April 25, 2017

April 25, 2017

Subscribe to Latest Legal News and Analysis

April 24, 2017

Subscribe to Latest Legal News and Analysis

Summary of Congressional Hearings on U.S. Sanctions in Sub-Saharan Africa

This past June, the Senate Foreign Relations Subcommittee on Africa and Global Health Policy held a hearing to discuss U.S. sanctions in Sub-Saharan Africa. The United States, the European Union, and the United Nations impose far more sanctions on Sub-Saharan African targets than on any other region, and these sanction regimes have been changing over the last two decades from broader, country-level sanctions to more targeted sanctions on individuals, like asset freezes or travel bans. This hearing provided a timely opportunity to review the evolving role of sanctions in U.S. foreign policy in Africa, their effectiveness, and key areas for improvement and innovation. A range of witnesses from civil society and academia, most of whom worked previously in public service, shared varied perspectives. While, on the whole, the witnesses believed that the results of sanctions in Sub-Saharan Africa have been mixed, they shared a view that clear, well-designed, targeted sanctions, if aggressively implemented as part of a larger strategy, could significantly influence the behavior of targeted entities. We summarize the main take-aways below.

Sanctions as a tool

The strongest point of consensus among the witnesses is that sanctions are—or at least should be—a tool, and not a policy in and of themselves. In other words, sanctions should be just one of many pressure tactics applied to a target as part of a coherent and well-articulated larger strategy. Sanctions should not be implemented just to “make us feel we are doing something” or as substitutes for other actions, but rather as complements to other tools like aggressive diplomacy, peacekeeping, mediation, and support to civil society.

Brad Brooks-Rubin, policy director of the Enough Project, noted that where sanctions have failed in the region, they failed not because sanctions don’t work in Sub-Saharan Africa, but rather because they were applied only in a limited way. As successful examples of sanctions, Dr. Princeton Lyman, Senior Adviser to the United States Institute of Peace, pointed to Sierra Leone, Liberia, and Côte d’Ivoire, where restrictions in the trade of certain commodities helped weaken rebel forces. In his view, sanctions alone would not have worked in these countries if other actions such as international peacekeepers had not also been deployed.

Encourage multilateral approaches

The witnesses also agreed that U.S. sanctions should not be applied in isolation. Sue Eckert, Senior Fellow at the Watson Institute for International and Public Affairs at Brown University, testified to the growing importance of regional entities in exerting political pressure to sway targets’ behavior. When it comes to U.N. sanctions, which the U.S. has a strong role in shaping, regional sanctions from the African Union or ECOWAS actually preceded those sanctions in approximately 75% of the cases. Overall, regional African organizations are involved in about 95% of the U.N.’s sanctions on African targets. Their involvement reduces targets’ ability to evade sanctions and enhances the norm-setting and stigmatizing function of sanctions.

However, it isn’t always easy to get multilateral support on such a politically fraught issue as sanctions, as countries face different cost-benefit analyses in considering whether to impose sanctions. For instance, South Africa has not gone along with sanctions on Zimbabwe, because as a neighboring country, South Africa is concerned with the risks of economic or political collapse in Zimbabwe on its own economy and stability, and sanctions could play a role in causing or accelerating collapse. Or, in the case of the political crisis in the Democratic Republic of Congo (DRC), the U.S. has recently applied new sanctions to one individual and may be poised to impose more, but the African Union remains divided about how to approach the electoral slippage—a particularly complex issue given the DRC’s many neighbors with competing interests in the country. Dr. Lyman urged that effective DRC sanctions would need to have the support of the African Union and the U.N.

Short of obtaining multilateral support, the U.S. has in some cases even started applying “secondary” sanctions, which imposes sanctions on countries for doing business with those targets the U.S. has sanctioned. A few of the witnesses encouraged this practice, noting that it tends to be “highly effective.”

Set realistic and specific targets: regime change should not be the goal

The speakers agreed that effective sanctions require clear and realistic objectives, and that the effectiveness of sanctions should not be measured by regime change. Dr. Lyman, in particular, cautioned against attempts to use sanctions as a means of achieving deep political transformations, and pointed out that a strong sanctions regime cannot substitute for other essential elements of a democracy, like a well-organized democratic movement. Generally, the more effective sanctions are those aimed at specific objectives, such as a cease-fire, and those that do not threaten the political survival of political elites.

Several of the witnesses encouraged innovation in sanctions policy through the use of nimble, step-wise sanctions: instead of all-or-nothing sanctions that may well be ignored by the targets because they require giving up too much power at once, Dr. Lyman encouraged the adoption of “carefully layered sanctions that can be removed as steps toward transformation.” In other words, specific, smaller actions could be explicitly linked to the lifting of particular sanctions, to urge targets to modify their behavior progressively. Similarly, Dr. Todd Moss, the Chief Operating Officer for the Center for Global Development, urged policymakers to adopt a more creative use of sanctions that would “selectively encourage positive behavior.” In the words of Mr. Brad-Rubin, “[w]hen we fail to explain how the sanctions work and show that they can evolve and be nimble over time, rather than become permanent forms of punishment, we give the likes of Bashir and Mugabe easy wins.”

Clear messaging

Finally, the witnesses cautioned that sanctions can create tricky dynamics. Sanctions lose their potency over time, as targets learn to live with or get around them. However, regimes may try to spin any lifting of sanctions as a political coup for them, so removing sanctions when such action would otherwise be desirable can play into certain targets’ propaganda and prove counterproductive for the U.S. In fact, the very imposition of sanctions can be gamed by the targets, who may point to the sanctions to portray themselves—and the entire country—as victims of U.S. aggression, and shift the blame for institutional failures from their own governments to U.S. policy. Robert Mugabe in Zimbabwe frequently makes such claims, for instance. Accordingly, U.S. policymakers need to be mindful of the unintended dynamics of imposing sanctions, and should develop a clear and context-appropriate game plan for the imposition and lifting of each set of sanctions.

The witnesses discussed other unintended consequences of sanctions such as “over-compliance” by private sector actors. Companies may misunderstand the scope of the sanctions and the risks they entail, such that they avoid doing business in an entire country even when only a few individuals in that country are targeted by sanctions. Such over-compliance can result in significant economic and human costs for regular citizens.

To manage the risks of unintended consequences, the witnesses stressed the importance of careful messaging and communication. There should be clear communication—aimed at different audiences, including the targets themselves, businesses, and the greater public—of how the sanctions work, what kind of activities they will not penalize, under what circumstances sanctions will be removed, and what their connection is to underlying policy goals.

This article was written with research assistance from Summer Associate Cristina Alvarez.

© 2017 Covington & Burling LLP

TRENDING LEGAL ANALYSIS


About this Author

Associate

Adele Faure is a member of the firm’s corporate group and is resident in our New York office.  Her practice includes mergers and acquisitions, venture capital and emerging companies and general corporate matters. She is an active member of the firm’s Africa Initiative.

PREVIOUS EXPERIENCE

  • World Bank, Africa Environment and Natural Resource Management Unit (AFTEN), Consultant (2008-2010)
  • NERA Economic Consulting, Research Associate (2007-2008)
212.841.1186