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Sanctions Over-compliance - The Human Cost

Author: Dr. Angelika Hellweger  10 October 2023
2 min read

Angelika Hellweger writes about the impact of sanctions from a humanitarian perspective.

Professor Alena Douhan, who is a UN special rapporteur on unilateral coercive measures and human rights, recently voiced concern that unilateral sanctions are having a detrimental impact on the health of many. She believes that health systems around the world are highly vulnerable to the enforcement of such sanctions. This is a situation that is intensified, she says, by compliance with sanctions often going beyond what is strictly necessary or required (known as over compliance) and by financial institutions ending or restricting business relationships with clients to avoid, rather than manage, sanctions-related risk.

In her report to the 54th session of the Human Rights Council, Professor Douhan emphasised that this combination of factors is posing serious challenges to the procurement and delivery of medicines, medical equipment and other humanitarian goods – items that are actually exempt from any sanctions-related restrictions. The various forms and types of sanctions being imposed, coupled with the penalties for alleged circumventing of sanctions has, she said, had serious negative implications for the human rights of people living in sanctioned countries, including their right to adequate, appropriate and timely health care.

Professor Douhan has questioned whether existing humanitarian exemptions are effective enough. They face difficulties posed by complex and overlapping sanctions regimes, unclear authorisation and licensing procedures, financial restrictions and the fear many have of civil or criminal penalties for alleged violations of sanctions. As a result, the development of health facilities, the training and numbers of health workers, access to scientific knowledge and research, use of technology and software and disease prevention and control are all being hampered.

According to Professor Douhan, imposing and enforcing unilateral sanctions and the resulting efforts to avoid sanctions-related risk – known as zero-risk or de-risking policies - violates numerous international treaties, standards and conventions.

The introduction and application of various sanctions regimes generates both uncertainty and unpredictability for businesses around the world. This is what prompts the business world to follow the path of minimum risk – which leads to the problems Professor Douhan is highlighting.

Even if a business seeks the assistance of legal counsel, the question of whether a given transaction or activity violates sanctions - and what steps need to be taken to remove the risk of such sanctions non-compliance – can still prompt sharp debate and disagreement. If a business does all it believes it can do to be sanctions compliant, there is no guarantee that sanctions enforcers such as the US Office of Foreign Assets Control (OFAC) or the UK’s Office of Financial Sanctions Implementation (OFSI) will agree with its interpretation – which could then lead to enforcement action.

When factors such as mounting compliance costs, reputational risk and concerns about directors and employees facing civil or even criminal action are considered, it is perhaps unsurprising that some companies over-comply with sanctions or choose to cut or reduce all ties with those where there is a perceived sanctions risk. The unfortunate consequence of this, however, is that while commercial relationships are obviously affected, the humanitarian impact of sanctions is also felt – often severely.

In practice, humanitarian exceptions that are part of sanctions regimes have often proved too restrictive and difficult to be effective. When applying for licences to conduct their operations, civil society groups and aid workers are faced with many layers of bureaucracy. The process is so complicated and the punishment for inadvertently violating the sanctions can be so severe that non-governmental organisations (NGO’s) are often reluctant to take the risk of operating in the area where they could be of such valuable use.

Added to this, many banks will refuse to execute payment transactions in such areas, despite being permitted to do so. Such humanitarian payments are refused by banks as they are often for such a small amount that even moderate compliance costs make them unprofitable for the bank.

It is a set of circumstances that has led, as Professor Douhan has argued, to sanctions overcompliance making access to fuel, food and medicine virtually impossible for millions of people.

The article was originally featured on Solicitors Journal.

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Dr. Angelika Hellweger

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Angelika is a specialist in international, high-level economic crime investigations and large-scale commercial disputes. She has widely-recognised expertise in representing corporates and conglomerates in Europe, the Middle East, Africa and United States.

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