Historically, international economic sanctions were mainly a foreign policy tool that one state used against another to coerce a change of behavior or policy. Sanctioning authorities and justice actors rarely considered synergies between sanctions and transitional justice. In recent years, however, states have increasingly imposed sanctions in relation to the commission of human rights violations, which has expanded their potential to advance transitional justice goals.
In this context, ICTJ undertook research for the new report “Of Two Minds: Sanctions as a Form of Accountability and the Dilemmas for Transitional Justice,” which offers an analysis of international sanctions from a transitional justice perspective. It explores how sanctions may advance or hinder efforts to deliver accountability, acknowledge and redress victims, and prevent recurrence in response to massive human rights abuses.
Recently, the report’s author, Senior Expert Elena Naughton, sat down with ICTJ’s communications intern Isabella Wylie to discuss the new report and the relationship between sanctions and transitional justice.
Isabella Wylie: Why do you think it has taken so long for both justice actors and sanctioning authorities to explore the relationship between sanctions and transitional justice?
Elena Naughton: Traditionally, sanctions and transitional justice have operated in separate spheres, serving different purposes in the broadest sense. Generally, international economic sanctions are deployed by nation states as a coercive tool, largely against other nation states, rather than individuals, with the goal of changing behavior.
Transitional justice, on the other hand, encompasses a range of processes and mechanisms which are designed, primarily, to look back at the legacy of human rights abuses. Transitional justice has a forward-looking preventative role as well, as do sanctions.
When thinking about this, it helps to remember that sanctions are a much older tool. Some people trace the first example of sanctions back to ancient Greece and Pericles in 432 B.C. Transitional justice, on the other hand, is a modern innovation, dating back to the late 1980s and 1990s.
Still, despite this distinction, there was some early historic alignment between the two. Most notable is the worldwide sanctions and boycott movement against apartheid in South Africa. That movement began in earnest in the 1960s and preceded the transitional justice process in the country; the Truth and Reconciliation Commission was established in 1995. What’s interesting is that the commission, in its final report, found that sanctions were an organizing factor for the anti-apartheid movement. That movement precipitated widespread optimism about sanctions’ capacity to promote change in response to oppression.
In the last decade, there has been an evolution in sanctions regimes. In 2012, a Russian tax advisor named Sergey Magnitsky, who was investigating corruption in the regime, was killed under torture in a Russian prison. Following his death, there was a movement to create a sanctions regime that allowed for the targeting of individuals extraterritorially. The effort led to the passage of the Magnitsky Act in the United States, which expanded sanctions to individual perpetrators of human rights abuses and corruption. The change opened up more direct opportunities for interaction between transitional justice and sanctions around accountability.
Isabella Wylie: In the report, you write that sanctions can help advance accountability and justice for victims in various ways. How exactly do sanctions advance accountability for international crimes?
Elena Naughton: The most direct way sanctions can advance justice is as a form of punishment and censure. The Magnitsky-style sanctions I just mentioned do that. They freeze assets and property so that the owner cannot transfer or withdraw them and prohibit other people from dealing with that property, too. These sanctions can also prohibit individuals from traveling to the sanctioning country.
These and other sanctions can result in immediate, tangible, and significant consequences. They also have the power to shift the political dynamic by bursting what Bill Browder, one of the chief proponents of the Magnitsky Act, called the “impunity bubble,” the false sense of immunity that perpetrators often have. These actors, although responsible for terrible atrocities and corruption, believe nobody can touch them. Yet sanctions are a way to send a clear signal that they, in fact, can be held accountable. What’s important about sanctions is that they make responsibility real and concrete, especially from the perspective of victims.
Isabella Wylie: You also discuss how assets frozen through sanctions can be used to fund victim reparations initiatives. Can you describe how this works?
Elena Naughton: This is definitely one of the most technical aspects of sanctions. I think the easiest way to show the relationship between sanctions, transitional justice, and particularly reparations, is to work our way down the conceptual ladder a little bit.
I would start with the fundamental reality, which we know only too well, that reparations funding has been insufficient in almost every context. There’s an enormous gap between the financial resources available and allocated for reparations programs and the reparable harm suffered by victims seeking compensation. One remedy to these funding shortfalls is the earmarking of assets frozen by sanctions as a possible funding source.
The thing is, there are many necessary steps and challenges between asset freezes and victim reparations. They involve the tracing and freezing of assets, their confiscation, and ultimately their repurposing to fund reparations. Each of these steps can require legal action, sometimes within a country’s borders if the assets are located there. Or if abroad, cooperation is needed across international borders between national actors and international law enforcement, banking, prosecutorial, and sanctions authorities.
We’ve seen some such efforts. But while in many instances assets are frozen and even recovered, they rarely fund reparations. An exception is the Philippines, where the reparations law was funded with $200 million out of $680 million recovered from the Marcos family's bank accounts.
Isabella Wylie: In countries grappling with massive human rights abuses, how might sanctions contribute to ongoing or future truth-seeking efforts? Conversely, in what ways, if any, have truth-seeking initiatives such as truth commissions interacted with sanctions?
Elena Naughton: Both sanctions and transitional justice deal with truth seeking. Both require significant efforts to identify and document human rights abuses.
We see that in many places where we work, like Ukraine, Sri Lanka, Syria, and Yemen. In those contexts, justice and accountability actors are campaigning in support of sanctions and, in some instances, preparing detailed dossiers laying out the evidence supporting their imposition. In others like Myanmar, for example, there are groups actively working to trace misappropriated assets; they are “following the money,” so to speak. This work allows for the possibility to recoup the money at a later date, perhaps through legal processes.
There are also instances where truth commissions and UN sanctions authorities have directly engaged. In the case of Liberia, the UN panel of experts and the Truth and Reconciliation Commission [TRC] shared information, including on sanctions evasion, and by investigating funding sources for Charles Taylor. And the TRC’s final report was based on the panel of experts’ findings. What’s interesting here is that you see a real sharing of critical information about the atrocities, crimes,, and their connection to natural resource extraction.
Isabella Wylie: What would you say is the biggest challenge to justice that sanctions can pose?
Elena Naughton: Generally speaking, I think sanctions present significant moral dilemmas, in particular for justice actors. Among the most notable concerns is the devastating humanitarian impact that sanctions can have. In particular, comprehensive economic sanctions on countries such as Cuba have had devastating effects on their populations. Similarly, secondary sanctions, like those imposed on Syria under the Caesar Civilian Protection Act while Bashar al-Assad was still in power, continue to cause enormous harm despite the change in regime.
Ultimately, what you end up with is food insecurity, worsening poverty, as well as an inability for civil society organizations to operate because they don’t have the financial resources they need to do their work. Sanctions also disproportionately affect victims and vulnerable groups, such as women-headed households, who may not have the capacity to respond to the difficult economic environment. Moreover, sanctions can hinder the ability of justice actors on the ground to carry out their work.
Another dilemma is the selective and inconsistent application of sanctions— against certain countries and certain players, and not others—which raises serious concerns about their legitimacy.
Isabella Wylie: A difficult truth highlighted in the report is that sanctions are frequently ineffective, failing to meaningfully sanction the targeted perpetrators or change their behavior. How should policymakers, as well as justice actors, understand this reality?
Elena Naughton: As one Sudanese activist interviewed for the report aptly said, “Sometimes, the sanctions target the right person, in the wrong way.” For example, as the activist explained, if a sanctioned person never intended to travel, a travel ban does nothing. Similarly, sometimes perpetrators—especially military officers or government leaders—do not appear to have any assets when in reality they are just well hidden. In these cases, the sanctions become a sort of window dressing to make it look like action has been taken, but they don’t have any impact.
Sanctions must target the right person in the right way. This can be done through enhancing coordination, cooperation, and information-gathering with justice actors at the local level or in the diaspora who are in the know.
Isabella Wylie: Given the numerous obstacles to justice sanctions can pose, some transitional justice practitioners might remain skeptical about advocating in support of sanctions. What would you say to these colleagues?
Elena Naughton: Any discussion I would have would center on the idea that international sanctions hold enormous potential. They can help advance accountability, as an alternative form of accountability, other than criminal justice processes. In addition, I would emphasize the power of direct engagement and advocacy. They can really help shape the sanctions being imposed.
The Caesar Act that I mentioned in reference to Syria is a case in point. The legislation came to be, in part, through the tireless efforts of civil society actors and a Syrian dissident, who went by the pseudonym Caesar. His testimony, combined with follow-up by activists with members of Congress, led to the passage of the legislation, which included specific conditions for the lifting of sanctions, such as the release of political prisoners and the safe, voluntary return of refugees. So, this kind of personal engagement and advocacy ensures those who are considering sanctions have access to crucial information, which can in turn make the sanctions more impactful.
Isabella Wylie: In countries that have been subject to international sanctions for long periods, the lifting of sanctions can present both opportunities to advance justice and repair, as well as new challenges. In the case of Syria, Western countries have begun the process of lifting decades-long sanctions following the collapse of the Bashar al-Assad dictatorship and the establishment of a transitional government. Briefly, what are some opportunities and challenges for justice in Syria in lifting these sanctions?
Elena Naughton: One of the powers of sanctions is that they can be used as leverage to secure justice. They provide, as I mentioned already, a measure of accountability in situations of impunity.
At the same time, sanctions can also devastate economies. They wreak havoc on civilians and sometimes, in the most troubling fashion, can empower regimes rather than undermine them. This is because of how they can be played by a regime under sanction. In many instances, the current government or regime will say that they are not culpable for a bad economy, that it is instead the responsibility of the international community, or the UN Security Council, or a regional actor like the EU, because they’ve imposed sanctions. So, in this way, it is an easy way of deflecting blame from themselves for mismanagement and corruption.
The Assad regime provides a clear example of this dynamic, and it highlights the issue of legitimacy—a very complicated aspect of sanctions. One must pick and choose how to temper or mitigate the negative humanitarian impact of sanctions. The strength of targeted sanctions is that they’re directed against individuals. But we also know that targeted sanctions by themselves don’t pack enough of a punch to bring about meaningful change.
This leads us to a difficult real-world question: Do you lift sanctions or let them stand? Because sanctions can serve as leverage for advancing justice and accountability, they are extremely valuable. Yet, in a case like Syria, the economic devastation is so severe that it’s very hard for the new government to function. The most optimistic takeaway is the active and ongoing coordination in addressing these challenges and engaging the government directly.
Isabella Wylie: In the report, you identify aspects of sanctions that overlap with transitional justice goals and where justice actors and sanctioning authorities might take advantage of synergies. Where do you think these stakeholders can most easily make significant headway in coordinating their efforts?
Elena Naughton: There are several important decision points in the sanctioning process: at imposition, during implementation, and, as just discussed, when making decisions about whether to continue or lift sanctions. There is already a level of engagement at each of those stages, especially at initiation. Yet, more needs to be done around greater coordination, especially when there are transitional justice mechanisms like truth commissions operating close in time or in parallel with sanctions regimes, and, where possible, in anticipation of those processes.
Both sanctions and transitional justice also promote the establishment of preventative measures. In fact, sanctioning authorities cite sanctions’ preventative aspect the most.
It is critical to better coordinate and better understand the political processes at play in a sanctioned country. As I say at the beginning of the report, sanctions and transitional justice have very distinct roles and employ different approaches. However, there are significant areas of overlap, and recognizing these areas has the potential for more meaningful impact on political processes and justice efforts in a given country.
Isabella Wylie: As part of your research for this report, you met with justice actors from different countries. If you could sum up their main message to sanctions authorities, what would it be?
Elena Naughton: I believe a summary would be: Pay attention to the wider justice landscape. It is also important to seek out the counsel of local civil society, victims’ groups, and activists on the ground and to stay in touch with justice actors who know not only about who to target and why, but also the real-world impact of sanctions.
The report is titled “Of Two Minds” for this reason, because justice actors themselves are of two minds. They’re often uncertain about whether sanctions are good or bad, or whether they should advocate for their imposition or object to them. In fact, during our focus group discussions with Syrian civil society, there was considerable disagreement in the room on this topic. Some participants were strongly of the view that sanctions were absolutely needed as they were the only vehicle to bring about change at that time. Others were very much opposed, stressing the absolute devastation and suffering they caused. One participant captured the dilemma well, saying, “We’re with sanctions, but we’re not with suffering.”
So, again, what I would say is pay attention to the wider justice landscape and keep in touch with and seek out the counsel of justice actors on the ground. I think that’s the bare minimum we can do.
