Australia commits to new sanctions measures to ensure respect for IHL

It's hard to imagine how the murder of a Russian tax auditor turned Government whistleblower is fundamentally shifting the global dial on holding individuals accountable for serious violations of the laws of war.

It reads more like the fictional Hollywood script, yet the legacy of Sergei Magnitsky has sparked a wave of worldwide sanctions reforms targeting serious violations of international norms. His posthumous influence – led by his former employer Bill Browder – has resulted in strengthened measures to ensure greater respect for IHL right here in Australia.

Australia is one of the first few countries to expressly include violations of international humanitarian law (IHL) into Magnitsky-style sanctions laws. On 8 December 2021, the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021 (Cth) (‘the Act’) came into force.

The Act amends Australia’s autonomous sanctions laws, enabling the Australian Government to make regulations that sanction those who engage in ‘egregious conduct’ such as corruption, and serious violations of human rights and IHL. Under these laws, perpetrators around the world who are responsible for, or complicit in serious violations of IHL, may be subject to a variety of sanctions measures in Australia, including travel bans, funds and asset freezes, and restrictions on access to Australian financial institutions.

With over 100 armed conflicts having been fought around the world in 2020 and civilians being the main victims of IHL violations in such conflicts, it is now more important than ever to introduce these kinds of reforms into sanctions law. If employed correctly, these reforms could complement Australia’s existing measures to ensure respect for IHL and to prevent, deter, punish and stigmatise serious violations of IHL, including the killing of civilians, healthcare workers, the sick and wounded, and the targeting of hospitals, schools and places of worship.

As a member of the International Red Cross and Red Crescent Movement (Movement), and as ‘auxiliary to the public authorities in the humanitarian field,’ Australian Red Cross has a mandate to work alongside the Government to ensure respect for IHL. As part of this role, Australia Red Cross has been advocating for the reflection of IHL principles in Australia’s autonomous sanctions laws for some time. In our submission to the Parliamentary Inquiry into a framework for autonomous sanctions under Australian law to target human rights abuses (‘Parliamentary Inquiry’), Australian Red Cross made recommendations for Australia’s autonomous laws to:

• include violations of IHL as a sanctionable activity;
• protect the ability of people to access impartial life-saving medical care and assistance, including family members of sanctioned individuals; and
• exclude from their application, the exclusively humanitarian activities of impartial humanitarian actors.

While imposing sanctions against perpetrators of IHL can serve as a deterrence and accountability mechanism, to be effective, these measures need to address a variety of issues in Australia’s autonomous sanctions regime.

First, the inclusion of IHL as a sanctionable activity needs to be properly scoped and defined in the Act’s implementing regulations. While the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Regulations 2021, which came into force on 21 December 2021, currently details the scope of sanctions for serious human rights violations and other matters, it does not make any reference to IHL. In our view, these Regulations should define the scope of sanctionable violations of IHL to include grave breaches of the Geneva Conventions and Additional Protocol I, war crimes, and other serious violations of IHL that have a significant adverse impact on civilians and others entitled to protection during armed conflict.

Second, sanctions should not impair the ability of people, including family members of people who have committed serious violations of IHL, from access to impartial life-saving medical relief and assistance, in Australia or overseas, in times of peace or armed conflict.

Finally, and most importantly for the activities of the Movement that support those rendered vulnerable by armed conflict, Australia’s autonomous sanctions laws should include clear exceptions for impartial humanitarian actors. These exceptions should enable such actors to continue operating in areas and under regimes affected by sanctions in a manner consistent with IHL, which protects rapid and unimpeded passage of humanitarian relief for civilians in armed conflict.

Without humanitarian exceptions, humanitarian organisations have limited pathways to ensure that they are not infringing autonomous sanctions laws. These pathways are not simple and can take time to put in place, which can have a significant impact on people in urgent need of humanitarian assistance. For example, sanctions laws require humanitarian organisations to undertake detailed assessments before commencing humanitarian work in areas or under regimes that may be impacted by sanctions, which can cause delays in the timely delivery of medical assistance, IHL training to military and armed groups, delivery of food, safe access to water and other lifesaving aid.

Further, breaches of sanctions laws can result in criminal convictions, which carry large fines for entities as well as imprisonment terms for individuals. Consequently, banks and other private sector actors may often limit or refuse to provide services to humanitarian organisations because of the risk exposure posed by operating in conflict and disaster zones. Similarly, donors may be reluctant to fund humanitarian operations in conflict and disaster zones, despite the humanitarian need, because of concerns around sanctions infringement.

These issues can seriously impact the ability for humanitarian organisations to mobilise quickly and respond to humanitarian crises, which undermines humanitarian activities protected under IHL.

A humanitarian exception to autonomous sanctions laws would provide some well-needed clarity to impartial humanitarian actors operating within areas or regimes affected by sanctions. Following the Magnitsky-style reforms, these exceptions will be increasingly critical to humanitarian actors operating in situations and areas where sanctions are imposed against individuals and regimes for committing serious human rights and IHL violations. This is because it is in these situations where civilians will be most in need of humanitarian assistance and where militaries and other armed groups would most benefit from IHL training.

The importance of protecting impartial humanitarian activity is at the heart of IHL and humanitarian principles. Including humanitarian exceptions in Australia’s autonomous sanctions regime would be one necessary step in an overall important direction to safeguard the life-saving work of impartial humanitarian actors in the full breadth of Australia's sanctions and counter-terrorism measures and legislation.