posted on Mon 2 Mar 2015 5:39 PM
Council to Adopt Sanctions Resolution on South Sudan

Tomorrow morning (3 March) the Security Council is scheduled to adopt a resolution deciding to impose targeted sanctions on spoilers in South Sudan. The draft was circulated to Council members last Tuesday (24 February) during consultations on the UN Mission in South Sudan (UNMISS). Following one round of negotiations and some email exchanges, the draft resolution was placed under silence on Friday (27 February). A first silence period was broken, but after some amendments, the draft passed successfully through a brief second silence period on Friday evening, and is now in blue.

The draft resolution specifies that the Council is acting under Article 41 of Chapter VII of the UN Charter (Article 41 empowers the Security Council to impose generalised or targeted sanctions.) As such, the Council can impose a travel ban and an assets freeze for an initial period of one year on individuals and entities designated by a sanctions committee to be established through the resolution. (The travel ban would apply to individuals, while the assets freeze would apply to individuals as well as entities such as government, opposition or militia groups.)

While no listings are being made at the present time, the draft sets out a series of listing criteria. In general, the sanctions are expected to apply to those responsible for, complicit in, or engaged directly or indirectly in actions or policies threatening the peace, security or stability of South Sudan. These actions or policies include but are not limited to:
• expanding or extending the conflict or obstructing reconciliation and peace talks or processes;
• threatening transitional agreements or undermining the political process;
• planning, directing or committing acts that violate applicable international humanitarian and human rights law and human rights abuses;
• targeting civilians or attacking hospitals, religious sites, schools or locations where civilians seek refuge;
• recruiting or using children by armed forces or groups;
• obstructing the work of international peacekeeping, diplomatic or humanitarian missions or hindering the delivery and distribution of humanitarian aid or access to such aid;
• attacking UN missions, other peacekeeping/international security presences, or humanitarian personnel; and
• acting directly or indirectly for or on behalf of individuals or entities listed by the sanctions committee.

The resolution also sets up a panel of experts to assist the sanctions committee. Among other responsibilities, the panel will collect and analyse information regarding the flow of arms and related military assistance to those undermining the peace process and committing violations of international humanitarian and human rights law.

Several Council members have been talking about the use of targeted sanctions against spoilers in South Sudan for close to a year now, but throughout much of 2014, there were political obstacles. The US, the penholder on South Sudan, seemed to be waiting for the Intergovernmental Authority on Development (IGAD) to initiate targeted measures first, believing that it was important to have the support of countries in the region before pursuing a Council resolution. However, IGAD, facing its own internal divisions on the matter, did not impose targeted sanctions, and for several months, the US delayed circulating a targeted sanctions draft.

When the US finally circulated the draft last week during UNMISS consultations, members expected the negotiations to be challenging. While several members expressed their support for the draft and China appeared to signal a willingness to engage (perhaps calculating that such resolution could pressure the parties to resolve the conflict), Russia apparently said that sanctions would be counterproductive. However, during the negotiating session last Thursday (26 February), it seems Russia showed a willingness to engage. While unclear, one possible explanation is that Russia was showing deference to the African members of the Council, Angola and Chad in particular, who appeared to be supportive of the draft. (The other African member, Nigeria, was also not opposed to the draft).

There appear to have been differences over the timing of the resolution. Some members believe that it is important to adopt the resolution expeditiously to place pressure on the parties to negotiate in earnest prior to the 5 March deadline by which President Salva Kiir and opposition leader Riek Machar agreed to finalise a peace agreement. Others, however, are concerned that adopting the resolution right now could have the opposite effect, hindering the willingness of the parties to come to an agreement because of what they perceive as unfair treatment. Ultimately, it seems the Council has chosen to use the resolution to put pressure on the parties ahead of the 5 March deadline.

Some noted a surprising spirit of cooperation in the negotiations. A number of suggested amendments were incorporated in the final version in blue. At the request of China, a paragraph was added welcoming China’s mediation between the government and the opposition. Also at China’s suggestion, a paragraph was included expressing concern with attacks on UN and IGAD personnel. At the suggestion of two elected members, a paragraph was included expressing the Council’s concern with the illegal use of arms in South Sudan. Additionally, an elected member asked for language requesting that the Special Representatives of the Secretary-General for Children and Armed Conflict and for Sexual Violence in Conflict, share relevant information with the sanctions committee. (The Sudan People’s Liberation Army is listed as a party in the Secretary-General’s annexes to his annual report on children and armed conflict for the recruitment of children and the Working Group on Children and Armed Conflict is currently negotiating its conclusions concerning the Secretary-General’s report on children and armed conflict in South Sudan.)

One sensitive issue was the language regarding the listing criteria, which led Russia to break silence until its concerns were addressed. It seems Russia, along with one elected member, argued that one of the listing criteria should be changed from those who “undermine political processes” to those who “undermine the political process.” Their rationale was that the term “political processes” is too general and imprecise, and that the Council should only be focusing on one political process – i.e. that which leads to a solution to the conflict, as outlined in the African Union Peace and Security Council’s 29 January 2015 communiqué (PSC/AHG/COMM.1 [CDLXXIV]). As a result, the final text was amended to accommodate this request.

Another concern of Russia dealt with the listing criterion referring to attacks against humanitarian personnel and assets. As a compromise, in the final text this listing criterion refers solely to humanitarian personnel—and not assets.

The draft also indicates the Council’s intention to review the situation in South Sudan after 5 March, the deadline for a peace agreement, and after 1 April, the date by which the “pre-transition period” toward the formation of a transitional government of national unity is expected to commence, according to the IGAD-mediated agreement the two leaders signed on 1 February. Additionally, according to the draft, the Council will review the situation in South Sudan at 60-day intervals or more frequently in order to decide on an appropriate response, including the listing of senior figures, or possibly the creation of an arms embargo. The draft explicitly notes that the Council’s intention through this review process—and its consideration of sanctions—is to encourage the parties to stop the violence, cease human rights violations, form a transitional government of national unity, and allow for full access to humanitarian assistance.

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