Purpose and nature of sanctions

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BAKU STATE UNIVERSITY

School Of Law

SANCTIONS

Coursework on Theory Of Law

Prepared by:

Aygun Huseynli

Supervisor:

Farhad Mehdiyev

BAKU - 2011



Table of Contents

Introduction

1. Purpose and Nature Of Sanctions

1.1 Purpose of Lawyer Discipline Proceedings

1.2 Public Nature of Lawyer Discipline Proceedings

1.3 Purpose of These Standards

2. Civil Law Sanctions

2.1 Role of Civil Sanctions in Social Control

2.2 Usage of Civil Law Sanctions

2.3 Civil Sanctions

3. Criminal Sanctions

3.1 The Purpose Of Criminal Sanctions

3.2 The Role Of Sanctions in Crime Reduction and Public Protection

3.3 Sanctions and Incapacitation

3.4 Sanctions as Deterrence

3.5 Sanctions and Rehabilitation

4. Sanctions Assesment Methodology

4.1 Why the need for a sanctions assesment methodology in Public International Law?

4.2 Targeted sanctions: Interlaken, Bonn-Berlin and Stockholm Processes

4.3 Summary of sanctions assessment methodology

4.4 Conceptual Framework

4.5 Humanitarian assessments under sanctions and human rights

5. Sanctions, applied by European Union

5.1 Arms Embargoes

5.2 Economic and financial sanctions

5.3 Restrictions on admission (Visa or travel ban)

6. Lawyers Sanctions in Public International Law

6.1 Scope

6.2 Disbarment

6.3 Suspension

6.4 Violations of Duties Owed to Clients

6.5 Violations of Duties Owed to the Public

Conclusion

References



Introduction

Sanction is a wide term with various definitions in different contexts. Sanction can be used to describe explicit approval. Used in this sense, the term usually is used in assigning liability to a party who was not actively involved in wrongdoing but who didn't do anything to prevent it. For example, if the upper-level managers of a business knew that their employees were using unfair employment practices and did nothing to stop them, it may be said that the managers sanctioned the unfair practices.

The term sanction also can describe disagreement and condemnation. In Criminal Law, a sanction is the punishment for a criminal offense. The criminal sanction for a criminal defendant varies according to the crime and includes such measures as death, incarceration, Probation, community service, and monetary fines. West's Encyclopedia of American Law, edition 2., Copyright 2008, The Gale Group, available at: legal-dictionary.thefreedictionary.com/sanction

In Civil Law, a sanction is that part of a law that assigns a penalty for violation of the law's provisions. The most common civil sanction is a monetary fine, but other types of sanctions also exist. Depending on the case, a sanction may be the suspension or revocation of a business, professional, or hobby license, or a court order commanding a person to do or refrain from doing something. A sanction may even be tailored to the case at hand. For instance, under rule 37 of the Federal Rules of Civil Procedure, if a party refuses to obey a discovery order, or an order to relinquish requested evidence, the court may order that the evidence sought be automatically construed in favor of the requesting party, refuse to allow the disobedient party to make claims or defenses related to the evidence, stay or postpone the case until the discovery order is obeyed, dismiss the action or render judgment for the requesting party, declare the disobedient party in Contempt of court, or make any other order that is just under the circumstances.

In civil litigation, sanctions are slightly different from remedies. A remedy is the relief accorded to a victorious litigant. The remedy may be money damages, an order that forbids or commands the opposing party or parties to do or refrain from doing a certain act or acts, or some other result favorable to the victorious litigant. Remedies are not always intended to punish a person, while sanctions are always punitive. Nevertheless, remedies and sanctions are similar in that they refer to a loss that a civil litigant must bear if she is found liable for a civil wrong.

In some cases a party may have to remedy another party's loss as well as suffer criminal and civil sanctions, all for the same act. For example, if an attorney is professionally negligent in his handling of a client's case and steals funds from the client's trust account, the attorney may face a Malpractice civil suit from the aggrieved client in which the client asks for money as a remedy for the malpractice. The attorney also may suffer sanctions from the professional conduct committee of the state bar association and criminal sanctions from a prosecution for the theft.

The contempt-of-court offense provides a flexible form of sanction. Contempt-of-court sanctions may be either civil or criminal. The court may order a party to pay a fine or suffer some setback in the case (civil contempt), or it may order that the party be placed in jail (criminal contempt). The basic difference between the two is that criminal contempt is an act of disrespect toward the court, whereas civil contempt acts tend to be less offensive transgressions, such as the unintentional failure to comply with discovery orders or to perform other acts ordered by the court.

A common form of sanction is the Administrative Agency sanction against a corporation. Corporations must follow various rules passed by federal, state, and local administrative agencies authorized by lawmaking bodies to regulate specific topics of government concern. If a business does not obey agency rules that apply to it, it may face sanctions levied by the administrative agency responsible for enforcing the rules. For example, federal and state environmental protection agencies are authorized by statute to levy fines against businesses that violate environmental laws and regulations.

An international sanction is a special form of sanction taken by one country against another. International sanctions are measures that are designed to bring a delinquent or renegade state into compliance with expected rules of conduct. International sanctions may be either non-forceful or military. Military sanctions can range from cutting off access to limited strikes to full-scale war. Non-forceful international sanctions include diplomatic measures such as the withdrawal of an ambassador, the severing of diplomatic relations, or the filing of a protest with the United Nations; financial sanctions such as denying aid or cutting off access to financial institutions; and economic sanctions such as partial or total trade embargoes. The U.N. Security Council has the authority to impose economic and military sanctions on nations that pose a threat to peace.



1. Purpose and Nature Of Sanctions

1.1 Purpose of Lawyer Discipline Proceedings

The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge properly their professional duties to clients, the public, the legal system, and the legal profession.

1.2 Public Nature of Lawyer Discipline Proceedings

Upon the filing and service of formal charges, lawyer discipline proceedings should be public, and disposition of lawyer discipline should be public in cases of disbarment, suspension, and reprimand. Only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer, should private discipline be imposed.

1.3 Purpose of These Standards

These standards are designed for use in imposing a sanction or sanctions following a determination by clear and convincing evidence that a member of the legal profession has violated a provision of the Code of Professional Responsibility. Descriptions in these standards of substantive disciplinary offenses are not intended to create grounds for determining culpability independent of the Code of Professional Responsibility. The Standards constitute a model, setting forth a comprehensive system for determining sanctions, permitting flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct. They are designed to promote: (1) consideration of all factors relevant to imposing the appropriate level of sanction in an individual case; (2) consideration of the appropriate weight of such factors in light of the stated goals of lawyer discipline; (3) consistency in the imposition of disciplinary sanctions for the same or similar offenses within and among jurisdictions.



2. Civil Law Sanctions

2.1 Role of Civil Sanctions in Social Control

Social control has been a central concept in sociological discussions of crime and deviance for the past century. However, it has undergone a number of transformations, most recently in the wake of the writings of Foucault (1979, 1981, 1991). This has led to new interest in the topics of discipline and governance, apart from the institutions of social control, particularly the police, courts and prisons. This chapter maps various changes in theories of social control and identifies new directions in social control mechanisms in contemporary society. Sharyn L. Roach Anleu, THE ROLE OF CIVIL SANCTIONS IN SOCIAL CONTROL: A SOCIO-LEGAL EXAMINATION, available at It does not propose that these new directions are evolutionary, purposive, instrumental or intentional but seeks to identify some general trends that are occurring in the shadow of traditional criminal justice concerns with punishment and crime control. Among recent developments are the increasing use of civil remedies for crime control purposes, greater input by victims and the community into the criminal justice process, and more opportunities for mediation and negotiation in less adversarial tribunals. There appears to be less faith in rehabilitation as a goal of criminal sanctions, and more policies and programs are oriented to crime prevention. Current developments are neither necessarily alternative social control strategies, nor do they inevitably replace or extend state-centered social control. Empirical investigation is essential to gauge the conditions under which new initiatives for social control emerge, and to examine the relationships between different ideologies and practices of social control.

Using civil remedies to control criminal or antisocial behavior has a long history; what is new is the vast expansion of the kinds of responses to deviance and the admixture of civil and criminal sanctions. Civil remedies -- for example, compensation, restitution and apology -- can be incorporated directly into the criminal justice process by replacing imprisonment and other criminal penalties. Second, many matters previously dealt with by the criminal justice system are now referred or delegated to or dealt with in such alternative tribunals as youth courts and local courts where there is greater scope for mediation and negotiation, the process is less adversarial, and there is more opportunity for participation by victims and less involvement of legal personnel. These new fora are sponsored by the state but involve members of the community in tandem with criminal justice officials. Third, the decriminalization of some offenses -- for example, possession of small amounts of cannabis -- has led to the greater use of expiation notices and on-the-spot fines without criminal proceeding. Fourth, there has been an expansion of administrative law, including local government regulations and ordinances, licensing procedures, orders to cease and desist from certain behaviors, and the statutory establishment of specialized crime investigation and prosecution agencies, all of which aim to curb antisocial, harmful and criminal activities but emerge outside or in the shadow of the criminal justice system.

Administrative law and civil remedies are also being used to control corporate crime where establishing individual culpability may be difficult or impossible. It is more relevant to talk about the regulation of behavior to achieve conformity than about the social control of deviant activities. The expansion of regulatory action encompasses those deviating from some social norms, including criminal laws, as well as those who conform and have no intention of engaging in illegal activities. Trends signaling a general movement away from the criminal justice system's monopoly on formal social control for some offenses have variously been termed decarceration, informalism and privatization. Social contract theory underpins the themes of community, apology, restitution and conciliation: crime and anti-social behavior breach individuals' responsibilities and obligations to the community, especially the victim(s)', and social control is needed to restore the status quo. At the same time, there is a return to classical conceptions of crime and punishment: crime is viewed as an outcome of rational action in the context of criminogenic opportunities, and sanctions are equated with the seriousness of the criminal offense. A further important component in contemporary approaches to crime management is insurance and the increasing expectation that potential victims of crime will insure themselves against the risk of victimization. The following discussion examines sociological approaches to social control and locates new criminal justice programs within this context. The central point is that social relations remain key aspects of crime control and management, but these relations are not necessarily intimate or personal. Crime management is more indirect, private, diffuse and oriented to communities as the location of social control, thus having some similarities with earlier descriptions of informal social control. A significant difference is that contemporary crime prevention programs and attempts to incorporate the community into the criminal justice process are explicit, consciously planned strategies for establishing order rather than emergent qualities of the social setting. Sharyn L. Roach Anleu, available at

2.2 Usage of Civil Law Sanctions

In civil law, sanctions are most commonly used against lawyers or parties to a case when they abuse the judicial system or act inappropriately. For example, lawyers and parties to a case can be sanctioned for failing to observe proper decorum in the court, for filing frivolous suits, or for acting in contempt of court. These sanctions can include fines and other penalties which the judge may set out, and some judges have devised especially creative sanctions to impose order in their courtrooms. S.E. Smith, In Law, What Are Sanctions?

2.3 Civil Sanctions

Suspension or revocation of business, professional or hobby license are types of civil sanctions, as are restitution and monetary damages. In case of a civil sanction, money is awarded to another party, such as someone the sanctioned person has hurt, wronged or damaged goods. Some cases may involve both civil and criminal sanctions. If a doctor knowingly mistreats a patient, he may be indicted on criminal charges and be sued for monetary damages. Jaime Golden, Types of Legal Sanctions, available at



3. Criminal Sanctions

In criminal law, a sanction is defined as a punishment for a criminal offense or civil offense. Sanctions may be monetary, involve jail time, community service or other type of punishment. Sanctions are handed out by judges, juries and in some circumstances by committees. Sanctions are serious types of punishment that may result in permanent criminal records, serious fines and loss of career or licenses.

This type of criminal sanctioning involves judges or juries punishing an individual for committing a crime. Common sanctions include imprisonment, probation, fines and community service. Judges follow a strict sentencing guideline protocol when sentencing those convicted of a crime. Probation may range from months to years. Fines imposed on people convicted of crimes can range from restitution (to a victim) to thousands of dollars in fees from tickets. Community service hours may be assigned dependent on the crime committed, and the judge may also impose where and when a person performs her community service.

3.1 The Purpose Of Criminal Sanctions

Punishment's purpose is to inflict some kind of loss on the offender and give formal public expression to the unacceptability of the behavior to the community.

Incapacitation's purpose is to restrain the offender so as to limit their opportunities to commit further crime. Deterrence's purpose is to impose a penalty to either deter the individual from committing further crimes or to deter others from imitating the criminal behavior.

Rehabilitation's purpose is designed to include measures which might contribute to the person desisting from future offences and to assist in their reintegration into society.

Reparation penalties can involve direct or indirect compensation for the harm caused to victims by the crime.

3.2 The Role Of Sanctions in Crime Reduction and Public Protection

The function of sanctions as punishment need not necessarily give rise to any broader crime control or public protection function. To some extent punishments are imposed on offenders because it is widely regarded as simply being the right thing to do. It is appropriate that offenders experience some sort of loss or burden, in recognition of the community's disapproval of their actions.

However, sanctions are also generally justified by reference to the other functions listed on the previous page. An important overarching objective is the provision of public protection, i.e. the reduction as much as possible of re-offending in the community and the prevention of further victimisation. While the empirical data and analysis insofar as Ireland is concerned is limited, some of the research which has been undertaken in other jurisdictions is relevant to this discussion.

The first discussion document in this series ('Crime Prevention and Community Safety') considered the many factors which contribute to crime and its prevention. Sanctions can affect the level of crime in a number of ways, principally through the mechanisms of incapacitation, deterrence, or rehabilitation.

3.3 Sanctions and Incapacitation

Some sanctions, principally imprisonment, can reduce crime through incapacitation. For many, this is the main common-sense role of imprisonment. Incapacitation forms an essential public protection role and for the most serious and serial offenders it has particular relevance. While incapacitation is primarily associated with imprisonment, court ordered behavioral restrictions, such as not participating in certain activities or frequenting certain places, especially those associated with a high risk of re-offending, can also protect the public from further offending.

Various attempts have been made to measure the incapacitative impact of imprisonment. The Halliday report in the UK concluded that a 15% increase in prison population would be required to achieve a reduction in crime of 1% (2001). A considerable amount of research and debate on this subject exists in the US, where the prison population has grown substantially since the 1960s. That research also links expansion in prison population with decreased crime, although the studies vary considerably in estimating this. However, some of the research also records diminishing returns and a degree of negative feedback arising from the long-term damage done to those communities with high rates of imprisonment.

One issue on which there is general consensus, however, is the significant financial cost of imprisonment. Accordingly, while expenditure on additional imprisonment might achieve reductions in crime, and in some circumstances produce sufficient benefits to outweigh the expenditure incurred, it undoubtedly requires considerable resources and may not always be the most cost-effective way of achieving the same public protection outcome.

3.4 Sanctions as Deterrence

Closely related to the communication of society's censure of the offence is the desire to send a message to act as a deterrent either to the offender in question or to others contemplating similar criminal behavior. Most would agree that without criminal sanctions more people would risk committing a crime. Furthermore, any perception that crime goes unpunished threatens to undermine community morale and crime prevention efforts.

What is not as clear, however, is whether marginal increases in penalties will lead to increased deterrence. One major UK review of international research on this topic concluded that there was no basis for making a strong causal connection between variations in sentence severity and deterrent effects. There are a number of likely reasons for this, including the possibility that many offenders will simply be unaware of variations in the law, or will dismiss the prospects of being detected or convicted, or may be willing to take the risk anyway because of impulsiveness, desperation or for psychological reasons. The same research review has, however, found stronger deterrent effects arising from a higher expectation of detection and conviction. Speed and certainty of penalty seems to have a greater bearing on criminal behavior than the possible range of penalty.

3.5 Sanctions and Rehabilitation

A further strand which has been examined is the rehabilitative impact of sanctions. Since most offenders will be released at some point and cease to be incapacitated, the question arises as to whether the impact of a penalty can be designed to have a positive impact on the person, or at least offset the negative impacts of that penalty for reintegration and non-offending. There is a wide range of interventions which can be incorporated into sanctions, with varied outcomes. These can be delivered by a number of means, including through structured intervention programes in the community, tailored to the individual's circumstances and implemented under supervision (usually by court order). Alternatively, such interventions can be made during the course of a person's incarceration, although within short-term sentences there is little scope for focused rehabilitative interventions.

The breadth of interventions is such that it is not possible to briefly summarise what does or does not work and to what extent. In very general terms, however, the research on interventions with offenders is now more promising than it was in the 1970s when the view that `nothing works' prevailed in some jurisdictions. One comprehensive overview of evaluation studies identified gains in the region of 9-10%, in terms of reduction in re-conviction rates.



4. Sanctions Assesment Methodology

4.1 Why the need for a sanctions assesment methodology in Public International Law?

Where international political confrontations or armed conflicts are accompanied by multilateral sanctions, little may be known about the condition of people's lives. Good assessments are needed to evaluate humanitarian conditions, to identify whether and how sanctions cause harm, to improve the quality of people's lives by anticipating potential negative consequences, and to get maximum humanitarian benefit from available resources. A reliable assessment methodology will help address these needs. Without this type of standardized strategy, there has been a great deal of confusion surrounding the humanitarian impact of sanctions, as the following examples demonstrate:

In Yugoslavia during the 1990s, Ministry of Health officials were convinced that sanctions had caused the infant mortality rate to double. In reality, the rate had instead decreased more rapidly than in any neighbouring country. In Serbia between 1992 and 1995 sanctions were blamed for blocking the importation of medicines. Sanctions had caused some contract delays but at the same time the UN's supervision of imports had assured payments to suppliers. When sanctions ended many companies stopped trading with the Ministry of Health altogether and shortages of essential drugs grew worse, not better. Contrary to perception, UN sanctions had helped to ensure access to medicines by providing commercial guarantees.

In Liberia during 2001, billboards depicted the UN sanctions as a dangerous elephant, crushing a hospital and school (see figure 1, on the p.12). But in fact, the targeted UN sanctions in place at the time contained no restrictions on humanitarian goods used by hospitals or schools. Also, in Afghanistan during 2000 and 2001, the Taliban-controlled media directed a sustained campaign against sanctions, blaming them for the poor socioeconomic conditions in the country. This resulted in a general public perception that sanctions were having a direct impact on socio-economic and humanitarian conditions, even though the sanctions in place at the time were targeted to cover travel prohibitions, limited financial restrictions, diplomatic restrictions and an arms embargo. See the following two reports of the Secretary-General published during 2001: United Nations Security Council,

Report of the Secretary-General on the Humanitarian Implications of the Measures Imposed by Security Council Resolutions1267 (1999) and 1333 (2000) on Afghanistan, UN Doc. S/2001/695 (New York: United Nations, 13 July 2001); United Nations Security Council, Report of the Secretary-General on the Humanitarian Implications of the Measures Imposed by Security Council Resolutions 1267 (1999) and 1333 (2000) on the Territory of Afghanistan under Taliban Control, UN Doc.

S/2001/1215 (New York: United Nations, 18 December 2001). Given the operating environment in the country, the United Nations had limited opportunities, and in any event made almost no attempt, to respond to this misinformation.

During 13 years of comprehensive sanctions, the Government of Iraq used the sanctions to gain sympathy by arguing that they caused half a million excess child deaths. The temporary system of humanitarian exemptions in place from 1996-2003--the “Oil-for-Food” Programme--provided high dollar inputs for certain commodities, but few reliable assessments were carried out over the entire duration of the sanctions (1990 to 2003). The Government of Iraq pointed to sanctions as the primary cause of suffering in Iraq, while others blamed the authorities in Baghdad. A reliable assessment could have identified the processes by which humanitarian conditions were being affected, and could therefore have assisted in mitigating the unintended negative consequences of sanctions. Manuel Bessler, Richard Garfield, Gerard Mc Hugh Sanctions Assessment Handbook, Assessing the Humanitarian Implication of Sanctions (produced by United Nations, Inter-Agency Standing Committee, October 2004)

These examples highlight the need for credible humanitarian assessments in advance of, and during, sanctions. The approach to such assessments should be made explicit, be consistent across countries and over time, and be rigorous enough to clarify the specific consequences of sanctions among other possible humanitarian threats. Only in this way will such assessments be politically neutral and technically legitimate.

4.2 Targeted sanctions: Interlaken, Bonn-Berlin and Stockholm Processes

Since the late 1990s, three international initiatives have been undertaken to develop and hone political approaches to the targeting of sanctions, with the goal of increasing their effectiveness.

The first of these, the Interlaken Process, was initiated by the Swiss Government in 1998 and focused on targeted financial sanctions. Consultations during the Process identified the role of humanitarian exemptions in designing targeted financial sanctions and mentioned briefly the role of humanitarian impact monitoring. The report of the contributions to the sanctions debate resulting from the Process did, however, suggest draft text for incorporating provisions relating to monitoring of potential humanitarian consequences in UN Security Council resolutions. The Thomas J. Watson Jr. Institute for International Studies, Targeted Financial Sanctions: A Manual for Design and Implementation--Contributions from the Interlaken Process (Providence, R.I.: The Thomas J. Watson Jr. Institute for International Studies, October 2001).

The second initiative, the Bonn-Berlin Process, organized by the Foreign Office of Germany in 2000, focused on arms embargoes and travel sanctions. The consultations under this process did not directly address how to assess the potential humanitarian implications of the measures under discussion. Michael Brzoska, ed., Design and Implementation of Arms Embargoes and Travel and Aviation Related Sanctions: Results of the “Bonn-Berlin Process” (Bonn: Bonn International Center for Conversion, 2001).

The third initiative in this triad, the Stockholm Process on the Implementation of Targeted UN Sanctions, was coordinated by the Swedish Ministry of Foreign Affairs, and took place during 2002. The final report of this initiative was presented to the UN Security Council in February 2003. Among its recommendations was the need for an “established methodology” for carrying out regular humanitarian and socio-economic impact assessments. Peter Wallensteen et al., ed., Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options [Final Report on the Stockholm Process on the Implementation of Targeted Sanctions] (Uppsala: Department of Peace and Conflict Research, Uppsala University, 2003).

Taken together, these three initiatives guide much of the UN's political work to create and implement targeted sanctions. For the UN Security Council, sanctions constitute one of the tools available to the Council--of a range of options between diplomacy and military force -- to restore peace and security. It is important, therefore, that these measures be well designed and implemented properly, and that any unintended harm they may cause be minimized and mitigated.

Complementing the reference documents produced under the three international processes on more effective and targeted sanctions, this handbook can assist in minimizing potential humanitarian impacts of sanctions implemented according to the guidelines and recommendations produced during those processes.

4.3 Summary of sanctions assessment methodology

The methodology outlined in this handbook is based on a causal modelling approach. It employs structured models of cause and effect to trace the processes that lead from an action (the application of sanctions) to outcomes (for example, changes in humanitarian conditions) across economic and social sectors. The models also specify indicators of PROCESS to identify intermediate steps through which sanctions may affect humanitarian conditions.

By identifying pathways from actions to outcomes, the method makes explicit the causal mechanisms by which harm may occur and illuminates areas of focused inquiry for investigators to pursue. For instance, the imposition of a targeted trade sanction may result in reduced employment opportunities in a particular industry sector. Without alternative employment opportunities, this may result in reduced household income for displaced workers, there by contributing to decreased household food security and reduced nutritional intake among workers' dependents. Malnutrition among the more vulnerable household members would be a possible resulting outcome.

In this example, the process, with intermediate steps, links the action (sanction) to the outcome (increased malnutrition) (see figure 1). Since other factors may also influence nutritional intake, the identification of the processes that lead to changes in humanitarian conditions is intended to assist in isolating and measuring the effects that are specifically attributable to sanctions.

The methodology presented here does not in any way presuppose a particular type of impact due to sanctions. The impact of sanctions on humanitarian conditions in a particular case may be positive, neutral or negative. Investigators must keep an open mind in this regard and make their hypotheses explicit. The methodology helps in examining if a particular hypothesis is consistent with relevant data.

4.4 Conceptual Framework

The methodology for assessing the humanitarian implications of sanctions presented in this handbook is based on the concept of human security. For more on the concept and applications of human security, see, for example: The Commission on Human Security

(CHS), Human Security Now (Final Report of the Commission on Human Security) (New York: Commission on

Human Security, 2003)

Human Security: Concept and Measurement, Occasional Paper No. 19 of the Joan B. Kroc Institute for International

Peace Studies, University of Notre Dame, August 2000. In contrast to other types of security, human security is a people-focused concept, which captures the status of the safety of the individual from critical threats to well-being. It provides a construct for assessing possible threats to, protection of, and needs for the survival and development of people.

Moreover, since the concept of human security is predicated on the safety of individuals and groups, it is well suited to the purposes of assessing the humanitarian implications of sanctions, as these assessments ultimately seek to improve human health, well-being and safety by minimizing potential unintended impacts.

Human security recognizes a “vital core” of human activities and capabilities of highest importance to be protected. Since it is focused on threats to actual living conditions, human security can be assessed by measuring key aspects of people's conditions of life. This focus on multiple measurable dimensions of people's lives and their safety, and consideration of threats to these facets of a person's security distinguishes human security from other concepts, principles and frameworks used for defining the status of living conditions.

The conceptual framework used here operationalizes human security by establishing two clusters of humanitarian and socio-economic conditions, each of which contains four subject areas. These are referred to as the “4 + 4 human security subject areas. Each subject area contains a number of indicators, or variables, that are useful for measuring conditions of life. For example, the “health” subject area contains indicators such as child mortality, malnutrition rates, and immunization rates.

“Core” and “systemic” human security clusters

The core cluster of four subject areas comprises groups of indicators of conditions related to immediate survival and development of humans. The subject areas in this cluster are: 1. Health; 2. Food and nutrition; 3. Water and sanitation; and 4. Education. The inclusion of education in the core cluster mirrors the increased role education has played in considerations of basic conditions of life, especially for children, in recent years. See, for example, Graзa Machel, The Impact of Armed Conflict on Children: A Critical Review of Progress Made and Obstacles Encountered in Increasing Protection for War-affected Children, International Conference on War-affected Children, Winnipeg, Canada, September 2000, p. 27. Together, these four pillars represent the “vital core” of human security.

The indicators and groupings proposed here correspond to established “minimum standards” for humanitarian assistance developed under the Sphere Project, and relate closely to fundamental human rights as codified in the relevant covenants and declarations, including the International Covenant on Economic and Social Rights and the Convention of the Rights of the Child. These elements provide substance to address the question, “What are the current conditions of people's lives?” Most of these data will be at the level of the individual person while the statistical measures used to describe these conditions are generally expressed as rates in a population.

The second cluster deals with the systems and social context in which people strive to secure the core human needs. The subject areas of this cluster are: 1. Governance, 2. Economic status, 3. The physical environment, and 4. Demography. These structures frame the environment in which outcomes that characterize the vital core are influenced. Most of these data will be at the level of groups of persons or communities.

These two clusters of subject areas--the “core” and “systemic” clusters--provide a template covering most of the necessary conditions for assessing humanitarian status. lawyer sanction protection crime

4.5 Humanitarian assessments under sanctions and human rights

In developing the sanctions assessment methodology, one of the most important issues considered was how to define the interface between the methodology and human rights. Essentially, the question was: “to what degree should human rights feature in assessment of the humanitarian implications of sanctions?”. This presents significant challenges, since any considerations of the degree of fulfilment of human rights involves judgements on the legal obligations of certain people or entities involved (the targeted State; the sanctioning authority; and other States Parties to the relevant human rights Covenants and agreements) in upholding and safeguarding those rights.

The central purpose of the methodology described in this handbook is to assess humanitarian conditions in sanctioned countries and regions. Assessment studies using this methodology will analyse the basic status of people's living conditions and identify how these conditions evolved as they did, including the specific impact of sanctions.

By focusing on the possible implications of sanctions on the basic conditions of life of those in sanctioned States, the methodology highlights two key dimensions of the interface between assessment of the humanitarian impacts of sanctions and human rights: (1) human rights problems which manifest as a result of discriminatory access to resources and (2) application of the methodology to provide an analytical basis for performing human rights assessments of sanctions.

Discriminatory access to resources under sanctions

Certain limitations on human rights that are associated with discrimination and prejudicial access to basic resources can be identified and followed through the subject areas outlined in the preceding section, insofar as these constraints influence processes that affect humanitarian conditions. For example, where sanctions result in increased discrimination against women seeking employment in particular sectors, the human rights impact is manifest in economic and employment data. Thus, when undertaking humanitarian assessments, it is important for investigators to inquire about the potential for sanctions to change resource allocations in favour of particular groups in the population.

Empirical and analytical basis for human rights assessments

In the literature on sanctions and human rights consequences, there is much confusion about how indicators of humanitarian conditions relate to changes in human rights. It is important therefore to define these terms and how they overlap. Humanitarian conditions are defined here as those conditions of life that relate most directly to physical survival, health and well-being, and critical aspects of human development.

Humanitarian conditions are empirical in nature and can be examined by discrete measures. Human rights--being rights of individuals--are universal, independent and indivisible. Fundamental human rights that relate to the very existence of the individual (among other rights) are non-derogable. Human rights are aspirational (everyone can aspire to fulfilment of their human rights) and normative (every person should be able to enjoy complete fulfilment of his/her human rights). Perhaps most importantly, human rights confer entitlements, and define obligations, both in a legal and a moral sense.

Because human rights are entitlements of every person, and cannot be diluted or diminished, it is not possible to measure human rights, per se. When people speak of human rights indicators, they are referring to measurement of the degree to which human rights are being fulfilled. To measure this, one must identify and use indicators that provide an assessment of the degree to which human rights are being fulfilled. Manuel Bessler, Richard Garfield, Gerard Mc Hugh, Assessing the Humanitarian Implications of Sanctions, United Nations, IASC - Inter-Agency Standing Committee October 2004

Practitioners in the two domains of human rights and humanitarian affairs each have developed empirical measures upon which to base assessments of their respective variables of interest. Human rights practitioners have identified indicators to assess the degree to which human rights are being fulfilled. Humanitarians have identified indicators of humanitarian conditions. There is significant overlap in these groups of indicators.

However, indicators of humanitarian conditions and human rights differ in one primary area: assessments of humanitarian conditions are based on empirical and analytical determinations of existing conditions. In the case of indicators used to assess the fulfilment of human rights, indicators of humanitarian conditions provide the foundation upon which human rights specialists can make an additional judgement as to whether the observed conditions constitute a breach of, or constraint on, human rights.

By analysing the basic conditions of people's lives and assessing the impact of sanctions on those conditions, the methodology described here can provide an analytical foundation which others can use to determine compliance with the duties and obligations of the actors involved in creating and redressing these conditions. This empirical and analytical basis will be a necessary precursor for human rights assessment of sanctions, which will require additional judgements and interpretation.



5. Sanctions, applied by European Union

The European Union applies sanctions or restrictive measures in pursuit of the specific objectives of the Common Foreign and Security Policy (CFSP) as set out in Article 11 of the Treaty on European Union, namely:

to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter;

to strengthen the security of the Union in all ways;

to preserve peace and strengthen international security, inaccordance with the principles of the United Nations Charter and the Helsinki Final Act, and the objectives of the Paris Charter, including those on external borders; to promote international cooperation;

to develop and consolidate democracy and the rule of law and respect for human rights and fundamental freedoms.

A general statement on EU policy is found in the Basic Principles on the Use of Restrictive Measures (Sanctions) (Council document 10198/1/04). Using the CFSP framework, the 25 EU Member States implement sanctions imposed by the Security Council of the United Nations under Chapter VII of the UN Charter. The UN Charter confers on the Security Council powers to decide in a manner binding for all UN members restrictive measures required in order to maintain or restore international peace and security, if there is a threat to the peace, a breach of the peace, or an act of aggression. When the EU implements UN Security Council Resolutions, it adheres to the terms of those Resolutions but it may also decide to apply further restrictive measures. The EU will implement UN restrictive measures as quickly as possible. European Commission - Restrictive measures, Text completed in Spring 2008

There is a wide range of possible restrictive measures which could be imposed by the EU. When deciding on restrictive measures, it is important to consider which measure or package of measures is most appropriate in order to promote thedesired outcome. They may include:

* diplomatic sanctions (expulsion of diplomats, severing of diplomaticties, suspension of official visits);

* suspension of cooperation with a third country;

* boycotts of sport or cultural events;

* trade sanctions (general or specific trade sanctions, arms embargoes);

* financial sanctions (freezing of funds or economic resources, prohibition on financial transactions, restrictions on export credits or investment);

* flight bans; and

* restrictions on admission.

Restrictive measures imposed by the EU may target governments of third countries, or non-state entities and individuals (such as terrorist groups and terrorists). Note that EU autonomous sanctions cannot be imposed against individuals or entities where there is no foreign policy dimension. Where individuals or entities are subject to targeted restrictive measures (sometimes called `smart sanctions'), there should be clear criteria, tailored to the specific case, for the purposes of determining who should be listed and de-listed.

As stated above, the Security Council of the United Nations may require all UN Member States to implement measures short of the use of military force. Article 41 of the UN Charter states that such measures 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. The EU, like the UN Security Council, has in recent years predominantly applied restrictive measures in the form of arms embargoes, economic and financial restrictions and restrictions on admission.

The Council of the EU has agreed Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common Foreign and Security Policy which provide guidance on common issues and present standard wording and common definitions that may be used in legal instruments implementing restrictive measures.

5.1 Arms Embargoes

Arms embargoes may be applied to stop the flow of arms and military equipment to conflict areas or to regimes that are likely to use them for internal repression or aggression against a foreign country. In this perspective, CFSP legal instruments imposing an arms embargo generally comprise:

* a prohibition on the sale, supply, transfer or export of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts,

* a prohibition on the provision of financing and financial assistance and technical assistance, brokering services and other services related to military activities and to the provision, manufacture, maintenance and use of arms and related materiel of all types. European Commission - Restrictive measures, available at

Arms embargoes apply at a minimum to the items found in the EU's Common Military List , last updated on 10 March 2008. They are usually accompanied by a ban on the provision of related financing and financial and technical assistance. Where internal repression is a concern, a prohibition on equipment which may be used for internal repression may be used.

There are normally also certain limited exemptions to these prohibitions, in particular for non-lethal equipment, for end-uses which may include:

* humanitarian or protective use;

* institution building programmes and/or crisis management operations (typically those of the UN and the EU, but also those of any relevant regional and sub-regional organisations such as the African Union);

* de-mining operations.

Such exemptions are typically subject to either prior approval by or notification to a competent authority (and, in the case of UN arms embargoes, the relevant Sanctions Committee of the Security Council).

There is often an exemption for protective equipment, including flak jackets and military helmets, temporarily exported by United Nations personnel, personnel of the EU or its Member States, representatives of the media and humanitarian and development workers and associated personnel for their personal use only.

The provision of lethal equipment and related financial or technical assistance may also be permitted in some cases, subject to appropriate safeguards and conditions.

5.2 Economic and financial sanctions

In view of the economic significance of the EU, the application of economic and financial sanctions can be a powerful tool. Such sanctions could consist of export and/or import bans (trade sanctions which may apply to specific products such as oil, timber or diamonds), ), bans on the provision of specific services (brokering, financial services, technical assistance), flight bans, prohibitions on investment, payments and capital movements, or the withdrawal of tariff preferences. However, broad economic or financial restrictions may result in unduly high economic and humanitarian costs.

Economic and financial restrictive measures, including targeted financial sanctions, have to be applied by all persons and entities doing business in the EU, including nationals of non-EU countries, and also by EU nationals and entities incorporated or constituted under the law of an EU Member States when doing business outside the EU.

Targeted (or smart) financial sanctions

The EU has often imposed targeted financial sanctions, which can be designed to target specific persons, groups and entities responsible for the objectionable policies or behavior. Such sanctions comprise both an obligation to freeze all funds and economic resources of the targeted persons and entities and a prohibition on making funds or economic resources available directly or indirectly to or for the benefit of these persons and entities.