediate global ceasefire in all corners of the world to focus on the “true fight for our lives”. In the same vein, in 2014, the UNSC expressed its concern about the “detrimental effect of the isolation of the affected countries as a result of trade and travel restrictions imposed on and to the affected countries”. It has been proved that travel bans and similar restrictions isolating a state could potentially hamper the delivery of medical supplies and the deployment of specialised personnel to manage the epidemic. Following this reasoning, at the time, the WHO recommended not to put trade restriction or travel ban against the affected countries in place. The UNSC adopted and offered the same recommendations to support the affected countries to control the outbreak of the disease. In Resolution 2177, the Security Council called all member States to lift general travel and border restrictions contributing to further isolate affected countries and undermine their efforts to respond to the Ebola outbreak. In this regard, airlines and shipping companies were called to maintain trade and transport links with the affected countries and the wider region. Taking into account the need for a global cooperation and coordination in fighting the outbreak, the UNSC called on states to provide assistance in response to the Ebola outbreak.
Economic Sanctions during the Coronavirus Outbreak
Against a backdrop of the situation that is called a “war” against Coronavirus, as described by French President, economic sanctions constitute those restrictions that should be lifted to enable affected countries to diagnose, treat, prevent and control COVID-19. Sanctions isolate states by cutting off their external relationship with the world. It is a goal that is sought by designing a sanction regime.
Once, the US Secretary of State warned Iran, which has been under the US sanctions since , of more isolation and sanctions. It is because sanctions and isolation both work in tandem and go hand in hand. Given its adverse effects that worsen the outbreak of Corona, the UN has called for rolling back sanctions. The UN High Commissioner for Human Rights, Michelle Bachelet, demanded an easing of sanction to enable medical systems of countries to fight the disease. According to Bachelet, “at this crucial time, both for global public health reasons, and to support the rights and lives of millions of people in these countries, sectoral sanctions should be eased or suspended. In a context of global pandemic, impeding medical efforts in one country heightens the risk for all of us”. In addition to UN High Commissioner’s summons, the UN Secretary General in a letter sent to the G-20 economic powers encouraged the waiving of sanctions imposed on countries to ensure access to food, essential health supplies, and COVID-19 medical support, because “this is the time for solidarity not exclusion”.
In this context, maintaining unilateral economic sanctions against a country might open the door to international criminal justice. Sanctions sever ties and relations of a target state with the world and bring it to isolation. There is no explicit prohibition of economic sanctions under international law. The UN Charter puts sanctions at the UNSC’s disposal to be employed to maintain the international peace and security. Nonetheless, the General Assembly considered unilateral sanctions “contrary to international law, international humanitarian law, the Charter of the United Nations and the norms and principles governing peaceful relations among states”. In effect, unilateral coercive measures with extraterritorial effects violate the non-intervention principle. The main purpose of sanctions lies in changing and modifying behavior of a target state, but states are legally deprived from taking sanctions as a measure to alter the domestic behavior and policy of other states. The legality of sanctions is not only assessed in light of their unilaterality, but more importantly by taking into account their impact and consequences.
Sanctions have been proved to provoke humanitarian effects. Even when they are designed in a targeted and smart format, the risk of adversely affecting the civilian population remains high. In the words of the then UNSG, sanctions remain a blunt instrument that hurt ordinary people. Due to their humanitarian consequences, the UNGA in 1999 rejected unilateral coercive measures, including economic sanctions “because of their negative effects on the realization of all the human rights of vast sectors of their populations, in particular children, women and the elderly”. To reduce the humanitarian impact of sanctions and to protect the rights of individuals in the target country, a policy of circumscribed exemptions and exception have been developed. In effect, from the lens of international human rights law, each sanction regime should have a humanitarian window that allows population of the target state to access to what is necessary for their survival, including items intended for medical purposes.
Designing a humanitarian window in a sanction regime is necessary but not sufficient. In reality, smart sanctions could restrict and deny nations’ access to necessary and proper medical care. If it is the case, inaction of the state imposing sanctions to effectively provide the civilian population of target state with what is necessary to medical care may amount to crimes against humanity. Given their adverse effects on the health of civilian population, sanctions might be considered as a crime against humanity referred to in Article 7 of the Rome Statute. Economic sanctions per se are not explicitly referred to in the Rome Statute. Nevertheless, this conduct could be considered some prohibited acts referred to in the Rome Statute, including persecution and other inhumane acts. Persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of a group, including national groups. Access to food, medical services and what is necessary for survival constitutes fundamental rights of each nation whose deprivation may amount to persecution. More importantly, paragraph K does not allow that the silence of law be interpreted as a prohibitive rule. On the contrary, this ending paragraph opens the door to all non-mentioned acts that are inhumane due to their consequences. Indeed, paragraph K adopts a consequentialist approach to define underlying acts of crimes against humanity. The Rome Statute was drafted for a permanent institution. Its permanency feature requires an adaptable constituent instruments to cover all conduct of comparable gravity. Sanctions, by cutting access off to what is necessary for survival, cause great suffering and serious injury to the health. However, sanctions may amount to crimes against humanity if they occur in the context of a systematic and widespread attack against any civilian population in furtherance of a state policy. Following this sound reasoning, in February 2020, the Government of Venezuela made a referral under Article 14(1) of the Rome Statute. In the referral letter, the Prosecutor of the Court was asked to initiate an investigation on crimes against humanity allegedly committed on the territory of Venezuela, which are committed “as a result of the application of unlawful coercive measures adopted unilaterally by the government of the United States of America against Venezuela, at least since the year 2014”.
US Sanctions Against Iran
The US sanctions against Iran are a clear instance to show how sanctions could amount to crimes against humanity in time of the Corona outbreak. Following withdrawal from the Joint Comprehensive Plan of Action (JCPOA), the US re-imposed stringent and comprehensive sanctions against Iran. On 8 May 2018, President Trump declared in Presidential Memoranda: “I do not believe that continuing to provide JCPOA-related sanctions relief to Iran is in the national interest of the United States . . . I have determined that it is in the national interest of the United States to re-impose sanctions lifted or waived in connection with the JCPOA as expeditiously as possible.” As a consequence, he ordered that: “[t]he Secretary of State and the Secretary of the Treasury shall immediately begin taking steps to re-impose all United States sanctions lifted or waived in connection with the JCPOA, including those under the National Defense Authorization Act for Fiscal Year 2012, the Iran Sanctions Act of 1996, the Iran Threat Reduction and Syria Human Rights Act of 2012, and the Iran Freedom and Counter-Proliferation Act of 2012. These steps shall be accom- plished as expeditiously as possible, and in no case later than 180 days from the date of this memorandum.”It was also cleared that the sanctions will have extraterritorial effects and that “[a]ny nation that helps Iran in its quest for nuclear weapons could also be strongly sanctioned by the United States”.
As the US Treasury secretary pointed out, this was “part of a maximum unprecedented pressure campaign”. Under the US President’s direction, the campaign is a priority to force “Tehran to make increasingly difficult choices”. Maximum pressure policy adopted by the US sufficiently meets the policy requirement that is necessary for crimes against humanity. This policy is not only directed against the Iranian government but it targets the civilian population as well. On several occasions, US officials have states that US sanctions put Iranians under pressure to compel them to dement their government to change behavior. For instance, in 2019, US Secretary of State submitted that “things are much worse for the Iranian people and we are convinced that will lead the Iranian people to rise up and change the behavior of the regime”. In effect, the US sanctions use Iranian civilian population as human shield to pursue its political goals. It is a clear instance of collective punishment whose prohibition is beyond any doubt. Consequently, sanctions form a systematic and organized attack against civilian population of Iran in furtherance of the state maximum pressure policy.
US government claims that it has kept a ‘humanitarian window’ open in its sanction’s regime and sanctions do not impede humanitarian contribution to Iran. However, the reality is different. It is evidenced that sanctions cause serious injury to the Iranians’ health, from killing cancer patients to hindering Iranians’ access to medicine. Medical items are apparently exempted from the sanction regime, but the regime limits the access to those items in an direct way. Banking sanctions sever the trade relations with the external world that create deadly drug shortages. In addition, sanctions adversely affected Iranians ability to receive the medical care by driving up prices. Given these facts, Human Rights Watch has recently documented that “the consequences of US sanctions have posed a serious threat to Iranian’s right to health and access to essential medicines”. In effect, it is Iranian civilians who appear to be taking the brunt of the sanctions regime. And, as the UN Expert on Iran explicitly states that “a particular impact has been felt on the right of health”.
Apparently, US does not have a direct intent to hurt ordinary citizens in Iran, however, its oblique intent is evident. Legally speaking, in relation to a criminal consequence, an intentional act is committed if either that consequences is meant (dolus directus) or it is known that that consequence will occur in the ordinary course of events (dolus indirectus aut dolus eventualis). It is the latter that applies to the US sanctions. Given the overwhelming evidence of the adverse effects of sanctions, the US has been fully aware that in the current circumstances created by its unilateral sanctions of extra-territorial effect there is no chance and possibility for Iranians to purchase what is necessary purely for medical purposes. A part of this body of evidence were shared with the US in the case of Iran v. US before the International Court of Justice (ICJ) in the case known as the alleged violations of the 1955 Treaty of Amity. The ICJ unanimously ordered the US to remove any impediments to the free exportation to the territory of Iran of, inter alia, medicines and medical devices. Nonetheless, non-sanctioned items, including medical services, are not accessible too because sanctions prohibit transactions for all purposes too. Here, US deliberately fails to change the circumstances and let Iranians have access to necessaries. Therefore, this conduct may constitute a crime by omission.
To conclude, US deliberately failure to lift or, at least, suspend its unilateral economic sanctions against Iran is a notable omission that pursues the maximum pressure policy that is aimed at encouraging Iranians to enforce their own government to change its behavior in a manner wished by the US. Nowadays, Iran is waging war in two battlefields. First, it is fighting the Corona outbreak, and secondly it is in an economic war with the US. The latter adversely affects the Iran’s ability in the former. To effectively combat against the Corona outbreak, states need to have sufficient financial resources. If they want to employ and observe social distancing as the most effective weapon against the Corona outbreak they need money. Sanctions deprive affected states from this tool. Corona kills without discrimination and the US is indifferent to death of thousands of Iranians. On 25 March, eight countries including Iran in a letter sent to the UNSG asked the chief to reject the politicization of such a pandemic and call for the removal of the illegal and coercive measures of economic pressure. Nevertheless, the US continues with its harmful policy against Iran.