Why sanctions don’t matter

Vappala Balachandran
Ex-special secretary, cabinet secretariat

The brouhaha in political circles over Masood Azhar’s notification as a ‘global terrorist’, claiming it as the NDA government’s most successful counter-terrorist action, is unwarranted. It is too early to say whether it would decisively hit the militants in J&K as predicted by Governor Satya Pal Malik. No doubt, our professional diplomats need to be complimented for their assiduous pursuit through the labyrinthine UN process to achieve this ‘listing’. Yet, the history of UN’s ‘1267’ sanctions regime does not lead to a conclusion that it is the most effective measure to contain terrorism as it depends on intangible ground realities.

The UNSC sanction notifications predate 9/11. It started as an extradition measure. In 1999, it passed Resolution No 1267 to pressure the Taliban, then ruling Afghanistan, to hand over Osama bin Laden for the US embassy bombings in 1998. In 2000, Russia joined the US in strengthening the sanctions regime after the USS Cole bombing at Yemen.

 In mandating these sanctions, the Security Council overruled objections from their own Humanitarian Affairs Office (OCHA) that it would impose incalculable suffering on Afghan people, already groaning under the yoke of the Taliban. The first ‘sanctions’ list in March 2001 contained 162 individuals and seven ‘entities’. After 9/11 the scope of sanctions was widened as a tool for combating global terrorism. In 2008 the list contained 482 individuals and entities. This period saw a lot of ‘ad hocism’ in mandating sanctions as the 1267 committee went mostly by non verifiable intelligence reports, ignoring ‘due process of law’.

Ten years later this list has shrunk to 257 individuals and 81 entities. Pressure from rights groups, academics as well as protests from affected states were responsible for reviewing and deleting some names. The first such protest was from Sweden when Somali-born Ahmed Ali Yusuf, Swedish national was sanctioned in 2001 for running Al-Barakaat Foundation, allegedly an international terrorist financing network. He was ‘delisted’ in 2006.

The same year, the then UN Secretary General, Kofi Annan, called on the UNSC to set up ‘fair and clear procedures’ for sanctions. The UN Special Rapporteur stressed the need for procedural guarantees in his report to the General Assembly describing the 1267 procedure as ‘political decisions taken by states’ political representatives within political bodies based on confidential evidence’. As a result, the UNSC passed Resolution No 1904 in 2009, creating the post of ‘Ombudsperson’ to review cases and delete names from the list.

These measures did not prevent individuals and entities from suing their own governments or nation groups like the EU against sanctions which have to be codified by local laws. As an example, Pakistan government’s order of May 3 banning Azhar’s travel and freezing his assets could be challenged in local courts. In that way, UN-mandated sanctions would lose impact if local courts nullify or dilute local action. For instance, the newly created UK Supreme Court held in 2010 that the UK government had violated an individual’s right to a fair trial when implementing the al-Qaeda sanctions regime in HM Treasury vs Ahmed (2010). Globally 40 such cases are pending in various courts. Three are in Pakistan: Pakistan Relief Foundation, Al-Aktar Trust and LeT chief Hafiz Saeed who was ‘sanctioned’ in 2009 along with Zaki-ur-Rehman Lakhvi and six others.

UNSC sanctions have no effect on the ground in countries like North Korea, Iran or on militias in Libya, Yemen or Syria. In all such cases big powers have to take the responsibility of enforcing sanctions, which does not happen. In 2006, the UNSC enlisted the services of Interpol to help in applying sanctions. However, it too has to depend on states’ cooperation.

In December 2015, the council unanimously adopted resolution 2253 to include individuals and entities supporting the Islamic State in Iraq and the Levant (ISIL). But this step has not been of any use in controlling the remote radicalisation by the IS from 2014 onwards ending up with the recent Easter carnage in Sri Lanka.

There are other reasons how these sanctions are ineffective. A case study by Stephen Tankhel, unquestionably the best authority on LeT, on the 10th anniversary of 26/11 attacks reveals how his piece affirms how much LeT is intertwined with Pakistan’s military-intelligence ‘deep state’. He says: ‘In the decade since the Mumbai attacks, LeT leaders have gained a bigger seat at the table in Pakistan.’ Hafiz Saeed, under UNSC sanctions, founded the Milli Muslim League in 2017 and fielded his candidates for the 2018 elections under the banner of Allah-o-Tehreek as the poll commission did not recognise ‘Milli’. Tankhel adds that the ISI helped LeT’s presence in eastern Afghanistan as a ‘pressure release valve’ for the militants and to gather intelligence in Afghanistan.

 In March 2019, a pantomime was enacted by Pakistan, refusing visa to a UN team which wanted to interview Hafiz Saeed on his own application to the UN Independent Ombudsperson Daniel Kipfer Fasciati for removing him from the sanctions list. No formal reason was given by Pakistan Consulate in New York. Why was Pakistan reluctant to allow a UN meeting with Hafiz if he was innocent? For this reason the UNSC informed Hafiz’s  lawyer that his listing would continue.

In my article dated February 28, I had quoted a former Pakistan police officer telling an Oxford University conference (where I was also speaking) how useful Masood Azhar was to the Pakistan army. Azhar and Harkat-ul-Mujahideen’s Fazlur Rahman Khalil were brought in by the army to persuade Muhammad Aqeel, alias Dr Usman, Lashkar-e-Jhangvi leader, to back off during the 2009 Pakistan GHQ attack. In such a background do we really think that sanction will have any sobering effect on Azhar?