Human Rights Quarterly

I. Introduction

Prior to 1990, the United Nations Security Council imposed economic sanctions against only two countries, Rhodesia and South Africa. ¹ However, the end of the Cold War has witnessed a marked increase in the use of sanctions. ² Over the last eight years, the Security Council has imposed sanctions against Iraq, the Serb-controlled areas of the former Yugoslavia, Somalia, Libya, Haiti, Liberia, and the Khmer Rouge-held areas of Cambodia. ³ The Security Council is hardly alone in its newfound appreciation of sanctions. In the same time period, the United States has used economic sanctions in one form or another more than seventy times, occasioning the conclusion that “American foreign policy these days is sanctions.” ⁴ Sanctions have become the new “tool of choice for governments bent on bringing international miscreants to heel.” ⁵

The growth of sanctions as a means of pursuing foreign policy has been [End Page 133] accompanied by an increasing recognition of the moral dilemmas raised by such measures. For example, the United Nations Food Program has called sanctions a “brutal” instrument, ⁶ and the World Health Organization has called for the banning of sanctions altogether. ⁷ Likewise, in January 1997, the General Assembly of the United Nations adopted its now-annual resolution denouncing economic sanctions as a method of exerting pressure on member states. ⁸ In addition, in a report on emergency operations, UNICEF agreed that sanctions were too harsh: “The dilemmas posed by the imposition of sanctions call for an urgent review to ensure that vulnerable groups are protected and cushioned from the adverse effects of this double-edged instrument.” ⁹

The academic literature on sanctions has predominantly focused on their efficacy in achieving foreign policy objectives, rather than the moral dilemmas posed by their use. ¹⁰ Two scholars who have addressed sanctions from a moral perspective are Lori Fisler Damrosch ¹¹ and Patrick Clawson. ¹² Damrosch argues that sanctions can be a morally acceptable instrument of foreign policy so long as they are applied consistently to similar cases, [End Page 134] preserve international norms, and do not serve merely political ends. ¹³ Clawson reasons that sanctions are morally justifiable because the blame for the suffering belongs to the rulers and citizenry of the target state not to the sanction-enacting states. ¹⁴ The rulers are at fault because they inappropriately divert food and resources from the civilian population, and the citizenry must be accountable for its government’s policies. ¹⁵

Damrosch and Clawson offer insightful analyses, but their moral frameworks lack a firm basis in international law or custom. They each choose their moral principles from thin air. Lacking foundation, their approaches are not likely to generate support in the international arena, where it is notoriously hard to gain consensus on moral imperatives.

One potential way to frame the moral dilemmas posed by sanctions that is grounded in recognized principles of international conflict is provided by the laws of just war. ¹⁶ The just war tradition is a longstanding moral framework for analyzing the intentional infliction of harm by one state upon the citizens of another. In light of its broad acceptance and long history, this body of laws, codified in international treaties and established by the practice of states, ¹⁷ offers more fertile soil for international agreement than the personal moral intuition of Damrosch or Clawson. By taking the principles underlying the laws of just war seriously, it is possible to devise strategies for economic sanctions founded on existing international ethical norms. [End Page 135]

This article begins the process of crafting a moral approach to sanctions through the laws of just war. Part II briefly considers the nature of economic sanctions and posits an explanation of why states increasingly resort to sanctions to pursue foreign policy objectives. With that context established, the article then analyzes economic sanctions through the prism of just war. This inquiry is divided into two parts to mirror the just war tradition’s separation of jus ad bellum (justice in commencing war) and jus in bello (justice in the fighting of war). Part III proposes moral guidelines for the decision to enact sanctions against a foreign nation. Part IV...