Sanctions: Political gain, civilian pain

This week, I take an unusual line from what my readers are used to. Foremost, I pilfer the title of the installment from some scholar who has devoted his energies to the study of the subject of sanctions.

The heading thus is not original and owe little to my own blunt intellect.

Secondly, I defer to a very important and yet little known UN document on the same subject which should provide a way forward to our sanctions imbroglio.

I am referring a document coded "General Comment No. 8 (1997)", which is titled "The Relationship between Economic Sanctions and the Respect for Economic, Social and Cultural Rights".

It is a document developed by the UN Committee on Economic, Social and Cultural Rights (CESCR) in its Seventeenth Session from November 17 to December 5 in 1997.

I will not summarise the document. Rather, I will refer to it broadly hoping the reader can google it to make his or her own sense out of it.

Of course, my dying wish is to sway the reader towards my preferred reading of it and, I make no apologies for wanting that.

Quite the contrary, I swiftly move to communicate swaying cues to ensure severe meaning boundaries are well set so the reader's gentle (mind) is guided towards my meaning universe.

I waste no time and, here we go!

Savaged for well over a decade
The unilateral sanctions imposed against Zimbabwe, my country, predate their formal declaration in 2001 (in the case of the Americans) and 2002 (in the case of the British-led European Union).

From about 1997 when Zimbabwe got the infamous Clare Short letter, Zimbabwe was already under de facto sanctions of one kind or another. Such that by 2000 when the land reform programme was formally launched, Zimbabwe was already under recognisable sanctions, although their formal declaration would follow from a year later.

That means Zimbabwe has been under sanctions for more than a decade now.

One basic rule of "good" sanctions from a UN perspective is that sanctions must be "reasonably time limited".

I quote from a UN document: "Legal sanctions may become illegal when they have been applied for too long without meaningful results."

The silent war which took long to be recognised
It was not until after 2008, which means not until after Zanu-PF's close electoral shave, that we begin to see a real grasp of sanctions as a debilitating external factor ranged against national effort towards collective welfare.

Before then, reference to sanctions was erratic, incidental and even unsubstantiated. Understandably so.

By their very nature, the onset of sanctions is imperceptible, gradual, cumulative, time-honoured but ineluctable.

The welfare momentum of preceding better times will tend to cushion and even hide the gradually setting costs of the restrictive sanctions whose negative effects will remain incipient for quite some time.

To that, add the fact that the impact of these sanctions will only begin to register on the radar of the political elites when these sanctions begin to levy real political costs.

Or, economic and social costs that resonate politically!

We only begin to see sustained discussion on sanctions in the 2007/2008 elections, especially when it becomes all too apparent that indeed, the measures taken against the country are hurtful.

The GPA provided the first formal opportunity of focusing the national mind on the issue of sanctions which finally find its way into the agreement, thanks to the insistence of Zanu-PF, itself a near victim of the sanctions.

The numerical value of sanctions message
But it is not until 2011 that we see the first real step towards mobilising the nation against sanctions, principally via the ritual of the anti-sanctions petition signing ceremony which, although boycotted by formal opposition, attracts a massive, intimidatory and spontaneous response from the general public.

On the day, it became very clear that the sanctions argument which Zanu-PF had pushed to great public scepticism, had finally found time and root in public imagination.

The message's time had finally come and the opposition MDC formations and their Western backers had misjudged the public mood enormously, and even fatally.

Zanu-PF rammed home the point by successfully running an anti-sanctions petition signing campaign nationwide which garnered well over the 2 million signatures it had targeted.

Apart from providing numerical value to its sanctions message, Zanu-PF had in fact conducted a dry run for the impending general elections, something which unnerves the opposition MDC formations to this day.

That means as I write, the sanctions issue is firmly on the agenda of future elections in Zimbabwe and Zanu-PF has had a headstart in a race against a cripple.

After all, sanctions are synonymous with the MDC formations, a culpability aggravated by further indications that the formations are still pushing for the retention and even expansion of the sanctions regime (WikiLeaks and recent revelations from a Sadc team which visited London, Brussels and Washington to campaign for the lifting of sanctions).

Against deepening poverty, anger against the MDC can only deepen, to greater prejudice to its electoral prospects.

Indeed this wistfulness is beginning to register by way of debate within the EU on the advisability of continued sanctions.

I dare say the delay in removing sanctions on the part of the EU owe less to conviction and more to national and regional pride, as well as to the desire to keep a facade of unity within the EU camp, more so in the face of a doggedly arrogant underdog that Zimbabwe is perceived to be.

Martens Clause Test
What is striking and frustrating from the point of view of Zimbabwe's response is its sheer inadequacy, hesitancy, uncertainty and sheer lack of depth.

The signatures are now there, so what? You have a party which has got a ringing endorsement from almost 3 million Zimbabweans, but which appears unsure of what to do next.

Or if it does, a party which seems intent on a narrow response which can very easily solidify greater opposition to it. I will illustrate.

Whilst sanctions are median measures between innocuous verbal reprimands and declaration of war as a form of punitive action, their legitimacy lies in moral blameworthiness either way.

Does the sanctioned country deserve to be sanctioned? Do the sanctioning countries have just reasons to take such measures?

In the words of a UN document, "Are the sanctions free from protests arising from violations of the principles of humanity and the dictates of the public conscience?" it is called the Martens Clause Test!

And, you notice sanctioning countries have been insisting theirs are "restrictive measures", aka "targeted sanctions" aka "smart sanctions" to imply a morally laden sanctions regime.

Zimbabwe, on the other hand, has been insisting these are comprehensive sanctions which are a form of racist punitive action against a black government for wanting to reclaim black land rights lost in colonial times.

The term "empowerment" has crept in not just to capture a sense of social justice but also to convey mass appeal and a pro-poor thrust.

Both arguments are overladen with moral claims and pretensions.

An angry cricket that kicks away its legs
I said Zimbabwe's response lacks depth and is woefully inadequate. It is both and much worse.

The response which Zanu-PF has in mind relates either to levying psychological costs, which is what the ritual of garnering signatures did, or to legislating punitive measures and costs against those countries and interests responsible for imposing sanctions.

We have to create a "sanctions fund" to which companies from mother countries of sanctions are forced to contribute either by way of money or forfeiture of shares.

This is clearly fraught. A sanctions fund creates a whole debate on how the money is used and to benefit who. Forfeiture of shares begs the same questions while giving the country a very unhappy image in an era and ethos of private capital and the so-called security of property.

Whilst the measure is understandable in Zimbabwe's circumstances, nevertheless the measure provides the West with excellent arguments against Zimbabwe, an argument assured of both local and global resonance.

It is also important to underline that even China, a country so close to us, is increasingly getting discomfited with the issue of ownership and security of property as it begins to build economies overseas.

You do not want measures that levy greater costs against you the victim, than they do against the villain. Or, measures that create greater chaos in the economy as more factories close soon after changing hands, in the process creating not just greater unemployment but a negative attitude towards empowerment and black ownership.

Lessons from Fidel
I hope I do not sound like I am against empowerment, or am for continued imperialist domination of our economy by those who have hurt us so badly.

Far from it! I am all for teaching the West a bitter lesson, all for cushioning and immunising Zimbabwe against future exposure to external shocks.

Here is where I branch off.

Zimbabwe must go about this radical course in a very clever and well calculated way which assures it of high moral ground and world-wide support.

Castro was very good at that. He took measures that were devastating to America and other western countries, but without losing international support, including support from countries such as

Canada which broke ranks with USA over Cuba. Even Chinese capital is coming to Cuba, in spite of Cuba's tough measures against America.

At the UN, Cuba luxuriates in international support. It has painstakingly built moral high ground, painstakingly garnered inexhaustible goodwill and solidarity. Zimbabwe badly needs that, which is why its response must have depth and remain steeped in international mores.

The great debate we missed
Almost the same time the West was assaulting Zimbabwe through comprehensive sanctions, both the United Nations and leading Western countries, including Britain - itself the chief culprit when it comes to sanctions in Zimbabwe - were having a telling debate on sanctions and their relationship to international humanitarian law and the whole UN Charter in all its provisions. Could sanctions ever be lawful or justified under international law? How do they relate to provisions of the International Covenant on Economic, Social and Cultural Rights?

Worse, how do they relate to provisions of the UN Charter as it applies to human rights (Articles 1, 55 and 56), and to the whole Geneva Convention of 1949, read together with two additional protocols thereto which prohibit the starvation of civilian populations and "the destruction of what is indispensable to their survival"?

Arising from that whole debate was a recognition that sanctions were a blunt weapon which attacked economic, social and cultural rights of civilians, while giving the culpable elites against whom the sanctions are designed, even greater economic opportunities and power. Six test questions were set for passing sanctions, which the UN has since adopted.

A template for measuring impact of sanctions against civilians was designed and again adopted by the UN.

Taking full advantage of UN principles
What is more, two principles were set by the UN obligating both the victim country against which sanctions are imposed, and villain countries imposing sanctions on the other. The first principle underlines that the State under sanctions is not exempt by the mere fact of suffering sanctions from protecting its population's economic, social and cultural rights.

Quite the contrary, its obligations under the Charter actually grow during those times it is under sanctions when it is thus expected to take "all measures necessary" to protect vulnerable sections of its population.

You can see this as more punishment to a victim. But, there is another way of looking at this obligation, namely that a State Party so affected is justified to take extraordinary measures to protect its people from the deleterious effects of those sanctions.

Morally is that not better an unassailable way of framing all the measures we propose further to the mandate we have got from the signatures?

We can pack our whole thrust on Indigenisation and refusal to honor debts under this UN principle, cannot we?

Damning the villains
The second principle enjoins countries which have imposed sanctions to put in place mechanism for ensuring civilian population does not suffer any diminution of its economic, social and cultural rights.

Are these in place in Zimbabwe under western sanctions? If those phony NGOs are treated as constituting those mechanisms, are the mechanisms delivering effectively on economic and social rights of the Zimbabwean people?

The UN makes it clear that: "when an external party takes on itself, even partial responsibility for the situation within a country (whether under Chapter VII of the Charter or otherwise), it also unavoidably assumes a responsibility to do all within its power to protect the economic, social and cultural rights of the affected population. . .

"The external entity has an obligation to take steps, individually and through international assistance and cooperation, especially economic and technical in order to respond to any disproportionate suffering experienced by vulnerable groups within the targeted country."

Getting a UN imprimatur
More vitally, the CESCR is required to monitor the impact of sanctions on the population of the affected Country, and to demand amends from the imposing countries.

We have a galore of opportunities here. Britain and her allies have been in flagrant breach of the second principle and evidence to show that abounds.

Secondly, the UN, through its CESCR, has not been monitoring the impact of sanctions on Zimbabwe's civilian population. It needs to be challenged on that one.

This means a double-barreled approach of using international legal instruments to challenge Britain and her allies, while forcing the UN to produce a report on impact of sanctions on Zimbabwe's civilian population using the UN template on indicators which are public health, economics, population displacement, governance, civil society and humanitarian activities.

You almost think the template as done with Zimbabwe in mind. Is this not more effective that expending our energies on the GPA and its sanctions clauses? With a report on the impact on the illegal sanctions, a report with a UN stamp or imprimatur, who can challenge us and our claim to injury?

Who?
And the British, too, don't like sanctions!

Lastly, between 1999 and 2000 while Britain was busy developing and lobbying for sanctions against Zimbabwe, her own House of Commons through its International Development Committee was busy investigating on the future of sanctions in world affairs.

The conclusions of that ten-months inquiry were stark and prescient.

It concluded: "Although sanctions may well represent a low-cost alternative to war in financial terms, they are all too often as damaging in humanitarian and development terms as armed conflict."

It proceeded: "Much discussion has taken place of targeted sanctions, in particular financial sanctions, as a 'smarter' are more just approach. We conclude, however, that neither the United Kingdom nor the international community have made real efforts to introduce such sanctions. There has been much talk but little action. . .

"We find it difficult to believe that there will be a case in future where the UN would be justified in imposing comprehensive economic sanctions on a country.

In an increasingly interdependent world such sanctions cause significant suffering.

However, carefully exemptions are planned, the fact is that comprehensive economic sanctions only further concentrate power in the hands of the ruling elite. The UN will lose credibility if it advocates the rights of the poor whilst at the same time causing, if only indirectly, their further impoverishment. . . The UN has a duty to monitor regional sanctions regimes and intervene when human rights are ignored or humanitarian needs, neglected."

A Homeric challenge
Is Zanu-PF aware of these conclusions from the very country which proceeded to impose sanctions against Zimbabwe, seemingly against its own advice?

What opportunities does this offer to Zimbabwe's overall response, more so in cirumstances in which both Houses of Britain country routinely debate Zimbabwe, even agitating for greater sanctions?

Why don't we politely remind the "mother" country through a few not-so-filial appearances in some international court? This means Zimbabwe badly needs a crack team of extra-sharp lawyers in international law who can begin to work out a comprehensive response to this act of war.

If both the UN and the British parliament were having real difficulties in justifying UN sanctions against Saddam Hussein who had clearly aggressed against Kuwait, surely it must be insuperably more difficult to justify a set of sanctions illegally declared outside of the UN framework by a bunch of racist countries fighting the cause of kith and kin against a majority, indigenous population it disinherited for more than a century of colonialism and occupation.

Surely!
But, it all needs a broader response which takes full advantage of international instruments and pronouncements, while looking at a rich mix of measures that do not get us to bite off our noses to spite our agonising faces.

We should test international law, test it to win, rather than the current posture where we sit, brooding when we will be the next Libya, both in the Security Council and on the battlefield. The West needs a Homeric challenge. Icho!