The Kuzas from the South and the Chens from the North have been in a conflict driven by economic disparity between them and affecting the lives of the citizens. The position of the United States is to take a comprehensive sanction, mostly arms embargo and financial measures.
UN Charter Issues
The UN has the power to deal with the humanitarian issues in Shunibia. Its role is to maintain international peace, security and order through collective measures; solve international problems of economic, social, cultural and humanitarian character; and promote human rights and freedom. For students who are seeking politics dissertation help, understanding the Security Council's role is critical. The Security Council determines any threat to the peace and aggression and accordingly decide economic, diplomatic and such other measures not involving armed forces.
Shunibia is in an armed conflict, which is non-international in character. This conflict calls for simultaneous application of human rights and international humanitarian laws. Article 2(4) of the UN provides the use of non-use of force to address this kind of situation. The UN Charter also justifies the use of force under certain exceptions. This was seen in Rwanda or Syria where a midway approach between the prohibition of use of force and the respect for human rights was adopted. Similar approach was seen in the NATO intervention based on humanitarian causes in Kosovo and in East Timor. It is important to note these exceptions although the current situation in Shunibia does not demand the use of force.
Shunibia is seeing a rise in the use of armed weapons by the Kuza Democracy Front (KDF) and the Government affecting the lives of citizens. The use of forces by both KDF and the police has affected political officials and civilians and their lives. This
calls for the application of SC resolutions, such as the SC resolution S/RES/2083 (2012) that imposed an arm embargo against all entities and individuals helping transfer of arms and weapons to al-Qaeda and its affiliates; the 2013 resolution 2127 governing the break-down of law and order involving violence and widespread human rights violation in the Central African Republic; or the May 1994 Security resolution 918 that imposed an arms embargo upon the territory of Rwanda. In the Shunibia context, the relevant question is whether the arms embargo must be against the country as a whole, against the conflict area, or against the KDF.
Targeted sanctions may minimise the negative impact on citizens of Shunibia. Arms embargo can specifically target the military of Shunibia and the KDF, which will create a political and psychological impact. This will not impact the economy of the country and the population. The UN Security Council can pass resolutions such as that of 1970 against Libya imposing an arms embargo against KDF and the military. If necessary, a resolution like the 1973 resolution can be adopted to authorise the use of force to protect civilians, and impose an asset freeze on the military and KDF. The Security Council can create sanctions committees, such as 918 Rwanda (1994-2008), under Article 29 of the UN Charter or Rule 28 and Rule 29 of the Provisional Rules of Procedure of the Security Council to administer the sanctions. There are precedents set by the ICJ as in the case concerning the military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) and concerning armed activities on the territory of Congo (Democratic Republic of the Congo v Uganda) where states cannot intervene to support any armed rebellion or opposition in another state.
In addition to the targeted sanctions, diplomatic sanctions including travel bans, asset freezes and commodity interdiction can be imposed. A threatened travel and financial ban can be made against key individuals, who incite hatred, violence, or attack in Shunibia or in any way obstruct UN personnel. These personnel can be in
the government, the military or the KDF or can be civilians. This action can be taken together with a ban on financing of weapons and military equipment. The UNSC adopted Resolution 2321 against several North Korean individuals and entities to impose a travel ban and asset freeze. It adopted the 18 May Resolution 2048 to impose a travel ban on leaders of Coup in Guinea-Bissau and to demand immediate steps to restore the constitutional order. It also adopted the 7 March Resolution 2094 imposing a travel ban and asset freeze for entities involved in financing North Korea’s nuclear program. The UNSC Resolutions Paragraph 6 (c) and of Annex B of resolution 2231 (2015) provides for freezing funds, financial assets and economic resources, and travel bans respectively.
The diplomatic measures will ensure upholding the rule of law and improved governance in Shunibia and at the same time stop those who threaten it. The high handedness of the military or activities of KDF in Shunibia affecting the civilians is possible only when they have access to vast financial resources. In that regard, the illicit diamond export could be curbed by passing a resolution to that effect. The UNSC passed the 1997 resolution against Sierra Leone and the 2001 resolution against Liberia curbing exports of oil and diamonds. A Committee and a Group of Experts to assist the Committee can be formed to monitor the ban on diamond ban, such as seen in resolution 1572 (2004) against Côte d’Ivoire.
The imposition of export bans on diamonds will stop funding the KDF. This will also ensure that illegal diamond mining activities conducted in the South are curbed. Similar resolution could be passed for banning oil exports. The ban should ensure that the legal exports are intact and the lives of the civilians and the economy of Shunibia are not affected. This can be done by banning any imports and exports of material or funds relating to the crisis, particularly the use of arms by military activities and KDF. This was seen in Resolution 1695 against North Korea’s missile programmes. The sanction can ban uncertified diamonds exports and create a certificate of origin system for rough diamonds. Resolution on the line of SCR 1343
against Liberia could also be considered to place an embargo on oil exports. Oil seems to play a key role in financially supporting the military actions. The oil sector of Shunibia alone is worth 23% of GDP. However, the benefit is confined to the North only. Such diplomatic measures will ensure upholding the rule of law and improved governance in Shunibia and at the same time stop those who threaten it.
Voting record pattern
The voting pattern prioritises human rights. It is the purpose of the UN Charter to maintain international peace and security. This is particularly relevant given that the violation of human rights, as is seen in Shunibia, is at the root cause of conflict and insecurity.
The protection and promotion of human rights is preventive in nature. A rights-based approach can lead to peace and security converting the preventive power to sustainable peace. It, thus, calls for a human rights normative framework to address the issues in Shunibia. They are of serious concern and if not addressed will lead to further conflict.
The changing pattern of armed conflicts has made it difficult to apply the established rules of international law regarding the use of force and the protection of civilians from armed conflicts. The Shunibia crisis is one such conflict where the KDF formed by the Kuzas are involved in the conflict. As such the human rights law (HRL) should complement the protection provided by humanitarian law (IHL). IHL is framed on the concept of state obligations rather than on the individuals. IHL is influenced by HRL given the involvement of civilian population in the conflict, which affects people who are not involved in the conflict.
The current crisis in Shunibia calls for a travel ban/asset freeze against both the KDF and the government of Shunibia, particularly the asset freeze directed at key officials, individuals and entities. It is for the International Criminal Court (ICC) or the UNSC to ask Shunibia to freeze the concerned assets. Accordingly, the ICC can request non-party states for freezing of assets under an obligation imposed by UNSC in accordance with the referral power provided under Article 13(b) of the Rome Statute, or an ad-hoc arrangement between the ICC and the non-party State as per Article 87(5) Rome Statute.
Chapter VII of the UN Charter empowers the UNSC to compel Shunibia to freeze assets. Such power stems from Article 41 of the Charter. As per Article 25, concerned states must accept and carry out the UNSC decisions. Thus, the assets of key individuals, whether government or KDF affiliated, can be frozen. According to the resolution 2231 (2015), paragraph 6 (c) of Annex B, Shunibia will be required to freeze the funds, financial assets and other economic resources of key individuals and entities. Such designated individuals or entities will not be allowed to receive any funds, financial assets, or economic resources as per paragraph 6 (d) of Annex B.
Shunibia is undergoing a human rights crisis. The crisis stems from the economic gap between the North and the South of the country. Majority of the benefits from the economic wealth of the country, from the oil export and diamond mining do not reach the South. Any resolution to asset freezing must ensure that the measure is lawful, executed in the general interest of the country, with legitimate aim and proportionate. It must also adhere to human rights principles. For instance, if the asset freezing order is connected with the criminal responsibility of designated individuals, it must comply with the checks and balances found in criminal procedures, such as a fair trial. This is supported by Article 21(3) of the Rome Statute, which provides for application and interpretation of applicable law subject to human rights, and Article 24(2) of the UN Charter, which requires the UNSC to act in accordance with the purposes and principles of the United Nation, which include human rights consideration as provided under Article 1(3).
Based on Article 39 of Chapter VII of the UN Charter, Shunibia is under a threat to peace, breach of peace, or act of aggression. The UNSC has the power to take measures necessary to maintain or restore international security. One such measure is to require Shunibia to lay down and implement a procedure to designate names of individuals or members of KDF and submit to the UNSC Committee formed to administer the sanction. Such individuals will be blacklisted. Shunibia can also pass laws allowing measures to freeze assets of such individuals.
While considering the sanction of asset freeze, there is also a need to review the implication of human rights principles in the asset freezing process. Relying on Rule 28 of the Provisional Rules of Procedure of the Security Council, the Council can appoint a special rapporteur in regard to human rights issues. The rapporteur can review the sanction regime in Shunibia from the context of the human rights crisis in Shunibia. Shunibia is currently facing a medical, health and food crisis. Freezing the assets may enhance the issues faced by people and victims of the armed conflict while accessing aid, medical resources, and healthcare in Shunibia. The rapporteur can propose recommendations to make the sanction effective and at the same time promote human rights principles.
The rapporteur will be a part of the Universal Periodic Review that is conducted by the PR Working Group. This group will conduct a periodic review of the human rights in Shunibia. Shunibia’s review will be assisted by groups of three States, known as “troikas”, who are the rapporteurs. The review report will be based on information provided by Shunibia; information provided by independent human rights experts and groups, (the ‘Special Procedures’), human rights treaty bodies, and UN entities; and information provided by national human rights institutions and non-governmental organizations. Shunibia has the primary responsibility to implement the recommendations contained in the final outcome.
The implementation of the Universal Periodic Review will provide an insight into Shunibia’s perceptions of international human rights law. The review is based on the Human Rights Council resolution, A/HRC/RES/5/1 (2007), which takes into account relevant provisions of the UN Charter, the UDHR, and other human rights instruments and laws. It is also often found that states have not limited themselves to the bases under the resolution 5/1, but have used additional materials. It is also true that states, although expansively interpreted the notion of ‘human rights’, have largely ignored regional human rights instruments. Therefore, while conducting the Universal Periodic Review, consideration must also be given to any regional human rights instruments to which Shunibia is a party. Based on the review, recommendations are issued by the review group and states should fulfil their human rights obligations and commitments.
The government being under the control of the North is biased towards the North. This is not democratic in nature. Further, corruption and human trafficking is prevalent. Trade in diamonds is not regulated. The Government is infringing on the rights of the Kuza through legislation. The situation presents a failure of the machinery of the government in the development of the country and equal protection of all of its citizens. The situation demands better and earlier democratic elections. In these circumstances, adding individuals, including public officials in a designated list to freeze their assets will prove beneficial in advancing the purpose of the UN Charter. The reason is that elections can be attractive to those violators of human rights for personal security reasons. A public office can provide them immunity from prosecution.
Imposing a sanction to freeze assets can reduce the human rights violations in Shunibia. When assets are frozen, it undermines the financial stability of the designated person or entity. The assets of specific banks, oil production and exports, and diamond mining and exports, and arms supply will bring financial instability and disrupt the operation of these entities. This step will also potentially stop any
possible genocide, and racial and religious driven violence. This sanction along with the establishment of a sanctions committee will coerce both the KDF and the designated persons and entities into relinquishing their agendas. The sanction in the form of asset freeze will promote the protection of human values and welfare. Along with targeted diamond and oil export sanctions, asset freeze will restrict funding to the military activities and activities of the KDF that are affecting the social and economic life of the people and the country.
The UNSC resolution that will order Shunibia to freeze the assets of individuals and entities included on sanctions lists is not self-executing. They will require Shunibia to give effect to the measures in its national legal orders. Such a resolution will serve the general interest of the country where peace and security will be restored; violations of human rights will be ceased; ongoing or future criminal conduct will be prevented; and assets will be preserved for future fines or reparations or payment to victims.
There can be targeted asset freeze that is temporary in nature to create a surprise effect. To reiterate, such targeted sanctions will minimise the negative impact on citizens of Shunibia and mitigate negative impact on Shunibia’s economy and the population. Freezing the assets will thus be directed at designated individuals and entities directly contributing to the crisis. This is a smart sanction based on justice and specific targeting of threats to international peace and security. It can achieve its legitimacy that is necessary for its acceptance and implementation through the application of the rule of law.
The 2005 General Assembly resolution recognised human rights and the rule of law as problems that need multilateral solutions. This means that member states must follow the rule of law at both the national and international levels, and to accept jurisdiction of the International Court of Justice. This also means that the international rule of law require the UN to act or assist Shunibia in addressing the crisis and to conduct in a manner adhering to the rule of law. Paragraph 2 of the 2012 UN Declaration provides that the rule of law should guide all activities and should be given legitimacy. All entities and persons must adhere to just, fair and equitable laws and must not be discriminated against
In regard to the asset freeze, the sanction may directly affect individuals with harsh effect. Thus, consideration must be given to due process and formal review. For example, the requirement of a statement to support proposed listing facilitates carefully targeted sanctions and avoids arbitrariness. The resolution of freezing assets may impact the human rights of the individuals subjected to the asset freezing measures. Adhering to human rights principle, certain exemptions are provided. Per paragraph 6 (d) of Annex B of resolution 2231 (2015), the asset freeze restrictions shall not apply to funds or other financial assets or economic resources, for example basic expenses. Also, if asset freezing powers are connected with the question of the criminal responsibility of the accused, they must be subjected to the checks and balances such as fair trial considerations. This is found in Article 21(3) of the Rome Statute that stipulates the application and interpretation of applicable law to be consistent with human rights principles.
Any UNSC action regarding Shunibia should be based on proportionality principles driven by the rule of law and human rights. The targeted sanction in the form of asset freeze is directed at both Shunibia and non-state actors, including individuals. It may affect their rights to property; private and family life; and their freedom of movement. The enforcement of the rule of law in the form of due process and remedy will ensure the targeted individuals and entities a chance to state their side of the story. If otherwise, it can undermine the legitimacy and effectiveness of the sanction where
the designated person or entities could challenge the implementation of the sanction.
There have been cases where judicial and quasi-judicial bodies have held that a state implementing UN sanctions cannot proceed without adhering to certain minimum due-process standards. If otherwise, it could produce a disproportionate infringement of human rights. To that effect, for Shunibia, a UN Ombudsperson can be appointed with the purpose of hearing the requests from individuals, groups and entities. The reason is that the UN sanctions regime involves conflicts of rights. On one hand, there are the human rights aspects, and on the other is the states’ or UNSC’s duty to protect those rights. To mitigate the risk of breach of the right, an ombudsperson acts as the agent to listen to the side of the story of those whose human rights are affected.
The ombudsperson will receive a petition from them. It will adopt a standard of review, such as the tests of ‘reasonable grounds’ and of ‘serious and credible evidence.’ The ombudsperson will make a determination based on the information gathered. The ombudsperson does not conduct any judicial review of existing decisions regarding a designated list. It determines whether the listing is justified. The ombudsperson will open a dialogue with the parties affected. This will ensure no prejudice is present. The report of the ombudsperson will be a comprehensive report, which will be submitted to a Sanctions Committee formed regarding the crisis in Shunibia. Along with that, there will be a recommendation.
The rule of law and human rights principle drive the sanctions committees to conduct a proportionality analysis of the sanction of asset freeze that will be imposed. This analysis will be conducted before the sanction is implemented and will also consider
whether it is necessary. This will ensure the appropriate measure rather than a comprehensive set of measures to be applied to individuals and entities. These steps are necessary given that the sanction will impact human rights, such as the freedom of movement. It must be proportionate to the objectives, which are to curb the use of force by the military or the KDF and to protect human rights. For example, freezing one’s assets may prevent a designated entity from funding a future genocide in the South or an attack on the government official. It may coerce the affected entities and parties to change their behaviour.
It has traditionally been the state that has the ability to violate and to protect human rights. However, the nature of the conflicts within the states and between states have forced the development and involvement of international organisations. Such organisations have taken decisions that could affect individuals. They are also imposed the duty to protect human rights obligations. This was discussed earlier as in relevance to the UN Charter provisions. Because of this, the discussion earlier has mentioned provisions that provide for preventing human rights violations and for the affected parties to hold the institutions accountable for the violations. One of the bodies that facilitates the performance of the duty as well as holding accountability is the UN Human Rights Committee. For example, in March 2002, the Committee expressed concerns over the asset freeze of three Swedish citizens of Somali origin under an order of a sanction committee. This situation presents a clash between security interests and human rights. To address such situations, the Committee plays a key role in determining the proportionality of an UN sanction. It adopts the proportionality principle to restrain institutional power of the UNSC. The decision must be based on reasoning ensuring relevant objectives are met while human rights are protected. The Committee prioritises proper independent controls for preventing abuse of power and properly drafted provisions.
The situation in Shunibia requires diplomatic measures not involving the use of force. The crisis is a failure of implementing the rule of law and represents a governance issue that does not prioritise human rights. The crisis is rooted to the gap in economic policies affecting the South and enriching the North. Thus, the sanction in the form of an asset freeze will bring certain order. It will bring regulations to promote democratic processes in the country and address instability in the activities of the concerned government departments, the military, the KDF and entities supporting the activities.
Conclusion
The decision regarding the sanctions against Shunibia reflects the existence of human rights issues. It reflects the immediate need to control the crisis in the form of arms embargo against the conflict area. This is to respect the sovereignty of Shunibia by not intervening in their national governance. However, the need for asset freeze against the government and the militia demonstrates that the KDF and key personnel and entities in the government are facilitating the use of force and actions that affect human rights of the people in the South. Curbing the diamond and oil export will curb the funding of these activities. The decisions on forming of the special groups reflect that the asset freeze may be sufficient to coerce the government and KDF into a certain behaviour in compliance with the objectives of the UN Charter.
The interaction between the duties of the UNSC to bring peace and order and to protect the human rights of the citizens of Shunibia demands the sanction committees to cautiously apply the proportionality principles based on reasoning. Decisions must be driven by the objectives of the sanction. Thus, a targeted asset freeze must produce a cumulative economic and political coercion. This requires a substantive decision-making process based on an objective criterion.
The actions of the UNSC must have a legitimate aim and necessity to justify any limitation on the fundamental rights. The fair procedure is an example that shows that a fair balance is needed to make any sanction effective. The appointment of a sanction committee, ombudsman, or a rapporteur; the conduct of Universal Periodic Review; respecting the regional human rights; implementing measures in national legal orders; or adherence to the rule of law are all examples that serve legitimate aims. Shunibia requires a tailored approach that could promote human rights protection and shape the behaviour of people or entities in a better targeted manner.
Books
Carisch E, Loraine Rickard-Martin, and Shawna R. Meister, The Evolution of UN Sanctions: From a Tool of Warfare to a Tool of Peace, Security and Human Rights (Springer International Publishing 2017)
Charron A, UN Sanctions and Conflict: Responding to Peace and Security Threats (Taylor & Francis 2012)
Cortright D, George A.. Lopez, Linda Gerber, and International Peace Academy, Sanctions and the Search for Security: Challenges to UN Action (L. Rienner Publishers 2002)
Eriksson M, Targeting Peace: Understanding UN and EU Targeted Sanctions (Taylor & Francis 2016)
Feinaugle CA, ‘UN Smart Sanctions and the UN Declaration on the Rule of Law’ in Matthew Happold and Paul Eden (eds.), Economic Sanctions and International Law (Bloomsbury Publishing 2016)
Francioni F and Christine Bakker, Responsibility to protect, Humanitarian intervention and Human rights: Responsibility to protect, Humanitarian intervention and Human rights: Lessons from Libya to Mali (Transworld April 2013).
Gasser HP, 'International Humanitarian Law: an Introduction' in H. Haug (ed.), Humanity for All: the International Red Cross and Red Crescent Movement (Henri Dunant Institute 1993) 507/8.
Gowlland-Debbas V, ‘Implementing Sanctions Resolutions in Domestic Law’ in Vera Gowlland-Debbas and Djacoba Liva Tehindrazanarivelo (eds.), National Implementation of United Nations Sanctions: A Comparative Study (Martinus Nijhoff Publishers 2004)
Miller E, The Use of Targeted Sanctions in the Fight Against International Terrorism—What About Human Rights? (Cambridge University Press 2003)
Odello M, ‘Fundamental Standard of Humanity: A Common Language of International Humanitarian Law and Human Rights Laws’ in Noëlle Quénivet and Roberta Arnold, International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Brill 2008)
Orford A, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge: Cambridge University Press 2003).
Tourinho M, Sue E. Eckert, and Thomas J. Biersteker, Targeted Sanctions: The Impacts and Effectiveness of United Nations Action (Cambridge University Press 2016) 174.
Journals
Birkett DJ, ‘Asset Freezing at the European and Inter-American Courts of Human Rights: Lessons for the International Criminal Court, the United Nations Security Council and States’ (2020) 20(3) Human Rights Law Review 502-525.
Heupel M, ‘With power comes responsibility: Human rights protection in United Nations sanctions policy’ (2013 19(4) European Journal of International Relations 773-796
Jayakody N, ‘Refining United Nations Security Council Targeted Sanctions:‘Proportionality’ as a Way Forward for Human Rights Protection’ (2018) 29(1-4) Security and Human Rights 90-119.
Shah S and Sandesh Sivakumaran, ‘The Use of International Human Rights Law in the Universal Periodic Review’ (2021) 21(2) Human Rights Law Review 264-301.
Reports
Security Council Report, ‘Special Research Report: UN Sanctions’ (2013) accessed 2 November 2021
Websites
Committee of Legal Advisers on Public International Law (Cahdi), ‘The European Convention On Human Rights, Due Process And United Nations Security Council Counter Terrorism SANCTIONS’ (2006) accessed 2 November 2021
UN Security Council, ‘Sanctions and Other Committees’ accessed 2 November 2021
United Nations Human Rights, ‘Preventing violations and strengthening protection of human rights, including in situations of conflict and insecurity’ accessed 2 November 2021
United Nation Human Rights Council, ‘Basic facts about the UPR’ accessed 2 November 2021
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